TB7-12183

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 : TB7-12183 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 Toronto, Ontario Appel instruit à Date of decision February 14, 2018 Date de la décision Panel Sloan, James Tribunal Counsel for the person(s) who is(are)the subject of the appeal Peter Obuba Kalu 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 claims that she is afraid to return to Nigeria, her country of nationality, as she fears that she will be persecuted by the state and members of the community due to her bisexuality. Her refugee protection claim was heard by the Refugee Protection Division (RPD) on November 13, 2014 and May 4, 2017, and rejected on June 9, 2017. She now appeals to the Refugee Appeals Division (RAD). DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that Ms. XXXX is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. BACKGROUND [3] Ms. XXXX claims that, on July 12, 2014, her boyfriend, XXXX XXXX.,1 confronted her with photographs he had found on the telephone of his sister XXXX XXXX., which depicted Ms. XXXX and Ms. XXXX XXXX engaged in sexual acts. She claims that MrXXXX XXXX. slapped her and that he and his parents threatened to expose her to the police or have her killed. When she returned to her family home, she claims that her mother, who had learned of her bisexuality, insisted she undergo "cleansing to excise [her] of the demons responsible for making [her] sleep with a woman."2 She fled to the home of a friend of her aunt and, with the aunt's financial assistance, procured a false passport and travelled to Canada, arriving on XXXX XXXX XXXX XXXX XXXX ANALYSIS [4] The determinative issue in this case is credibility. [5] The RPD found that Ms. XXXX had not met her burden of establishing a serious possibility of persecution on a Convention ground or that she would personally be subjected, on a balance of probabilities, to a danger of torture, a risk to life, or a risk of cruel or unusual punishment if she returned to Nigeria. Due to her credibility concerns, it held that she had not established that she identifies as or would be perceived to be a bisexual. The RPD found that the claimant lacked credibility based on the following findings: a) that MsXXXX XXXX testimony had been inconsistent as it pertained to the actions taken upon the discovery of her sexuality; b) that her testimony regarding the misspelling of her name in a newspaper article was inconsistent and c) that the lack of certain, reasonably available, supporting documents undermined Ms. XXXXs claim. [6] In addition, the RPD considered certain documents produced by Ms. XXXX and considered their impact on her credibility. It found that: i) an article reporting on the Nigerian Police's search for Ms. XXXX was not genuine; ii) an affidavit from the friend of Ms. XXXX's aunt to whose home Ms. XXXX fled prior to leaving the country was deserving of no weight; iii) a letter from Ms. XXXX's aunt was deserving of little weight; iv) letters of support from LGBT organizations were of little evidentiary value; v) photographs of people Ms. XXXX claims were her previous romantic partners were of no weight; and vi) the psychologist's report provided did not serve to explain away Ms. XXXX's credibility problems and was deserving of little weight in terms of establishing her allegations or her sexual orientation. [7] Ms. XXXX challenges several of the findings of the RPD. In particular, she argues that the RPD erred in finding her not to be credible for the reasons outlined above as items a), b) and c), as well as the findings by the RPD regarding the evidentiary documents elaborated above as items i), iii) and iv). [8] The RAD will consider each contested credibility finding and, once it has done so, make a preliminary cumulative finding as to Ms. XXXX's credibility. It will then consider the impact of the documentary evidence on Ms. XXXX's credibility. While the RAD has considered the findings that Ms. XXXX does not challenge-those relating to items ii), v) and vi) as outlined above-it will not be addressing them herein; those findings stand. [9] The RAD notes at the outset that the "Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression" (the "SOGIE Guideline")3 is relevant in this appeal and will inform the following analysis. The events immediately following the discovery of Ms. XXXX's sexuality (item a) above) [10] Ms. XXXXs evidence in her Basis of Claim (BOC) narrative was that when Mr. XXXX. discovered the photographs on Ms. XXXX.'s telephone that indicated Ms. XXXX and Ms. XXXX. were lovers he berated and physically assaulted her. Her BOC narrative provides further that Mr. XXXX. showed his parents the pictures, whereupon they made her leave their home, told her to never return and threatened to expose her and "get [her] jailed or killed."4 As noted by the RPD, this is at variance with her testimony at the hearing where she stated that both Mr. XXXX. and his family beat and kicked her. When the inconsistency between her oral testimony and the BOC narrative was put to Ms. XXXX she stated that the family did not beat her; they just threatened her. She then changed her story, saying that it was "mostly" MrXXXX XXXX. who was physically violent towards her. The RPD asked her if she could explain why her version of events changed. She said she could not. Based on the unexplained inconsistency, the RPD found that the events did not occur as Ms. XXXX claimed they had. [11] Ms. XXXX argues that the finding of the RPD in this regard was "overly microscopic" and notes that "[s]he does not need to state verbatim what was contained in her BOC."5 [12] The RAD agrees that Ms. XXXX does not, of course, need to state verbatim what was contained in her BOC narrative. However, her testimony should be consistent with it, absent a valid explanation. As regards the claim that the finding was microscopic, this could not be further from the truth. An inconsistency relating to how many people physically attacked her upon discovery of her sexual orientation is not a mere oversight; it is glaring. It is of particular importance given that the incident in which her sexuality was said to have been discovered, and the violence ensuing therefrom goes to the very heart of her claim. That she would be unable to be consistent in her evidence in this regard-as outlined by the RPD and confirmed by the RAD through its review of the BOC narrative and the recording of the hearing-undermines Ms. XXXX's credibility very severely. When given the opportunity to explain away her inconsistency, Ms. XXXX's reaction was to offer up further inconsistencies but no explanation. The RAD finds her credibility to be severely undermined by this clear and extremely significant inconsistency. The spelling of Ms. XXXXs name in the newspaper (item b) above) [13] A newspaper article from the Weekend Observer was introduced into evidence before the RPD by Ms. XXXX. The article is entitled "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX" and features a picture of Ms. XXXX. Her name is featured three times: twice in the body of the article and once in a caption under her photograph. While the article spells Ms. XXXXs first name correctly in the caption under the picture and in one of its usages in the text of the article, it misspells her first name (as "XXXX" instead of "XXXX") in the other usage in the text of the article. Ms. XXXX first testified that the newspaper had spelled her name correctly; however, she subsequently acknowledged the error. She explained that Nigerian newspapers frequently make errors. The RPD, while accepting that errors are made in newspapers, did not find it reasonable that Ms. XXXX would not initially notice the misspelling of her name, given the importance of the article. Consequently, the RPD drew an adverse inference about Ms. XXXXs credibility. [14] Ms. XXXX argues that it is unreasonable to impugn the claimant's credibility based on her having stated that she thought the spelling of her name was correct, only to later admit that it was not. She argues, that she had more on her mind than a minor misspelling of her name. The RAD agrees. It seems perfectly understandable that a person in Ms. XXXX's position would not notice the single, minor misspelling of her first name-especially when her name had been correctly spelled in two other instances in the article. The RAD finds that the RPD erred in making this finding. The RAD will not have regard to the misspelling of Ms. XXXX's name or her testimony thereupon when assessing her cumulative credibility below. The absence of supporting documents (item c) above) [15] The RPD noted that Ms. XXXX had not provided documents evidencing previous relationships, including a same-sex relationship in Nigeria in 2012 and the three same-sex relationships Ms. XXXX claims to have had in Canada. When the RPD asked her if she had attempted to obtain letters of support from any of the partners or asked any of the Canadian women to give testimony in support of her claim, she said that the relationships had all ended badly and that she had deleted all evidence of the relationships from her phone, lest it cause her further pain. The RPD rejected Ms. XXXX's explanation for failing to provide evidence about her Canadian same-sex relationships, noting that the relationships had occurred after Ms. XXXX's claim for refugee status and noting further that she was aware of the need to put forward evidence to support her claim. The RPD found Ms. XXXX's failure to submit such evidence to be particularly telling, given that she had provided photographs of herself with other partners (Mr. XXXX., Ms. XXXX., a former same-sex partner named XXXX, and a former opposite-sex partner named XXXX) and an affidavit (from her aunt's friend) in support of her claim. It found that her explanation as to why she did not provide supporting evidence of this kind was unreasonable and undermined her credibility regarding her allegations. [16] Ms. XXXX argues that the RPD was in error in its finding that her failure to provide supporting documentation regarding her previous same-sex relationships impugned her credibility. She argues that she has lost contact with her lover from 2012 and reiterates that her relationships with the three women in Canada had ended badly and that deleting all traces of the relationships was her way of dealing with her emotional issues. In relation to her emotional state, she makes reference to her psychological report and its findings, i.e. feelings of depression, anxiety and helplessness. [17] The RAD finds that the absence of evidence regarding Ms. XXXX's same-sex relationships is concerning. While regard must be had to the fact that documenting same-sex relationships may be risky for an appellant living in Nigeria,6 this is not a factor with her Canadian ex-lovers.7 Moreover, the RAD finds that Ms. XXXX knew of the importance of corroborating evidence in her claim as is clear from the fact that she obtained such evidence in the form of letters, photographs and an affidavit to support her claim. It rejects her explanation as to why she has no such evidence as implausible. To have had one of the relationships end so badly that she felt she must excise all traces of it would be one thing; but the RAD finds that an explanation that she felt that she must do so three times is clearly "outside the realm of what could reasonably be expected."8 The RAD finds that the more likely explanation for the absence of such evidence is that such relationships never existed. Preliminary conclusion regarding Ms. XXXX's credibility [18] It falls to the RAD to assess the two negative credibility findings above and make a preliminary determination as regards the credibility of Ms. XXXX. The RAD finds that the inconsistencies relating to the circumstances surrounding the discovery of Ms. XXXX's sexual orientation by Mr. XXXX. and his parents and the violence that ensued are so fundamental to the narrative that they severely undermine her claim. That finding, when coupled with the lack of evidence in relation to her other same-sex relationships and the absence of a plausible reason therefor, leads the RAD to make a preliminary finding, subject to the impact of the documentation to be discussed below, that Ms. XXXX is lacking in credibility. [19] Ms. XXXX highlights the principle, set out in Maldonado,9 that sworn testimony must be presumed to be truthful. The RAD notes that this presumption may be rebutted where, as here, there are valid reasons to doubt an appellant's credibility,10 or where an appellant has not met his or her onus to provide sufficient evidence to prove his or her claim and the explanation for failing to provide such evidence is not accepted.11 [20] It now falls to the RAD to consider the contested findings of the RPD in relation to the documentary support submitted by Ms. XXXX, in order to determine if those documents are sufficient to overcome its preliminary finding as regards Ms. XXXX's credibility. The genuineness of the newspaper article (item i) above) [21] The newspaper article provided Ms. XXXX's address and stated that the "Police Command [had] vowed to spread its drag nets [sic] across the nooks and crannies of the state and beyond with a view to apprehending XXXX XXXX for prosecution."12 Ms. XXXX gave oral evidence to the effect that it was the newspaper article that prompted her to leave her family home and go into hiding with her aunt's friend. She also testified that her mother told her that the police had come to her family home once in the period between the discovery of the photographs of her having sex (July 12, 2014) and the publication of the article (July 26, 2014); however, Ms. XXXX was not at home at the time. The RPD did not find it plausible that the police would come to her home only once before vowing to a newspaper reporter that it would search for her across the state (and beyond). This implausibility, when coupled with the clear objective evidence that fraudulent documents are widely available in Nigeria, led the RPD to place no weight on the newspaper article.13 [22] In reply to the RPD's finding on this point, Ms. XXXX argues that the RPD neglected to take into account the overzealous nature of the Nigerian Police. In support of her claim that they are overzealous, she refers to several documents in the objective evidence that indicate that the police harass, torture or kill detainees to extract bribes from relatives; that they use rape as a method of torture; that the police have used pepper spray on the genitals of some female detainees; that detainees are sometimes kept beyond the legally prescribed time limit for detention before being brought before a court; that the duration of detention could depend on whether a bribe is paid; that some suspects remain incarcerated indefinitely; and that police have been known to detain individuals who happen to be in the vicinity of a crime, sometimes for as long as several months. Ms. XXXX argues that the existence of this conduct on the part of the Nigerian Police, "justifies the fact that the RPD was not cognisant of the activities of the Nigerian Police."14 [23] The RAD finds that the conduct of the Nigerian Police outlined by Ms. XXXX, while deeply regrettable, is not relevant to the point being made by the RPD, i.e. that it would be illogical for the Nigerian Police to have come to her home only once and, when they did not find her, to provide her information to a newspaper in anticipation of a country-wide search, rather than to inquire at her known address a second time. Even accepting that the Nigerian Police are "overzealous" and that their conduct may, at times, be atrocious, the logic of the RPD is sound. The RAD agrees with this logic and agrees that, given the wide availability of fraudulent documents in Nigeria,15 the article should be given no weight. The letter from Ms. Oreye's aunt (item iii) above) [24] The RPD considered a letter, said to be from MsXXXX XXXX aunt, who lives in Italy. The letter states that Ms. XXXX was involved in a same-sex relationship while in Nigeria, that the relationship was discovered resulting in Ms. XXXX's life being threatened, that she advised Ms. XXXX to flee to Lagos to stay with her (the aunt's) friend and that she funded Ms. XXXX's travel to Canada. The RPD noted the following concerns about the letter: the aunt did not explain how she knew of Ms. XXXX's relationship and the identity of the aunt was not substantiated as would normally have been the case had the aunt provided an affidavit. Given that Ms. XXXX knew the importance of obtaining an affidavit, as evidenced by her having obtained one from the friend of her aunt's to whose home in Lagos she had fled, and given that bisexuality is not illegal in Italy-unlike Nigeria-the RPD took the view that it would have been reasonable for Ms. XXXX to have requested an affidavit from her aunt. When the RPD put this to Ms. XXXX XXXX she said that she did not know that an affidavit was necessary and, as such, had only asked her aunt for a letter. The RPD did not accept this explanation and placed little weight on the letter. [25] Ms. XXXX argues that the fact her aunt did not indicate how she knew about her (Ms. XXXXs) same-sex relationship does not make the aunt's letter less valid. She also argues the RPD erred by failing to give the letter weight simply because the information in it did not come in the form of an affidavit. Ms. XXXXs counsel argues that the RDP was being microscopic in making this finding and that it "seemed to have made up its mind to refuse the claim and therefore was hanging at every straw to impugn her credibility."16 [26] The RAD does not agree that the RPD's treatment of the aunt's letter was microscopic or indicated that the RPD had, somehow, made up its mind as regards Ms. XXXX's credibility. The RAD finds that a letter is, of course, a less authoritative document than a sworn affidavit with supporting evidence attesting to the identity of the affiant. The RAD also believes that it was not an error for the RPD to have noted the fact that Ms. XXXX's aunt did not state how she came to learn of Ms. XXXX's sexual identity; it may very well be that the aunt learned of Ms. XXXX's sexual identity from Ms. XXXX herself, especially given that the aunt lived in Italy throughout the period in question. The RAD agrees with the RPD's analysis and finds that little weight should be assigned to the letter from Ms. XXXX's aunt. The letters from LGBT support organizations (item iv) above) [27] As has become commonplace in claims based on sexual identity, Ms. XXXX obtained letters from organizations known for supporting the LGBT community-The XXXX XXXX the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and the XXXX XXXX XXXX XXXX XXXX-which attest to her participation in and attendance at events or programmes organized by the organizations. The RPD assigned these letters low evidentiary value in establishing Ms. XXXX's sexual identity, "especially in consideration of the previously identified issues with credibility."17 [28] Ms. XXXX argues that the RPD erred in finding that the letters from the LGBT community organizations have low evidentiary value. In particular, she relies on the fact that the letter from The XXXX describes her as an "active member"18 of its LGBT Refugee Support Group-a group that it characterizes as a "support group for LBGT members only."19 [29] The RAD notes that while it accepts that the support group has been organized by The XXXX for LGBT members only, there is nothing to prevent someone who is heterosexual or cisgendered from joining such a group, including someone who is of the view that doing so would bolster his or her claim for refugee status based on sexual identity. The weight to be given to participation in the events of such organizations in the overall assessment of a claimant's sexual orientation or gender identity will necessarily depend on the facts of the case and the nature and timing of that participation.20 [30] The RAD notes that the letters from the community organizations do not show a long-standing involvement. The letter from the XXXX XXXX is dated October 29, 2014 and speaks of Ms. XXXX having attended services since October 19, 2014-a period of 10 days. The letter from XXXX XXXX is dated November 3, 2014 and describes Ms. XXXX as having been registered as a client of XXXX XXXX since October 14, 2014-though it notes that she had accessed certain of its services a few weeks prior to that date. Finally, the letter from The XXXX which attests to Ms. XXXX being an "active member" of the LGBT Refugee Support Group is dated November 4, 2104. While the letter does not indicate the length of Ms. XXXXs association with The XXXX XXXX given that she did not arrive in Canada until mid-August, 2014, the length of her association with The XXXX at the time the letter was written was necessarily relatively short. In view of the nature of the evidence and of the short period of time during which Ms. XXXX has participated with the organizations, the RAD gives little weight to the documents. Overall credibility finding [31] Having considered the documentary evidence outlined as i) iii), and iv)-and in view of its finding that the newspaper article was deserving of no weight and that the letter from Ms. XXXX's aunt and the letter from the LGBT-focussed community organizations are deserving of little weight-the RAD finds that the documentary evidence is not such that it outweighs the credibly problems outlined above that emerged from her testimony. The RAD finds, on a balance of probabilities, that Ms. XXXX is not a bisexual. CONCLUSION [32] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that Ms. XXXX is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Sloan, James" Sloan, James February 14, 2018 Date 1 Only the first initial of Ms. XXXXXs same-sex lover and her lover's brother is used here to ensure privacy, as recommended at paras 5.1 and 5.2 of the Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, issued by the Chairperson, pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, May 1, 2017 ("SOGIE Guideline"). 2 Exhibit P-2, Appellant's Record, p. 20, Basis of Claim (BOC) Narrative, at para 8. 3 SOGIE Guideline, supra footnote 1. 4 Exhibit P-2, Appellant's Record, p. 20, Appellant's Memorandum, BOC Narrative, at para 7. 5 Exhibit P-2, Appellant's Record, p. 53, Appellant's Memorandum, at para 12. 6 SOGIE Guideline, supra footnote 1, at para 7.2.1. 7 SOGIE Guideline, ibid., at footnote 23, and the first three cases listed therein, where negative inferences were drawn based on a lack of corroborating evidence. 8 Valtchev, Rousko v. M.C.I. (F.C.T.D., no. IMM-4497-99), Muldoon, July 6, 2001; 2001 FTC 776, at para 7. 9 Maldonado, Pedro Enrique Juarez v. M.E.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979; [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 10 Radics, Sandor Andras v. M.C.I. (F.C., no. IMM-4020-13), Noël, February 4, 2014, 2014 F.C. 110, at para 30. 11 Rojas, Yoany Alexander v. M.C.I. (F.C., no. IMM-6992-10), Rennie, July 8, 2011, 2011 F.C. 849, at para 6. 12 Exhibit P-2, Appellant's Record, at p. 45. 13 Exhibit RPD-1, RPD Record, at p. 51, National Documentation Package (NDP) for Nigeria (31 March 2017), at item 3.22, Immigration and Refugee Board of Canada (IRB), NGA105657.E, 22 November 2016. 14 Exhibit P-2, Appellant's Record, p. 55, Appellant's Memorandum, at para 17. 15 Rojas, supra, footnote 11. 16 Exhibit P-2, Appellant's Record, p. 56, Appellant's Memorandum, at para 19. 17 Exhibit P-2, Appellant's Record, p. 11, Reasons for Decision, at para 37. 18 Exhibit P-2, Appellant's Record, p. 57, Appellant's Memorandum, at para 23. 19 Ibid. 20 As outlined in the SOGIE Guideline, supra, footnote 1, evidence of participation of "[a]n individual with diverse SOGIE ... in LGBTQ+ culture, organizations or events ... may be presented by the individual for the decision-maker to consider." (para 7.2.3). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 3 RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-12183