TB5-01212

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 File No. / N° de dossier de la SAR : TB5-01212 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX (A.K.A. XXXX XXXX XXXX) (A.K.A. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 27, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Bolanle Olusina Ogunleye Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant) is a citizen of Nigeria. She appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. [2] The Appellant did not submit new documents in support of the appeal and did not request a hearing under the provisions of Section 110(6) of the Immigration and Refugee Protection Act (the Act or IRPA). [3] The Appellant requests that the "appeal be allowed, and that the Appellant be found to be a Convention refugee or a person in need of protection" and that "the credibility findings of the RPD panel were made in "palpable and overriding error." DETERMINATION [4] Pursuant to ss. 111(1)(c) of the IRPA, the RAD allows the Appeal and remits the matter to the RPD for re-determination by a differently constituted panel and the panel is directed to explore Internal Flight Alternative (IFA) as well. BACKGROUND [5] The Appellant alleged before the RPD that she fears returning to Nigeria because she fears persecution or harm due to her sexual orientation as a bisexual. She was involved intimately with XXXX. XXXX husband "Chief XXXX" found out about the same-sex relationship between his wife and the Appellant. On XXXX XXXX, 2014, Chief XXXX confronted the Appellant and accused her of turning XXXX into a lesbian. The Appellant went to her parents' house and from there went into hiding in Ibadan, Oyo State to stay with a friend. The police accompanied by Chief XXXX have been searching for the Appellant since that time. The Appellant has a minor child with her common-law husband XXXX. The Appellant left Nigeria with the help of an agent and claimed protection in Canada. ROLE OF THE RAD [6] The Appellant submits that Federal Court decision, Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [7] The case law is still evolving but at this time Huruglica appears to be widely accepted and applied. Thus, guided by Huruglica, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. MERITS OF THE APPEAL [8] The Appellant's issue is "Whether cumulatively the decision of the RPD Panel is unreasonable." With this statement the Appellant seems to suggest that the standard of review for the RAD is reasonableness. The Appellant also submits that the RPD erred in its credibility assessment by ignoring or misconstruing relevant evidence; and that the RPD was cavalier and unreasonable in its understanding and application of the Chairperson's Gender Guidelines2 by observing its niceties and failing to apply its principles to the oral and documentary evidence of the Appellant in all its analysis in the RPD's Reasons. [9] I will rephrase the issues as is the Appellant a Convention refugee or a person in need of protection? ANALYSIS [10] A review of the RPD's reasons and the transcript in the Appellant's record show that there are unresolved questions that need to be answered? The RAD is not in a position to make a finding whether or not the Appellant is a Convention refugee or a protected person. [11] I note that the RPD did not identify issues at the start of the hearing, and considered credibility as the determinative issue. In my opinion, by not identifying all potential issues including Internal Flight Alternative (IFA), the RPD restricted its own options for a thorough investigation of the merits of the claim. [12] There are several issues and questions that have been unexplored or unexplained in the RPD's reasons, for example: [13] The Appellant declared that she has received threats from the community and the police.3 There does not appear to be any reference to threats from the community in her testimony. [14] There is no reference in the transcript to XXXX being punished4 or harmed even though police were involved. It is also not clear why the Chief would make an issue that his own wife who is also a lesbian and thus punishable under Nigerian laws. [15] There is no reference to why the Appellant applied for a U.S. (United States of America) visa in 2013. [16] The Appellant's testimony that passport is a preferred identity document in Nigeria is not supported by objective documentary evidence. [17] There is confusion between who applied for her student visa - her common law partner or some other person, an agent. [18] There is no analysis of the chief's powers, even though the Appellant identified his as just a traditional title from the XXXX tribe.5 [19] The Appellant testified that the original corroborative documents had not arrived at the time of the hearing. I note that the originals were not presented to the RPD prior to rejection of the claim or even on appeal that was received by the Immigration and Refugee Board (Board) two months after the rejection. [20] The RPD rejected the claim solely on credibility. A finding of a lack of credibility is usually sufficient to dispose of a claim for protection. However, such a finding has to be based on material facts, errors, omissions and or inconsistencies. The claimant has to be given an opportunity to provide an explanation. If the RPD finds that the explanation is not reasonable, the RPD has to provide clear reasons why it found the explanation unreasonable. [21] The RPD provided cogent reasons for finding that the Appellant's explanation for the issue unreasonable. Yet in paragraph 18 of its Reasons, the RPD stated: The panel did not find the claimant's explanations to be reasonable under the circumstances. The panel accordingly gives little weight to documents in terms of establishing the claimant's allegations of persecution, especially considering the cumulative credibility concerns, as set out earlier; and also the fact that the documentary evidence in the National Documentation Package (NDP) describes the availability of fraudulent documents from the claimant's country. [22] I am not clear as to why the RPD found the Appellant's explanation was not reasonable by reading that paragraph in the Reasons. [23] I also agree with the Appellant that the RPD appeared to have focussed excessively on interchangeable use of Appellant's first and second name. [24] However the Appellant's allegations that the RPD did not consider gender guidelines appropriately appear to be inadequately supported by fact. [25] Based on the record, I am unable to make a finding whether the Appellant is a Convention refugee or a person in need of Canada's protection. Therefore pursuant to Section 111(1)(c) of the IRPA, the RAD refers the matter back to the Refugee Protection Division for re-determination, giving the directions to the RPD to raise IFA also as an issue at the start of the hearing and exploring it considering the particular situation of the Appellant and the profile of the alleged agent of persecution. CONCLUSION [26] The RAD remits the matter back to the RPD for re-determination by a differently constituted panel. The panel is to consider internal flight alternative as well. [27] This appeal is allowed. (signed) "Atam Uppal" Atam Uppal May 27, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Guideline on Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993, Update: November 1996, as continued in effect by the Chairperson on June 28, 2002 pursuant to section 159(1)(h) of the Immigration and Refugee Protection Act. 3 Exhibit P-2, Appellant's Record, at p. 13 answer to Q 2. 4 Exhibit P-2, Appellant's Record, at p. 119. 5 Exhibit P-2, Appellant's Record, at p. 122. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-01212