TB4-02000

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 : TB4-02000 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 June 4, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Adrienne C. Smith Barrister & 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 FOR DECISION [1] XXXX XXXX XXXX a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD), denying his claim for refugee protection. He has submitted new evidence in support of his appeal, however, he has not requested an oral hearing unless the RAD has any concerns that relate to the Appellant's credibility of his supporting documents. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and replace it with a determination that the Appellant is a Convention refugee or a person in need of protection1 or, in the alternative, refer the matter back to a newly-constituted panel of the Refugee Protection Division for a re-determination DETERMINATION [2] This appeal is allowed. Pursuant to Section 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. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL: Express statutory conditions: [3] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of her 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. [4] If the statutory requirements have been met, the panel must then consider the factors in Raza, in which the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA Section 110(4), it is based on the very similar wording of Section 113(a) for the PPRA. The Court in Raza held that new evidence should be considered for its newness, credibility, relevance, and materiality, in addition to any express statutory provisions. Newness: [5] 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. Credibility: [6] Evidence that passes the test in Section 110(4) must be assessed for credibility. The RAD must determine whether the evidence is credible, considering its source and the circumstances in which it came into existence. Relevance: [7] The RAD must consider whether the evidence is relevant to the appeal. Is it capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. Materiality: [8] 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. [9] The following evidence was submitted by the Appellant to the RAD and must meet the test described above in order to be admissible: * Letter from Mr. XXXX XXXX with respect to the contents of the marriage certificate. This letter is dated XXXX XXXX, 2014 and postdates the rejection of the claim on February 24, 2014. * Letter from the Appellant's mother dated XXXX XXXX, 2014 and postdates the rejection of the claim on February 24, 2014, providing details of the incident when she found the Appellant and his boyfriend together in an intimate act. * Letter from the Appellant's friend XXXX XXXX, giving details of his past sexual relationship with the Appellant. This letter is dated XXXX XXXX, 2014, and postdates the rejection of the claim on February 24, 2014. * Letter from a friend, XXXX XXXX XXXX describing how the Appellant's father and other community members are still searching for him in Nigeria, dated XXXX XXXX, 2014, postdating the rejection of the claim on February 24, 2014. * Article from The Guardian dated January 13, 2014 which pre-dates the rejection of the claim on February 24, 2014. (page 120) * Article from the New York Times dated February 8, 2014 which predates the rejection of the claim on February 24, 2014. * Article from the Gaystarnews dated February 13, 2014 which pre-dates the rejection of the claim on February 24, 2014. Analysis: [10] The letter from Mr. XXXX XXXX explaining the contents of a marriage certificate responds to the concerns raised by the RPD and would not have reasonably been available given the Appellant's lack of knowledge that this would have been an issue. However, the RAD finds it inadmissible as it does not meet the "materiality" test, in that this would not have altered the outcome of the RPD's decision. The RPD did not consider this a central issue of the claim and therefore it is not material. [11] The Letter from the Appellant's mother post-dates the rejection of the Appellant's claim. However, it could reasonably have been available prior to the rejection and, therefore, is not admissible. The RAD finds that since this incident allegedly occurred well before the rejection of the claim, is does not meet the Statutory requirement. [12] The letter from the Appellant's ex-partner, while post-dating the rejection of the claim, could reasonably have been available prior to the rejection of the claim as their relationship was severed in 2012, and therefore, is inadmissible. [13] The letter from XXXX XXXX XXXX indicating pursuit of the Appellant postdates the rejections of the claim. However, we note from this letter that it indicates that since the Appellant has left Nigeria, his father has been searching for him. This is information that could reasonably have been available prior to the rejection of the claim, given the continued pursuit since the Appellant's departure and therefore, is inadmissible. [14] The newspaper articles submitted in support of this appeal all pre-date the rejection of the claim and therefore, do not meet the Statutory requirement, as they would have been reasonable available prior to the rejection of the claim. [15] Counsel for the Appellant submits that the four letters submitted as "new" evidence respond to the RPD's concerns. While the RAD concurs that much of the evidence is relevant, however, as articulated above, most of it could reasonably have been available at the time of the RPD hearing. The only evidence which would not have been anticipated to require further information would have been the marriage certificate. However, in this regard, the RAD finds that this is not a central issue of this claim and is, therefore, not admissible as "new" evidence. BACKGROUND [16] The Appellant is bisexual and since the age of 17 has had no interest in girls. According to the Appellant, his uncle was "gay" and since the family wanted him "dead", this caused the Appellant's fears of his family, particularly his father. [17] During his school years, the Appellant began to have relationships with females to avert attention away from his affinity towards males. However in 1998, the Appellant's family moved to XXXX and the Appellant met a man in 1999, with whom he shared a relationship for four years. The relationship broke up when his partner was unfaithful. [18] In XXXX 2005, the Appellant's mother became suspicious about the break-up and she asked her son if he had been intimate with this friend, XXXX. The Appellant finally acknowledged his sexual orientation, but wanted to keep it secret from his father. However, his mother convinced him to see a native doctor who purportedly had the power to remove homosexuality from him. He then started a relationship with a girl called XXXX XXXX and, at the time, the Appellant almost thought the doctor's treatment had worked. [19] However, in XXXX 2012, the Appellant's mother discovered him with a male by the name of XXXXin their home. His mother threatened him if he did not marry XXXX, failing which she would tell his father. In XXXX2012, the Appellant learned thatXXXX XXXXwas pregnant. The family had announced that he would marry XXXX. Although not wanting to follow through, the Appellant and XXXX were married at the registry in XXXX 2013. Everything went well, until the Appellant received a message from his father and uncles to attend a meeting. His mother advised him on XXXX XXXX, 2013 not to attend the meeting as his father had become aware of his sexuality through the chief priest, which in turn caused his mother to receive a beating at the hands of his father. [20] The Appellant did not let on that he knew his father's reasons for asking him to attend a meeting. However, he confided in his wife, XXXX and told her about his sexual orientation but that he had not been unfaithful to her since marriage. [21] On XXXX XXXX, 2013, the Appellant's father and uncles came to his house with his in-laws. His wife was being blamed for a cover-up, but she told the Appellant that his father and uncles indicated that they would get rid of him the way they got rid of his late uncle. [22] The Appellant applied for a visa for the United States (U.S.) which was issued on XXXX XXXX, 2013. He went to the US on XXXX XXXX, 2013 to the home of a friend, however, a process for his deportation to Nigeria, had begun. Fearing that he, too, would be deported, he fled to Canada. STANDARD OF REVIEW [23] The Appellant submits that given the specialized nature of the RAD and its equal ability to deal with refugee protection issues, no deference should be afforded to the RPD on the issues raised in this appeal. He cites the Canadian Human Rights Review Tribunal, which no longer exists, but in the past heard appeals from the Canadian Human Rights Tribunal. [24] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [25] In Dunsmuir,2 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,3 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation.4 [26] In Newton, the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:5 (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and, (g) other factors that are relevant in the particular context. [27] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.6 An appeal to RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [28] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [29] The nature of the question in issue: In this appeal, the question at issue is one of fact, which has generally, in both the appellate court and judicial review contexts, attracted a deferential standard of review.7 In this particular case, the Appellant's claim for refugee protection was based on its conclusion that his alleged basis of claim lacked credibility. Credibility findings raise issues of fact, which generally, in both Appellate court and judicial review contexts, have attracted a deferential standard of review.8 [30] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [31] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,9 and each can take notice of information and opinion within its specialized knowledge.10 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,11 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD's proceeding.12 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will frequently not have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD should show deference to the RPD on findings of fact and particularly in respect to credibility,13 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [32] The appropriate standard of review for issues of fact raised in this appeal is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.14 SUBMISSIONS BY THE APPELLANT Appellant's ability to testify: [33] The Appellant submits that the RPD did not adequately consider the medical letter submitted on behalf of the Appellant, indicating that he suffers from learning and memory difficulties. After listening to the tape of the proceedings, the RAD finds that the RPD was sensitive to the needs of the Appellant, and ensured at all times that he understood the question. In fact, there were portions of the transcript wherein the RPD actually stated "you don't understand the question do you?" She then repeated the questions and ensured that the Appellant understood. Marriage Certificate: [34] The Appellant submits that the RPD was erroneous in its finding that the marriage certificate on its face led the RPD to draw a negative inference as to the credibility of the Appellant. The format of the marriage certificate has been clarified; however, at the end of the day, since this is not a determinative issue, the overall findings are therefore not unreasonable. Failure to Claim in Italy: [35] The RPD did not accept the Appellant's reasons for not making a refugee claim in Italy in XXXX 2011. The Appellant submits that when he went to Italy in 2011 with his wife, he was still keeping his sexuality a secret from her and his family. Although he was always concerned that he would be exposed, he wasn't under any immediate threat at that time. It was not until XXXX 2013, when confronted by his father that the Appellant was fearful. The Appellant submits that his explanation was reasonable and the RPD's finding in this regard was unreasonable. The RAD finds that the RPD did not provide an explanation as to why it did not accept the Appellant's explanation that his fears of his family did not exist at that time. Therefore, the RAD finds that this finding by the RPD is unreasonable, as it is lacking in transparency. Re-availment to Nigeria: [36] The RAD, in light of the above, finds the Appellant's re-availment to Nigeria and indication of a lack of subjective fear to be an unreasonable finding, given the fact that his father was unaware of his sexual orientation. Lack of corroborative evidence: [37] The Appellant submits that he did, in fact, attempt on many occasions to provide a letter as proof of his relationship with XXXXo, and the RPD found his explanation to be unreasonable. The Appellant explained that he had lost contact with XXXX since XXXX 2012 and his friend Mr. XXXX who had been deported from the United States to Nigeria. The RPD goes on to make a finding that the documentation that was provided was self-serving and therefore draws a negative inference as to the claimant's credibility. The RAD finds that this finding on its own is unreasonable, as lack of documentation on its own does not support this finding. Failure to Claim in the United States: [38] The Appellant submits that the RPD improperly made a finding of lack of subjective fear when the Appellant failed to claim refugee protection in the United States, since his former partner had his refugee claim refused. The RPD indicates in its Reasons that there was no evidence that the claimant went to see a lawyer in the U.S. That statement may be true, but it was not canvassed during the hearing. The RPD does not fully explain why it concludes that the Appellant's failure to claim asylum in the U.S. indicates a lack of subjective fear and therefore, the RAD finds this conclusion to be unreasonable.. Inconsistency with time in Italy and events in Nigeria: [39] There was much questioning of the Appellant with respect to the timing of his trip to Italy. Based on the Facebook pictures, the Minister submitted that the Appellant was in XXXX, Italy in XXXX 2012 when the alleged event with his male partner, XXXX, took place and his mother found him. The Appellant explained that the Facebook pictures were not posted until later by his fiancée and by XXXX. [40] The RPD was very thorough in its questioning and actually stated on the record its difficulty in accepting this portion of the testimony. The RPD could not accept, in the absence of an explanation by the Appellant, that a number of these photos were posted after the Appellant and XXXX were no longer a couple, particularly in XXXX and XXXX 2012. Moreover, the Appellant was unable to provide any explanation as to why the pictures were posted at different times. [41] The RAD finds, based on the transcript of the hearing and the RPD's reasons that its credibility findings are reasonable. The findings that the Appellant could not have been in two places at the same time, i.e. in Italy and with his male partner XXXX in XXXX 2012, is particularly telling. This leads the RPD to conclude that the Appellant was not credible as to the events alleged both in Italy and Nigeria. This is a reasonable finding and it infers that the Appellant was not in fact found by his mother with XXXX, his male partner. [42] The RAD finds that there are negative inferences and findings made by the RPD as referred to above, which certainly impugn the credibility of the Appellant. The Appellant argues that the RPD failed to provide an explicit finding on the Appellant's sexual orientation. The RPD found a lack of credible evidence to indicate that the Appellant's community knows of his sexual orientation. However, the RAD finds that the RPD's findings were flawed in that it did not make a clear finding as to the sexual orientation of the Appellant. CONCLUSION [43] The Board's credibility findings with respect to incidents surrounding the photographs, the dates of the Appellant's stay in Italy, and hence whether or not the alleged event that led the Appellant's mother to find him with a male are reasonable. Even though its findings on failure to claim and re-availment are unreasonable, the Board finds the central issues found to be lacking in credibility are reasonable. [44] However, while there are many inferences, and after listening to the tape, some unanswered questions, the RPD failed to make a clear finding on whether or not it found the Appellant to be bi-sexual. The RPD does use the words "central allegations", but this in the RAD's opinion, does not satisfy the requirement to make a clear finding which would link the credibility findings to the Appellant's sexual orientation. Finally, in this regard, although the RPD poses questions to the Appellant with respect to his participation in the LGBT community in Toronto and asks about the corroborative evidence he has provided in this regard, this aspect is not dealt with in the RPD reasons. [45] For these reasons, I am unable to substitute my decision in the absence of this finding and, therefore, this appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act, this matter is referred back to a differently constituted panel. (signed) "Roslyn Ahara" Roslyn Ahara June 4, 2014 Date 1 Exhibit P-2 2 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. 3 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 4 X (Re), 2014 Can LII 10968 (CA IRB) at para. 15. 5 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA, 399, para. 43. 6 IRPA, Sections 96 and 97. 7 Khosa, para. 89. 8 X (Re), 2013 CanLII 88254 (CA IRB) online: http://canlii.ca/t/g2wpq 9 IRPA, Sections 170(g) and 171(a.2). 10 IRPA, Sections 170(i) and 171 (b). 11 IRPA, Section 170(b). 12 IRPA, Section 110(3). 13 Khosa, para. 89. 14 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-02000