TB4-05783

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 No. / N° de dossier de la SAR : TB4-05783 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 Toronto, Ontario Appel instruit à Date of decision December 3, 2014 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A 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 ministre REASONS FOR DECISION [1] XXXX XXXX, (the Appellant), a citizen of the Republic of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has submitted new evidence in support of his appeal. Since the Appellant does not ask for any remedies, and is self-represented, the RAD will consider the following remedies for his appeal: that the Refugee Appeal Division (RAD) should set aside the decision of the RPD and either find him to be a Convention refugee or person in need of protection or refer his claim back to the RPD for redetermination by a differently-constituted panel. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. BACKGROUND [3] The Appellant alleges that he is a citizen of Nigeria, and that he fears for his life as he is a bisexual male. The Appellant further alleges that he would be arrested and prosecuted if he was to return to Nigeria. In XXXX 2012, the Appellant travelled to Canada but did not make a claim for protection. In XXXX of 2013, the Appellant married a woman named XXXX XXXX who initiated a spousal sponsorship for the Appellant. Towards the end of XXXX 2014, while operating a motor vehicle, the Appellant was stopped by police, where it was discovered that there was no record of his entry into Canada. The Appellant was turned over to the Canadian Border Services Agency (CBSA), where he then made a claim for protection. [4] The Appellant, after being in Canada some two years, made his claim for protection in late March, 2014. [5] The Appellant's application for refugee protection was heard on May 22, 2014. In a decision rendered orally that same day, and followed up by a Notice of Decision dated June 09, 2014, the RPD rejected his claim. The panel cited inconsistencies in the Appellant's evidence as it relates to credibility, delay in claiming and, as a result, rejected his claim. [6] In its reasons, the RPD panel found the following: * The Appellant has failed to establish that he is a gay man, as he was found not to be a credible witness regarding central aspects of his claim. * The Appellant's near two years delay in claiming was unreasonable, and the RPD assigned a negative inference as to the Appellant's subjective fear and credibility as a witness. Role of the RAD [7] What is the role of the Refugee Appeal Division (RAD) in considering an appeal against a decision of the Refugee Protection Division (RPD)? The Appellant does not take a position on this issue. [8] While the Immigration and Refugee Protection Act (IRPA) sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [9] Although the RAD is a relatively new body, it now has the benefit of some Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [10] In Iyamuremye,1 the court found itself "...entirely in agreement with the RAD that the standard of review to be applied to findings of fact made by the RPD is reasonableness. It is well established that an appellate body must review the findings of a trial court by applying a correctness standard to findings that involve questions of law and by applying a reasonableness standard to those involving questions of mixed fact and law...." The Court went on to hold that the RAD must review the evidence that was before the RPD and conduct its own, independent assessment of that evidence to determine whether the lower tribunal had properly considered the evidence and "reasonably justified its conclusion."2 [11] In the subsequent cases of Alvarez and Eng, the Court clarified the role of the RAD in relation to the RPD.3 It held that the RAD is not to undertake a process of judicial review, but rather must perform its own assessments of the facts in order to determine whether the RPD made an error of law or mis-assessed the facts to the point of making a "palpable and overriding error."4 In the Court's view, the lower tribunal's ability to hear evidence viva voce makes it better situated than the RAD to make findings of fact, and therefore the appeal tribunal should show deference to the RPD's findings of fact and mixed fact and law. In contrast to its ruling in Iyamuremye, here the Court found that the RAD erred by assessing the decision of the RPD against a standard of reasonableness, but then required the use of a higher standard. [12] In Malhotra,5 issued after Alvarez and Eng, the Federal Court considered another decision of the RAD, in which the tribunal applied a standard of reasonableness to the RPD's decision under appeal. Although the Court did not specifically address the RAD's selection of the standard of review, it observed that the RAD had applied a standard of reasonableness and concluded that the RAD's decision did not contain any error which justified the intervention of the Court. [13] Recently, the Court, in Huruglica, considered the appropriate relationship between the RAD and the RPD.6 It found that the RAD erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.7 [14] While the Court had endorsed the standard of reasonableness in Iyamuremye, and accepted it in Malhotra, it found in Huruglica that the application of such standard was in error. In contrast to Alvarez and Eng, the Court held that the RAD is not restricted to intervening only in the event of a palpable and overriding error. In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal." It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. The RAD will be following the case of Huruglica when dealing with this appeal. [15] The Appellant provided no transcript, nor did he refer to any deficiencies in his appeal. The Appellant only refers to new evidence he wishes to submit and that the RAD re-assess his sexual identity. The RAD finds that the Appellant did not meet the requirements of RAD Rule 3(3) which states: (g) a memorandum that includes full and detailed submissions regarding: the errors that are the grounds of the appeal, (ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing. [16] However, the Appellant did file an appeal, and therefore is entitled to one. The RAD will therefore do an assessment of all the evidence before it, as required by the jurisprudence which requires that the RAD do its own independent assessment. ANALYSIS Admissibility of Evidence Submitted on Appeal [17] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [18] The following evidence was submitted by the Appellant to the RAD and must meet the test described above in order to be admissible: (a) Birth Certificate bearing the name of the Appellant issued XXXX XXXX 1976;8 and, (b) Letter from XXXX XXXX undated and unsigned; 9 and, (c) Summons to appear in court.10 [19] The document in (a) is a birth certificate which bears the name of the Appellant. It was issued on XXXX XXXX, 1976. The Appellant does not provide any explanation why this document was not available before his hearing, what steps he took to obtain it, when he became in possession of the document, and how he came to be in possession of the document. Portions of his memorandum set out the basis of the Appellant's refugee claim, information which predates the rejection of those claims, which was before the RPD and which is already before the RAD as part of the RPD record. However, the affidavit does not contain the Appellant's explanation for the provision of new evidence, and the RAD requires that explanation in order to assess the other new evidence submitted to the RAD. [20] The other document, which is document (b), a letter from XXXX XXXX XXXX is undated and unsigned. The RAD is unable to determine if this document arose after the rejection of the claim. The issue is if it was reasonably available at the time of the rejection of the Appellant's claim, but there is no reasonable explanation why it was not available prior to the hearing. [21] The other document, which is document (c), a purported summons issued by the High Court of Nigeria, is dated XXXX XXXX 2012. The RAD finds that this document did not arise after the rejection of the claim. The issue is if it was reasonably available at the time of the rejection of the Appellant's claim, but there is no reasonable explanation why it was not available prior to the hearing. [22] The RAD finds that the documents in (a),(b) (c) do not meet the requirements of Section 110(4), and are therefore inadmissible in this appeal. Application for an Oral Hearing [23] The Appellant does not request an oral hearing be held pursuant to section 110(6) of IRPA. [24] Section 110(3) of IRPA requires that the RAD proceed without a hearing on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person, who is the subject of the appeal, may, pursuant to Section 110(4), 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." [25] According to Section 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in Section 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [26] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [27] The Appellant has submitted any new evidence in support of this appeal, however the evidence did not meet the statutory test for new evidence in 110 (4) and was consequently not admitted. As such, the RAD must proceed without a hearing, and the Appellant's request for an oral hearing is denied. ASSESSMENT OF THE EVIDENCE [28] Delay in claiming: The RAD, in its assessment of the evidence, found the Appellant's delay in claiming was unreasonable, which undermined the Appellant's subjective fear as well as his credibility. The Appellant offers no reasonable explanation for his failure to claim. In fact, his own account is that he travelled to Canada on a fraudulent Dutch passport when he was in possession of a genuine passport. This type of action certainly raises concern, as to why one would travel to a country for safety, but does so using a fraudulent passport, and does not make a claim for over two years. A review of the RPD's reasons revealed that the RPD carefully considered the issue of delay in claiming, and assessed the Appellant's explanations.11 While the Appellant may disagree with the weight the RPD placed on his explanation for his delay, there is no evidence before the RAD to support the claim that the RPD failed to take into consideration the Appellant's explanations. [29] The RAD, in assessing the evidence before it, found the delay was two years plus and it undermined the Appellant's subjective fear. The Appellant's explanation was that he was just glad to be away from that nightmare and persecution, so he just wanted to feel free and happy. It wasn't until he was arrested by CBSA that he claimed protection. The RPD rejected these explanations, given that the Appellant did not have legal status in Canada and he was aware that he could be deported at any time to a place where he feared for his life. There is no persuasive or corroborating evidence before the RAD that the Appellant made any attempts to seek legal advice on his protection options in two years plus, despite coming to Canada and knowing that he would have to return to Nigeria and possibly that he may be discovered, yet he did nothing in regards to seeking protection because of his sexual orientation. [30] The RPD did, as does the RAD, factor the Appellant's education and personal background into its assessment of the reasonableness of his explanations. The RAD noted that the Appellant's personal profile or circumstances did not support his claim that he was not aware of what to do. The RAD notes from the evidence that the Appellant has a university level of schooling, speaks English, and has offered no explanation why he had not pursued any avenues in regards to protect himself from having to return to Nigeria. The RAD, after examining the evidence before it, arrived at the same conclusion as the RPD, when it did not place any weight on the Appellant's explanations for his failure to make any efforts to seek protection in Canada. [31] The RAD noted that the Appellant has produced no corroborative or persuasive evidence regarding his claim as a bisexual man. In fact the Appellant's own admission, he has produced no evidence at all, other than the viva voce evidence he gave at his hearing. It is abundantly clear, from assessing the evidence on the audio of the hearing, that the Appellant was entirely inconsistent with his oral evidence versus his written evidence in the Basis of Claim form (BoC). The omissions in his BoC are very significant points as they go to the nature of his claim.12 [32] The RAD notes that there is no evidence on the record to demonstrate that the Appellant, while in Montreal or Toronto, lived the lifestyle which he professes. No details of any same sex relationships, no evidence of attending gay or lesbian support groups, attending bars, restaurants or any gay or lesbian events. This lack of evidence of the Appellant's behaviour undermined the Appellant's credibility on the issue of his sexual orientation. [33] Delay points to a lack of subjective fear of persecution: The Federal Court has also held that delay could be a consideration in finding a claimant not to be credible. The RAD is cognizant that a delay in claiming may not in and of itself be sufficient to reject a refugee claim; however, based on a review of the jurisprudence and the particular circumstances of the case before the RPD, the RAD finds that it was reasonable for the RPD to find the delay in claiming sufficient to undermine the subjective fear and the credibility of the claim, as per Espinosa,13 where Justice Rouleau found that the more inexplicable the delay, the greater the probability that subjective fear is absent. [34] Given the analysis performed by the RPD, including the weighing of his explanations for the delay in claiming and, given the jurisprudence, the RAD concludes that the RPD finding was supportable and it recognizes and respects its reasons for assigning little weight to the Appellant's explanations for his delay in claiming. In addition, the RAD arrives at the same determination as the RPD in its review of the evidence and the appellant's explanation for his delay, findings that the delay undermined the Appellant's subjective fear, and findings that the Appellant was not a bisexual man. [35] The RPD found that the Appellant was not a bisexual based on his lack of subjective fear (delay in claiming) and credibility; his inconsistent evidence related to his relationships with men in Nigeria. [36] The RAD, in assessing the evidence before it, found that there were inconsistencies, such as the omission of the relationships with men, physical attacks, and his loss of business because of the perception that he was gay. However, the RAD found the lack of detail regarding his relationships to undermine his credibility the most. [37] The RPD found the inconsistent evidence and his lack of details of his relationships with a men in Nigeria provided by the Appellant (Basis of Claim (BoC) form/oral testimony) undermined his claim that he was in a same sex relationship in Nigeria. [38] The RPD had before it evidence in the form of the Appellant's BoC that was completed in March 27, 2014 and indicated: in the narrative the Appellant does not mention the three same sex relationships he had in Nigeria, but at the hearing he gives a vague account of the relationships. The RPD confronted the Appellant with the omission from his BoC. The Appellant testified that he had filled in the forms himself and was not sure how much of the story he had to put in the form. However, the RAD notes that the Appellant had identified on the BoC that he was represented by counsel, and therefore would have had assistance in filling in the form. The RAD also notes from his memorandum that the Appellant identifies himself as being well educated and business minded. The RPD drew a negative inference from the explanation provided by the Appellant. The RAD assessed the evidence before it, and concluded that it would be logical or reasonable for the Appellant to describe his same sex relationships properly. The Appellant, if indeed, is the sexual orientation which he professes to be, he would have described his same sex relationship as it is an important part of his claim. [39] The RAD reviewed the recording with particular attention to the interchange between the Appellant and the RPD on the issue of the omissions and inconsistent testimony. The RAD noted that the Appellant provided several different explanations for the discrepancy between his BoC and oral testimony. What follows are the credibility issues which include: the Appellant's inability to answer some basic questions about his first relationship and his first sexual encounter with a same sex partner, and his other two which ended just before he left Nigeria. [40] The RAD, as noted above, in listening to the audio recording, found that the Appellant provided several different and conflicting explanations for the above questions. Given the inconsistent explanations, the RAD concludes that the RPD's finding that the Appellant was providing inconsistent and vague evidence to try to overcome the concern was supportable. [41] Given the information in the BoC narrative and the Appellant's viva voce evidence, the RAD concludes from the evidence available to assess that the Appellant was never involved in a same sex relationship with any men in Nigeria, as there is no credible or trustworthy evidence before the RAD to support the Appellant's claim. [42] Given the totality of the evidence, including the serious concerns with the credibility of the Appellant's allegations, the RAD recognizes and respects the RPD's findings that the Appellant was not a bisexual man. SUMMARY AND DETERMINATION [43] The RAD has assessed the entirety of the evidence and I have reached the same conclusion the RPD did in its decision regarding the credibility findings. CONCLUSION [44] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. [45] This appeal is, therefore, dismissed. (signed) 'Luis F. Agostinho' Luis F. Agostinho December 3, 2014 Date 1 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 2 2 Iyamuremye, para. 3. 3 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 FC 702; the same reasons are given in Eng, Sengloem v. M.C.I. (F.C., no. IMM-7281-13), Shore, July 17, 2014; 2014 FC 711. 4 Alvarez, para. 33. 5 Malhotra, Sunil v. M.C.I. (F.C., no. IMM-6899-13), Bédard, August 1, 2014, 2014 FC 768 6 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799 7 Huruglica, para. 45. 8 Appeal Record, Page 4 9 Appeal Record, Pages 12-14 10 Appeal Record, page 13 11 Appellant's Record, page 11, Reasons for Decision page 7 (approx. paragraph 7) *paragraphs are not numbered in Reasons for Decision 12 Appellant's record, pages 9-11. Reasons for Decision, pages 5-7 13 Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003; 2003 FC 1324. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05783