TB3-03290

RAD File No. / N° de dossier de la SAR : TB3-03290 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (aka XXXX XXXX XXXX Personne(s) en cause Date(s) of Hearing August 23, 2013 Date(s) de l'audience Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 18, 2013 Date de la décision Panel Ken Atkinson Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola Barrister and Solicitor 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 (de la) ministre REASONS AND DECISION [1] XXXX XXXX XXXX, a male from Nigeria, appeals a decision of the Refugee Protection Division ("RPD") rejecting his claim for refugee protection. He has submitted new evidence in support of his appeal that was not presented at the RPD hearing and asks for an oral hearing to review that evidence. DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111 (1) of the Immigration and Refugee Protection Act ("IRPA"), the Refugee Appeal Division ("RAD") sets aside the determination of the RPD and substitutes the determination that, in its opinion, should have been made, namely, that, XXXX XXXX XXXX, is a Convention Refugee pursuant to s. 96 of IRPA. BACKGROUND [3] The appellant alleged before the RPD that he is bisexual and he fears for his life if he returns to Nigeria. He entered into a same-sex relationship with a friend named XXXX, while he was in high school. The relationship continued during post-secondary education, and then the appellant obtained a student visa to study in Canada. He entered Canada on XXXX, 2012 on the visa that was issued on XXXX, 2012, expiring on XXXX 2013. He began a same-sex relationship with a person named XXXX, whom he initially met in September 2012. [4] He returned to Nigeria on XXXX, 2012 for a visit with his family. He resumed his relationship with XXXX, but on XXXX, 2013, his father's servant caught them in the act of having sex. The appellant grabbed his travel bag with his documents, but as he and XXXX were leaving the house, the servant and four other men caught XXXX. The appellant escaped and went to a friend's house. The next day while he was preparing to go to the airport, he received a telephone call from his sister. She told him not to go to the airport because some people from the mosque, XXXX his father XXXX XXXX, and others from the community were waiting for him. She also said that his father knew about this because his father had given them his flight time. XXXX had been tortured and killed and his body buried in secret. The appellant changed his flight plans and returned to Canada on XXXX, 2013. He then made an application for refugee protection. [5] The RPD determined that he was not a Convention refugee or a person in need of protection for the following reasons: 1. The appellant failed to establish with credible or trustworthy evidence that he is bisexual. 2. Therefore, he did not establish that he is of a sexual orientation that is illegal and punishable in Nigeria, such that he would face a reasonable chance of persecution or be subjected personally to a danger of torture or to a risk to his life or to cruel and unusual treatment or punishment. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [6] The following evidence was submitted by the appellant: 1. Record of Solemnization of marriage of Marriage between XXXX XXXX XXXX and XXXX XXXX XXXX dated XXXX 2013, wedding photographs and congratulatory messages from the Appellant's Facebook account. 2. Copies of five internet reports about passage of a Bill by the Nigerian House of Representatives criminalizing same-sex marriages and relationships, public displays of affection and advocating gay rights. [7] Subsection 110(4) of 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. [8] Section 110(4) of IRPA is worded in a similar manner to section 113 of IRPA that deals with pre-removal risk assessment (PRRA). Section 113 provides that an applicant whose claim for refugee protection has been rejected may present only evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented at the time of the rejection. The PRRA is not an appeal of the RPD's decision as is the situation for the RAD. However, guidance can be obtained from the jurisprudence interpreting section 113. [9] The leading case on "new" evidence for PRRA was decided by the Federal Court of Appeal.1 The case outlined factors to be considered in determining what constitutes new evidence. These factors were: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been available to the RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material). [10] The RPD hearing in this matter took place on April 2, 2013 and written reasons were dated May 3, 2013. The marriage certificate is dated XXXX, 2013. The internet reports are dated XXXX or XXXX and refer to events that apparently took place after XXXX, 2013. The marriage certificate and the other documents are relevant as they are capable of proving the appellant's sexual orientation and conditions in Nigeria if he returned there. The evidence is new in the sense that it could contradict a finding of fact by the RPD and prove the current state of affairs in the country of removal. The evidence is material as the appellant's claim would probably have succeeded if it was available to the RPD. The documents are in relationship to events or circumstances that arose after the RPD hearing. The documents are admitted in evidence by the RAD and raise an issue of credibility that was central to the decision of the RPD. [11] Section 110(6) of IRPA provides: (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [12] The new evidence tendered met the criteria of Section 110(6), and a hearing was held on August 23, 2013. A list of issues for the hearing was prepared and sent to the appellants. [13] The issue was how does this evidence affect the issue of sexual orientation that was central with respect to the refugee protection claim. HEARING [14] At the commencement of the hearing, counsel for the appellant asked that some other documents, that had not been previously submitted, be allowed in evidence. The request was refused in accordance with Rule 37(2) of the Refugee Appeal Division Rules. That Rule states: (2) If a date for a hearing has been fixed, the Division must not allow a party to make an application orally at the hearing unless the party, with reasonable effort, could not have made a written application before that date. No written application had been submitted. [15] The appellant testified that he married XXXX XXXX XXXX at a municipal office at the XXXX XXXX in Toronto. They were married two or three days after he received the RPD's decision. His spouse had surprised him with a proposal. It had been their intention to get married near the end of the year. He was questioned as to his knowledge of some personal characteristics of his spouse and their joint activities and living arrangements. [16] The appellant's spouse left the hearing room while the appellant gave evidence, and he then gave his own evidence. He gave further details about the marriage, and his answers on his personal characteristics, joint activities and living arrangements matched those of the appellant. I find that the appellant and his spouse were credible in describing their marriage and their relationship. SUBMISSIONS [17] The appellant submits that the RPD erred by applying an incorrect test and by ignoring relevant evidence that directly contradicts the conclusion reached. [18] The appellant requests that the RAD allow the appeal and find that he is a Convention refugee. In the alternative, the appellant requests that the matter be referred back to the RPD for re-determination. [19] The Minister did not intervene in this matter. ANALYSIS OF THE MERITS OF THE APPEAL [20] The determinative issue in this appeal is: 1. Does the new evidence establish that the appellant's sexual orientation is homosexual or bisexual? Appellant's Arguments [21] The appellant submits that the RPD based its determination primarily on one perceived credibility issue: that there was a contradiction between the appellant's reference to himself as a homosexual in his Basis of Claim (BOC) and, in his subsequent detailed narrative, he referred to himself as bisexual. The RPD ignored the claimant's explanation given under oath, without any evidence to the contrary, that he was referring in his BOC to his homosexual act. The RPD did not take into consideration the testimony of the claimant that having had a relationship with a woman, he considers himself a bisexual although he had more interest in men. The RPD did not consider the documentary evidence provided by the appellant. Analysis [22] The new evidence, that the RAD has found credible, establishes that the sexual orientation of the appellant is homosexual or bisexual. [23] Country documentation2 states that consensual same-sex sexual activity is illegal under federal law in Nigeria and punishable by prison sentences of up to 14 years. Because of widespread societal taboos against homosexuality, very few persons openly revealed a homosexual orientation. In November 2011, the Senate passed the Same-Sex Marriage (Prohibition) Bill 2011, which would prohibit participating in or witnessing same-sex marriage ceremonies, criminalize same-sex displays of affection between same-sex couples, and criminalize LGBT organizations. The Bill includes penalties, including a 14-year prison sentence for individuals entering into a same-sex marriage; a ten-year sentence for public displays of same-sex affection; a ten-year sentence for any individual who registers, operates, or participates in LGBT clubs, societies, organizations, processions or meetings. The appellant has produced internet articles3 stating that the House of Representatives has now passed this Bill, and it will become law if the President signs it. [24] On March 21, 2012, an upper area court in Mararba, Nasaawa State sentenced two men to two years in jail without bail and ordered each to pay a fine of 5,000 Naira ($32) for engaging in same-sex relations. There were also unverified reports of communities rounding up suspected homosexuals, stripping them naked, and parading them through villages.4 [25] Authorities took no action against persons who stoned and beat members of the House of Rainbow Metropolitan Community Church, an LGBT-friendly church in Lagos, in 2008. The attacks occurred after four newspapers published photographs, names and addresses of church members. The Lagos church and partner groups cancelled a conference on sexual rights and health scheduled for Lagos and Abuja in December 2011 due to concerns about the safety of conference attendees after the proposed Same-Sex Marriage (Prohibition) Bill refocused negative attention on the church.5 [26] I conclude that there is a serious possibility that the claimant would be persecuted if he returned to Nigeria. REMEDIES [27] For all of these reasons, due to the new evidence not available to the RPD, the appeal is allowed. The RAD sets aside the determination of the RPD that XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection. [28] The RAD substitutes its decision and finds that XXXX XXXX XXXX is a Convention refugee. (signed) "Ken Atkinson" Ken Atkinson September 18, 2013 Date REFUGEE APPEAL DIVISION / CLAIMANT'S APPEAL / BISEXUALITY / NEW EVIDENCE / ORAL HEARING / SEXUAL ORIENTATION / MALE / SET ASIDE AND SUBSTITUTE THE DETERMINATION / NIGERIA 1 Raza, Syed Masood v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 2 Exhibit 4 RPD, National Documentation Package, December 21, 2012, item 2.1, US Department of State, "Nigeria" Country Reports on Human Rights Practices for 2011, May 24, 2012. 3 Exhibit A-2 4 Supra, footnote 2. 5 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-03290