TB6-13063

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 No. / N° de dossier de la SAR : TB6-13063 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, Ontario Appel instruit à Date of decision November 10, 2016 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jessica Lipes Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of Nigeria, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside and substitute the negative determination with a positive determination or in the alternative, that the matter be referred back to a different member of the RPD for re-determination. The Appellant submits new evidence in support of his appeal and he requests an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [2] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection. The RAD dismisses the appeal. Background [3] The Appellant alleges that he is homosexual. [4] He became aware of his sexuality while he was in junior high school. He had a relationship, limited to touching and kissing, with a fellow student, XXXX XXXX. The relationship came to an end when XXXX relocated to another state with his parents. [5] In XXXX 2013, the appellant met XXXX XXXX, who was a XXXX XXXX. A friendship developed between the two men. At one point it was necessary for the Appellant to attend XXXX home to have his XXXX XXXX. It was on that occasion that the Appellant first had sexual intercourse with XXXX. [6] In XXXX 2014, XXXX advised the appellant that he feared they might get caught and suggested that they travel to a country where homosexuals are accepted. Consequently, the Appellant and XXXX applied to study in Canada. The Appellant was accepted while XXXX was not. [7] On XXXX XXXX, 2014, the Appellant and XXXX had sexual intercourse while staying at a hotel after a birthday celebration. Unbeknownst to them, their activities were videotaped. The following day XXXX was attacked and killed by vigilantes. When the Appellant learned that the vigilantes were looking for him, he travelled to the home of his uncle in XXXX. When his uncle learned what had happened, he advised the Appellant that he would help him avoid harm. The Appellant was then taken to stay with a friend of his uncle in XXXX, Ogun State. The Appellant's uncle assisted him in obtaining a student visa. [8] The Appellant arrived in Canada on XXXX XXXX XXXX 2015 and made a claim for refugee protection on November 3, 2015. [9] The Appellant had a refugee determination hearing on January 18, 2016. In a written decision issued on February 5, 2016, the RPD rejected the claim. The RPD member found that the Appellant was not credible and that he had not established his sexuality. [10] Appeal pleadings were received on March 31, 2016. In his appeal, the Appellant argues that the RPD erred in its credibility findings. The Appellant submits that the RPD erred in its general findings of implausibility and relied on stereotypes of gays. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [11] As provided for in section 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD, and may accept documentary evidence and written submissions from the Minister and refugee claimant. Section 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [12] The Appellant submitted the following new evidence with his original Appellant's Record: a) The Appellant's Affidavit, dated March 30, 2016;1 and b) An identity card issued to XXXX XXXX by the "Lagos State XXXX Association of XXXX".2 [13] The RAD is following the guidance in the Federal Court of Appeal (FCA) decision of Singh3 in determining the admissibility of new evidence under subsection 110(4) of the IRPA. The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in section 110(4). [14] If the proposed new evidence meets the tests set out in the statutory requirements, the RAD will then go on to assess the FCA's considerations in Raza4 with the exception of materiality which is to be considered only in relation to s. 110(6) of the IRPA. [15] In the case at hand, the RAD accepts document a), the Appellant's Affidavit, insofar as it explains the reasons for the new evidence. [16] For the following reasons the RAD does not accept document b), an identity card issued to XXXX XXXX. The RAD notes that according to the recording of the hearing, the RPD questioned the Appellant in some detail as to why he had no documentary evidence regarding the existence of XXXX XXXX. The Appellant notes this in his affidavit, document a). The Appellant provides no explanation in his affidavit or in his memorandum as to why he did not provide this evidence post-hearing, before the RPD rendered its decision, if not for his hearing before the RPD. Request for an oral hearing [17] The Appellant requests that an oral hearing be held under subsection 110(6) of the IRPA. [18] The RAD may only convene an oral hearing if there is new evidence that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, that is central to the decision with respect to the refugee protection claim; and that, if accepted, would justify allowing or rejecting the refugee protection claim. Here the RAD has rejected the new evidence, an identity document issued in the name of XXXX XXXX. Therefore, the RAD denies the request for an oral hearing. ROLE OF THE RAD [19] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,5 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. [20] The RAD concludes from its statutory analysis that, with respect to findings of fact (and mixed fact and law), the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD's decision, the RAD is to carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. ANALYSIS OF THE EVIDENCE [21] The RAD will focus on whether the RPD erred in its credibility findings. The period in which the Appellant was in hiding. [22] The RPD found that the Appellant was not in hiding. As a result of this finding, the RPD found that the Appellant had not established the cause of why he was in hiding, that is, that he was found making love to XXXX and that XXXX was subsequently killed by a mob. The Appellant's lack of credibility as a result of this particular testimony led the RPD to seriously question the Appellant's sexual orientation. The time period during which the Appellant hid in Sagamu [23] The RPD found the Appellant's explanations regarding his confused testimony about the time period in which he hid in XXXX lacked credibility. The RPD found that the Appellant was never in hiding between XXXX XXXX, 2014 and the time he travelled to Canada in XXXX 2015 as alleged. [24] The Appellant submits that the inconsistencies around the hiding period were minor and not central to his claim. [25] The RAD is not persuaded by the Appellant's submissions. [26] The fact that it was necessary for the Appellant to hide from the agents of persecution is a critical aspect of his claim. [27] Having listened to the recording of the hearing, the RAD finds the Appellant's testimony became equivocal when asked about the time he was in hiding in XXXX. When first asked, he testified that he did not know the time period and then offered that it was about a month. When the RPD asked if the time period in XXXX was during the months of XXXX 2014 and XXXX 2015, the Appellant avoided answering the question by testifying that it was while he waited for the processing of his visa. When asked to be more precise, the Appellant testified that it was in XXXX 2014 and then added that it was months. When the Appellant was again asked to be more precise, he repeated that he was in XXXX until his visa was ready. The RPD asked the Appellant when he had submitted his visa application. The Appellant testified that it was in XXXX or XXXX of 2015. When the RPD then asked the Appellant where he had been living from XXXX to XXXX 2015, he testified that he had been in XXXX with the friend of his brother. When the RPD again asked the Appellant how long he had spent in XXXX and the Appellant again provided, what the RAD finds to have been the vague response that it was from XXXX 2014 until his visa was ready. When asked when his visa was ready, the Appellant testified that it had been XXXX or XXXX of 2015. The RPD then asked the Appellant to explain the contradictions in his testimony, that is, that he had remained one month in XXXX and finally that he remained in XXXX until XXXX or XXXX of 2015. The Appellant again avoided answering the question, by testifying about his initial time with his cousin in XXXX. When it was pointed out to the Appellant that he had first testified that he remained one month in XXXX, he responded that he had not provided such testimony. When the RPD referred the Appellant to his change in testimony by stating that he had stayed in XXXX until XXXX or XXXX, the Appellant testified that he thought the RPD was referred to the time he stayed with his cousin. A little later in the hearing, the Appellant testified that he remained in XXXX until he flew to Canada. When again asked to explain the numerous contradictions in the time period he stayed in hiding in XXXX, the Appellant testified that he really did not recall the day he stayed with his cousin's friend until he left for Canada. [28] According to the jurisprudence an important indicator of credibility is whether a witness can consistently tell his particular story.6 The RAD finds that the Appellant was unable to do so. Allegedly, the Appellant spent the nine months prior to arriving in Canada in hiding in Sagamu. The Appellant's hearing was held just over four month after he arrived in Canada. The RAD finds that the Appellant provided no satisfactory explanation for not providing the information of a recent nine month's in hiding in a consist manner. The Appellant neither alleged nor provided evidence of memory problems. As a result of this particular testimony, the RAD finds the Appellant's credibility seriously undermined. The person with whom the Appellant first hid [29] The Appellant noted that the RPD had, in its reasons, recognized that some of the confusion may have stemmed from different cultural use of family identifiers like 'brother' in Nigeria. [30] With regard to the person with whom the Appellant first allegedly hid, the RAD finds that the Appellant could not keep his story straight. In his Basis of Claim (BOC) narrative, the Appellant alleges that he hid at the residence of his uncle in XXXX. However, according to the recording of the hearing, the Appellant first testified that he hid at the home of his brother in XXXX. Upon being asked, the Appellant testified that his brother's name was XXXX XXXX. When asked if XXXX was the son of the Appellant's mother, the Appellant responded in the negative and testified that XXXX was like an uncle to him. The RPD then asked whether XXXX was his brother or his uncle. The RAD finds that the Appellant avoided answering the question when he then testified that XXXX was like an uncle. The RPD pointed out to the Appellant that he had identified XXXX first as his brother and then as his uncle. When the Appellant then testified that XXXX was the son of his father's brother, the Appellant's counsel stated that XXXX was, therefore, the Appellant's cousin. The RPD reminded the Appellant that he had first testified that XXXX was his brother while he stated in his BOC that it was his uncle with whom he hid and it was now understood that XXXX was a cousin. The Appellant was then asked why he had identified XXXX as his brother. The Appellant responded by testifying that in Nigeria any relative is referred to as a brother. The RAD does not find the Appellant's explanation for the contradiction between his initial testimony and information in his BOC narrative. If any relative (the RAD assumes male relative) is referred to as brother then the Appellant provided no satisfactory explanation as to why he stated in his BOC narrative that he went to the home of his uncle. The Appellant had the assistance of counsel when completing his BOC, the same counsel since the time he made his claim for protection at the port of entry (POE). [31] The RAD appreciates that the RPD acknowledged in its reasons that in the Nigerian culture "brother" could mean many people. However, the RAD finds that the Appellant mischaracterized the RPD's reasons when the Appellant submitted that the RPD had, in its reasons, recognized that some of the confusion may have stemmed from different cultural use of family identifiers like 'brother' in Nigeria. The RPD did not indicate that the Appellant's "confusion" may have been caused by cultural difference. The RPD acknowledged the use of the term "brother" in the Nigerian culture and then stated "but here the claimant mentioned specifically 'uncle' in his narrative."7 The RPD then indicated that the Appellant had time to write his narrative with the help of his lawyer. The RAD infers that the RPD found that cultural differences did not explain the Appellant's specific use of the term "uncle" in his narrative. [32] As a result of these particular contradictions, the RAD finds the Appellant's credibility further undermined. Lack of interest in gay activities [33] The RPD found the Appellant's apparent lack of interest in the situation of gays in Nigeria was another element that indicates the claim is not credible and the Appellant is not gay. The RPD noted that the Appellant did not seem to be interested in the situation of gays in Canada. The RPD found that the Appellant's participation in the year-end supper at an organization in Montreal that supports sexual minorities did not establish his sexual orientation. [34] The Appellant submits that the RPD's inference that the Appellant is not gay because of his lack of curiosity about gays in Nigeria and in Canada is based on cultural misunderstandings. The Appellant further submits that the RPD should not have relied on stereotyping when assessing his case. [35] The RAD agrees with the Appellant in part. [36] Chairperson's Guideline 9 provides guidance in assessing claims involving sexual and gender minority individuals. Section 6.1 advises decision-makers that they may not rely on stereotypes or inappropriate assumptions in adjudicating cases involving sexual orientation and provides various examples of stereotyping. One example, particular to the RPD's finding, is assuming that sexual minorities would actively participate in LGBTI culture in Canada. The RAD finds that the Appellant's apparent lack of interest in the gay scene is Montreal does not detract from his credibility. The RAD finds that the RPD erred in this particular finding. However, the RAD does not find that this error is fatal to the RPD's decision overall. [37] With regard to the RPD's finding related to the Appellant's lack of interest in the situation for gays in Nigeria, the Chairperson's Guideline 9 indicates that certain avenues of inquiry may be followed by the RPD in establishing a claimant's credibility regarding their sexuality. One such avenue includes the claimant's knowledge about the situation of sexual minorities in their home country. According to the recording of the hearing, the RPD asked the Appellant if, apart from general violence against gays in Nigeria, he had any specific knowledge of groups or victims of violence. The Appellant testified that he normally sees them. The RAD finds this response to be overly vague. When the RPD asked the Appellant to explain "them", the Appellant testified that he did not understand the question. When the RPD rephrased its question, the Appellant testified that he normally didn't see them. When the RPD asked the Appellant if he knew of any gay activists in Nigeria, he testified that they were not available because they are all in hiding. The RPD then asked the Appellant if he was interested in what was going on in Nigeria with respect to gays. The Appellant testified that he was not interested and he didn't know. The RAD appreciates that all homosexuals in Nigeria may not be interested in the situation for gays in their country. However, the RAD finds that the Appellant's responses to the RPD's questions in this regard to have been reactive and manufactured. The RAD, thus, finds the Appellant's credibility diminished. Lack of documentary evidence [38] The RAD found that the Appellant had provided no documents to establish the alleged killing or existence of his same-sex lover, XXXX, and had made no effort to do so. The RPD noted that the alleged killing of XXXX took place in broad daylight. The RPD also noted in its reasons that the National Documentary Package (NDP) indicates homophobia is rampant in Nigeria and that the press in Lagos is very active in reporting murders and violence. The RPD also referred to the Appellant's documentary evidence regarding local press reports of violence towards gays. The RPD concluded by finding it reasonable to believe that the killing of XXXX, a gay man and a XXXX operating his business in Lagos, the commercial capital of Nigeria, would have been reported in the media. The RPD found that XXXX was never killed. [39] The RPD noted that the Appellant had testified that he had no photographs of XXXX because photographs had been in his phone which was destroyed. The RPD found that the Appellant provided no documents from social media, such as Facebook, regarding XXXX. The RPD noted that the Appellant made no attempt to obtain documentary evidence of XXXX. As a result of the paucity of any documentary evidence regarding XXXX, the RPD found that XXXX probably did not exist. [40] The Appellant submits that the identity card issued to XXXX, offered as new evidence for his appeal, provides evidence of XXXX existence. The Appellant provided no submissions regarding the lack of documentary evidence regarding the alleged killing of XXXX. [41] The RAD is not persuaded by the Appellant's arguments in this regard. [42] The RAD has not accept the identity document offered as new evidence. [43] Regarding the lack of documentary evidence, such as media coverage of the alleged mob killing of XXXX, the RAD finds it more likely than not if such a killing of a gay man took place in broad daylight in Lagos, the incidence would have been reported in the media. The RAD is supported in this finding with information contained in the NDP.8 As a result of the lack of any documentary evidence in this regard and the Appellant's lack of effort to obtain such evidence, the RAD draws a negative inference. The RAD depends upon the jurisprudence in Ma: Reasonableness dictates that in the case of the Immigration and Refugee Board (and all its divisions), although the rules of evidence in its regard are relaxed, nevertheless, when evidence is available ... then an adverse inference can be drawn.9 [44] Similary, in the Kante10 decision, the Federal Court held that the claimant's evidence was lacking in that he failed to submit supporting evidence that he could have obtained. [45] As a result of the lack of any documentary evidence regarding the critical incident that led the Appellant to abscond from Nigeria and seek protection in Canada, the RAD finds the Appellant's credibility seriously impugned. Vague testimony [46] The RPD found that the Appellant's testimony was often vague which contributed to the RPD's finding that the Appellant was not credible. [47] The Appellant made no submissions on this finding. [48] Having listened to the recording of the over two-hour hearing, the RAD concurs with the RPD. [49] The RAD has noted above, some of the Appellant's vague testimony when he was asked to provide evidence regarding his time in hiding from the agents of persecution from XXXX 2014 until he left Nigeria in XXXX 2015. [50] Following are further examples of the Appellant's vague testimony. [51] When the Appellant was asked to provide information about his first homosexual relationship, the RAD finds that the Appellant gave no details about the relationship with XXXX and did not stray from information about this relationship contained in the one paragraph in his BOC narrative.11When the RPD asked for further details, the Appellant testified that he returned to XXXX home the following week and they did nothing. The Appellant then added that after a few months XXXX moved to another state. The RAD reasonably believes that one's first intimate relationship, whether sexual intercourse occurred or not, to be significant. The RAD finds the Appellant's credibility in this regard undermined as a result of this particular testimony. [52] When the Appellant was questioned about his second same-sex relationship, he testified that the relationship had been with XXXX XXXX. When asked about the relationship, the Appellant provided no more information than that found in his written narrative. According to the recording of the hearing, it was necessary for the RPD to ask pointed questions to obtain any further details. According to the Appellant's allegations, the relationship with XXXX began in XXXX 2013 and continued until XXXX was killed almost a year and a half later. According to the Appellant's testimony, XXXX is the only man with whom he has had sexual intercourse. Therefore, the RAD reasonably believes that such a relationship would be significant to the Appellant and would warrant much more detail in the Appellant's oral testimony. [53] The Appellant was asked to describe what happened the day after he and XXXX spent a night in a hotel in XXXX 2014. The RAD finds the Appellant provided vague testimony when he testified that after they slept at the hotel, they left for their own homes and XXXX was waylaid. According to the recording of the hearing, it was again necessary for the RPD to continually ask pointed questions to obtain any details of the day on which XXXX was allegedly killed by vigilantes. The RAD finds the Appellant's credibility impugned as a result of his vague testimony regarding such a significant event in the Appellant's claim. [54] According to the recording of the hearing, the Appellant was asked how he learned of the attack on XXXX. The Appellant testified that someone told him. When the RPD asked the Appellant to identify the person, the Appellant testified that it was a member of the neighbourhood and then settled on the name XXXX. When the Appellant was asked why XXXX provided information to him, the Appellant testified that it was because he and XXXX normally see each other. The lack of spontaneous answers regarding who informed the Appellant and no reasonable explanation as to why this information was provided to the Appellant, leads the RAD to find the Appellant's credibility further diminished. [55] The RAD finds that the Appellant's testimony was not given in a forthright manner. His testimony often lacked any detail beyond that found in his BOC narrative regarding people or events significant to his claim. As a result, the RAD finds that the Appellant's credibility is seriously compromised with regards to his alleged same-sex relationships and the event that led him to flee Nigeria. Documentary evidence [56] The RAD found that letter from "XXXX XXXX XXXX XXXX XXXX XXXX",12 a Montreal organization that supports members of the LGBT community, provided as evidence by the Appellant, did not establish the sexual orientation of the Appellant. [57] The Appellant submits that the RPD incorrectly found the Appellant had not established his sexuality because he lacked interest in the situation for gays in Canada despite the fact that the Appellant provided a letter from XXXX XXXX XXXX XXXX XXXX XXXX which indicates that he has attended their activities. [58] For the following reasons the RAD gives the letter from XXXX XXXX XXXX XXXX XXXX XXXX little probative weight in establishing the Appellant's sexual identity. [59] The letter from XXXX XXXX XXXX XXXX XXXX XXXX states that the Appellant is a member of the organization. The letter states that the Appellant attended an annual year-end dinner with other members. The RAD finds that the letter establishes that the Appellant is a member at of XXXX XXXX XXXX XXXX XXXX XXXX and attended one celebratory dinner. The XXXX XXXX XXXX XXXX XXXX XXXX Centre is not restricted to LGBT individuals and the letter does not overtly identify the Appellant as a homosexual. The letter, on its own, does not establish the sexuality of the Appellant. Therefore, the RAD finds the letter has little probative value in establishing the sexual identity of the Appellant in light of the numerous credibility problems outlined in these reasons with respect to his sexual orientation. Summary [60] Based on a review of the totality of the evidence, the Appellant has not provided sufficient credible or trustworthy evidence in support of his claim. The RAD, therefore, finds that the Appellant is not homosexual. DISPOSITION [61] Based on the analysis above, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection, as per section 111(1)(a) of the IRPA. [62] The appeal is dismissed. (signed) "Lesley Mason" Lesley Mason November 10, 2016 Date 1 Exhibit P-2, Appellant's Record, pp. 8-9. 2 Ibid., p. 10. 3 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 4 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 5 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 6 Dan-Ash, Taysir v. M.E.I. (F.C.A., no. A-655-86), Marceau, Hugessen, Lacombe, June 21, 1988. Reported: Dan-Ash v. Canada (Minister of Employment and Immigration) (1988), 93 N.R. 33 (F.C.A.). 7 Exhibit RPD-1, RPD's Record, RPD's Reason, para. 9. 8 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) Nigeria (November 30, 2015), items 1.13, 2.1, and 6.1. 9 Ma, Phat Thoai v. M.C.I. (F.C., no. IMM-1839-09), Shore, May 11, 2010, 2010 FC 509, para. 2. 10Kante, Abdoulaye v. M.E.I. (F.C.T.D., no. IMM-2585-93), Nadon, March 23, 1994. 11 Exhibit RPD-1, RPD's Record, BOC narrative, pp. 15-17. 12 Exhibit RPD-1, RPD's Record, p. 181. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-13063