TB7-16271

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 / Dossier de la SAR : TB7-16271 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 May 2, 2018 Date de la décision Panel Nadra Qadeer Tribunal Counsel for the person(s) who is(are) the subject of the appeal Letebrhan Beyene Nugusse 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) is a citizen of Nigeria and appeals the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant has submitted new evidence and is requesting a hearing. [2] The Appellant asks the Refugee Appeal Division (RAD) to find her to be a Convention refugee or person in need of protection. In the alternative, the Appellant asks the RAD to refer the matter back to a different member of the RPD for redetermination. DETERMINATION [3] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), I allow the appeal and refer the matter to the Refugee Protection Division for redetermination by a differently constituted panel. ROLE OF THE RAD [4] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.1 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, applies a standard of review of reasonableness.2 BACKGROUND [5] The Appellant alleges that she is lesbian and she was in a long-term same-sex relationship. On November 11, 2016 she and her partner were caught having sex by the Appellant's fiancé in his apartment. When her sexual identity was discovered by her fiancé she escaped to her family's home. Her fiancé contacted the police who continue to seek her out. [6] The Appellant travelled to the United States (USA) on a visa on XXXX XXXX, 2017. She made an inland claim for refugee protection in Canada on April 6, 2017. Her claim was heard by the RPD on June 1, 2017 and denied in a written decision dated July 26, 2017. NEW EVIDENCE AND REQUEST FOR AN ORAL HEARING [7] Subsection 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of the claim or that was not reasonably available, or that she could not reasonably have been expected3 in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in their memorandum about how any proposed new evidence meets the requirements of subsection 110(4) and how that evidence relates to the Appellant.4 [8] In addition, if the new evidence meets one of the explicit legislative factors in subsection 110(4), then the second step of the analysis is for the RAD to apply the adapted Raza factors endorsed in Singh.5 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. The RAD will apply the Raza factors, minus the "materiality" factor, as this is to be assessed in light of subsection 110(6) only. [9] For these reasons, the RAD will apply the following factors in considering the Appellant's proposed new evidence. It will first consider whether the evidence passes the test in subsection 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of subsection 110(4), the RAD will apply the Raza factors to that evidence. [10] The Appellant submits a number of pieces of new evidence pursuant to subsection 110(4). These include: * Affidavit from the Appellant's manager, XXXX XXXX, dated August 28, 2017. Attached to this is also a receipt for the payment of the affidavit.6 [11] The Appellant argues that this evidence is "relevant and material" as it relates to concerns raised by the RPD panel at the hearing regarding problems with the Appellant's work position and identity card. I find that this evidence is not new and it was reasonably available to be submitted as post hearing evidence given the concern raised at the hearing. Furthermore it attempts to remedy problems with the Appellant's own evidence. I am rejecting this evidence as it does not meet the test as set out in subsection 110(4). * Letter of support from the Appellant's partner, XXXX XXXX, and a copy of her driver's license.7 [12] The Appellant argues that this letter is new as she was unaware at the RPD hearing of the whereabouts of her partner and only connected "After the hearing had been concluded". The Appellant argues that this letter is relevant and probative as it corroborates the risks and problems that the Appellant and her partner faced in Nigeria. [13] The letter bears no date on it nor is there any attached envelope that indicates when it was received by the Appellant. Furthermore, the Appellant's affidavit provides no explanation for how this letter was received by her and when she received it. Given the lack of explanation for how and when this letter was received, and the absence of any date to support the allegation that it is new, there is no explanation for why it was not reasonably available or expected at the time of the RPD's rejection. The letter is not admissible evidence. * Bank statements and bank card of the Appellant, from XXXX XXXX, 2015 to XXXX XXXX, 2017.8 [14] The Appellant argues that this evidence is relevant and material as it proves her place of work that was an issue before the RPD. [15] I find this evidence is not new under subsection 110(4) as it was clear from the hearing that there were questions about her place of work and her contradictory evidence regarding what she did. There is no explanation provided by the Appellant as to why she was unable to present this to the RPD prior to the rejection of her claim. This admissibility of the evidence is denied. * Supporting photographs of employment.9 [16] The Appellant argues that this is relevant, as it corroborates her place of employment. [17] I find this evidence is not new under subsection 110(4), as it was clear from the hearing that there were questions about her place of work and her contradictory evidence regarding what she did. There is no explanation provided by the Appellant as to why she was unable to present this to the RPD prior to the rejection of her claim. This evidence is not admissible. * Supporting photographs of injured partner.10 [18] The Appellant argues that this evidence is relevant and material to her appeal. She indicates that it is new as it was only after the hearing was concluded that she and her partner each discovered the whereabouts of the other. [19] I find that the Appellant's affidavit provides no explanation for how these photographs were received by her and when she received it. In my view this is not new and given the lack of explanation for how and when it was received, there is no explanation for why it was not reasonably available or expected at the time of the RPD's rejection (the hearing concluded June 1, 2017 and rejection was July 26, 2017) . The photographs are not admissible evidence. [20] The Appellant requests an oral hearing, as per subsection 110(6). As there was no documentary evidence accepted, the RAD is unable to hold an oral hearing. The request is denied. ANALYSIS OF THE APPEAL [21] The Appellant argues that the RPD made a number of errors and based its decision on erroneous findings of fact. Specifically, the Appellant submits that the RPD erred: (a) In its determination on the credibility of the Appellant's same-sex identity. (b) In finding discrepancies in her place of work and where she lived and impugning her credibility. (c) In terms of procedural fairness. [22] Having reviewed the evidence in this case as well as the RPD hearing, I find that the RPD erred in significant ways related to the Appellant's same-sex relationships. For this reason, I am not going to assess all of the arguments made by the Appellant as the errors are determinative. No examination of the same-sex relationships [23] The RPD's findings related to the Appellant's same -sex relationships are in error. As stated in the RPD's reasons and referenced by the Appellant in her Memorandum of Appeal, "The panel had credibility concerns regarding the claimant's alleged same-sex relationship with XXXX."11 However upon an examination of the RPD's decision the only concern analyzed is the lack of contact between the Appellant and her same-sex partner. The RPD erroneously made a plausibility finding, finding it not plausible that the Appellant was in a nine-year relationship and had made minimal efforts to locate or contact her partner. Not only are plausibility findings to be made in the clearest of cases, and this is not one in my view, but the RPD failed to articulate any other credibility concerns related to the same-sex relationship. [24] Having reviewed the testimony during the hearing, few questions were asked of the Appellant about her first same-sex relationship with XXXX and her recent relationship with XXXX. Furthermore, no questions were asked about the details of the precipitating incident causing the Appellant to eventually flee the country. The Appellant, in her Basis of Claim (BOC), provides details of when she and her partner were caught. "I thought my boyfriends threat was not real until two hours after he went out and only to return home with two police officers and I managed to escape to my family house...".12 No questions were asked about how this happened and what the Appellant did. In my view this is central to the claim. [25] Therefore I agree with the submissions made by the Appellant regarding the erroneous plausibility finding made by the RPD regarding contact with her partner, but would go further to find that the RPD erred by stating it had credibility concerns related to the relationship, yet failed to explore them in the hearing. Peripheral findings do impugn the Appellant's credibility [26] The Appellant argues that the RPD erred in making an implausibility finding with respect to her employment identity card.13 Here, I agree with the Appellant that the RPD erred by finding it implausible that the spelling of "store" on her identity card was an error. Again, this is not a clear case of implausibility and therefore this is an erroneous finding by the RPD. However, I do find that the misspelling leads to a finding of lack of credibility, on a balance of probabilities. Having reviewed the testimony and the evidence, I do find the RPD correctly analyzed the myriad of evidence the Appellant provided about her position at her place of employment, her tenure at her place of work, and problems with her documents. The RPD made a number of credibility findings related to the Appellant's employment history. Not all of such findings are contested by the Appellant, and much of these are supportable. No findings related to documents [27] Having reviewed the testimony of the Appellant, the RPD did ask the Appellant about a number of her documents-in particular, her daughter's birth certificate14 and the affidavit from her former manager, XXXX XXXX.15 While no findings were made about such documents, I find that a thorough analysis should include an examination of such documents in relation to the objective documentary evidence found in the National Documentation Package, specifically NGA105637.E16 and NGA105379.E.17 [28] I find that there are unresolved questions that need to be answered before a finding can be made in respect of the Appellant's claim. There is insufficient evidence before the RAD to make a finding as to whether or not the Appellant is a Convention refugee or a protected person and, in accordance with paragraph 111(2)(b) of the IRPA, the RAD cannot substitute a positive decision without hearing evidence that was presented to the RPD. Pursuant to paragraph 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for redetermination by a differently constituted panel, with directions to the RPD to include in the evidence a record of the first RPD hearing, in the form of a CD or transcript. This appeal is therefore allowed. CONCLUSION [29] The appeal is allowed. Pursuant to paragraph 111(1)(c) and subsection 111(2) of the IRPA, the RAD refers the matter to the RPD for redetermination by a differently constituted panel. (signed) "Nadra Qadeer" Nadra Qadeer May 2, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para. 103. 2 Ibid., Huruglica, 2016 FCA 93, at paras 69-74; and X (Re), 2017 CanLII 33034 (CA IRB). 3 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected"; see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, at para. 51. 4 Section 3(3)(g)(iii), Refugee Appeal Division Rules, SOR/2012-257. 5 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in Singh, 2016 FCA 96, at para. 64. 6 Exhibit P-2, Appellant's Record, Exhibit A, at pp. 22-23. 7 Ibid., at pp. 24-27. 8 Ibid., at pp. 28-44. 9 Ibid., at pp. 45-57. 10 Ibid., at pp. 58-63. 11 Exhibit RPD-1, RPD Record, Reasons and Decision, p. 9, at para. 24. 12 Exhibit RPD-1, RPD Record, Exhibit 2, Basis of Claim form narrative, at p. 24. 13 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 158. 14 Ibid., at p. 146. 15 Ibid., at p. 156. 16 Ibid., Exhibit 3, National Documentation Package (NDP) for Nigeria (31 March 2017), item 3.21, Immigration and Refugee Board (IRB), Response to Information Request (RIR) NGA105637.E, 7 October 2016. 17 Ibid., NDP for Nigeria (31 March 2017), item 6.10, IRB, RIR NGA105379.E, 7 January 2016. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-16271 9 RAD.25.02 (March 7, 2018) Disponible en français