TB9-17114

RAD File / Dossier de la SAR : TB9-17114 TB9-17115 / TB9-17116 / TB9-17117 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) XXXX XXXX XXXX (a.ka. XXXX XXXX XXXX) XXXX XXXX XXXX Personnes en cause (a.ka. XXXX XXXX XXXX XXXX) Appeal considered / heard at Calgary, AB Appel instruit / entendu à Date of decision December 18, 2019 Date de la décision Panel Derek Vermette Tribunal Counsel for the persons who are the subject of the appeal Ugochukwu Udogu Barrister and Solicitor Conseil des personnes en cause Designated representative XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) for XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) XXXX XXXX XXXX (a.ka. XXXX XXXX XXXX) XXXX XXXX XXXX Représentant(e) désigné(e) (a.ka. XXXX XXXX XXXX XXXX) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX, a.k.a. XXXX XXXX XXXX, is the mother of her minor children, XXXX XXXX XXXX, a.k.a. XXXX XXXX XXXX (female), XXXX XXXX XXXX, a.k.a. XXXX XXXX XXXX (male) and XXXX XXXX XXXX, a.ka. XXXX XXXX XXXX XXXX (male) (collectively the Appellants). The Appellants are Nigerian citizens and have appealed a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. [2] The RPD reached its decision because it found that although the Appellants fear that family members would force female genital mutilation (FGM) on XXXX, the minor female Appellant, the documentary evidence on file indicates that the determinative choice of FGM is up to the parents. The RPD noted that the parents did not consent to FGM being performed on XXXX, and that therefore the threat of FGM was not well-founded. The RPD also determined that given various credibility concerns, it was not able to find, on a balance of probabilities, that XXXX was of a bisexual orientation. The RPD therefore found that, on a balance of probabilities, there is not more than a mere possibility that the Appellants would be persecuted for a Convention1 ground or that it is likely they would be subjected personally to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture. [3] The Appellants submit that the RPD erred by ignoring, disregarding and misconstruing evidence, as well as the nature of the claim. The Appellants also argue that the RPD erred by reaching improper negative credibility findings. [4] After a fulsome and independent analysis of the evidence, I find that the RPD erred by providing insufficient reasons to justify its decision, and that further inquiry is required to make a reasoned decision. I therefore allow the appeal, and refer this matter to the RPD for re-determination by a differently constituted panel. My directions with respect to the re-hearing are set out in my analysis below. BACKGROUND [5] The following background information in this section derives from information provided by XXXX in her Amended Basis of Claim (BOC) Narrative. XXXX married her husband, XXXX XXXX, in 2008, but XXXX was still maintaining her relationship with XXXX, a girl she met in university. On XXXX XXXX, 2016, XXXX cousin, XXXX, caught XXXX making love to XXXX. On XXXX XXXX, 2016, XXXX travelled to the village for a ceremony. XXXX had informed his family of XXXX sexual encounter with XXXX. The following day the family gathered to beat XXXX, strip her, pour red hot pepper on her vagina, and force her to swear to the gods of their village to desist from having sexual relations with a woman. She was locked in a room, and told that she would undergo spiritual cleansing and that they were going to circumcise XXXX to avoid her engaging in similar sexual behaviour. Before returning home to XXXX, XXXX went to the hospital for an ear injury she sustained during the beating. She was referred to a second hospital for proper treatment. [6] Before they left the village, XXXX and XXXX were told to return to the village at Christmas for XXXX circumcision, otherwise XXXX would be reported to the police for her sexual behaviour. XXXX and XXXX planned that she and the children would leave the country to avoid the circumcision, which they agreed they did not want performed on XXXX, and the ritual spiritual cleansing. They applied for a Canadian visa in XXXX 2016, but were denied. They applied for an American visa, which was approved in XXXX 2016. [7] XXXX refused to show up with XXXX in XXXX for the circumcision and ritual spiritual cleansing. Soon after, they started receiving phone calls from XXXX family members threatening that they would face the consequences of their refusal to bring XXXX for circumcision and the ritual spiritual cleansing. [8] On XXXX XXXX, 2017, some of XXXX family members came to XXXX unannounced. XXXX was at work, and the children were at school. XXXX was beaten up and was threatened that she would be brought out to the public if she failed to surrender XXXX and herself on the first week of XXXX 2017 for the circumcision and ritual spiritual cleansing. [9] On XXXX XXXX, 2017, XXXX and the Minor Appellants left Nigeria for the United States of America (USA) to seek protection. Upon arrival, they determined that they could not make a claim in the USA given the political rhetoric. On XXXX XXXX, 2017, with the assistance of someone who they met in New York, they came to Canada. They handed over their passports to the individual that assisted them. [10] Since arriving in Canada, XXXX has informed XXXX that his family members have come to look for XXXX and XXXX at their house in XXXX. XXXX also said that their neighbour informed him that some people came again, along with policeman, to their house in XXXX. ROLE OF THE REFUGEE APPEAL DIVISON (RAD) [11] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.2 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases, may attract deference. Unless specifically stated below, I have applied a correctness standard. ANALYSIS The RPD did not provide sufficient reasons with respect to its decision to draw a negative credibility inference from the Appellants' failure to provide their passports [12] For the following reasons, I find that the RPD did not provide sufficient reasons with respect to its decision to draw a negative credibility inference from the Appellants' failure to provide their passports. [13] The RPD Member drew a negative credibility inference from the Appellants' failure to provide their passports. The RPD Member did not believe that a sophisticated and well-educated woman like XXXX would hand over the Appellants' important travel documents to the man who assisted them in crossing the Canadian border. The Appellants argued that it was improper for the RPD to draw negative credibility findings with respect to the Appellants' failure to provide their passports. [14] At paragraph 4 of the RPD decision, the Member accepted that the Appellants' identities as nationals of Nigeria had been established by their birth certificates. The Appellants' passports were therefore not required to establish the Appellants' identities, and the absence of the Appellants' passports therefore appears to be a peripheral issue. [15] The RPD decision did not sufficiently explain why XXXX testimony that she handed the Appellants' passports over to the man who assisted them in crossing the border, is of such a nature so as to negatively affect the Appellants' general credibility. I acknowledge that the RPD referenced that XXXX was a sophisticated and university-educated woman. However, notwithstanding the RPD's comment about XXXX sophistication and education, I find that further explanation was required to explain why this seemingly peripheral issue of the passports being handed over to the man who assisted them in crossing the border is not a credible story. I make this finding particularly in recognition of Federal Court jurisprudence such as Rasheed, as follows3: [18] Where a claimant travels on false documents, destroys travel documents or lies about them upon arrival following an agent's instructions, it has been held to be peripheral and of very limited value as a determination of general credibility. First, it is not uncommon for those who are fleeing from persecution not to have regular travel documents and, as a result of their fears and vulnerability, simply to act in accordance with the instructions of the agent who organized their escape. Second, whether a person has told the truth about his or her travel documents has little direct bearing on whether the person is indeed a refugee (Attakora v. Canada (Minister of Employment and Immigration, [1989] F.C.J. No. 444 (C.A) (QL); and Takhar v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 240 at para. 14 (T.D.) (QL). The RPD did not provide sufficient reasons with respect to its decision to draw a negative credibility inference from the Appellants' failure to make an asylum claim in the USA, and should have addressed the delay in leaving Nigeria [16] For the following reasons, I find that the RPD did not provide sufficient reasons with respect to its decision to draw a negative credibility inference from the Appellants' failure to make an asylum claim in the USA. I also find that the RPD should have addressed the Appellants' delay in leaving Nigeria. [17] The RPD found that the USA is a safe and democratic country with an asylum system, and drew a negative credibility inference from the Appellants' failure to make an asylum claim while they were in the USA for the approximately five weeks that they were there prior to coming to Canada. The Appellants argue the RPD erred when it made this finding because the RPD should have given the benefit of the doubt to the important issue of how political factors in the USA affected the Appellants' minds as to the viability of making a refugee claim in the USA. The Appellants argue that delay in claiming or failing to claim in another country are important considerations but generally not enough to dismiss an entire claim. [18] I find that the RPD did not provide any reasons to explain what it was about the failure to claim in the USA that caused the RPD Member to draw a negative credibility inference. For example, there was no explanation as to whether it was the amount of time that the Appellants stayed in the USA before coming to Canada (XXXX XXXX to XXXX XXXX, 2017) that was so egregious, in and of itself, that justified a negative credibility inference. Likewise, there was no explanation as to whether the negative credibility inference was drawn because the RPD Member did not believe the reason the Appellants gave for not making a claim in the USA (i.e., the political rhetoric). Additional inquiry at a new hearing may be necessary to explore the issue of the Appellants' failure to claim in the USA. [19] I also find that further inquiry should be undertaken with respect to the Appellants' delay in leaving Nigeria. In her Amended Personal Narrative, XXXX indicated that they were approved for an American visa on XXXX 2016, yet they did not leave Nigeria for the USA until XXXX XXXX, 2017.4 It would assist the adjudication of this file to understand the reasons behind this delay. The RPD did not provide sufficient reasons with respect to its decision to draw a negative credibility inference from XXXX failure to provide documentation evidencing her same-sex relationships [20] For the following reasons, I find that the RPD did not provide sufficient reasons with respect to its decision to draw a negative credibility inference from XXXX failure to provide documentation evidencing her same-sex relationships. [21] The RPD drew a negative credibility inference because XXXX had not presented documents, letters, texts or emails as evidence of her same-sex relationships, one of which lasted for fourteen years. The RPD drew this negative credibility inference, especially since XXXX provided many other documents in support of her claim, including Affidavits from a brother, an email from a brother, and a letter from her husband. The RPD gave no weight to these latter documents because of XXXX lack of credibility, and the fact that the brother and husband were not present at the hearing to ascertain and verify their credibility. The RPD also determined that there was no probative value to photographs, a letter from a psychiatrist, and letters from Lesbian, Gay, Bisexual, Trans, Intersex, Queer (LGBTIQ+) organizations. [22] The Appellants' argue that the core of the RPD's negative credibility assessment relate to issues which do not relate to the reason XXXX is seeking the protection of Canada. The Appellants submit that the RPD found XXXX not credible without a credible basis; improperly reached an adverse inference of credibility because of the absence of documents from same-sex partners; failed to give weight to corroborative Affidavit evidence, pictures and letter; and failed to give proper weight to evidence from an objective LGBTIQ+ community in Canada. The Appellants argue that despite the RPD referring to the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guideline)5, there was no indication in the decision that the RPD was actually alive to the guidance that the SOGIE Guideline provides. The Appellants provided a number of examples where they argued the SOGIE Guideline had not been applied, one of which was that it was wrong for the RPD to find XXXX not credible because of the lack of documentary evidence. [23] I find that the RPD did not provide sufficient reasons to justify its decision to draw a negative credibility inference from XXXX failure to present documents, letters, texts or emails as evidence of her same-sex relationships. In the Federal Court decision of Murugesu,6 the Court discussed the Maldonado principle, and when it is appropriate to draw a negative credibility inference for failing to provide corroborating evidence of one's sexual orientation, as follows: [29] A refugee claimant's testimony is presumed to be true unless there is a valid reason to doubt its truthfulness (Maldonado v Canada (Minister of Employment and Immigration) (1979), [1980] 2 FC 302 at para 2, [1979] FCJ No 248 (Fed CA)). As Justice Mosley stated in Sadeghi-Pari v Canada (Minister of Citizenship and Immigration), 2004 FC 282 (CanLII) at paragraph 38, "a lack of corroborating evidence of one's sexual orientation, in and of itself, absent negative, rational credibility or plausibility findings related to that issue, would not be enough, in my opinion, to rebut the Maldonado principle of truthfulness". [30] However, this Court has recognized an exception to the Maldonado principle. The Board may draw a negative inference regarding a claimant's testimony if she fails to produce evidence that the Board reasonably expects should be available in the claimant's circumstances, and does not provide a reasonable explanation for failing to produce that evidence (Radics v Canada (Minister of Citizenship and Immigration), 2014 FC 110 (CanLII) at paras 30-32 [Radics]). [31] In this case, it was open to the RAD to draw a negative inference from Ms. Murugesu's inability to provide supporting documentation with respect to a central aspect of her claim, as required by Rule 11 of the Refugee Protection Division Rules, SOR/2012-256. Rule 11 states that claimants who do not provide acceptable documents must explain why they have not done so, and the steps they have taken to obtain them. Whether it is reasonable to require corroborating evidence depends on the facts of the case (Dayebga v Canada (Minister of Citizenship and Immigration), 2013 FC 842 (CanLII) at para 30). [24] As stated, the Federal Court found in Murugesu, that the Maldonado presumption may not apply where an Appellant fails to produce supporting evidence that the Board reasonably expects should be available in the circumstances and does not provide a reasonable explanation for failing to produce that evidence. In this case, the RPD did not discuss whether XXXX had an explanation for why there was no documentation; what steps XXXX had taken to obtain documents; and whether her explanation was reasonable. Such inquiries should be pursued on a re-hearing. These inquiries might include a more fulsome exploration of what effect the exposure of XXXX bisexuality had on her marriage relationship and her husband's perspective regarding repercussions for her bisexuality. [25] There is also a lack of discussion in the RPD decision with respect to the impact of the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution7 and the SOGIE Guideline. The RPD Member indicated at paragraph 3 of her decision that she had considered those guidelines to ensure that appropriate accommodations were made in the hearing process, in questioning the claimant, and in assessing the claim and assigning weight to the evidence. However, other than this general statement, there was no discussion on specifically how the guidelines were used in the decision. For example, relating to this issue of a lack of documentation, the SOGIE Guideline indicates an individual's testimony may be the only evidence of their SOGIE where, in a given case, corroborative or additional evidence is not reasonably available. The SOGIE Guideline also provides that corroborating evidence from family or friends may not be available in cases involving SOGIE, an example of which is when an individual has concealed their SOGIE because of perceived stigma or risk of harm. The SOGIE Guideline states that decision-makers need to be mindful of the overlap or complementing relationship that gender, sexual orientation, and gender identity and expression share, and consequently may need to consider the application of both this Guideline and the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution where appropriate. All of these considerations should be taken into account on a re-hearing. DETERMINATION [26] The appeal is allowed. Pursuant to section 111(1)(c) of the IRPA, I refer the matter to the RPD for redetermination by a differently constituted panel. (signed) "Derek Vermette" Derek Vermette December 18, 2019 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 Rasheed v. Canada (Minister of Citizenship and Immigration), 2004 FC 587. 4 Exhibit RPD-1, RPD Record, at pages 49 and 50, paragraphs 22 and 27 of XXXXX Amended Baiss of Claim Narrative. 5 Immigration and Refugee Board of Canada, Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Effective date: May 1, 2017. 6 Murugesu v. Canada (Citizenship and Immigration), 2016 FC 819. 7 Immigration and Refugee Board of Canada, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution, Effective date: 13 November 1996. --------------- ------------------------------------------------------------ ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-17114 TB9-17115 / TB9-17116 / TB9-17117 RAD.25.02 (April 04, 2019) Disponible en français 2 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 (April 04, 2019) Disponible en français