TB9-14518

RAD File / Dossier de la SAR : TB9-14518 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 Toronto, ON Appel instruit / entendu à Date of decision September 20, 2019 Date de la décision Panel Gregg Erauw Tribunal Counsel for the person who is the subject of the appeal Akinwumi Reju Barrister and Solicitor 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 (the "Appellant") is a citizen of Nigeria. The Appellant claims that if he returns to Nigeria, he will be persecuted due to his sexual orientation. [2] The Appellant appeals a decision of the Refugee Protection Division (RPD) rejecting his refugee claim. As a preliminary issue, the Appellant submits new evidence and asks for an oral hearing. On the merits, he argues that the RPD erred by finding him not credible, and erred in its internal flight alternative (IFA) assessment. [3] I have rejected the Appellant's new evidence and I deny his request for an oral hearing. I also find the Appellant is not credible in his allegations, which is determinative of his claim. As a result, I confirm the RPD's decision that the Appellant is not a Convention refugee or person in need of protection. This appeal is denied. SCOPE OF THE RAD REVIEW [4] For questions of fact, mixed fact and law, and law, the RAD applies the standard of correctness. In assessing findings involving the credibility of oral testimony, I may defer if I find that the RPD had a meaningful advantage in the circumstances.1 Reasons will be provided in my analysis if I find that the RPD had a meaningful advantage. ADMISSIBILITY OF NEW EVIDENCE [5] In support of his appeal, the Appellant proposes one document as new evidence: 1) Letter of Support from the Appellant's Mother, dated June 14, 2019.2 [6] 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.3 If one of these conditions is met, the Refugee Appeal Division (RAD) will then consider if the evidence is credible, relevant, and new.4 The support letter from the Appellant's mother is inadmissible [7] I do not accept the Appellant's mother's letter of support as new evidence. The Appellant's mother states in the support letter that the Appellant's father has refused to change his mind and is continuing to insist that the Appellant undergo spiritual cleansing. It also states that the Appellant is a bisexual. The Appellant submits that the letter was not available at the hearing because the letter arose after the RPD rejected his claim. [8] While the Appellant casts the letter as showing his father is "still" at risk in Nigeria and he was outed as a bisexual in Nigeria, this is not new evidence. It is simply a recitation of his allegations before the RPD. The letter is also vague, as it provides no specific details about what is new from his original allegations that his father insists on him undergoing spiritual cleansing and that he was outed in Nigeria as a bisexual. [9] In addition, I note that the Appellant wrote in his narrative and testified that he was in contact with his mother at the time the RPD rejected his claim, and as such, he could have reasonably been expected to provide a support letter from her at the time of rejection concerning his sexual orientation being outed in Nigeria and his father's desire for him to undergo spiritual cleansing. No such corroboration was provided, despite the Appellant knowing to provide corroborating documents to the RPD in support of his claim.5 His submissions fail to explain why a support letter could not have been provided to the RPD. [10] 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 Old evidence remains old evidence, even if it is placed in a new document with a recent date. The letter appears to be provided in this appeal in order to repair his deficient record before the RPD, rather than allow for the correction of errors of fact, errors in law, or mixed errors of fact and law.7 Repairing a deficient record is not the purpose of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). Finally, for reasons more fully canvassed below, I note that the support letter is further inconsistent with his evidence before the RPD about who threatened him with spiritual cleansing. As a result, the support letter has credibility issues. For the above reasons, I find the support letter from the Appellant's mother is inadmissible as new evidence. The request for an oral hearing is denied [11] The Appellant requests an oral hearing. However, since there is no new evidence being accepted by the RAD, there can be no oral hearing, so the application is denied.8 ANALYSIS [12] The Appellant argues that the RPD erred in its credibility assessment and IFA assessment. For the reasons provided below, I find that the Appellant is lacking in the credibility regarding his allegations, which is determinative of this appeal. Since credibility is the determinative issue, I will not address whether the RPD erred in its IFA assessment. [13] With respect to the argument that the RPD erred in its credibility assessment, the Appellant specifically argues that the RPD erred by: erroneously discounting his psychological assessment; relying on minor credibility and unreasonable plausibility findings; and, failing to apply the Chairperson's Guideline on Sexual Orientation and Gender Identity and Expression (SOGIE). The RPD did not err in its consideration of the psychological report [14] The Appellant argues that the RPD erred by discounting the psychological report, because the report did not mention that the Appellant enjoyed the sexual encounters with Gideon. The Appellant submits that the psychological report is based on independent and objective testing, so it can serve as corroborative evidence of his credibility and contradicts the RPD's statement that the report was based solely on the Appellant's reports to the psychologist. It was factually incorrect and unjust to conclude that the psychological report did not assess the Appellant's sexual orientation. [15] I find the RPD did not err in its consideration of the psychological report. Psychological reports are submitted for two purposes: to explain potential issues with the Appellant's testimony before the RPD, and to corroborate his allegations. In this case, the RPD correctly addressed both factors in its reasons. [16] First, the RPD noted that the Appellant had no difficulties testifying or understanding the questions asked during his hearing. The Appellant takes no issue with this finding. Considering the Appellant takes no issue with this finding, and having reviewed the record and RPD hearing, I see no reason to interfere with it. It is correct and based on the evidence in the record. The Appellant was able to understand the questions asked and testified coherently. [17] Second, the RPD noted that the psychological report provided no assessment of his sexual orientation. This was not an error, but a statement of fact. Having reviewed the psychological report, it clearly states that the Appellant self-reported his bisexuality, and the assessment conducted by the psychologist refers to assessing his PTSD. The report makes no reference to having assessed his sexual orientation. [18] Nevertheless, what is most relevant is that the details of his relationship with XXXX reported to the psychologist are inconsistent with the Appellant's narrative. In particular, the report states that the Appellant was subject to an abusive relationship with XXXX for several years that progressed well into their post-high school years. However, the report omits information when compared to the information in the Appellant's narrative describing his "relationship" and experiences with XXXX. Rather than painting a picture of years of non-consensual abuse, the Appellant states in his narrative that he "finally started enjoying [XXXX] advances" after the first year, and states "I realized that I started to miss XXXX and I couldn't wait till I was back in school." The Appellant continues to characterize his relationship with XXXX as consensual, stating "XXXX and I continued to see each other until he left for University in June 2010. I was devastated because of the feelings we had shared over the years." He also stated he was devastated in 2012 when XXXX grew tired of him and they no longer saw each other. The information reported to his psychologist is in stark contrast to his description of his relationship and experiences in his narrative. [19] Given the above inconsistency, I find the Appellant's description of his experiences and relationship with Gideon as reported to the psychologist, and compared with the allegations in his Basis of Claim (BOC), diverge significantly. Due to the omission and inconsistency I draw a negative inference that the Appellant was in a bisexual relationship with XXXX, as alleged. The Appellant was lacking in credibility in core aspects of his claim [20] The Appellant argues that the RPD relied on minor credibility findings, unreasonable inferences, and unreasonable implausibility findings, and there were no material inconsistencies to rebut the presumption of truthfulness. However, in my independent review of the record, I note several core inconsistencies in the Appellant's testimony, which undermines his claim that he is a bisexual, that he was in a relationship with Gideon, and that his sexual orientation was exposed, as alleged.9 The Appellant was inconsistent about when XXXX called and threatened him [21] The Appellant wrote in his narrative that a week before he left for Canada in XXXX 2015, XXXX called him telling him that he was sorry and he wanted to get back together with him. However, the Appellant told XXXX it was over and that he should not call him again. The Appellant further states in his narrative that in December 2015 he got another call from XXXX, and when the Appellant told him he was not "interested in that life style", and told him not to call him because he was engaged to XXXX, XXXX got angry, insulted him, threatened to destroy his life, break his engagement, and make the police come after him unless he agreed to date him. However, during his testimony the Appellant testified that after 2012 he did not hear from XXXX until September or October 2015, when the Appellant was already in Canada.10 The Appellant testified that, at the time of the call in September or October 2015, XXXX knew he was engaged to XXXX and threatened to inform her. This is several months before he alleges in his narrative that XXXX learned this information, which states XXXX threatening call occurred in December 2015. Due to this inconsistency, I draw a negative inference that the Appellant was in a bisexual relationship with XXXX and that the Appellant's bisexuality was exposed as alleged. The Appellant was inconsistent about who was threatening him with spiritual cleansing [22] The Appellant wrote in his narrative that XXXX parents threatened to report him to the police if they ever saw him again. The Appellant also claimed that his own parents told him to return to Nigeria for spiritual cleansing. However, during his testimony the Appellant was inconsistent with this claim by stating on two separate occasions, and to two separate questions, that XXXX parents, not his own parents, wanted him to return to Nigeria for spiritual cleansing.11 I would expect the Appellant to be consistent with his narrative about how his parents threatened him. Due to this inconsistency, I draw a negative inference that the Appellant was in a relationship with XXXX, that his bisexuality was exposed, and that he was threatened for his sexual orientation as alleged. The Appellant was inconsistent about the last time he spoke to his ex-fiancée [23] The Appellant was asked early in his hearing if he maintained any contact with his ex-fiancée, XXXX. The Appellant responded that he did not, and said that after XXXX discovered that he had a relationship with XXXX, she was upset and broke up with him.12 According to his narrative, this would have been after XXXX called and threatened him in December 2015. However, when the RPD asked the Appellant when the last time he spoke to XXXX was, he testified that it was in November 2016, which is inconsistent with the timeline of his allegations in the narrative.13 If the Appellant last spoke to XXXX in November 2016 as alleged, this is nearly a year after he claims XXXX threatened to tell XXXX. It is also many months after he claims that his father disowned him for his sexual orientation and refused to pay his school fees. I would expect the Appellant to provide a timeline that is consistent with his narrative about when his bisexuality was exposed and when he was threatened. Given this inconsistency, I draw a negative inference that the Appellant was in a relationship with XXXX, and that he was exposed as a bisexual to XXXX, as alleged. The RPD's application of the SOGIE Guidelines [24] The Appellant argues that, although the RPD cited the SOGIE Guidelines, it failed to apply them because it faulted the Appellant for his lack of corroborating documents about his allegations, particularly his sexual orientation. [25] While I agree with the Appellant that the SOGIE Guidelines indicate that the testimony of the Appellant may be the only evidence of one's sexual orientation and allegations, I note that the RPD did not draw a negative inference from his lack of corroborating evidence. Instead, it found his testimony insufficient to establish his sexual orientation. [26] That said, there is case law that states "when a claimant's testimony contains many lies, corroboration may be needed to establish sexual orientation."14 In this case, I have observed several inconsistencies between the Appellant's narrative, his testimony, and supporting documentation. In my view, there is sufficient reason to doubt the Appellant's allegations that he is bisexual, as alleged. This is based on the above findings that the information in in psychological report is significantly different from description of his relationship with XXXX in his narrative. In addition, the Appellant was inconsistent about when XXXX called and threatened him, he was inconsistent about who wanted him to undergo spiritual cleansing, and he gave inconsistent evidence about when he last spoke to XXXX and when she learned about his sexual orientation. In light of the above credibility concerns, I find the Appellant has not established his sexual orientation on a balance of probabilities. Moreover, considering the Appellant provides no corroborating documents of his sexual identity or his core allegations, I am unable to find that his documents overcome these credibility concerns. Therefore, I must dismiss the appeal. CONCLUSION [27] After conducting my own analysis of the entire record, I find that the RPD did not err in its credibility conclusions. While the RAD has concerns over a couple of the RPD's findings, they are not fatal to its final determination that the Appellant is not a Convention refugee or a person in need of protection. DETERMINATION [28] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee, nor a person in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "Gregg Erauw" Gregg Erauw September 20, 2019 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, paras. 70 and 103. 2 Exhibit P-2, Appellant's Record, Letter of Support from the Appellant's Mother, at pp. 37-38. 3 Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). 4 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 5 Exhibit RPD-1, RPD's Record, Exhibit 5, Appellant's Supporting Documents, pp.130-143. 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 Canada (Citizenship and Immigration) v.Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 54. 8 Subsection 110(6), Immigration and Refugee Protection Act, S.C. 2001, c.27. 9 Nuriddinova v. Canada (Citizenship and Immigration), 2019 FC 1093, at paras. 47-48. 10 Exhibit P-2, Appellant's Record, Transcript provided by the Appellant, at pp. 17-20. 11 Exhibit P-2, Appellant's Record, Transcript provided by the Appellant, at pp. 21 and 28. 12 Exhibit P-2, Appellant's Record, Transcript provided by the Appellant, at p. 11. 13 Exhibit P-2, Appellant's Record, Transcript provided by the Appellant, at p. 14. 14 Aluyi v. Canada (Minister of Citizenship and Immigration), 2006 FC 1028. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-14518 RAD.25.02 (April 04, 2019) Disponible en français 9 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