TB8-14046

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 / Dossier de la SAR : TB8-14046 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision November 19, 2018 Date de la décision Panel Anna Wyse Tribunal Counsel for the person(s) who is(are) the subject of the appeal Daniel Etoh Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX (the Appellant), a citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated May 18, 2018, rejecting his claim for refugee protection. He has not submitted new evidence and he has not requested an oral hearing. He has asked the Refugee Appeal Division (RAD) to substitute a positive determination, or in the alternative, to return the matter to the RPD for redetermination. DETERMINATION [2] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the appellant is a Convention refugee. BACKGROUND [3] The Appellant's allegations are set out in his Basis of Claim (BOC) form.1 In summary, the Appellant alleges that he fears returning to Nigeria as he is bisexual. [4] Specifically, the Appellant had a crush on a boy when he was 11 years old. The object of his affection, and the other children, picked up on these feelings and bullied the Appellant into leaving school when he was 15 years old. His first sexual relationship was with a man named XXXX XXXX and it lasted from 1997-2002. Due to pressure from his mother, he was in a relationship with a woman from 2006-2010. He was then in a relationship with a man called XXXX starting in 2012. [5] After again receiving pressure from his mother, he met and married a woman called XXXX in 2013. XXXX delivered their son in XXXX of 2014. In the meantime, his relationship with XXXX continued. [6] Due to training that his employer, XXXX, wanted him to take, he applied for a Canadian visa which was granted on XXXX XXXX, 2014. Shortly thereafter he changed employers, however his new employer also wanted him to come to Canada. He arrived in Canada with his boss on XXXX XXXX, 2015 with a plan to leave in XXXX, 2015. [7] On August 26, 2015 his wife called to tell him that the police were looking for him on allegations of homosexuality. After getting details from his wife and from XXXX XXXX, he learned that XXXX had been arrested and had given names of his friends to the police. [8] The Appellant's application for refugee status was received in Toronto on September 14, 2015. ROLE OF THE RAD [9] While reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. I may defer to the RPD's credibility assessment of oral testimony if I find that the RPD had a meaningful advantage in the circumstances.2 Reasons will be provided in my analysis if I find that the RPD had a meaningful advantage. ANALYSIS [10] While there are some inconsitencies in the Appellant's claim, I do not agree with the RPD that the Appellant's credibility has been impugned overall, and the inconsistencies are not enough to rebut the presumption that his sworn testimony is true3. I followed the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression4 (SOGIE Guideline) while assessing the Appellant's claim. The psychotherapist's report [11] As many of the Appellant's arguments and the RPD's reasons fall from an assessment of the psychotherapists report,5 I will assess this document first. [12] The RPD took a negative inference from the fact that the Appellant did not have follow up appointments with the psychotherapist when she noted in her report that he would benefit from additional appointments. The Appellant argues that the failure to pursue treatment or counselling does not undermine the weight to be attached to the report, and additionally there was no evidence before the panel that the Appellant had any kind of health insurance coverage that would pay for these sessions. I find the RPD erred in taking a negative inference from a failure to pursue treatment. By way of example, a failure to take insulin does not mean that a diabetic does not have diabetes. [13] The RPD found that it was not clear from the report whether the comments about the Appellant's focus and comprehension relate to examples that arose during the interview, or whether they relate to the Appellant's self-report to the psychotherapist. The Appellant argues that the psychotherapist was obviously referring to her personal observation in the excerpts quoted in the RPD decision, and further argues that the RPD is being over-vigilant and microscopic. I have reviewed the report and I find that the key points of the report have been taken into consideration by the RPD. The key recommendations of the psychotherapist are summed up in the following excerpt: Unable to read or write, Mr. XXXX ability to adequately prepare for proceedings is significantly compromised, and requires that he rely solely on memory. Mr. XXXX illiteracy - in addition to his limited education - is a source of shame, which has undermined his self-esteem, rendering him vulnerable and less resilient under pressure, and particularly in response to authority. As a result, his capacity to assert - and advocate for - himself is limited at this time. Consideration of this (in the form of repetition, explanation, pace of questions, the provision of additional time, and other accommodations as deemed necessary) is recommended. It has been shown that repeated stress can cause both cognitive impairments (such as decrements in simple and complex attentional tasks, verbal and visual memory, encoding, storage and retrieval) and structural changes in the hippocampus (Lupien, 2009). Mr. XXXX stress-related cognitive difficulties - affecting attention, retention, fluidity of thought, and recall - will likely impede his ability to provide a precise and coherent history or clear testimony during future proceedings.6 In accordance with these recommendations, the RPD repeated, explained and paced the questions put to the Appellant. For example, the RPD asked three times, in slightly different ways, why the Appellant left Nigeria and came to Canada.7 In another example, the RPD asked five times, in varying ways, why the Appellant remained in Canada for six months.8 When the RPD found that the recommendations of the report did not account for the discrepancies in the Appellant's testimony, the RPD made specific note of that in the decision, such as when testimony regarding the details of the physical altercation that occurred between the Appellant and his first boyfriend conflicted with the information in the BOC which will be discussed below. [14] The RPD expressed concern that the psychotherapist's session was conducted in English when the Appellant required an interpreter to complete his intake forms, his BOC, and for the hearing, and the RPD further found that this undermined the reliability of the report. The Appellant argues that he testified that he was able to understand the psychotherapist and explained things to her as best he could, and that she understood him. I agree with the RPD that the lack of use of an interpreter during the assessment is cause for concern. For example, the psychotherapist notes that the Appellant struggled with the order of months in a year.9 When communicating in a language that you are not fluent in, it can be difficult to remember the names of the months. Regardless of these concerns, I find that the RPD properly took this report into consideration when questioning the Appellant. [15] While I did not agree with the RPD's finding that the failure to pursue treatment lends itself to a negative inference, and while I am concerned that the psychotherapy session was conducted without an interpreter, I do find that the RPD followed the advice of the report during the hearing and in drawing conclusions, and I find that the RPD provided reasons where the report did not account for the discrepancies in the Appellant's testimony. Omission of agent of persecution [16] RPD found that the Appellant's failure to mention the Area boys, or Tout boys, in his BOC was a material omission. The Appellant argues that he did mention the Area boys in his BOC when he stated that he was afraid of community members amongst others. The Appellant further notes that the section of the BOC that the RPD referenced in the decision for this finding, 2(c), is regarding whether the Appellant sought state protection. Upon review of the BOC form, the question that is meant to ascertain the agent of persecution is 2(b), and it directly asks "Who would harm, mistreat or threaten you?"10 The Appellant's response to this question is "My family and community is already aware of my sexual orientation and I will be killed, because being bisexual is illegal and frowned upon."11 [17] I do not agree with the Appellant that his response to 2(b) says that he was afraid of his community members amongst others. I also do not agree with the RPD that the Appellant raised a fear of the police and not the Area boys. In the Appellant's BOC, as excerpted above, he says that he fears being killed as being bisexual is illegal. For these reasons I do not find this to be a clear and material omission. While the Appellant did affirm the form at the hearing,12 he also asserted that his BOC had not been read back to him.13 As the Appellant was therefore not able to properly review his answer, I do not find that this is a material omission that impugns his credibility. Credibility with respect to the Appellant's relationship with XXXX XXXX [18] The Appellant argues that the RPD erred when taking a negative credibility inference from the Appellant's inconsistency regarding the location of the fight between the Appellant and his ex-boyfriend XXXX XXXX. The Appellant argues that the panel should have taken into account that he cannot read or write, and how this compromises his ability to remember. The RPD found that the Appellant's illiteracy, and the resulting issues with recollection, do not explain the material inconsistency of where the fist-fight took place. [19] In his BOC, the Appellant writes that he fought with XXXX XXXX at work over nothing because he was very hurt that he had been dumped.14 During testimony, the Appellant stated that the break up and fight had occurred in XXXX's house and that a cousin broke them up.15 When this discrepancy was put to him, the Appellant confirmed that the version in his BOC was correct.16 While this is a clear inconsistency, when confronted the Appellant did not attempt to blur the two versions or gloss over the discrepancy. He clearly and directly indicated which version was correct and stated that he could not remember because of his condition and because it had been a long time.17 [20] When providing further reasons for this inconsistency, the RPD found that the Appellant had the opportunity of time to prepare for the hearing and the benefit of counsel who helped him to prepare the BOC form. The appellant argues that the fact that he is represented by counsel does not erase his limitations, as counsel does not testify on behalf of their clients. Here I refer to the psychotherapist's report which indicates that the Appellant is less resilient under pressure, and particularly in response to authority.18 While the Appellant did recount a story with a major discrepancy, he corrected the discrepancy when it was put to him. On a balance of probabilities, I find that the error is attributable to the Appellant's personal challenges as outlined in the psychotherapist's report. [21] The RPD found that there was a material inconsistency regarding the time that his relationship with XXXX XXXX ended, as the Appellant stated that he quit his job at XXXX XXXX XXXX around the same time as the break-up. In testimony,19 and in his BOC narrative, the Appellant alleges that both events occurred in 2002. However, on his Schedule A Form, it states that he worked there until 2013.20 The Appellant argues that as he is illiterate he relied on others to help him complete the forms without reading them back to him. I note that the Appellant did state during the hearing that the form had not been read back to him.21 As he was unable to properly confirm the forms, I do not find that this is a material inconsistency. [22] The RPD found that the letter from XXXX XXXX was unreliable due to the content of the letter and due to errors on the attached National Identity Card (NIC). The letter references XXXX's arrest, and as the RPD found that the Appellant has not been targeted by police due to the concerns regarding the Invitation to the Police document, the RPD found the account of XXXX being detained by the police to be not credible, and then extended this lack of credibility to the letter. I will assess the Invitation to the Police below, and then will assess this aspect of the letter from XXXX thereafter. [23] Regarding errors on the NIC, the RPD noted that the NIC listed XXXX XXXXs occupation as "Constrator," and as the Appellant was unable to provide a definition of this title, the RPD stated that this does not appear to reflect XXXX XXXX's occupation as described by the Appellant. The Appellant argues that "constrator" appears to be a misspelling of the work "contractor," and that such human errors are bound to happen and should not be used to impugn the Appellant's credibility. Unfortunately, there is no such identity card on the record before me, and as such I am unable to assess this document independently. Both the RPD and the Appellant agree that XXXX XXXX's listed occupation is "constrator," something that neither the RPD, nor the Appellant when questioned, recognized.22 As I cannot view the NIC, I do not give it any weight, and for the same reason, I do not find that it impugns the credibility of the letter from XXXX XXXX nor does it impugn the credibility of the Appellant's claim overall. The Invitation to Police is credible [24] The Appellant argues that the RPD erred when assessing the Invitation to Police23 document by relying on a Response to Information Request NGA 103988.E, in the National Documentation Package (NDP),24 as this document refers to police reports, not invitations from police. While I agree that this document is referring to reports only, the RPD largely used this document to assess the appearance of the police logo on the Invitation to Police. Specifically, the RPD noted that the logo displayed on police reports is the same across the country and does not vary by region, and additionally, the RPD used the sample logos in that document to assess the colour of the logo in the Invitation to Police provided by the Appellant. While I agree that this is the appropriate document to use to assess the logo on the Invitation to Police, I do not agree with the RPD's assessment of the logo. There are two attachments to NGA 103988.E, one displayed the logo in colour, and one displays the logo in outline only. This difference alone demonstrates that while the shape or form or components of the logo remain the same, a left-facing elephant for example, the colour of the logo may change. The Invitation to Police contains all of the components of the logo in the second attachment to NGA 103988.E and therefore I do not find that this logo detracts from the document's credibility. [25] The Appellant further argues that the RPD used a Canadian standard to assess the grammatical and typographical errors in the invitation to police document. The RPD noted that these errors appear in the pre-populated portion of a document that purports to be issued from the State Intelligence Bureau of The Nigeria Police. The RPD noted that that errors can be made by the police, who, according to objective evidence in the NDP are subject to "[a]serious lack of resources (communications equipment, vehicles, skilled leadership/training) [that] continues to undermine the effectiveness of the Nigeria Police Force (NPF)."25 The RPD further found that these errors have more relevance to the reliability of the document when considered with the irregularities in the logo, then they would if they were the sole concern about the document. [26] As I have assessed the logo and find that, on a balance of probabilities, it falls within the examples in the NDP, and therefore, as the grammatical and typographical errors are the only issue with the Invitation to Police, which, as per the NDP, are probable and even likely, I find on a balance of probabilities that the Invitation to Police is credible. Final assessment of the relationship with XXXX XXXX [27] Turning back to the letter from XXXX XXXX, as the Invitation to the Police is credible, there are no discrepancies between the letter and the record. This letter asserts that XXXX was arrested for homosexual activity and that XXXX provided the Appellant's name to police. For the reasons discussed above and because of this letter, I find on a balance of probabilities that the Appellant was formerly in sexual relationships with both XXXX XXXX and XXXX. Divorce Documentation [28] The Appellant argues that the RPD erred by making an adverse credibility finding from the Appellant's assertion that he did not receive the application for divorce, and because he did not know the reason for his divorce. The RPD notes that as the divorce documents do not reference the Appellant's sexual orientation, and further notes that this is as expected as such a notation would not be made given the context. As this does not support the Appellant's claim, the RPD assigned the documents no weight. I agree with the RPD that while these documents support the Appellant's narrative that he was married and divorced, they carry no weight in determining the central aspect of the Appellant's claim that he is bisexual. Lack of corroboration of relationship in Canada [29] The RPD found that it was not credible on a balance of probabilities that there was no corroborating evidence that the Appellant was in a one-and-a-half-year relationship with XXXX XXXX, the man that the Appellant identified as having helped him with some of this documentation for his claim. The Appellant argues that it is unreasonable for the RPD to expect that there would be documentation from his relationship as the Appellant is illiterate. Further, the Appellant argues that there was no evidence before the RPD that he took any photos during the relationship, and he further argued that there is no requirement that photographs must be taken in every relationship. While I agree with the Appellant that, on a balance of probabilities, it is credible that there are no emails, texts, cards or notes from their time together, I agree with the RPD that it is not credible, on a balance of probabilities, that there are no photographs, considering that the Appellant provided photos relating to other aspects of his claim. I find that the Appellant has not established that he had a relationship with XXXX XXXX. Delay [30] The Appellant argues that he signed his BOC within a week of receiving the phone call from his wife. The RPD found that the Appellant's five-month delay in making a claim, and the Appellant's allegation that he would have returned to Nigeria had he not been informed that the police were looking for him, to materially undermine the credibility of his account of this sexual orientation. As per the SOGIE Guideline: 8.5.11.1 An individual with diverse SOGIE may reasonably delay making a claim for refugee protection based on SOGIE out of a fear of reprisal for themselves or family members. A reasonable delay may also arise out of an individual's reluctance to reveal their SOGIE to a spouse or other family member, or in their realizing or accepting their SOGIE. [31] As the Appellant has asserted that it was the phone call from his wife that precipitated him wanting to remain in Canada, and as he had a wife and child back in Nigeria, and with guidance from the SOGIE Guideline as excerpted above, I find that there was no delay that would undermine the credibility of his claim. Personal Disclosures [32] The Appellant's argument here, as I understand it, is that the RPD was looking for inconsistencies or for evidence that lacks credibility, thereby building a case against the claimant and ignoring other aspects of the claim. Under this same heading, the RPD assessed a letter from the Appellant's mother and several letters from organizations that administer to the LGBTQIA community in Toronto. [33] The RPD found a material contradiction in the letter from the Appellant's mother as the letter, dated October 14, 2015, states that the Appellant's wife has fled with their son and she has not been able to find her,26 whereas the Appellant's testimony was that his wife has been missing since the time of the divorce which came several months later. I do not agree with the RPD that this is a material contradiction. The Appellant's wife could have been missing at the time of the letter, but found again, and then she might have gone missing again after the divorce. This is not a clear contradiction, and therefore I give the mother's letter weight to indicate that the Appellant's claims are credible. [34] Regarding the letters from community groups, I accept that the Appellant participated in these community groups, and specifically in their LGBTQ programs, however, given that there would be nothing to prevent a heterosexual or cisgender individual from participating in events held by a community group focused on assisting the LGBTQ community where, for example, that person considered that such participation would be advantageous to a refugee claim, evidence of such participation alone is not enough to establish that a claimant is a member of a social group in need of protection. However, as there are no significant credibility issues in this case, I give these letters weight to indicate that the Appellant is bisexual. The Appellant has established his claim [35] The Appellant has established, on a balance of probabilities that he was in a relationship with two men, XXXX XXXX and XXXX, and is therefore bisexual. The Appellant has further established that the Nigerian police have issued him an Invitation to Police due to his relationship with XXXX. Neither State Protection nor Internal Flight Alternative is Available to the Appellant [36] I find that there is no state protection or internal flight alternative available to the Appellant in Nigeria for the reasons that follow. [37] The country documents27 indicate that the general community, media and authorities in Nigeria treat homosexual persons very harshly. Homosexuality is viewed as "unnatural, sinful, and an abomination."28 Nigeria has severe homophobic legislation, consensual same-sex activity is illegal under federal law.29 Specifically, in 2014, the government passed its Same Sex Marriage (Prohibition) Act, which prohibits same-sex marriage and same-sex civil unions, and penalizes anyone involved in LGBTQ organizations.30 Punishments for violations of this legislation, or violations of Sharia law regarding homosexuality, range from 14 years in prison, to lashings, to execution by stoning.31 [38] Police themselves are the perpetrators of rights violations against LGBTQ persons. Police may investigate someone for same-sex activity for a variety of reasons, from being caught engaging in sex with someone of the same gender, to finding documents or photos, or simply based on the person's appearance or mannerisms. These arrests can be arbitrary, based on suspicion and without justification.32 During the investigation the police may use harassment, physical abuse, extortion, humiliation, torture, or detention for days or weeks without evidence or due process.33 [39] In light of the above analysis, I conclude that the Appellant is credible and has established that he will face persecution in Nigeria based on his sexual orientation. The Appellant is therefore a Convention refugee pursuant to section 96. CONCLUSION [40] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) "Anna Wyse" Anna Wyse November 19, 2018 Date 1 RPD-1, RPD Record, Exhibit 2. 2 M.C.I. v. Huruglica, 2016 FCA 93, paras. 70 and 103. 3 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.). 4 Immigration and Refugee Board (IRB), Chairperson's Guideline 9: Proceedings before the Immigration and Refugee Board of Canada involving Sexual Orientation and Gender Identity Expression, effective May 1, 2017 (SOGIE Guideline). 5 RPD-1, RPD Record, Exhibit 4, item 1. 6 Ibid., p. 94. 7 RPD Hearing at 0:13:00-0:16:50. 8 Ibid., at 1:25:30-1:33:00. 9 RPD-1, RPD Record, Exhibit 4, item 1, p. 93. 10 RPD-1, RPD Record, Exhibit 2, p. 29. 11 Ibid. 12 RPD Hearing at 00:10:10. 13 Ibid., at 00:30:00. 14 RPD-1, RPD record, Exhibit 2, p 25. 15 RPD Hearing at 00:45:50-00:49:00. 16 Ibid., at 00:51:50-00:58:50. 17 Ibid. 18 RPD-1, RPD Record, Exhibit 4, item 1, p. 93. 19 RPD Hearing at 00:45:50-00:46:50. 20 RPD-1, RPD Record, Exhibit 1, p. 49. 21 RPD Hearing at 00:27:15-00:30:10. 22 RPD Hearing at 1:15:15-1:17:00. 23 RPD-1, RPD record, exhibit 6, item 8. 24 RPD-1, RPD Record, National Documentation Package (NDP) for Nigeria dated March 31, 2017. Response to Information Request NGA103988.E, Appearance of police reports, including whether there are uniform characteristics or variance across the country, Immigration and Refugee Board of Canada, 23 April 2012. 25 RPD-1, RPD Record, Exhibit 13, Written submissions; Exhibit 4, National Documentation Package for Nigeria, version March 31, 2017, Item 7.28. 26 RPD-1, RPD Record, Exhibit 6, item 9. 27 RPD-1, RPD Record, NDP for Nigeria dated March 31, 2017. 28 Ibid., item 1.13, at p. 21. 29 Ibid., item 6.1 at p. 2. 30 Ibid., item 6.4. 31 Ibid., item 6.1 at pp. 1-2. 32 Ibid., item 6.13 at p. 1. 33 Ibid., at pp. 4-5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-14046 RAD.25.02 (September 18, 2018) Disponible en français 15 RAD.25.02 (September 18, 2018) Disponible en français