TB9-04890

RAD File / Dossier de la SAR : TB9-04890 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 30, 2020 Date de la décision Panel Ritu Gambhir Tribunal Counsel for the person who is the subject of the appeal Henry Igbinoba 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"), a citizen of Nigeria, appealed a decision of the Refugee Protection Division ("RPD"), dated January 18, 2019, rejecting his claim for refugee protection. The Appellant alleges he is bisexual and faces persecution at the hands of the police and the community. The determinative issues in this case for the RPD were identity and credibility. The Appellant is asking the Refugee Appeal Division ("RAD") to substitute a positive decision in place of the RPD's negative determination or, in the alternative, to send the matter back to the RPD for redetermination. DECISION [2] The appeal is allowed. I substitute my own decision that the Appellant is Convention refugee. BACKGROUND [3] The Appellant alleges he became aware of his sexuality at the age of 13, and he had a secret relationship with another male student at boarding school. From 1996 - 1998, during high school, the Appellant dated a female student. In 2004, the Appellant began a secret relationship with a man named OE, who was from his village.1 OE and later the Appellant moved to Lagos. In 2008, the Appellant married a woman, SU, and continued his relationship with OE. In 2010, the Appellant and his wife were at a festival in his village and she discovered him having sex with OE. She reported it to the village council of elders, who summoned him to appear. Instead, the Appellant fled to Abuja. His cousin EE telephoned him and informed him that when he failed to appear, the village council reported him to the police. The Appellant lived in hiding for about XXXX months until he fled to the United States of America ("United States"). [4] In 2011, the Appellant divorced his first wife and married an American woman, KJ. She sponsored his application for permanent resident status and supported him to obtain authorization to work while his application was pending. His permanent resident application was rejected in 2014 and his wife re-applied. In 2017, the Appellant's wife discovered him having sex with a man named AO. After this incident, the Appellant's work authorization expired, and his wife informed him she would withdraw her sponsorship application. The Appellant did not make a refugee claim in the United States and in XXXX 2017, he fled to Canada and made a claim. His wife divorced him in XXXX 2018. OVERVIEW OF THE APPEAL [5] On the issue of identity, the Minister intervened in writing at the RPD to challenge the identity of the Appellant. The RPD found, on a balance of probabilities, the Appellant's testimony and supporting documentary evidence as to his identity, which included an original attestation of birth and copies of his expired Nigerian passports, were credible. This finding has not been challenged on appeal. [6] On the issue of credibility, the RPD found the Appellant's testimony as to his sexual orientation was not credible. The RPD found that the Appellant to be an "unreliable" and "untrustworthy" witness and that his testimony "lacked the ring of truth and did not have a natural texture".2 As examples, the RPD pointed to the Appellant's failure to spontaneously testify that he had applied for a visitor visa to the XXXX XXXX ("XXXX") because he wanted to leave Nigeria as it was not supportive of his sexual orientation3, his inability to remember the street address of the apartment where he had hidden prior to leaving Nigeria4 and his explanation for why he left his Nigerian passports in storage in the United States.5 The RPD also drew negative credibility inferences related to the Appellant's conduct, specifically his delay in leaving Nigeria and his failure to make a refugee claim in the United States.6 The RPD considered the supporting documents submitted by the Appellant and found they were not sufficient to overcome the credibility concerns.7 [7] The Appellant argues that the RPD breached his right to procedural fairness by failing to conduct an analysis under section 97 of the Immigration and Refugee Protection Act ("IRPA")8, and by giving inadequate reasons.9 The Appellant also argues the RPD made unreasonable credibility findings: took testimony out of context10; selectively assessed the documentary evidence11; failed to consider the psychologist report12; and ignored objective evidence of risk of harm the Appellant would suffer if returned to Nigeria.13 NEW EVIDENCE AND ORAL HEARING The new evidence presented by the Appellant is admitted [8] Subsection 110(4) of the IRPA provides that an appellant may only present evidence that arose after the rejection of their claim, or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented at the time of the rejection.14 Where evidence meets one of these criteria, the RAD will then go on to consider whether the evidence is credible, relevant, and new, as per Singh/Raza.15 [9] The Appellant submitted a copy of an article dated January 24, 2019 from an online media source entitled "Nigerian police chief says gay people 'should leave the country'" as new evidence with his appeal.16 I will admit the evidence as it arose after the rejection of the claim. It is credible, relevant and new, in so far as it contains additional information regarding the contemporaneous attitudes of the Nigerian police and the community toward individuals who engage in homosexual activities. The Appellant also submitted an affidavit elaborating on testimony he gave during the hearing before the RPD.17 This evidence does not meet the statutory test in subsection 110(4) of the IRPA and will not be admitted. An oral hearing is not required [10] Although I have allowed some of the new evidence to be admitted, it is not determinative of the appeal. As such, the conditions for an oral hearing have not been met.18 ROLE OF THE RAD [11] My role is to look at all the evidence and decide if the RPD made the correct decision.19 ANALYSIS [12] The determinative issue on appeal is the credibility of the Appellant's allegation that he is bisexual. I will not address whether the RPD erred in assessing the Appellant's testimony about his application for a XXXX visitor visa and his explanation for why he left his Nigerian passports in storage in the United States as the evidence on these matters do not go to the heart of the claim. Having conducted an independent assessment of the claim, including the RPD record, the Appellant's record, the transcript and audio recording of the hearing, and the most recent National Documentation Package ("NDP") for Nigeria (31 July 2020), and bearing in mind the Chairperson's Guideline on Sexual Orientation and Gender Identity and Expression ("SOGIE Guideline")20, I find the Appellant has established his sexual orientation as bisexual. RPD did not breach procedural fairness by failing to conduct a section 97 analysis [13] The RPD does not have to conduct a separate analysis under section 97 of the IRPA in each case. Where no claims have been made or evidence adduced that would warrant such a separate analysis, one will not be required. Given that the allegations made by the Appellant in support of his claim under section 97 were the same as those that he advanced in support of his claim under section 96, the RPD was not obligated to undertake a second analysis of those claims under section 97 once it had found that his allegations were not credible. RPD did not breach procedural fairness by failing to give adequate reasons [14] The Appellant made a very general argument about a breach of procedural fairness. While I find that that some of the RPD's analysis and the conclusion were incorrect, the reasons adequately communicate the rationale for the conclusion and provide a basis for meaningful appellate review. The RPD refers to specific testimony and documentary evidence as the basis for its findings, including but not limited to: the Appellant's testimony for why he could not remember the street address of the apartment where he had hidden prior to leaving Nigeria; his testimony for why could not produce his Nigerian passports; the omission from his testimony that he had applied for a visitor visa to the XXXX, his delay in leaving Nigeria after he became aware of his sexual orientation; his failure to make a refugee claim in the United States; and the lack of probative value of the attendance sheets and photos. The RPD decision makes it clear why the claim was dismissed. As such, there is no breach of procedural fairness. RPD erred in its assessment of psychotherapy report [15] The RPD accepted that the Appellant attended twelve counselling sessions with a psychotherapist and could be experiencing or could have experienced some or all of the symptoms and conditions cited in the psychotherapy report. The RPD found that based on the totality of the evidence it had not been established that the Appellant's medical circumstances were credibly linked to the refugee claim and alleged experience and orientation.21 I find the RPD erred in not considering the clinical impressions in its credibility assessment - it simply dismissed the report because it found the Appellant's story not credible. [16] The SOGIE Guideline recognizes that individuals with diverse SOGIE may face a heightened risk of experiencing mental health challenges, and this can have an impact on their ability to testify.22 It recommends that decision makers examine whether there are cultural, psychological or other barriers that may reasonably explain perceived deficiencies in testimony.23 [17] The psychotherapy report of Mr. XXXX XXXX, whose academic qualifications are in social work, does not state how many years of counselling experience he has. This having been said, Mr. XXXX held twelve one-hour counselling sessions with the Appellant over the course of three months and used a well accepted methodology (cognitive behavioural therapy) to conduct the sessions. Some statements in the report are based on self-reporting by the Appellant. Others are based on Mr. XXXX clinical impressions formed over a sustained period and are deserving of some weight. He observed that the Appellant presented with "XXXX XXXX XXXX XXXX XXXX XXXX XXXX" and that "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX". 24 He further observed that the Appellant "struggled to remember some key dates and events during assessment."25 Mr. XXXX assessed that the Appellant's symptoms were consistent with XXXX XXXX XXXX XXXX XXXX.26 As Mr. XXXX is a social worker, he is not authorized to diagnose mental health conditions. Nevertheless, his clinical impressions are still helpful in understanding the Appellant's mental state. As per the SOGIE Guideline, these are also relevant in assessing testimonial difficulties that arose at the hearing and ought to have been considered by the RPD. RPD erred in in drawing a negative credibility inference from the manner in which the Appellant testified [18] The RPD erred in finding that the Appellant was an "unreliable" and "untrustworthy" witness and that his testimony "lacked the ring of truth and did not have a natural texture" without supporting those findings with specific references to the evidence. Courts have directed decision-makers to exercise caution in relying on demeanour evidence to impugn a claimant's credibility. The SOGIE Guideline also directs decision-makers to be mindful of the unique challenges people may face in testifying about their sexual orientation to a person in authority. In reviewing the audio recording of the hearing, I noted that the Appellant's testimony did not flow smoothly and that he hesitated before answering some questions. The RPD recognized the Appellant was having difficulty testifying and at one point asked: "Do you understand my question, sir, you are pausing a lot, like a lot of time, I am just wondering if there is some specific reason that's happening or you don't remember, like please help me understand."27 The Appellant did not respond to the question and the RPD did not wait for an answer or rephrase the question: it moved on. The Appellant, in response to a question from his counsel as to why he had forgotten information and dates during his testimony, answered that he was traumatized and devastated about the whole situation.28 Taking into consideration the psychotherapist report and the SOGIE Guideline, I do not find the manner in which the Appellant testified meant that the Appellant was untruthful and I do not make a negative credibility inference. The Appellant's evidence about his sexual orientation is credible Same Sex Relationships [19] The Appellant's testimony about his sexual orientation did not contain much detail. He testified that he became aware that his sexual orientation was different than what was expected of him at the age of 13. This was consistent with the information contained in his Basis Of Claim form ("BOC"). He further testified that he knew "it was bad" and that if discovered it could lead to him being put in prison, stoned or killed.29 He was asked very few questions about his relationships in Nigeria or the United States.30 In regard to his relationships in the United States, he testified that he had a loving relationship with his second wife, he hid his sexual orientation from her and she divorced him because she caught him having sex with another man in their house.31 This is consistent with the information contained in his BOC. He testified he was currently in a relationship with a woman named KO who was aware he was bisexual and that he had had one-night stands with same sex partners.32 KO did not provide a letter or testify in support of the Appellant. I am mindful of the direction to decision-makers in the SOGIE Guidelines on assessing testimony that is lacking in detail. However, I would have expected more evidence about the Appellant's relationships in Nigeria and the United States, for example how he met the individual in question, what attracted him to the individual, how he felt about the individual during their time together, a physical description and/or a description of the individual's personality, and what activities he and the individual did together. In this case, because little evidence was elicited from the Appellant about his relationships, I do not make a negative credibility inference. Still, I find, on a balance of probabilities, that this evidence alone is insufficient for me to make a finding that the Appellant is bisexual. Appellant's delay in leaving Nigeria [20] The Appellant testified that after he became aware of his sexual orientation at age 13, he lived in fear of persecution but did not flee in Nigeria until 2010. The RPD found that the Appellant's delay in leaving Nigeria was inconsistent with his alleged fear, risk, orientation, and inability to rely on domestic protection.33 I disagree. Until 2010, the Appellant's sexual orientation was a closely held secret. It became public knowledge after his wife discovered him having sex with OE, reported it to the village council of elders, who in turn reported it to the police. It was at this point that the risk of persecution crystallized. The Appellant testified that after his cousin alerted him that the police were looking for him, he left his village for Abuja, hid at a friend's apartment and paid an agent to obtain a visa to the United States.34 He further testified that he left Nigeria two days after the visa was issued.35 Between the time the risk of persecution crystallized and the Appellant left the country, approximately two months elapsed. I find, on a balance of probabilities, that his explanation for the XXXX-month delay is reasonable and I do not make a negative credibility inference. Appellant's inability to remember street address at which he was hiding [21] The Appellant testified that prior to leaving Nigeria, he spent two months in hiding at a friend's apartment but that he did not remember the street address. The RPD questioned him about this three times during the hearing. The first time the question was put to him, he answered that it was because his friend had picked him up on his motorbike and brought him to the apartment. The second time he answered he didn't pay attention to the address. The third time he answered: " I was scared, I was nervous, I was frustrated, I was just, I didn't think that was that was not the thing in my mind, I was frustrated. I was frustrated because I was running from, I was running."36 The RPD rejected the Appellant's explanation and found, based on the evidence before it and the Appellant's relative education and resourcefulness, that if he had been in hiding, he would have remembered and declared the address.37 I disagree with the RPD and find, on a balance of probabilities, that the Appellant's explanation is reasonable and I do not make a negative credibility inference. Appellant's failure to make a refugee claim in the United States and his delay in leaving USA [22] The Appellant did not make a refugee claim in 2011 on arrival in the United States or in 2017, after his work authorization expired and his wife informed him she would withdraw her sponsorship application. He testified that he did not make a claim after arriving in the United States because no longer felt he was at risk as he met someone and was in a relationship.38 In his BOC, he states that he was told in 2017 that he could no longer get protection in the United States because of the new administration of President Trump.39 He did not mention this detail during the hearing. He testified that he did not flee the United States immediately after his work authorization expired and his marriage fell apart because he was trying to reconcile with his wife.40 The RPD found that the Appellant's failure to initially make a refugee claim and overstaying his legal status in the United States by four months knowing that he could be deported to Nigeria were significantly inconsistent with his alleged orientation, experience, risk and fear.41 I disagree with the RPD. I find, on a balance of probabilities, that the Appellant's explanations for the failure to claim and the four-month delay are reasonable, and I do not make a negative credibility inference. Corroborative Documentary Evidence of the Appellant's SOGIE [23] The Appellant submitted an affidavit dated August 30, 2018 from his cousin EE who lives in Benin City, Nigeria.42 EE states that he and the Appellant were very close before the Appellant fled Nigeria. He further states that in XXXX 2010, the Appellant's wife discovered him having sex with OE. She reported it to the village council of elders, who summoned the Appellant, who fled to Abuja. When the Appellant did not appear, they reported him to the police who began searching for him. EO states that out of fear for the Appellant's safety, he contacted the Appellant by telephone and told him the police were looking for him. EE has the same last name as the Appellant, the affidavit was sworn before a notary public and is accompanied by a certified copy of EE's driver's licence. I find, on a balance of probabilities, that the document is authentic, is relevant to the Appellant's sexual orientation and can be given some weight. The information contained in the affidavit is consistent with the information in the Appellant's BOC and testimony. [24] The Appellant submitted an affidavit dated XXXX XXXX XXXX 2018 from his friend NBO who lives in Lagos, Nigeria.43 NBO states that the Appellant hid at his house in Abuja before fleeing Nigeria. He states that the Appellant disclosed to him what had occurred in the village. The affidavit was sworn before a notary public and is accompanied by a copy of NBO's National Identification Number Slip. I find, on a balance of probabilities, that the document is authentic, and can be given some weight. The information contained in the affidavit is consistent with the information in the Appellant's BOC and testimony. [25] The Appellant submitted a copy of an email exchange dated XXXX XXXX, 2018 with GA, his same sex partner in the USA.44 In the first email, the Appellant asks GA why he has not sent him a notarized letter as he had previously requested and asks him to confirm by email that the Appellant's then wife (KJ) walked in on them having sex. In the second email, GA apologizes for not having responded and said he "couldn't do the notary letter." He confirms that the Appellant's then wife (KJ) walked in on them having sex and informs the Appellant that he is afraid she may find out that he is trying to help the Appellant and she has warned him to stay away from the Appellant. I find, on a balance of probabilities, that the document is authentic, is relevant to the Appellant's sexual orientation and can be given some weight. The information contained in the affidavit is consistent with the information in the Appellant's BOC and testimony. [26] The Appellant submitted records of his attendance at meetings of XXXX XXXX XXXX ("XXXX"), XXXX and the XXXX XXXX XXXX XXXX XXXX ("XXXX"), as well as photos of his participation in related events.45 The attendance records and photos evidence the Appellant's involvement in the LGBTQ community in Toronto since his arrival in Canada. Involvement in these organizations is insufficient to establish the Appellant's sexual orientation and I give little weight to the attendance records and photos. Conclusion as to Appellant's Sexual Orientation [27] I find, on a balance of probabilities, that the information contained in the BOC and the testimony of the Appellant, in conjunction with the affidavits of EE, NBO and email of GA, are sufficient for me to make a finding that the Appellant is bisexual. STATE PROTECTION AND IFA [28] The Nigerian government outlawed same-sex relationships in 2014. As the RPD advised counsel for the Appellant at the end of the hearing, written submissions on state protection were not necessary because the RPD accepted that agents of the state persecute the LGBTQ community in Nigeria.46 I find the RPD correctly assessed the objective country evidence, which indicates that state protection and an internal flight alternative ("IFA") are not available to LGBTQ individuals in Nigeria.47 CONCLUSION [29] The appeal is allowed. I substitute my own decision that the Appellant is Convention refugee. (signed) Ritu Gambhir Ritu Gambhir September 30, 2020 Date 1 Throughout the decision, when referring to third parties, I have used initials for privacy reasons. 2 Exhibit P-2, Appellant's Record, RPD Reasons, pp. 4, 7. 3 Ibid., pp. 5-6. 4 Ibid., p. 7. 5 Ibid., p. 7. 6 Ibid., pp. 4-6. 7 Ibid., p. 6. 8 Section 97, the Immigration and Refugee Protection Act, (S.C. 2001. C. 27); Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 181-182, pp. 189-193. 9 Exhibit P-2, Appellant's Record, Memorandum,, pp. 189-191. 10 Ibid., p. 188. 11 Ibid., pp. 186-187. 12 Ibid., p. 189. 13 Ibid., p. 193. 14 Subsection 110(4), the Immigration and Refugee Protection Act, (S.C. 2001. C. 27). 15 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 16 Exhibit P-2, Appellant's Record, New Evidence, World News, Nigerian Police Chief says gay people 'should leave country' (24 January 2019), pp. 10-11. 17 Ibid, New Evidence, Affidavit of BOE (10 March 2019), pp. 169-170, 180. 18 Subsection 110(6), the Immigration and Refugee Protection Act, (S.C. 2001. C. 27). 19 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 20 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 9: Proceedings before the Immigration and Refugee Board of Canada involving Sexual Orientation and Gender Identity and Expression, May 1, 2017 ("SOGIE Guideline"). 21 Exhibit P-2, Appellant's Record, RPD Reasons, p. 7. 22 SOGIE Guideline, item 3.6. 23 SOGIE Guideline, items 7.4.1, 7.6.1 and 7.71. 24 Exhibit P-2, Appellant's Record, Letter from Ascentia Counselling (4 September 2018), p. 50. 25 Ibid., p. 50. 26 Ibid., p. 50. 27 Transcript of RPD hearing, September 21, 2018, p. 49. Audio recording, minute 1:43:45. 28 Ibid., p. 65. 29 Ibid., pp. 47-49. 30 Ibid, pp. 15-16. 31 Ibid, pp. 41-44. 32 Ibid, pp 18-19, 55-56. 33 Exhibit P-2, Appellant's Record, RPD Reasons, p. 6. 34 Transcript of RPD Reasons, September 21, 2018, pp. 21-24, 60. 35 Ibid, pp. 25, 66. See also Exhibit P-2, Appellant's Record, Amended BOC, pp. 34-35. 36 Transcript of the RPD Hearing, September 21, 2018, pp. 22, 39, 67. 37 Exhibit P-2, Appellant's Record, RPD Reasons, p. 6. 38 Transcript of the RPD Hearing, September 21, 2018, p. 30. 39 Exhibit P-2, Appellant's Record, BOC, p. 27. 40 Transcript of the RPD Hearing, September 21, 2018, p. 59. 41 Exhibit P-2, Appellant's Record, , RPD Reasons, p. 5. The Minister submitted evidence that the Appellant did not have legal status in the United States at the time of the hearing. A declaration dated 11 September 2018 from a Senior Immigration Officer indicates that a search of the United States Immigration and Customs Database returned a record on an individual with the same name and biographical details as the Appellant. In the status field of the record, it was noted that "Subject is not legally in the United States and appears to be subject to removal proceedings. Subject is denied." RPD Record, p. 227. 42 Exhibit P-2, Appellant's Record, pp. 45-46. 43Ibid., pp. 47-48. 44 Ibid., p. 52. 45 Exhibit P-2, Appellant's Record, pp. 52-68. 46 Transcript of RPD Hearing, September 21, 2018, pp. 71-72. 47 NDP for Nigeria (31 July 2020), Item 2.1, US Department of State, Country Reports on Human Rights Practices 2018: Nigeria, pp. 38-39. See also Item. 6.9, The Initiative for Equal Rights, 2018 Report on Human Rights Violations based on Real or Perceived Sexual Orientation and Gender Identity in Nigeria, pp. 14-20. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-04890 RAD.25.02 (January, 2020) Disponible en français 2 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 (January, 2020) Disponible en français