TB8-32707

RAD File / Dossier de la SAR : TB8-32707 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision January 10, 2020 Date de la décision Panel Anna Wyse Tribunal Counsel for the person who is the subject of the appeal Johnson Babalola Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (Appellant), citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated November 6, 2018. The RPD rejected her claim for refugee protection due to credibility and implausibility findings. [2] The Appellant claims that she is bisexual. She further alleges that the RPD erred when assessing her credibility and when assessing the evidence. The Appellant has submitted new evidence and has requested an oral hearing. [3] I have accepted the Appellant's new evidence. I found errors in the RPD's decision. I find that the Appellant has established her claim. The appeal is allowed. NEW EVIDENCE AND ORAL HEARING [4] The Appellant has submitted the following documents: - An affidavit from her spouse dated XXXX XXXX, 2019. - A solemnization of marriage between the Appellant and her spouse. - Photos of the Appellant and her spouse dated XXXX 2018 - XXXX 2019. Legal principles for new evidence [5] According to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), new evidence will only be admitted where that evidence: 1) arose after the rejection of the claim; 2) was not reasonably available to be presented to the RPD; or 3) could not reasonably have been expected, in the circumstances, to have presented at the time of the hearing. The RAD has no discretion to admit new evidence unless it falls under one of these three statuary categories.1 [6] If the proposed new evidence does meet one of these three options, I must then apply the analysis set out in Raza2 as subsequently modified by Singh3 (Singh-Raza test). In order to pass this test, the new evidence must be credible, relevant and new. Decision on admissibility of new evidence [7] The documents are new, relevant and credible. The relationship began on the night of the RPD hearing, therefore it is not reasonable to expect that the Appellant could have sent notice of the new relationship before the RPD signed its decision. The affidavit is sworn, the marriage solemnization is in standard form and the photos are of the Appellant and one other woman, therefore, the documents are credible. The documents are relevant to the heart of the claim as they are capable of establishing the Appellant's sexuality. For these reasons, the articles are admitted into evidence. A hearing is not warranted [8] As the newly submitted and accepted evidence does not raise questions regarding the Appellant's credibility, I will not hold a hearing under subsection 110(6) of the IRPA. SCOPE OF RAD REVIEW [9] While reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. In some circumstances, the RAD may defer to the RPD's credibility assessment of oral testimony if the RAD finds that the RPD had a meaningful advantage. I did not find this circumstance in this case. Therefore, I will review the RPD's findings using the standard of correctness.4 ANALYSIS [10] While assessing this case, I was guided by Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression5 (SOGIE Guideline). [11] I did not find sufficient inconsistencies in the Appellant's testimony, to rebut the presumption that sworn testimony is true.6 As I found errors in the RPD's decision, I will provide examples of these errors, however, this analysis is not an exhaustive list. Once I have given examples of these errors, I will give reasons for my finding that the Appellant has established her claim that she is bisexual. The RPD did not give reasons for its findings. [12] The RPD made the following findings: - Her testimony regarding the fact that her mother was the one who wanted her to come study in Canada and her conversation with her alleged fiancé in this regard was contrived. - I have concerns with regard to how her fiancé caught her. It did not make sense and sounds implausible. - Another concern is her testimony regarding the police visit. That was implausible as well as the rendering of her travel to Canada and how she ended up in Toronto from Montreal. [13] No reasons were given for these findings. I have reviewed the Appellant's basis of claim (BOC) narrative and her testimony regarding these aspects of her claim. I found her testimony to be consistent with her BOC narrative, and I did not find any evidence that her evidence was contrived, not did I find any of her testimony or narrative to be implausible. For these reasons, I find that the RPD erred by not providing reasons for these findings, and by making findings that were not supported by the record. The only inconsistency in this case is not sufficient to rebut the presumption that sworn testimony is true. [14] There was one inconsistency between the Appellant's testimony and her BOC narrative. In the BOC narrative, she states that her mother called her on the day her sexuality was exposed, and she went to her mother's house the next day. In testimony, the Appellant stated that she went to the mother's house on the same day. While I do find that this is an inconsistency regarding an event that goes to her heart of the Appellant's claim that her sexuality was exposed, I do not find that this one inconsistency is sufficient to rebut the presumption that sworn testimony is true. The Appellant has established that she is bisexual [15] Other than the exception noted above, the Appellant's testimony consistent with her BOC narrative. The letters from her friend and her brother were consistent with her testimony and with her BOC narrative. The text messages from her friend made sense given the context of the friendship as recounted in her BOC narrative, that this friend was not supportive of her bisexuality. [16] Regarding the documentation from LGBTQ+ community groups, there would be nothing to prevent a heterosexual or cisgender individual from participating in events held by a community group focused on assisting the LGBTQ community where, for example, that person considered that such participation would be advantageous to a refugee claim, evidence of such participation alone is not enough to establish that a claimant is a member of a social group in need of protection. However, as I have made no negative credibility findings in this case, I give these letters weight to indicate that the Appellant is bisexual. [17] The Appellant has provided evidence of her marriage to a woman in Canada. Given that there would be nothing to prevent a heterosexual individual from entering into a marriage where, for example, that would be advantageous to a refugee claim, evidence of a same sex marriage alone is not enough to establish that a claimant is a member of a social group in need of protection. However, as I have made no negative credibility findings in this case, I give these documents weight to indicate that the Appellant is bisexual. [18] For these reasons, on a balance of probabilities, I find that the Appellant has established her claim that she is bisexual. Neither state protection nor internal flight alternative is available to the Appellant [19] The country documents7 indicate that the general community, media and authorities in Nigeria treat homosexual persons very harshly. Nigeria has severe, homophobic legislation, consensual same-sex activity is illegal under federal law.8 Specifically, in 2014, the government passed its Same-Sex Marriage (Prohibition) Act, which prohibits same-sex marriage and same-sex civil unions, and penalizes anyone involved in LGBTQ organizations.9 Punishments for violations of this legislation, or violations of Sharia law regarding homosexuality, range from 14 years in prison, to lashings, to execution by stoning.10 Police themselves are the perpetrators of rights violations against LGBTQ persons, as arrests are often carried out for extortion purposes.11 Police raid gatherings of sexual minorities and arrest them, they may issue a search warrant to investigate someone's apartment, while asking neighbours questions about the visitors the person receives, whether the visitors are men or women, and where the person tends to go.12 [20] In light of the above analysis, I conclude that the Appellant is credible and has established that she will face persecution in Nigeria based on her sexual orientation. The Appellant is therefore a Convention refugee pursuant to section 96. CONCLUSION [21] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) "Anna Wyse" Anna Wyse January 10, 2020 Date 1 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, paras 34-35, 63, 74. 2 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 4 M.C.I. v. Huruglica, 2016 FCA 93, paras. 70 and 103. 5 Immigration and Refugee Board (IRB), Chairperson's Guideline 9: Proceedings before the Immigration and Refugee Board of Canada involving Sexual Orientation and Gender Identity Expression, effective May 1, 2017 (SOGIE Guideline). 6 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.). 7 National Documentation Packages (NDP) for Nigeria dated 29 November, 2019. 8 National Documentation Package for Nigeria, 29 November 2019, Exhibit 6, item 6.1, NGA105321.E, ?Treatment of sexual minorities, including legislation, state protection, and support services; the safety of sexual minorities living in Lagos and Abuja (February 2012-October 2015), 13 November 2015, Immigration and Refugee Board of Canada, 27 November 2015, p. 22. 9 National Documentation Package for Nigeria, 29 November 2019, Exhibit 6, item 6.4, The Same-Sex Marriage (Prohibition) Act (SSMPA), 2013, 2013, Nigeria,20 November 2014. 10 National Documentation Package for Nigeria, 29 November 2019, Exhibit 6, item 6.1, NGA105321.E, Treatment of sexual minorities, including legislation, state protection, and support services; the safety of sexual minorities living in Lagos and Abuja (February 2012-October 2015), 13 November 2015, Immigration and Refugee Board of Canada, 27 November 2015, pp. 1-2. 11 National Documentation Package, Nigeria, 29 November 2019, tab 6.11: The Situation of Sexual and Gender Minorities in Nigeria (2014-2018). Immigration and Refugee Board of Canada. February 2019. 12 National Documentation Package, Nigeria, 29 November 2019, tab 6.11: The Situation of Sexual and Gender Minorities in Nigeria (2014-2018). Immigration and Refugee Board of Canada. February 2019. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-32707 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