TB5-06134

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 : TB5-06134 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX)XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 4, 2015 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ezinwanne Jacqueline Ozor 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 XXXX a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find him to be a Convention refugee or a person in need of protection or, in the alternative, refer his claim back to the RPD for redetermination. Application for an Oral Hearing [2] The Appellant did not ask that an oral hearing be held, pursuant to Section 110(6) of Immigration and Refugee Protection Act, IRPA. DETERMINATION [3] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [4] The Appellant alleged before the RPD that he is at risk of persecution in Nigeria because he is bisexual. The Appellant met a young man while attending secondary school name XXXX XXXX XXXX XXXX XXXX and began a same sex relationship. The Appellant and XXXX were caught in a sexual act at school and both were expelled, and were moved to different schools. The Appellant and XXXX then entered University in 1986 and continued their same sex relationship. The Appellant, as a result of pressure by his family, got married and moved to Lagos, but continued his relationship with XXXX. [5] In XXXX 2013, the Appellant travelled to the city of Owerri and met up with his male lover XXXX, and engaged in kissing each other when they heard screams. Suddenly they were surrounded by a group of people who had responded to the screams, the Appellant and XXXX were beaten. The Appellant's uncle attended the scene and advised the crowd that he would take care of the situation. The Appellant's family was advised of what had taken place. The Appellant returned to Lagos, and shortly thereafter received a letter advising him never to return. [6] The Appellant further alleges that he snuck back to Owerri in XXXX 2014 to meet up with XXXX at a hotel, where they were discovered by a maid in bed. The Appellant was asked to leave by the hotel manager and travelled back to Lagos. Later, the Appellant invited XXXX to visit him in Lagos, and XXXX did make that visit. However, the Appellant and XXXX were observed kissing at the back of the Appellant's house by his landlord. The Appellant and XXXX were beaten by a group of vigilantes. The Appellant then gathered his belongings and went into hiding. The Appellant's wife had left him previously with the children and travelled back to Owerri. The Appellant left Nigeria on XXXX XXXX XXXX 2014 and made an inland claim on January 23, 2015 for refugee protection. [7] The Minister of Citizenship and Immigration Canada (CIC) intervened at the RPD hearing and presented evidence. The Appellant's application for refugee protection was heard on March 20, 2015, and May 13, 2015. In a decision of June 05, 2015, the RPD rejected the Appellant's claim finding that the Appellant's allegations are not credible and that, on a balance of probabilities, the Appellant is not gay or bisexual. [8] The Appellant submits that the RPD erred in its credibility findings. [9] The RAD finds that the Appellant's Memorandum of Law and Argument lacks clarity and organization. Some of the submissions and arguments are decidedly vague, disjointed and convoluted. Fluctuating format changes makes it difficult at times to discern the Appellant's arguments from the case law he provided to support his arguments. Furthermore, although the Appellant has included numerous references to case law, in many cases, the Appellant fails to explain how his arguments are supported by the case law he includes. Nevertheless, the RAD has been able to discern the following issues from the Appellant's pleadings. In particular, the Appellant submits that: (a) The RPD erred in its adverse credibility findings. (b) The RPD failed to consider the personal and documentary evidence concerning the risk faced by the Appellant due to sexual orientation or the perception that he is bisexual. ROLE OF THE RAD [10] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica, 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". [11] Accordingly, 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 is 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. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [12] As provided for in s. 110(3) of IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [13] The Appellant has tendered the following proposed new evidence in support of his appeal. 1) A Psychotherapist Report from XXXX XXXX, dated XXXX XXXX, 2015;1 and 2) Newspaper articles published in the Globe and Mail, dated June 29, 2015 and July 01, 2015;2 and 3) A publication titled, "Silenced Voices, Threatened Lives" by Pen Nigeria dated June 29, 2015;3 [14] The RAD finds that, although the articles were submitted and some produced following the rejection of the claim, they are not significantly different from the evidence that was tendered at the RPD hearing. The articles do not provide any new details about the Appellant's risk in Nigeria nor do they provide any additional facts to help establish his sexual orientation. [15] In considering the statutory provisions in Section 110(4), the RAD considered the following. [16] First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim. [17] The RAD will consider not only the date on which the document came into existence but the timing of the event or circumstance which the document seeks to prove. For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. [18] It is important to note here that Section 110(4) does not contemplate whether the evidence arose after the RPD hearing but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. [19] If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and materiality of the document. [20] Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in Section 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection; has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim, or that it proves a fact that was unknown to him at the time of the hearing? If so, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [21] Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim and that it was reasonably available at the time of the rejection, it must consider the final part of the Section 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered. If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [22] In regards to document 1, the Psychological Report which was written XXXX XXXX, 2015 that RAD finds there is no explanation why the report was not available prior to the hearing or before the rejection of the claim. There is no explanation as to what steps if any were taken by the Appellant to obtain this report prior to the claim or before the rejection. Never the less, the RAD will accept this report and apply the appropriate weight. [23] In the case at hand, the proposed new evidence documents 2 and 3 fail to meet the requirements of s. 110(4) in that the evidence is not capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim. Accordingly, the RAD finds that the proposed new evidence not meet the test of new evidence and, as such, will not be accepted as new evidence in this appeal. [24] After review, the RAD finds that the documents tendered as proposed evidence in this appeal are not material. It is the view of the RAD that materiality is the measure of the estimated effect that the presence or absence of an item of information may have on the accuracy or validity of a statement. That evidence has to have a certain threshold effect to be material, namely, that the evidence is capable of showing that the decision or reasons of the RPD are in error, or might the evidence affect the appropriate disposition of the appeal. [25] The RAD notes that the Appellant has not provided a persuasive argument to demonstrate how this document is capable of showing that the decision or reasons of the RPD are in error or how the evidence might affect the appropriate disposition of the appeal. [26] The RAD finds that document 2 and 3 are not material in that it is incapable of showing that the decision or reasons of the RPD are in error and, as such, rejects them as new evidence. [27] The RAD has admitted document 1 as new evidence in this appeal, and, as such, the RAD will not hold an oral hearing in this appeal. ANALYSIS OF THE MERITS OF THE APPEAL Credibility [28] The Appellant submits that the RPD, in paragraphs 17-60 of its reasons, impugned the credibility of the Appellant because of his testimony, specifically dealing with the attempts to obtain a VISA to the United States of America and the use of a different identity. The Appellant argues that he did not embellish his testimony but was merely providing clarifications at the hearing as he misunderstood the question in the Basis of Claim (BoC) in particular the question 2 (b). [29] The RAD is not persuaded by the Appellant's argument. The RAD finds that the Appellant has misapprehended the findings of the RPD in this regard. The RAD notes that the record reflects that the RPD's adverse credibility findings were not based on a perceived embellishment, but rather based on the contradiction between his testimony and the omissions from BoC narrative on the terms of use of a different identity when he attempted to obtain a US VISA, and the threats of death against him . The RPD notes that the Appellant testified that he made monthly payments; however, his BoC narrative described weekly payments. The RPD rejected the Appellant's explanation that his BoC narrative he had omitted the events at the family gatherings. [30] A review of the audio hearing reveals the omissions and contradictions with his BoC narrative are supported by the RPD findings. [31] The RAD finds that there is evidence in the record which supports the RPD's adverse credibility findings in this regard. The RAD finds that the Appellant's testimony was inconsistent with his narrative and that this inconsistency undermines the credibility of his allegations. Psychological Report [32] The RAD assigned little weight to the psychological report in support of the allegations, given that the Appellant's allegations of a fear of persecution in Nigeria were not credible. The psychological report provided evidence of problems with the Appellant's memory and corroborated his delicate mental state which led to his loss of short term memory and details. [33] The RAD considered the source and expertise of the report of XXXX XXXX4 who labelled herself as a psychotherapist and finds that Ms. XXXX cannot be an expert witness based on concerns with her credentials and authority. As a general rule, an expert is characterized as a person possessed of the special skill and knowledge acquired through study or practical observation that entitles him [or her] to give opinion evidence or speak authoritatively concerning his or her area of expertise.5 [34] The RAD considered the credentials of Ms. XXXX who labelled herself as a "psychotherapist". The report does not confirm Ms. XXXX credentials and expertise to make clinical findings based on the DSM-IV (post-traumatic disorder, major depressive disorder). The report does not indicate that the author was a member of any college of regulated health professionals in Ontario or any other province such as the College of Psychologists of Ontario, which has been given the jurisdiction to make medical or psychiatric diagnoses. [35] The Regulated Health Professions Act of Ontario6 (Act) sets out the requirements for controlled acts that a person is legally able to perform. The Act also specifies acts that are controlled which include: [36] Controlled acts [37] (2) A "controlled act" is any one of the following done with respect to an individual: 1. Communicating to the individual or his or her personal representative a diagnosis identifying a disease or disorder as the cause of symptoms of the individual in circumstances in which it is reasonably foreseeable that the individual or his or her personal representative will rely on the diagnosis. [38] Ms. XXXX findings were based on a brief interview (60-90 minutes including interpretation). The report indicates that it was prepared after: "careful and detailed investigation of mental, social, and occupational functioning and the context in which these occur".7 It defies logic that a detailed investigation of the Appellant's mental, and social functioning and context could be assessed in 60-90 minutes and does not indicate how many sessions were held, which would allow the interviewer time to test the validity and consistency of the self-reported information. [39] Given that the evidence presented was not prepared by a member of a regulated health profession in Ontario, and given that the writer's assessment contained a diagnosis for which the writer did not have legal authority in Ontario to put forward, the RAD finds that it gives little weight on the contents of the report in support of the Appellant's claim. DVD and Letters of Support [40] The RPD gave little weight to the Appellant's other personal documents finding that they did not provide persuasive evidence of the Appellant's alleged sexual orientation. The Appellant submits that the document clearly speaks to his sexual orientation and that the RPD ignored the evidence. [41] The RAD finds that the RPD conducted a fulsome analysis of these documents and appropriately found that the RPD could afford them little weight. The RPD notes that none of the documents indicate that the Appellant is bisexual. The RPD further noted that none of the organizations are able to provide reliable evidence of his sexual orientation. The RAD notes that the contents of the documents which support the allegations of the Appellant are based upon his account of that alleged persecution and not independent knowledge. The RAD finds that the RPD's finding in this regard was based upon the evidence and was supported by sound reasoning. [42] The Appellant argues that little turns on the credibility findings of the RPD; however, the Appellant fails to explain how the evidence in the record supports this argument. The RAD agrees that the central issue is the sexual orientation of the Appellant and his risk of persecution. However, it was necessary for the RPD to assess the credibility of that central allegation. The Appellant has provided evidence of his sexual orientation, and this required the RPD to assess the credibility of that evidence. The RAD finds that the findings of the RPD are relevant to the primary issue of the Appellant's sexual orientation and his risk of persecution. Accordingly, the Appellant's argument fails. [43] The Appellant further submits that the RPD failed to give full consideration to the objective documentary evidence. The Appellant argues that, even if the RPD was of the opinion that the Appellant was not credible, the RPD failed to consider that the Appellant was still at risk in Nigeria because he was perceived to be bisexual. [44] The RAD is not persuaded by the Appellant's argument in this regard. The Appellant seems to argue that regardless of the credibility findings of the RPD, the RPD should still find that the Appellant is bisexual. The Appellant further argues that the objective evidence establishes that persons who are perceived to be gay or who are sympathetic to the LGBTQ community are at risk in Nigeria. While it true that the objective evidence establishes that persons perceived to be gay or are sympathetic to the LGBTQ community in Nigeria are at risk of persecution, the RPD found that the Appellant has failed to provide persuasive evidence that he is gay or bisexual. Furthermore, the RAD finds that the Appellant has not provided persuasive evidence that he would be perceived to be gay or bisexual or a supporter of the LBGTQ community. The RAD has found that the RPD fairly and appropriately assessed the probative value of the evidence. The RAD has also found that the RPD has made credibility findings which undermine the credibility of the Appellant's allegations. SUMMARY AND DETERMINATION [45] Given the analysis above, the RAD therefore has deferred to the RPD findings on credibility in this claim and concurs with the findings of credibility and finds that the RPD findings were supportable. [46] The RAD finds that the RPD's credibility findings were thorough and are supported by the evidence and as a result affords deference to the RPD's findings. The RAD also finds, on a balance of probabilities, that the evidence on the record is abundant to support the RPD's overall determination. The RAD finds that, after conducting an independent assessment on the evidence before it in its entirety, it arrived at the same conclusion as the RPD in its overall determination. The RAD further finds that the Appellant has not satisfied his burden of establishing a serious possibility that he would be persecuted or that he would be personally subjected to a risk to his life, or a risk of cruel and unusual treatment or punishment, or a danger of torture by any authority in Nigeria. CONCLUSION [47] Pursuant to Section 111(1) (a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [48] Accordingly, the Appellant's appeal fails. (signed) "Luis F. Agostinho" Luis F. Agostinho September 4, 2015 Date 1 Exhibit P-2, Appellant's Record, at pp. 32 - 34. 2 No Globe and Mail article (s) found in Appellant's record, but an article from the US news, dated 29 June 2015, "Nigeria urged to repeal its anti-gay law by human rights group" was submitted and is found in Exhibit P-2, Appellant's Record, at pp. 35-36. 3 Exhibit P-2, Appellant's Record, at pp. 37-70, undated articles from Pen International (Human Rights Organization), article printed 7/2/2015. 4Exhibit P-2, Appellant's Record, Report of XXXXX XXXX, 2015, at pp. 32-34. 5 Stobo, G., Expert Evidence, I.R.B. Legal Services, July 11, 1989, p. 3. 6 Regulated Health Professions Act, 1991, S.O. 1991, c. 18. 7 Exhibit P-2, Appellant's Record , at pp. 32-34, Report of XXXXX, dated XXXXX, 2015. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-06134