VB8-04746

RAD File / Dossier de la SAR : VB8-04746 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 Ottawa, ON Appel instruit / entendu à Date of decision April 17, 2019 Date de la décision Panel Charles A. McDermott Tribunal Counsel for the person(s) who is(are) the subject of the appeal Rachael J Anderson 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 OVERVIEW [1] XXXX XXXX XXXX (Appellant), a citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated August 15, 2018, rejecting his claim for refugee protection. [2] The Appellant claims that he is bisexual and was involved in two long-term relationships with men in his life. The first was an eight-year relationship with a man named XXXX, which started when the two were at university and ended when XXXX moved to Ghana. The second relationship was with XXXX, who blackmailed the Appellant into a relationship by threatening to disclose nude photos of the Appellant and XXXX. The relationship ended when the Appellant found out that XXXX had AIDS. The Appellant claims that XXXX then gave the photos to the Appellant's family. The family contacted the police, who detained the Appellant for a week, releasing him when his mother paid a bribe. The Appellant went on the run in Nigeria for three months before departing for the United States of America (USA) on a pre-existing visa. [3] The Appellant is not relying on new evidence and has not requested an oral hearing. DETERMINATION [4] 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 section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). ANALYSIS Determinative Issue [5] The RPD found that credibility was the determinative issue. Following my independent review of the record, I find that credibility continues to be the determinative issue. [6] As this appeal deals with the alleged sexual orientation of the Appellant, I have considered and taken into account Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression1 (the SOGIE Guideline). Uncontested RPD Findings [7] I note that the Appellant has not contested the RPD findings associated with his delay in leaving Nigeria and his decision to fly out of the airport in Lagos. Having reviewed the record, I infer from the Appellant's delay in leaving Nigeria and his decision to fly out of the airport in Lagos that the Appellant did not subjectively fear remaining there for the same reasons as the RPD does. The RPD did not err in its assessment of the Appellant's lack of detail regarding his former partner XXXX [8] The RPD found that the Appellant's testimony regarding his relationship with XXXX was vague and lacked detail. The Appellant argues that the relationship concluded on bad terms and the Appellant deleted all his former partner's contact information not wishing to revisit this painful ending. [9] I find that the RPD did not err and the Appellant's argument must fail. The Appellant was allegedly in an eight-year relationship with XXXX and they became very close. Section 7.6 of the SOGIE Guideline states that testimony that is vague or lacking in detail may support a negative credibility inference, but that cultural, psychological or other barriers may explain the manner in which the testimony is delivered. [10] The Appellant's narrative does not include much information regarding that multi-year relationship, other than stating that they watched gay movies together, made love, went to gay secret gatherings and parties and took photographs. At the hearing, the RPD asked the Appellant 11 questions2 to draw out more information about XXXX. I find that the RPD questioning was done in a sensitive, non-confrontational manner, using open-ended questions as required by section 7.3 of the SOGIE Guideline. However, the only extra information the Appellant provided was that XXXX was intelligent, good-looking and wealthy, and had one sibling. The Appellant also knew XXXX's parents' names. I would have expected someone to know much more about a friend after eight years, regardless of whether the relationship was sexual or not. I find that the quantity and quality of information that the Appellant provided regarding XXXX was not consistent with a close, eight-year relationship. [11] I find that the lack of detail regarding the relationship with XXXX undermines the Appellant's credibility. [12] Regarding the Appellant's statement in his memorandum that he deleted all his former partner's contact information not wishing to revisit this painful ending, I note that the Appellant's testimony on this was contradictory. In his oral testimony, the Appellant stated that he did try to contact XXXX, both when XXXX returned to Ghana and when XXXX contacted the Appellant. I find that the contradictions in the Appellant's testimony undermines the Appellant's credibility. The RPD erred in its assessment of the psychologist's letter [13] The RPD gave little weight to the psychologist's letter. The Appellant argues that the RPD should have used the letter as part of the credibility assessment of the Appellant. [14] The Appellant's argument has merit. The RPD found that the psychologist relied on the Appellant's self-identification as bisexual. Since the RPD had already determined that the Appellant was not credible, it gave the letter little weight. However, as required by section 7.6 of the SOGIE Guidelines, the RPD should have assessed whether the letter explains the reasons why the Appellant's evidence was vague or lacking in detail. I can remedy this error by assessing the Appellant's evidence in light of the letter. [15] I accept that the letter may explain the Appellant's inability to fully testify about his relationship with XXXX. Section 3.7 of the SOGIE Guidelines states that the decision-maker should consider accommodations under Chairperson's Guideline 8: Procedures with respect to Vulnerable Persons Appearing Before the IRB. I have listened to the recording of the hearing and note that although the RPD makes no mention of Guideline 8, the RPD does follow its principles. The RPD questioned the Appellant in a calm and neutral manner, giving the Appellant time to formulate and give his answers. There were two breaks during the hearing, both initiated by the RPD. I find that the RPD questions were appropriate and aimed at determining whether there was, in fact, a close relationship between the Appellant and XXXX. [16] I note that in the counsel's submission, she mentioned3 that the Appellant has difficulty interacting with officials and answering questions relating to his sexual orientation. [17] The Appellant did become emotional when discussing his time in jail, but otherwise seemed calm and controlled during his testimony. On a few occasions when testifying, the Appellant used his frame of mind at the time to justify his actions. However, at no point did he state that his current frame of mind was affecting his testimony. The Appellant was allegedly in an eight-year relationship with XXXX. I find that the letter does not explain or account for the Appellant's vague testimony regarding his relationship with XXXX. The RPD did not err in its assessment of the Appellant's credibility [18] Based on the vague testimony regarding the relationship with XXXX, the delay in leaving Nigeria and flying from the airport in Lagos, the RPD found that the Appellant was not a credible witness and that the Maldonado4 presumption of truthfulness had been rebutted. Based on my independent review of the record, I agree and find that the Appellant is not a credible witness for the same reasons as the RPD did. Accordingly, I find that the Appellant's testimony has not established that he is bisexual, or that he was being sought or threatened by the police or family members. The RPD did not err in its assessment of the family member statements [19] The RPD gave the documents from the Appellant's family member in Nigeria low weight and found that they were not sufficient to establish the facts set out in them. The Appellant argues that the fact that the letters are unsworn is not sufficient to dispose of them as corroborative evidence and that the fact the statements were unsworn is supported by country conditions. [20] I find that the RPD did not err and the Appellant's argument must fail. The RPD did not "dispose of them as corroborative evidence". Having found the Appellant not to be credible, the RPD turned to the family member documents to determine if those documents could establish the Appellant's sexual orientation as bisexual. The letters allegedly from the Appellant's mother and aunt are not sworn and there was no identification included with them that would allow me to confirm who the letters were written by. The Appellant could have made the authors available by phone, as he did with his brother. I find that the letters are unreliable and are not sufficient to establish the Appellant's sexual orientation as bisexual. The RPD did not err in its assessment of the lack of documentary evidence [21] The RPD found that there was a lack of documentary evidence to establish the Appellant's sexual orientation as bisexual. The Appellant argues that the lack of documentary evidence should not be a factor in the credibility assessment. [22] I find that the RPD did not err and the Appellant's argument must fail. The lack of documentary evidence is not related to the credibility assessment of the Appellant. Section 7.2 of the SOGIE Guideline states that corroborating evidence may not be available in cases involving SOGIE. In cases where the RPD finds a claimant credible, it does not need corroborating evidence of the claimant's sexual orientation. However, in the case at bar, the RPD had already completed its credibility assessment and had found that the Maldonado presumption of truthfulness of the Appellant's sworn testimony had been rebutted. The RPD then correctly turned its mind to whether there was any other evidence before it that could establish the Appellant's sexual orientation as bisexual. It is in this context that the RPD found there was a lack of documentary evidence to establish the Appellant's claim. I agree, and find that there is a lack of documentary evidence to establish the Appellant's sexual orientation as bisexual. CONCLUSION [23] I find that the Appellant has not established on balance of probabilities his sexual orientation as bisexual. I therefore find that the Appellant has not established a serious possibility of persecution, or that, on a balance of probabilities, he would be personally subjected to a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture upon a return to Nigeria. [24] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "Charles A McDermott" Charles A. McDermott April 17, 2019 Date 1 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, IRB, effective May 1, 2017. 2 RPD-1, RPD records,transcript of RPD hearing of August 1, 2018, pages 13-16. 3 RPD-1, RPD records,Recording of RPD Hearing of August 1, 2018, starting at the time stamp 2:25:33. 4 Maldonado v. Canada (Minister of Employment and Immigration, [1980] 2 FC 302. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB8-04746 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