TB9-24086

RAD File / Dossier de la SAR : TB9-24086 TB9-24087 / TB9-24088 / TB9-24089 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 15, 2020 Date de la décision Panel G. Erauw Tribunal Counsel for the persons who are the subject of the appeal Steven Blakey Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This is the decision allowing the appeal of XXXX XXXX XXXX (the "female Appellant"), her husband XXXX XXXX XXXX (the "male Appellant"), and her daughters XXXX XXXX XXXX and XXXX XXXX XXXX (the "minor Appellants"). [2] The female and male Appellants are citizens of Nigeria, the minor Appellants are citizens of the United States (U.S.). The minor Appellants make no claim against the U.S. The female Appellant alleges she fears returning to Nigeria because she is bisexual. The male Appellant alleges he is being harassed and extorted by the police due to the female Appellant's sexual orientation and for not turning her in to authorities. The male Appellant also fears he will have to undergo rituals from his family in order to cleanse him of his wife's sins. The Appellants fear they will be detained, arrested, or killed if they return to Nigeria. The adult Appellants also allege the minor Appellants will be forcibly circumcised due to the female Appellant's sexual orientation upon returning to Nigeria. [3] The Refugee Protection Division (RPD) rejected their claims for refugee protection on the basis of credibility, finding the female Appellant did not establish her sexual orientation because some of her evidence was implausible, fraudulent, and that a pattern of fabrication gave rise to doubting both the adult Appellant's claims. The Appellants appeal the RPD's decision. As a preliminary issue, they submit new evidence, and they request an oral hearing. They argue that the new evidence establishes the female Appellant is bisexual. On the merits, they argue that the RPD erred in its credibility assessment and in its treatment of their corroborating evidence, and that there is sufficient evidence to establish a sur place claim. [4] I find the RPD erred in its credibility analysis, which is determinative of the appeal. However, credibility issues remain outstanding on evidence presented to the RPD, which was not tested by the RPD. Therefore, I am unable to confirm the RPD's decision, or find that the Appellants are Convention refugees or persons in need of protection. As a result, I allow the appeal and remit the matter back to the RPD for redetermination by a differently constituted panel. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [5] Although I am returning this case to the RPD for redetermination, the Appellants argue their new evidence is sufficient to determine they are Convention refugees or persons in need of protection. Since the Appellants argue this new evidence should be admitted and that it is determinative, I feel it is necessary to explain why I am not accepting the Appellants' new evidence. [6] In support of their appeal, the Appellants propose three items as new evidence: a. Text messages and photos between the female Appellant and same-sex partner, dated XXXX XXXX 2018 to XXXX XXXX 2019;1 b. Letter from former same-sex partner, dated XXXX XXXX 2019;2 and, c. Nigerian newspapers and letter of friend, dated XXXX XXXX 2019.3 [7] New evidence will only be admitted where that evidence: (1) arose after the rejection of the claim by the RPD; (2) was not reasonably available; or (3) was reasonably available, but that the claimant could not reasonably have been expected in the circumstances to have presented the evidence, at the time of the rejection.4 If one of these conditions is met, the Refugee Appeal Division (RAD) will then consider if the evidence is credible, relevant, and new.5 The RAD finds the text messages are inadmissible as new evidence [8] I find the text messages and photographs between the female Appellant and XXXX, her alleged same-sex partner, are inadmissible as new evidence. [9] In my view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.6 While I acknowledge that one of the series of text messages post-dates the RPD decision, the circumstance sought to be proved is that the female Appellant has had a same-sex "relationship" with someone in Canada and that ultimately she is a bisexual as alleged. In order for the evidence of the female Appellant's relationship to be admissible, it would have to have arisen after her claim was rejected at the RPD. [10] However, the evidence submitted clearly shows that the female Appellant has engaged in a same-sex "relationship" with this person in Canada many months prior to the RPD's rejection of her claim and even months before her RPD hearing. The female Appellant does not provide an adequate explanation for why she did not disclose any evidence of this same-sex relationship prior to the RPD's decision. [11] I note that the female Appellant explains that she did not disclose this evidence because she did not know she was required to disclose such explicit messages and she was embarrassed. I do not accept this explanation. At no time did the RPD require the female Appellant to disclose explicit material in order to establish her sexual orientation. In fact, the Appellant has provided other evidence to the RPD, of a non-explicit nature, from other alleged former partners in order to support her allegations that she is bisexual. She provides no explanation for why she could not have disclosed this relationship to the RPD, as the central issue in her claim is whether she is a bisexual, not whether she had explicit evidence to substantiate those relationships. The female Appellant could have disclosed the relationship without providing explicit texts, either by way of a Basis of Claim (BOC) amendment, or with an affidavit from the person concerned, for example. As an aside, I find it suspect that the female Appellant suddenly re-established text contact with the person involved after nearly five months of no text communication. Conveniently this contact is timed with receiving the RPD's decision rejecting her claim and during the time she was gathering all of her new evidence to support her appeal in early October. [12] Therefore, I find the female Appellant has not established how the new evidence of her same-sex "relationship" with XXXX arose after the rejection of her claim, or that it was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented it, at the time of the rejection. As a result, the above text messages and photos do not meet the requirements of subsection 110(4) and are inadmissible as new evidence. The RAD finds the letter from her former partner and the newspapers are inadmissible as new evidence. [13] I reject the letter from her former partner and the newspapers as new evidence. The Appellants have not established that they could not have obtained the former partner's letter and the newspapers at the time of rejection. Although the female Appellant states she could not have anticipated at the hearing that the RPD had concerns with her former partner's affidavit or the original newspaper submitted as evidence, I do not accept this explanation. [14] The RPD questioned the Appellants about why her former partner would swear to her sexual orientation and their same-sex relationship when the documentary evidence suggested this is not usually done and that it was dangerous to do so in Nigeria. In addition, the RPD questioned the Appellants about the original newspaper they submitted and noted several issues with the appearance of the newspaper, this included differing fonts and a differently coloured insert. As a result, contrary to the female Appellant's submission, she could have anticipated both the affidavit of her former partner and the genuineness of the newspaper was a concern to the RPD. Since this concern was raised at the RPD hearing, and they were specifically questioned on the issue, the Appellants would not have been caught by surprise when they received the RPD's decision. The Appellants could have made efforts to submit such evidence after their RPD hearing, which they did not do. [15] Furthermore, I note the female Appellant states that she had difficulty getting in contact with her former partner. However, the female Appellant does not explain the dates when she first attempted to contact her, whether it was after the rejection of her claim or after the RPD hearing, so it is impossible for me to determine whether it was reasonable in her circumstances to have presented a new letter from her former partner at the time of rejection. Based on the information before me it appears that the female Appellant only made efforts to obtain the document after the rejection and not earlier.7 There is nothing to suggest the document was not reasonably available or could not reasonably be expected to be available prior to the RPD's decision.8 In my view, the Appellant's new evidence is submitted simply to repair their deficient record before the RPD, which is not the purpose of the new evidence provisions at the RAD. [16] For the above reasons, I find the Appellants have not established they could not have provided a new letter from the former partner or the additional newspapers to the RPD prior to rejection. As a result, these documents do not meet the requirements of subsection 110(4) and are inadmissible as new evidence. [17] Since no new evidence is admitted on appeal, there can be no oral hearing at the RAD. That said, since this case is being referred back to the RPD for re-determination, it is open to the Appellants to re-submit this evidence to the RPD. ANALYSIS [18] I have assessed whether the RPD's decision was correct.9 [19] The Appellants raise several issues on appeal, but the issue of credibility is determinative. The RAD finds the RPD erred in its credibility assessment The Appellant's Argument [20] The Appellants argue that the RPD erred because even if the RPD found the Nigerian evidence was not plausible or credible, it does not necessarily follow that the female Appellant is not a bisexual woman, or perceived to be a bisexual woman who is at risk in Nigeria. [21] The Appellants further argue the RPD erred in its credibility assessment and in its treatment of their supporting documents. In particular, they submit the RPD erred when it asserted that their "various letters, e-mails, and text messages from friends and relatives regarding the claimants' particular circumstances...is not highly probative or credible because it does not come from independent sources." They claim this is an error because not only does the RPD not specify which documents it has problems with, but simply because supporting documents come from relatives and friends is not a sufficient basis to dismiss them as not highly probative or credible. Moreover, in this case the RPD did not voice any concerns regarding letters from friends and family that undermined the credibility of their supporting documents. The RPD could not simply make a blanket statement and dismiss a large portion of their supporting documents that report her sexual orientation as being bisexual simply because they came from friends and family. [22] The Appellants also argue that the RPD's reasons for impugning the credibility of the affidavit of a former same-sex partner was erroneous. They contend that the RPD misconstrued the documentary evidence from the National Documentation Package (NDP) on the swearing of affidavits about one's sexual orientation by saying no one notarizes such documents, when the evidence indicates it is not standard practice. They submit it does not follow that notaries in Nigeria would never permit the swearing of such affidavits. Just because it is "strange" or "unusual" does not make it impossible, and the objective documentation states that family members may be more willing to swear to such information as well. In light of the content of the documentary evidence about swearing such affidavits, the female Appellant's explanation was reasonable for why her former partner would swear to such information, which is that she trusted the notary. [23] The Appellants also argue the RPD erred by finding the newspaper article they submitted was fraudulent. However, the Appellant submits that the RPD did not explain where the "internal inconsistencies" were in the article, just because it had unnamed sources did not make the article fraudulent, and that the documentary evidence about whether people can pay to have articles published about them is equivocal about whether it is common for ordinary citizens to bribe journalists to produce fraudulent news articles. Finally, the Appellants argue the RPD erred in its assessment of the letters of support from LGBTQ organizations and in its assessment of the psychological report. The RAD's Assessment [24] Having reviewed the record, I agree with the Appellants that the RPD's decision cannot stand. In coming to this conclusion, I agree with the Appellants' arguments in part, as well as note additional deficiencies in the RPD's decision that warrant a redetermination of the Appellants' claim. [25] First, I agree with the Appellants that the RPD erred by failing to identify its particular problems with many of the Appellants' documentary evidence by simply dismissing a significant number of documents from family and friends on the basis that they did not come from independent sources. While the RPD does not need to address all of the evidence, where there is relevant evidence to the issue before it, the RPD cannot simply ignore it. The RPD effectively did so without adequate reasons. It is not sufficient to dismiss a large number of the Appellants' supporting documentation simply on the basis that it is from family and friends. I agree with the Appellants that the preponderance of the case law states this is an error, as most evidence refugees submit in support of their claims could be considered "self-serving". I also agree with the Appellants that the RPD fails to mention what specifically are the internal inconsistencies in the affidavits they submitted, so it is unclear on what basis the RPD found this evidence to be untrustworthy and implausible. [26] With respect to the RPD's evaluation of the affidavit from the former same-sex partner, the RPD did not make a specific finding that it was fraudulent. Although the RPD seems to state it is implausible that such an affidavit about one's sexual orientation would be sworn, given the documentary evidence suggesting such affidavits are uncommon, this does not render the affidavit implausible or unreliable on this basis alone. Particularly, considering the RPD did not evaluate the female Appellant's explanation for why her former same-sex partner would swear such an affidavit, which was because she found a notary she could trust. Therefore, the RPD erred in its assessment of the former same-sex partner's affidavit. [27] In my independent assessment of the record I note additional concerns with the RPD's decision. A large portion of the RPD's decision appears to simply summarize facts and discuss some apparent inconsistencies and credibility concerns without actually making any credibility findings. This includes its discussion of the female Appellant's ability to exit Nigeria compared to the objective documentary evidence, and an inconsistency between the male Appellant's statement to a Canadian visa officer and his BOC form about when the female Appellant's sexual orientation was exposed. In any case, not only are the RPD's reasons not transparent and justifiable for failing to make clear findings on these issues, the RPD failed in both instances to assess the adult Appellants' explanation for these inconsistencies. This was an error and there is an insufficient basis for the RPD to later conclude their evidence was unreliable and implausible. [28] In regard to the Appellants' newspaper evidence submitted to the RPD, I reject the Appellants' argument. There is sufficient reason to conclude on a balance of probabilities that this article is fraudulent. I agree with the RPD that the content of the article is nonsensical, given it discusses at length that no one seems to know where the male Appellant or female Appellant is, when friends and family have provided letters in the record indicating they know they are in Canada and have been in contact with them prior to the publication. Furthermore, the fact that there is no identified author of the article, and only unnamed sources further diminishes its reliability, as the content of the article does not appear to have come from a reputable source. Moreover, I add that the article states it was the male Appellant's in-laws who wanted the minor Appellants to undergo circumcision, which is inconsistent with the male Appellant's allegations that it was his family that sought to circumcise his daughters. Combined with these concerns was the fact that at the time of writing this appeal the article was not accessible from either website. It also makes little sense that the article first published in the Nigerian Observer would be republished on another website three months later without changing the dates in the article referring to events as having occurred only a year prior. All of these issues, along with the documentary evidence indicating it is possible for people to purchase fake articles in Nigerian newspapers, leads me to find the article about the Appellants in the Nigerian Observer and Agbaka is fraudulent on balance of probabilities. I find it was likely manufactured in order to bolster the Appellants' refugee claims. [29] I also do not agree with the Appellants' submission that their support letters from LGBTQ organizations establish the female Appellant's sexual orientation, as they simply attest to her having attended events and activities at these organizations, and do not attest to her sexual orientation. [30] Despite the finding their newspaper article is fraudulent, I agree with the Appellants' submission that even if the RPD did not believe some of their Nigerian evidence, there was remaining evidence of the female Appellant's sexual orientation that needed to be assessed. This is especially the case given the RPD erred by dismissing and failing to meaningfully engage in much of the Appellants' supporting documentation. Moreover, the RPD did not identify any problems with the female Appellant's core allegations of her same-sex partners and her allegations about how her sexual orientation was discovered, or any of her alleged activities in Canada. [31] The above assessment is not to suggest that the Appellants' claims are credible. I am unable to conclude based on the evidence in the record that the female Appellant is bisexual or that the male Appellant faced the difficulties he alleges on account of the female Appellant's sexual orientation. Further questioning is needed regarding the credibility of the Appellants' core allegations, particularly the female Appellant's same-sex relationships which was not thoroughly questioned about at the RPD. In my review of the record, there were also inconsistencies with the adult Appellants' testimony and their documentation, as well as inconsistencies between documents that goes to the core of their allegations, none of which was put to the Appellants for an explanation. Therefore, the current record is insufficient to allow me to uphold the RPD's decision, or to substitute a positive decision in the Appellants' favour. As a result, I allow the Appellants' appeal and remit the matter to the RPD for redetermination by a differently constituted panel. DIRECTIONS [32] In addition to the lack of questioning about the female Appellant's same-sex partners and their relationships, there are many credibility issues that remain outstanding on evidence presented to the RPD. These are issues I cannot examine at the RAD. With this in mind, the RPD may wish to consider examining: both of the adult Appellants' BOCs for their descriptions about what they heard from their friend about the events of XXXX XXXX and how the female Appellant's sexual orientation was exposed; the content of her psychological report and her other supporting evidence about her alleged relationships in Canada, including with XXXX; inconsistencies about who wanted to circumcise their daughters; lack of evidence of her former same-sex partner XXXX, including whether there is any evidence of her being charged and prosecuted; when the adult Appellants reconciled; the male Appellant's delay in leaving Nigeria; and, the female and minor Appellants' intention for applying for a visa to Canada; just to name a few. CONCLUSION [33] After conducting its own analysis of the entire record, the RAD finds that the RPD's findings are unsustainable to maintain the determination that the Appellants are not Convention refugees or persons in need of protection. The RPD's determination stems from erroneously dismissing large amounts of relevant evidence regarding the Appellants' core allegations simply because they came from friends and family. In addition, the RPD failed to take explanations of the Appellants into account and make clear findings before concluding their evidence was unreliable and implausible. While I agree with some of the RPD's findings with respect to a fraudulent newspaper article, ultimately the RPD's failure to meaningfully engage with their testimony and the totality of the evidence makes the RPD's decision untenable. [34] However, I am not in a position to find that the Appellants face a serious possibility of persecution on a Convention ground, or on a balance of probabilities, they would be personally subjected to a danger of torture, or face a risk to life or a risk of cruel and unusual treatment or punishment, if returned to Nigeria. In this case, credibility issues remain outstanding on evidence presented to the RPD, and this evidence was not tested by the RPD. In other words, the RPD did not adequately examine the credibility of the Appellants' core allegations, including many of their supporting documents, which prevents me from conducting a proper independent assessment of their claims. Where the RAD is unable to confirm, or set aside and substitute its own decision without hearing evidence that was presented to the RPD, the RAD is permitted to return the case to the RPD for re-determination. I choose to do so in this case. DETERMINATION [35] The appeal is allowed. The RAD refers the matter to the RPD for redetermination by a differently constituted panel.10 (signed) "G. Erauw" Gregg Erauw January 15, 2020 Date 1 Exhibit P-2, Appellant Record, Texts and Photos of the Female Appellant and XXX, at pp. 128-144. 2 Exhibit P-2, Appellant Record, Letter of Former Partner, at pp. 145-146. 3 Exhibit P-2, Appellant Record, Nigerian Newspapers and Letter of Friend, at pp. 148-157. 4 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, subsection 110(4). 5 Canada (Citizenship and Immigration) v. Singh, [2016] 4 FCR 230, 2016 FCA 96. 6 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, para. 16. 7 Ilias v. Canada (Minister of Citizenship and Immigration), 2018 FC 661, at para. 33. 8 Ilias v. Minister of Citizenship and Immigration, 2018 FC 661, at para. 35. 9 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at paras. 70 and 103. 10 Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-24086 TB9-24087 / TB9-24088 / TB9-24089 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