VB9-09848

RAD File / Dossier de la SAR : VB9-09848 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 18, 2020 Date de la décision Panel Cynthia Pay Tribunal Counsel for the persons who are the subject of the appeal Claudette Menghile Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This decision is about XXXX XXXX XXXX (Funmilola/the Appellant), who is a citizen of Nigeria. He claims to be a Convention refugee or person in need of protection based on his sexual orientation as a bisexual man, as he alleges that his sexual orientation has been exposed in Nigeria, and same sex relations are criminalized there. He claims that both the police and an anti-gay group are looking for him and that he fears for his life as a result. He is appealing a decision of the Refugee Protection Division (RPD) rejecting his claim on the basis of credibility, as it found that he was unable to provide detail regarding his claimed sexual orientation and his documents did not overcome its credibility concerns. [2] The Appellant argues that the RPD erred in its determination because its credibility findings were vague and based on irrelevant factors. Further, he submits that the RPD failed to consider the Chairperson's Guidelines with respect to LGBTQ claimants, and erred in dismissing his documentary evidence. [3] Based on my review of the arguments and the record, I find that the RPD did err in its credibility findings, but because there are outstanding credibility concerns, I cannot make a finding that the Appellant is a Convention refugee or person in need of protection. As a result, I allow the appeal, but must send this matter back to the RPD to be redetermined by a different panel. DECISION [4] I allow the appeal and send this matter back to the RPD to be redetermined by a different panel. BACKGROUND [5] The Appellant claims that he is at risk because of his sexual orientation as a bisexual man. He alleges that he has been in relationships with both men and women. He was involved with a man, XXXX, from 2007 until November 2016, when he claims that he was discovered while they were engaged in sexual activity by XXXX sister. He states that she subsequently ran into the street shouting, which led to the exposure of his sexual orientation. His family disowned him as a result, and he left home to stay in a hotel where other members of the LGTBQ community have hidden. While there, his mother called him to let him know that the police came to their home to look for him, and that an anti-gay group are looking for him and threatened to beat him to death. He applied for a United States (U.S.) visa. His mother and brother helped him raise money for an airplane ticket, and he left Nigeria for the U.S. in XXXX 2017. He then crossed into Canada, where he made a claim for refugee protection. [6] His claim was heard by the RPD on October 29, 2019, and in its reasons dated November 15, 2019, the RPD rejected his claim on the basis of a lack of credibility. The Appellant has now appealed to the Refugee Appeal Division (RAD). He does not present new evidence. He does state that the RAD may hold an oral hearing if required, but since no new evidence has been admitted, I have no jurisdiction to do so. ROLE OF THE RAD [7] As held by the Federal Court of Appeal in Huruglica, the RAD must review RPD decisions on a correctness standard with respect to questions of law and findings of fact (and mixed fact and law) which raise no issue of the credibility of oral evidence. Deference may be required when the RPD is in an advantageous position with respect to the assessment of evidence. In this appeal, I was able to review and clearly understand the record, including the recording of the hearing. I therefore do not find that the RPD was in an advantageous position in assessing the evidence, and I do not apply a deferential standard. 1 ANALYSIS [8] After conducting my own analysis of the record, I allow the appeal and send this matter back to the RPD to be redetermined by a different panel. I cannot uphold the RPD credibility findings, but also determine that there are outstanding credibility issues, and cannot make a determination that the Appellant is a Convention refugee or person in need of protection. The RPD was not specific in its finding regarding the superficiality and lack of detail in the evidence of the Appellant's sexual orientation [9] The RPD found that the Appellant's testimony regarding his sexual orientation and relationship with XXXX was superficial and lacking in detail. The Appellant argues that the RPD erred in this finding, as it did not raise specific concerns with his testimony. [10] I agree with the Appellant's argument that the RPD erred in this finding. There were no specific areas identified by the RPD where the Appellant did not provide details about his claimed sexual orientation and relationship with XXXX, and therefore I find that the RPD did not adequately explain its findings. I do agree with the RPD that the Appellant's testimony was somewhat sparse in these areas; for example, his testimony about his sexual orientation related only to descriptions of his same-sex sexual activity. Based on my review of the recording of the hearing I find that he did, however, answer the questions asked, and the RPD did not identify any specific areas where the Appellant was unable to provide an answer or details when asked. Its own finding was unsupported with specific examples. As will be noted below, however, this does not mean that the Appellant has established his claim, as I find that there are still areas of his claim that have not been canvassed and have not been established on a balance of probabilities. RPD erred in credibility findings regarding the Appellant's claimed sexual activity and self-reflection [11] The RPD found that the Appellant lacked self-reflection, awareness or emotion about his sexual orientation, and that he described his development and realization of his own sexuality as the type of sexual orientation many adolescents engage in. The Appellant argues that the RPD erred in this finding as his level of self reflection, awareness and emotion are irrelevant to the credibility of his claimed sexual orientation, and that the finding regarding adolescent experimentation was not intelligible. [12] I agree with this argument. As noted in Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression2 (SOGIE Guideline), an individual's self-awareness of their sexual identity may present as a gradual process, and that there is no standard set of criteria that can be relied upon to establish a person's sexual orientation.3 I agree that the Appellant's level of self-reflection is not a solid basis for a negative finding regarding the credibility of his allegations. Further, the finding that his sexual activity was more akin to adolescent experimentation rather than supportive of his claimed sexual orientation is not based in evidence. Dismissal of documentary evidence [13] The Appellant provided documentary evidence to corroborate his claim, including copies of an email from his brother, and a printout of a chat exchange with his uncle. The RPD placed little weight on these documents because the Appellant had testified that he had been disowned by his brothers and his eldest brother would not talk to him; and regarding the chat exchange, because of its other credibility concerns. [14] The Appellant argues that the RPD erred in its assessment of these documents because the email's authenticity was not questioned by the RPD, and corroborative documentation needs to be considered if it appears to be authentic and corroborates a claimant's story.4 [15] With respect to the brother's email, I disagree with the Appellant's argument, as I agree with the RPD's finding that he testified that his eldest brother had disowned him and would not speak to him, which diminishes the credibility of the email. Further, only a copy of the email was provided with nothing to show where it originated or to corroborate its source, and it was not a sworn document. Regarding the chat exchange, I have similar concerns, but agree with the Appellant that it cannot be dismissed only on the basis of the RPD's earlier credibility findings, which I have found to have been in error. Summary of RAD findings [16] In summary, based on my review, I cannot uphold the RPD's credibility findings, and allow the Appellant's appeal. I also find, however, that there are outstanding credibility concerns which prevent me from being able to determine that the Appellant is a Convention refugee or person in need of protection. I find that aspects of the Appellant's claim were not been substantially canvassed, such as the details of what happened and what the Appellant did after his sexual orientation was allegedly exposed. Similarly, I have outstanding concerns about the Appellant's efforts to obtain corroboration of his claims, which were also not fully canvassed. I find that the existing record is insufficient to establish the Appellant's claim. CONCLUSION [17] Pursuant to s.111(1)(c) of the IRPA, I allow the appeal and refer the matter to the RPD for re-determination by a panel. (signed) "Cynthia Pay" Cynthia Pay February 18, 2020 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective Date: May 1, 2017, at section 3.1. 3 Ibid., Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the IRPA. at section 3.1. 4 Kaur v. Canada (Minister of Citizenship and Immigration), 2005 FC 1710 at para. 23. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-09848 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français