TB8-27511

RAD File / Dossier de la SAR : TB8-27511 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 26, 2019 Date de la décision Panel Erin Bobkin Tribunal Counsel for the person(s) who is(are) the subject of the appeal Richard Odeleye Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (the Appellant), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD), dated October 9, 2018, rejecting her claim for refugee protection. She asks the Refugee Appeal Division (RAD) to overturn the decision and substitute a decision that she is a Convention refugee or person in need of protection. DETERMINATION [2] The appeal is allowed. Pursuant to paragraph 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. BACKGROUND AND OVERVIEW OF APPEAL [3] The Appellant's claim stems from that of her spouse who alleges that he is bisexual.1 The Appellant alleges that, in September, 2015, while her husband was on a business trip in Canada, the police came to her home and informed her that they had evidence her husband engaged in same-sex activities.2 The police allegedly warned the Appellant that she should not hide him from the authorities and then returned to her home to look for her spouse and harass the Appellant again.3 Her spouse claimed refugee protection in Canada, and his claim was granted. Meanwhile, the Appellant moved from Lagos to Ibadan, but in June 2017, she alleges that she was stopped by police at a party, and when they learned her name, they arrested her because she was wanted for helping her husband escape justice.4 She alleges that she was detained for two nights and released on condition that she report monthly and turn in her passport.5 After this, she fled to Canada and brought her claim. [4] The RPD rejected the claim finding that, although the Appellant's testimony was generally internally consistent, it was inconsistent with objective evidence which states that, under Nigerian law, there is no duty to report homosexuals, and therefore it was not credible that she was wanted by police under the law.6 The Appellant alleges that the RPD misinterpreted the evidence and ignored evidence which demonstrates that the Appellant is credible. New Evidence and Oral Hearing [5] The Appellant has not presented new evidence in support of his appeal and has not requested an oral hearing. ROLE OF THE RAD [6] When reviewing the RPD's decision, the RAD is required to independently assess whether the RPD was correct in relation to each alleged error of fact, law or mixed fact and law.7 I may defer to the RPD on a finding of credibility on oral evidence where the RPD had a meaningful advantage in the circumstances. In this instance, I am reviewing the RPD's decision on the standard of correctness, as I do not find the RPD enjoyed any meaningful advantage on a finding of credibility on oral evidence. ANALYSIS [7] For the following reasons, I find that the RPD erred in its assessment of the Appellant's claim, and I find that the Appellant is a Convention refugee based upon membership in a particular social group of spouses of wanted bisexual men. The following issues are determinative: (a) The RPD erred in its credibility assessment by rendering a microscopic finding and ignoring material evidence; and (b) The Appellant is a Convention refugee based upon membership in a particular social group. The RPD erred in its assessment of credibility by rendering a microscopic finding and ignoring material evidence [8] The Appellant argues that the RPD erred by focusing on the fact that Nigerian law does not require individuals to report homosexual activity to the police, which misunderstands the Appellant's claim, and by ignoring evidence which supports a conclusion that the Appellant is at risk.8 I agree that the credibility analysis is in error. For the following reasons, I find that the RPD rendered a microscopic finding by focusing on the Appellant's lack of knowledge of the law and also ignored material evidence. [9] The RPD accepted that the Appellant's testimony was consistent with her BOC, but found that the Appellant was not credible because her evidence was inconsistent with the Nigerian law.9 The Appellant's evidence was that she is afraid she will be jailed for ten years under the law which criminalizes LGBTQ activities (the Same-Sex Marriage Prohibition Act or SSMPA).10 The Member looked at the Act and found that the Act does not require members of the public to report LGBT people to the authorities or criminalize them for failing to do so and that the 10-year penalty was for activists or supporters of the LGBTQ community, which the Appellant is not.11 [10] The Appellant alleges that this misunderstands the Appellant's claim because the Appellant never alleged she was an activist or feared she would be charged for failing to report her husband, but rather she feared reprisals because authorities believed she had helped her husband evade justice.12 I agree that the finding is in error. [11] The RPD found that the Appellant's fear is inconsistent with the law, which means that her credibility has been undermined by her lack of knowledge of the law. It may be that the Appellant would not receive a ten-year penalty under the SSMPA, but that does not mean that the Appellant's belief that this would be the punishment is not credible, but rather that she is simply misinformed. I find this determination is microscopic and not sufficient to undermine the Appellant's credibility. [12] The Appellant was not found to be lacking credibility in her account of being harassed and arrested by the police, and I have no reason to doubt this evidence. The Appellant had supporting documents which corroborated this harassment, and detention was only discounted because the writers also feared punishment under the SSMPA for the Appellant.13 As I find this to be microscopic, I find no reason to doubt the credibility of the letters.14 Moreover, the Appellant's husband was found to be credible in his allegation that he is bisexual and wanted by the police.15 All of this supports a finding that the Appellant is credible. [13] Additionally, as argued by the Appellant, the RPD ignored evidence which suggests that, in some instances, family members of suspected homosexuals are detained in order to flush out the wanted person.16 A Response to Information Request (RIR) on file states that Nigerian police have arrested detained relatives of wanted persons to draw out "a wanted person from hiding" and force their surrender and that this may have happened in the case where the wanted individual is a suspected homosexual.17 The RPD did not mention this evidence in its reasons at all. I find this to be an error, as this evidence is material to a decision as to whether the Appellant is at risk. [14] When I take this RIR together with the Appellant's un-contradicted evidence that she was arrested because of her husband's sexual orientation, I find that the RIR supports her credibility. Accordingly, I find the RPD erred in determining the Appellant was not credible merely based on a perceived inconsistency with the SSMPA which amounts to nothing more than a lack of knowledge of the law. I find that the Appellant is credible, on a balance of probabilities. The Appellant is a Convention Refugee based upon her membership in a particular social group [15] For the following reasons, I find that the Appellant is a Convention refugee on the basis of her membership in a particular social group of spouses of wanted bisexual men. [16] I agree with the RPD's finding that merely being the spouse of an LGBTQ individual is not sufficient to warrant protection, but in this case, as outlined above, I find that the Appellant has credibly established that her husband's sexual orientation has been exposed to the police, that he is wanted, and that she is targeted as a result. Additionally, as outlined above, I find that the Appellant is credible, on a balance of probabilities. Accordingly, I accept her allegations that the police are aware of her husband's sexual orientation and have harassed and detained her as a result of this.18 It is on this basis upon which I find the Appellant faces a risk of persecution. [17] As outlined above, the RIR on file indicates that arrests of family members wanted based on their sexual orientation have occurred and could occur. Based upon the RIR, I find that the risk of this type of arrest may not be great, but given that the test for Convention refugee status is more than a mere possibility of persecution, I find that this risk meets the threshold.19 Additionally, I note that the same RIR indicates that individuals detained in circumstances such as the Appellant's are often harassed, ill-treated, or tortured.20 I find that these risks rise to the level of persecution. Additionally, I find that, given that these risks are as a result of the Appellant's family status as a spouse of a wanted bisexual man, this constitutes a particular social group and that therefore this persecution is based upon a Convention ground. [18] Given that the persecution the Appellant fears is at the hands of the state, who operate throughout Nigeria, and given that the Appellant has been harassed in Lagos and detained in Ibadan, I find that there can be no state protection or internal flight alternative for the Appellant. Accordingly, I find that she meets the test for a Convention refugee. CONCLUSION [19] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) "Erin Bobkin" Erin Bobkin March 26, 2019 Date 1 Exhibit RPD-1, RPD Record, the Appellant's Basis of Claim (BOC). 2 Ibid., the Appellant's BOC. 3 Ibid., the Appellant's BOC. 4 Ibid., the Appellant's BOC. 5 Ibid., the Appellant's BOC. 6 Exhibit RPD-1, RPD Record, RPD's reasons. 7 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 8 Exhibit P-2, Appellant's Record, Memorandum. 9 Exhibit RPD-1, RPD Record, at p. 6, RPD's Reasons and Decision. 10 Exhibit RPD-1, RPD Record, at p. 22, the Appellant's BOC narrative. 11 Exhibit RPD-1, RPD Record, at p. 7, RPD's Reasons and Decision. 12 Exhibit P-2, Appellant's Record, Memorandum. 13 Exhibit RPD-1, RPD Record, at p. 8, RPD's Reasons and Decision, at para 19. 14 Exhibit RPD-1, RPD Record, at pp. 106-111, Support Letters. 15 Exhibit RPD-1, RPD Record, at pp. 98-104, RPD's Decision in husband's case 16 Exhibit P-2, Appellant's Record, at pp. 39-40. 17 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Nigeria (July 30, 2018), item 10.1, Immigration and Refugee Board (IRB), Response to Information Request (RIR) NGA105249.E, August 4, 2015. 18 Exhibit RPD-1, RPD Record, the Appellant's BOC. 19 Supra footnote 17, NDP for Nigeria (July 30, 2018), item 10.1. 20 Supra footnote 17, NDP for Nigeria (July 30, 2018), item 10.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-27511 RAD.25.02 (September 18, 2018) Disponible en français 7 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 (September 18, 2018) Disponible en français