TB7-21774

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 / Dossier de la SAR : TB7-21774 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 31, 2018 Date de la décision Panel Sasha Kiran Cragg-Gore Tribunal Counsel for the person(s) who is(are) the subject of the appeal Peter Obuba Kalu Barrister and Solicitor 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 INTRODUCTION [1] XXXX XXXX XXXX (the "Appellant"), a citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated September 26, 2017, rejecting her claim for refugee protection. She is now asking the Refugee Appeal Division (RAD) to substitute this decision for a positive one recognizing her as a Convention refugee or a person in need of protection or, in the alternative, to refer this matter back to the RPD for re-determination. The Appellant is not seeking to admit new evidence and has not requested an oral hearing. DETERMINATION [2] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. BACKGROUND AND OVERVIEW OF APPEAL [3] The Appellant alleges that she is lesbian and cannot return to Nigeria as same-sex activity is illegal there. She alleges that she has had three different same-sex relationships in Nigeria before coming to Canada on a study permit in April 2016. The most recent, significant and longest one was with XXXX. Before leaving Nigeria, XXXX asked the Appellant to make a sex video as a way to remember the Appellant and she agreed. [4] On May 8, 2016, while the Appellant was in Canada, her mother called to tell her that she had found out that the Appellant was dating XXXX and that the police had found the video they had made, arrested XXXX and were searching for her. Her mother was furious. The Appellant made a refugee claim in June 2016 alleging that she has been outed back home in Nigeria and would be persecuted by her family, society and the police if she were to return. [5] The RPD heard the Appellant's claim on July 25, 2016 and September 26, 2017. The RPD rendered an oral negative decision at the second sitting on the basis of credibility, finding that she failed to reasonably explain why she did not provide certain pieces of evidence and why she moved to Toronto before the phone call with her mother if she was registered at the University of Manitoba. The evidence in support of the allegation that she is lesbian was insufficient to outweigh the member's credibility concerns. ROLE OF THE RAD [6] The recent Federal Court of Appeal decision in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions made by the first-level administrative tribunal. The RAD will conduct its own analysis of the record to determine whether the RPD erred. With respect to findings of fact and mixed fact and law, the RAD is to review the RPD's decisions applying the correctness standard. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment of the credibility and weighing of oral testimony heard, which, in particular cases, may require a standard of review of reasonableness modified for the RAD.2 [7] I will apply a standard of correctness throughout this decision as I have had an opportunity to listen to the RPD hearing and I find that it had no meaningful advantage in assessing and weighing the credibility and oral testimony of the Appellant. REQUEST FOR AN ORAL HEARING [8] The Appellant has not requested an oral hearing. According to the case law, the onus is on the RAD to determine whether the requirements for an oral hearing set out in subsection 110(6) of the IRPA have been met.3 One of the determining factors is that evidence presented on appeal must have been found to be admissible. As no new evidence has been presented in the context of this appeal,4 I find that the requirements for an oral hearing have not been met. ANALYSIS Summary of analysis [9] The RPD erred by making credibility findings on peripheral issues and failing to consider the Appellant's reasonable explanations for the lack of certain pieces of evidence. After my review of the RPD hearing, I find myself unable to render a decision without hearing more evidence about the Appellant's same-sex relationships in Nigeria. As I am unable to hold a hearing without the submission of new evidence in this appeal, I am referring this matter back to the RPD for re-determination by a differently-constituted panel. The Appellant's decision to move to Toronto is peripheral and was reasonably explained. [10] The RPD found the Appellant's decision to travel to Toronto and stay with someone she had met on the plane a few days earlier instead of remaining in Manitoba where she was to start school soon made no sense and, for this reason, impugned her credibility. When she first arrived in Canada on XXXX XXXX, 2016, she flew directly to Manitoba. She was supposed to start her studies the next day but there was a delay in her mother sending money to the school for the semester. [11] She then traveled to Toronto while she was still under the impression that she would soon be starting school. This was before finding out that her mother was not going to pay for her studies and before receiving the phone call from her mother informing her that she had been outed in Nigeria. The Appellant stated at the hearing that she met the fellow Nigerian on the plane and especially given her limited financial resources at the time, she felt more comfortable staying with her in Toronto rather than remaining in Manitoba. [12] The Appellant argues that this explanation is reasonable as she had made a friend in Toronto and not in Manitoba. I agree. While the Appellant had only met XXXX a few days before, it is entirely possible that they connected and that the Appellant preferred staying with her rather than in Manitoba while she waited for the financial situation with her studies to resolve itself. [13] What is more, the Appellant's decision and motives surrounding her travel to Toronto is entirely peripheral to this claim. Whether or not the Appellant genuinely intended to attend school and truthfully described her motivations in moving to Toronto does not assist in establishing her central allegation - that she is lesbian and has had multiple relationships with women. I find that the RPD erred in impugning the Appellant's credibility in this regard and accept her explanation for her travel to Toronto at the beginning of May 2016. Communications between the Appellant and her mother [14] The Appellant provided e-mail correspondence between her and her mother from May 2016, around the same time that the Appellant's mother found out about the Appellant's sexuality. A further e-mail from the Appellant's mother from May 2017 was also provided, indicating that the police were looking for the Appellant. [15] The RPD asked during the hearing why the Appellant had not provided a call log from May 2016 showing the multiple calls from her mother as alleged in her Basis of Claim form. The Appellant advised that she no longer had the call log because she had got a new phone in June 2016 as her old phone was too small, but later on in the hearing, stated that the phone she got was from XXXX, the friend she had been staying with in Toronto. [16] The RPD rejected this explanation as contradictory, evasive and not genuine, and made a negative inference as to the Appellant's credibility. The Appellant argues that there is nothing contradictory in the Appellant's explanation. I agree. The Appellant could have meant that the phone was "new" for her as it was from her friend rather than meaning that she had purchased a new phone. The Appellant's explanation is not contradictory and can explain why she did not have access to her call log from May 2016. The RPD erred in making this finding. [17] At the second sitting, the RPD asked why the Appellant could not provide a call log and messages between her and her mother from WhatsApp that took place between the two sittings. Her explanation was that she just did not keep the messages. [18] The RPD made a negative credibility inference and found that there were no such messages or calls between her and her mother and that the Appellant was embellishing her claim. The Appellant argues that the RPD failed to consider the Appellant's explanation, namely, that she changed phones between sittings. [19] I have considered this explanation but find it unreasonable that the Appellant would not make an effort to keep this evidence for her second sitting especially considering this was exactly the type of evidence that the RPD was seeking at the first sitting. I have considered the explanation provided by the Appellant but find that the RPD did not err in finding her explanation as to why she did not have evidence of her communication with her mother between the two RPD sittings to be unreasonable. [20] Despite agreeing with this last finding and especially given the difficulty of obtaining evidence about such taboo activity which is illegal in Nigeria,5 there is an insufficient basis to find on a balance of probabilities that the communications between the Appellant and her mother were solely provided as embellishments to bolster her claim as the RPD found. As the Appellant points out, some e-mails were provided and some of her explanations were reasonable. These e-mails can be given some weight in establishing the allegations of the Appellant. Other evidence and RPD findings [21] The Appellant submitted a number of documents to corroborate her connection to the LGBT community in Toronto, including her dating profile on Plenty of Fish, which lists that she is interested in women, affidavits from friends which state that she is lesbian, as well as a number of support letters from various LGBT organizations in Toronto. [22] The RPD found that the Appellant lacked knowledge about the purpose of the LGBT organizations she is involved in, but I note that her knowledge varied depending on the organization and that her involvement with the LGBT community and LGBT events is substantial. The RPD also found that she was inconsistent as to how many messages she had received on Plenty of Fish despite the Appellant's explanation that she had to open a new account as she had forgotten her password. [23] While it was open to the RPD to give this evidence little weight, I do not find these findings sufficient to dismiss the appeal. They do not address any potential issues, contradictions or omissions surrounding the central allegations of the Appellant which took place in Nigeria. As I have noted above, the RPD erred in certain findings as discussed above. This matter needs to be sent back to the RPD for re-determination [24] I have reviewed the Appellant's testimony and find that the allegations which lie at the heart of this claim - the development and progress of the Appellant's three same-sex relationships - were not sufficiently canvassed by the RPD. Very few questions were asked about the Appellant's experiences over many years living secretly as a lesbian in Nigeria. I am unable to come to a conclusion on this appeal without assessing this evidence. [25] I am aware that referring a file back to the RPD for re-determination is to be used as a last resort,6 but given the above, I see no other option available to me. I am referring this file back to the RPD for reconsideration by a differently-constituted panel, which is to explore the development and progress of the Appellant's three same-sex relationships in Nigeria. CONCLUSION [26] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. (signed) "Sasha Kiran Cragg-Gore" Sasha Kiran Cragg-Gore July 31, 2018 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 Ibid., at paras. 69-74 and X (Re), 2017 CanLII 33034 (CA IRB). 3 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018, 2018 FC 147, at para. 18. 4 Borubae v. Canada (Minister of Citizenship and Immigration), No. IMM-3026-17, Diner, February 5, 2018, 2018 FC 125, at para. 21. 5 IRB, Chairperson's Guidelines, Guideline 9 - Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. 6 Immigration and Refugee Protection Act, subsection 111(2). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-21774 RAD.25.02 (July 05, 2018) Disponible en français 8 RAD.25.02 (July 05, 2018) Disponible en français