TB8-29913

RAD File / Dossier de la SAR : TB8-29913 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX (a.k.a XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 9, 2020 Date de la décision Panel Christopher Marcinkiewicz Tribunal Counsel for the person who is the subject of the appeal Richard Odeleye Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellant, XXXX XXXX, appeals the decision of the Refugee Protection Division (RPD), dated November 6, 2018, rejecting her claim for refugee protection. The Appellant asks the Refugee Appeal Division (RAD) to substitute a finding that she is a Convention refugee or a person in need of protection.1 DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA),2 I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. As a result, this appeal is dismissed. BACKGROUND [3] The Appellant is seeking protection as she believes she will be persecuted in Nigeria due to her husband's bisexuality that has been discovered by her community. Further, she believes she will be harmed by the police who suspect she aided her husband in fleeing Nigeria. ROLE OF RAD [4] Where the RAD determines that the RPD had a meaningful advantage in assessing the credibility of the Appellant's evidence, it may defer to the RPD findings.3 Having listened to the RPD audio recording, I find the RPD did not benefit from such an advantage in assessing the Appellant's evidence. As such, I have considered the RPD's findings on the correctness standard. NO NEW EVIDENCE & NO REQUEST FOR AN ORAL HEARING [5] As per the Appellant's affidavit, she is not submitting new evidence for the purposes of this appeal, nor does she request an oral hearing.4 As a result, I must proceed without a hearing. Contained in this affidavit is an attempt by the Appellant to try to explain some of the issues with her evidence identified by the RPD in their decision. However, the Appellant has not explained, as it is her obligation to do so, how this new affidavit evidence meets the requirements of section 110(4) of IRPA to be admitted as new evidence. As a result, I decline to admit the information in the affidavit that attempts to explain the issues raised in the RPD decision. [6] Furthermore, on June 15, 2020, the Refugee Appeal Division (RAD) provided Counsel with a notice related to the COVID-19 pandemic. This notice advised Counsel that they had 30 days from the date that the notice was received to submit any document or written submission in support of the appeal. Additionally, counsel was also advised that the other requirements of Rule 29 and 110(4) continue to apply. [7] On July 20, 2020, Counsel sought an extension to provide submissions until August 4, 2020. On July 23, 2020, Counsel's request was granted.5 However, no documents or written submissions have been received. ANALYSIS [8] The determinative issues for the RPD related to the Appellant's credibility. [9] The Appellant argues generally that the RPD erred in its credibility assessment by ignoring relevant evidence and making findings on peripheral issues. Further, it is argued the RPD erred by not conducting an analysis under section 97 of the IRPA. Psychological Report [10] The RPD had before it a psychological report from Dr. XXXX dated XXXX 2018.6 While the RPD referenced other pieces of evidence tendered by the Appellant, there is no mention of this psychological report. [11] The Appellant argues the RPD erred by ignoring the psychological report which provided insight into the Appellant's mental and emotional state and served as a lens through which her evidence ought to have been considered. It is argued this evidence was of significance and under such circumstances, the RPD ought to have referred to the evidence in its decision. [12] I agree with the Appellant that the RPD erred by not indicating in its decision that it considered the content of the psychological report and the impact, if any, it had on the RPD's assessment of the Appellant's evidence. I have independently reviewed and assessed the evidence. While I find the RPD erred by not referring to this important evidence, I also find that the RPD did, whether intentionally or not, conduct the hearing in such a manner as per the doctor's recommendation to accommodate the Appellant.7 [13] Specifically, after listening to the audio recording of the hearing, I find the RPD conducted itself in a professional, sensitive, and calm manner when questioning or otherwise interacting with the Appellant. The RPD gave clear explanations at the beginning of the hearing for the Appellant in the event she did not understand or know the answer to a question and asked the Appellant if there was anything the RPD could clarify for her.8 Further, the RPD displayed patience with the Appellant and gently redirected her when the Appellant diverged from the question or topic raised or did not actually answer the questioned posed, as well as, asked the Appellant to slow down when she spoke quickly in order for the RPD to understand her testimony. The record indicates numerous examples where the RPD repeated questions posed and either were not answered or not understood, or sought to understand the Appellant's evidence, and did so in a non-abrasive or non-confrontational manner.9 [14] Now, the Appellant asks that her evidence be viewed through the lens of the mental health issues she was dealing with at the time. While I accept the Appellant had some challenges in her life before the hearing and undoubtedly the hearing process brings on its own set of difficulties and pressures given what is at stake, I do not agree that the doctor's assessment is sufficient to excuse or cure the issues with the Appellant's evidence as it relates to her credibility. I make this finding for a number of reasons. [15] To begin, I have considered the Appellant's background as a university graduate who held positions and received a promotion to XXXX XXXX within the XXXX XXXX XXXX XXXX.10 She is someone who has travelled internationally to various countries, including the XXXX XXXX, the United States of America, and Canada previously.11 This evidence reveals the Appellant is sophisticated and experienced in both her education and employment, as well as, previously exposed to new environments through regular international travel. Such a history, of course, does not mean she can not suffer from mental health issues. [16] In my view, with respect, the doctor's report is problematic in several ways. First, it is a report of an assessment that took place on XXXX XXXX, 2017, over XXXX months before the actual RPD hearing. This is significant as, while I accept the doctor's observations and findings, the dated nature of the report prevents it from establishing whether the Appellant still faced the same challenges at the time of the RPD hearing. I note the assessment was conducted within three months of the Appellant's arrival and while it paints a picture of what the Appellant was going through at the time, it does not speak to how long one may suffer from such symptoms as mental health conditions can improve, deteriorate, or remain stagnant. [17] Secondly, the report is based almost exclusively on self reported information obtained from the Appellant. There is no indication that the assessor tested the credibility of the information provided nor is there information about whether the assessment tools contain features that test for authenticity or genuineness of the information provided. In other words, the testing results are only as good as the information provided, whether or not it is actually true is not the focus of the assessment. [18] Additionally, the doctor made certain observations without explaining on what basis they reached their conclusions nor explaining what impact such observations had on the assessment. For example, the doctor notes the Appellant "presented as sad and softly spoken. She did not make much eye contact".12 It is unclear to me what impact or purpose such an observation had on the assessment or if the doctor considered any other factors. For example, perhaps the Appellant is naturally soft spoken or shy and does not make frequent eye contact. Or, perhaps there are cultural factors that contribute to such actions? Clear details and explanations are absent on presumably significant aspects of the assessment. [19] Finally, the doctor's opinion is that the Appellant's mental health condition "may" impair her capacity to present her refugee claim and should be considered when assessing her credibility.13 This is far from a definitive statement and in my view should not automatically serve as a cure all for credibility issues, as essentially argued by the Appellant. Such an approach would be highly problematic and convenient for the Appellant as it asks to accept all the favourable evidence and discount the problematic evidence on account of mental health issues. In my view, the task of assessing credibility should be left with the decision maker, being mindful of the mental health concerns the Appellant at one time experienced. [20] While the doctor's report is informative in terms of the Appellant's mental health diagnosis as of XXXX 2017, it is problematic in some key areas as outlined above. As a result, I give the report minor weight in my overall assessment of the Appellant's case. Relevant Credibility Findings Considered Significant Finding Not Disputed on Appeal - Marriage Still Intact [21] There was an important finding made by the RPD that contributed to the overall rejection of the Appellant's claim and was not challenged on appeal. [22] Specifically, the RPD found the Appellant's husband's testimony lacked credibility and added little to the Appellant's claim. The RPD noted the vague evidence regarding the husband's relationship with the Appellant and others, ultimately concluding on a balance of probabilities that the marriage is still intact and the husband's sexual orientation did not result in the Appellant going in hiding.14 [23] Having independently reviewed the evidence, I agree with the finding of the RPD for the same reasons. The husband's testimony about his current relationship status generally and with his wife was vague. Additionally, the Appellant coming to join her husband, who had apparently lied to her for their entire relationship, used her as a "cover" for his sexual orientation, admittedly did not love her, and is the source of her great shame and pain, seems odd. As a result, I draw a negative inference in respect to the Appellant's credibility in respect to her relationship with her husband. Delay in Departing Nigeria Indicative of a Lack of Subjective Fear [24] The RPD found that the Appellant's XXXX-month delay in departing Nigeria was indicative of a lack of subjective fear. This was in light of her evidence that she went into hiding when her husband's same sex relationship was discovered in XXXX 2017 and repeated threats from the community and the police. This was at a time when the Appellant had a valid Canadian visa. [25] The Appellant argues that the XXXX-month delay in departing Nigeria was reasonably explained by the Appellant. Notably, it is argued the Appellant did not initially intend to come to Canada, moved away from her community to her family's residences after experiencing threats and attacks, and that it was the arrest by police in XXXX 2017 that resulted in her fleeing but she required time to acquire funds for her travel to Canada. Finally, the Appellant submits that she provided the "correct" answer when asked by the RPD if she felt safe in Nigeria, explaining that she stated she did not do anything wrong and that she was not guilty of anything. [26] I have conducted my own independent assessment of the evidence and findings and in my view the RPD did not err as alleged. I do not accept the Appellant's explanation that it was only after the arrest by police in XXXX 2017 that she no longer felt safe and decided she had to flee. Her actions as evidenced by her BOC narrative and testimony indicate that she almost immediately went into hiding at her family's residences after her husband's sexuality was discovered as posters began appearing in their community and this brought her shame and questioning about her husband. She further indicates that the police visited her mother's and sister's place with threats and insisted that she bring her husband to the police, she would only attend her residence in disguise and at night, and was verbally and physically assault by local hoodlums who robbed her with a gun in XXXX 2017.15 I also note that the Appellant's testimony was that she was afraid of the police, as well as, the community because everywhere she went her life was threatened.16 Finally, at the time of these incidents the Appellant was in possession of valid visas for both the United States of America and Canada, countries that she had previously visited.17 In my view, it would be reasonable to expect, given the alleged threats and assaults and being in hiding since XXXX 2017, that the Appellant would have departed Nigeria much sooner than XXXX 2017 to either Canada or the USA. [27] Furthermore, I do not accept, for the same reasons as the RPD, the Appellant's explanation that she was unable to leave due to a lack of money and she had to work and save up in order to depart Nigeria. The immigration forms she completed indicate in terms of her employment that as of XXXX 2017 she was "[i]n hiding" and lists "none" under the name of her employer.18 This is in contrast to her other employment experiences listed that provide both her employed status and employer's name. When confronted with this apparent contradiction, the Appellant explained that she worked while in hiding.19 I reject this explanation as it directly contradicts her immigration forms which I find more reliable as they provide a detailed, chronological account of her employment situation and if indeed she was still employed, it would be reasonable to expect that she would have stated as much on the form. Finally, as noted by the RPD, the Appellant is not of limited financial means as she and her husband travelled internationally on an annual basis, to countries like the XXXX XXXX (2013), the USA (2014, 2015) and Canada (2015-2016) which the Appellant had $XXXX available for approximately a XXXX-day vacation.20 As a result, I find on a balance of probabilities that a lack of funds likely did not impact her ability to leave Nigeria. [28] Finally, the Appellant was asked several times about her feelings of safety in Nigeria. Initially, she indicated she did not believe she could live safely in Nigeria after being arrested by police. When asked specifically if she thought she could live safely in Nigeria between XXXX 2017 and her arrest in XXXX 2017, she responded "no" but explained "because I wasn't guilty initially I knew what my husband did was something very bad and something nobody wants to hear in Nigeria" again noting she was not the guilty person.21 When asked why she did not leave earlier after being attacked and robbed (in XXXX 2017) and before being arrested, the Appellant explained that she was a banker and still going to work and after having money taken from her and money used for bail, she did not have enough funds to buy a ticket to travel.22 [29] I reject the Appellant's explanations and while I agree she did not do anything wrong, she has indicated that she was the subject of insults, threats and assaults from the community long before the arrest by police, as well as, subjected to threats from the police who went to her family's residences before the arrest. Furthermore, her evidence of going into hiding in XXXX 2017 is also indicative of the alleged fear she believed she faced as of that date, not only after her arrest in XXXX 2017. As for the issue of having funds for travel, in my view, as mentioned above, the Appellant was of significant financial means and given her contradictory evidence regarding whether or not she worked while in hiding, I do not accept that this was the basis for the delay in leaving Nigeria. [30] In summary, I find the Appellant's lengthy delay in departing Nigeria is indicative of a lack of subjective fear and undermines her credibility and stated fear in Nigeria. Contact and Plans to Come to Canada and Live with Her Husband [31] The RPD found that the Appellant's evidence was unclear about why and under what circumstances she began communicating with her husband again and when she found out he was in Canada. Such details were omitted from her Basis of Claim form and the Appellant explained that she thought she could provide these details at the hearing. [32] The Appellant argues this omission was "minor or collateral...and did not go to the root of her claim" and the RPD erred by relying on it in its analysis. [33] Having independently reviewed the evidence, I find the RPD was correct when it identified this inconsistency in the evidence. I disagree with the Appellant that this was a minor omission as it goes directly to communications and plans she made with her husband, the person who was the source of her ill-treatment in Nigeria, betrayed and lied to her for many years, and only married her as a cover to his sexual orientation and to please his mother. [34] In my view, details of how and when the couple began speaking again, in light of the Appellant's initial evidence that she did not speak to her husband at all, is a significant change in circumstances and ought to have been mentioned in the BOC. Furthermore, I reject the Appellant's explanation that she believed she could provide these details at the hearing. The BOC instructions are clear, individuals are expected to "include everything that is important for your claim. Include dates, names and places wherever possible".23 In my view, a reconnection and plans to come live with her husband, after all that had occurred, is a very important detail and aspect to the claim. The omission leads me to draw a negative inference in respect to the Appellant's credibility. [35] In summary, based on the above findings consisting of the Appellant's and her husband's marriage being intact, her unreasonable delay in departing Nigeria, her inconsistent evidence relating to her work while hiding, and her omission regarding when and how she regained communication with her husband, I find on a balance of probabilities she is likely not of interest to Nigerian police nor her local community as alleged. No Error by Not Separately Considering Allegation Under Section 97 [36] The Appellant argues that the RPD erred by not considering the Appellant's claim under section 97 of the IRPA. [37] While I agree there may be occasions where a separate analysis is required under section 97, this is not the situation in the current case as, after my own independent review of the evidence, I find the Appellant is not credible in respect to important aspects of her claim, ultimately finding the allegations are not established on a balance of probabilities. Credibility findings in this case permeate the relevant and important aspects of the claim, including both refugee and protected person status determinations. CONCLUSION [38] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the IRPA. (signed) "Christopher Marcinkiewicz" Christopher Marcinkiewicz September 9, 2020 Date 1 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 60, para. 33. 2 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended, at ss. 111(1)(a). 3 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 4 Exhibit P-2, Appellant's Record, at p. 14, para. 2. 5 Exhibit RAD-1, Member's Directions, dated July 23, 2020. 6 Exhibit RPD-1, RPD Record, Exhibit 11, p. 163. 7 Exhibit RPD-1, RPD Record, Exhibit 11, p. 166, item 7. 8 RPD Hearing, Recording from November 1, 2018, at [09:00-10:00] 9 For example, see RPD Hearing, Recording from November 1, 2018, at: [17:00], [29:00], [38:00-40:00], [50:00-51:00], [1:00:00], [1:16:00] 10 Exhibit RPD-1, RPD Record, Exhibit 13, pp. 192-201. 11 RPD Hearing, Recording from November 1, 2018, at [12:00-13:00] 12 Exhibit RPD-1, RPD Record, Exhibit 11, p. 165. 13 Exhibit RPD-1, RPD Record, Exhibit 11, p. 166, item 6. 14 Exhibit RPD-1, RPD Record, RPD Decision, p. 11, para. 41. 15 Exhibit RPD-1, RPD Record, Exhibit 2, p. 20-21. See also RPD Hearing, Recording from November 1, 2018, at [52:00-55:00] 16 RPD Hearing, Recording from November 1, 2018, at [13:00-15:00] 17 Exhibit RPD-1, RPD Record, Exhibit 1, pp. 73-74, 88. 18 Exhibit RPD-1, RPD Record, Exhibit 1, pp. 59-60. 19 RPD Hearing, Recording from November 1, 2018, at [42:00-43:00] 20 Exhibit RPD-1, RPD Record, Exhibit 6, pp. 121-122. 21 RPD Hearing, Recording from November 1, 2018, at [26:00-28:00] 22 RPD Hearing, Recording from November 1, 2018, at [28:00-30:00] 23 Exhibit RPD-1, RPD Record, Exhibit 2, p. 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-29913 2 RAD.25.02 (January, 2020) Disponible en français Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français