TB8-29019

RAD File / Dossier de la SAR : TB8-29019 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 Ottawa, Ontario Appel instruit / entendu à Date of decision April 3, 2019 Date de la décision Panel Veena Verma Tribunal Counsel for the person(s) who is(are) the subject of the appeal Jerome Fanmi Olorunpomi Barrister & 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 OVERVIEW [1] XXXX XXXX XXXX (the Appellant), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) rejecting his refugee claim. He claims that if he returns to Nigeria, he will be arrested and jailed by the Nigerian police because of his sexual orientation. He also fears that he will be killed by his father. [2] The Appellant disputes the RPD finding him not credible. He asks the Refugee Appeal Division (RAD) to allow new evidence and to hold an oral hearing. [3] For the reasons that follow, I deny the Appellant's requests to allow new evidence, and therefore, I have no basis on which to hold an oral hearing. While I find the RPD made some errors, I find other credibility findings are correct and determinative of the claim. Therefore, I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act (the Act). BACKGROUND [4] The Appellant claims that he is bisexual. According to his Basis of Claim (BOC), on XXXX XXXX, 2015, his wife caught him with his same-sex partner and, thereafter, demanded a divorce and full custody of their children. When the Appellant refused to sign the divorce papers, his wife threatened to report him to the police. The Appellant rebuffed his wife despite her threats. He learned from his sister that his wife reported him to the police in Lagos and she was making her way to also report him to the police in Abuja. He states that he told his same-sex partner to flee and, then he fled himself to the United States on XXXX XXXX, 2015. He crossed the Canadian border at Lacolle, QC and made a refugee claim on February 2, 2018. [5] The RPD found the Appellant was not credible based on a number of inconsistencies, omissions and implausibilities in his evidence. Furthermore, the RPD found the Appellant's failure to seek asylum while in the U.S. for two and half years indicated a lack of subjective fear and undermined his credibility. [6] The Appellant submits that the RPD erred by 1) failing to give adequate reasons; 2) making unreasonable credibility findings; 3) engaging in unreasonable and unsupported speculation; and 4) failing to conduct an analysis under s. 97 of the Act. He asks the RAD to allow new evidence in response to implausibility findings made by the RPD, and he requests an oral hearing before the RAD. ANALYSIS New evidence is inadmissible [7] New evidence will only be admitted where that evidence: 1) arose after the rejection of the claim by the RPD; 2) was not reasonably available; or 3) the appellant could not reasonably have been expected in the circumstances to have presented the evidence, at the time of the rejection.1 The RAD has no discretion to admit new evidence unless it falls under one of these three statutory categories.2 [8] If the new evidence meets the above statutory requirements, I must then assess whether the new evidence is credible, relevant, and new.3 Inadmissibility of academic articles [9] In the present case, the Appellant identifies the "New Evidence" in the index of his Appeal Record as pp. 15 - 19, which are excerpts from two academic articles discussing the syncretic nature of religion in Nigeria. The Appellant submits that this evidence disproves the RPD's finding that it was implausible that his father, a devout Muslim and imam, would believe a spiritual guru could cleanse the Appellant of his homosexuality.4 The Appellant acknowledges that the academic articles pre-date the RPD hearing, but argues that he only realized there was an issue relating to syncretic religions in Nigeria when he received the RPD's reasons. Therefore, he could not reasonably have been expected to provide this evidence at an earlier date. [10] I disagree. I find the academic articles are inadmissible because they did not arise after the RPD rejection, and they were reasonably available to present to the RPD. At the hearing, the RPD raised with the Appellant the plausibility of his father taking him to a spiritual guru, because the RPD understood that Muslims do not believe in spiritual gurus.5 Therefore, the Appellant knew this was an issue for the RPD. He had three weeks between the hearing date and the RPD rejection in order to provide additional evidence. The role of the RAD is not to provide an opportunity to complete a deficient record submitted before the RPD.6 The Appellant should have submitted the academic articles to the RPD instead of waiting until the appeal to do so. [11] I need not consider the credibility or relevance of the academic articles, because they do not meet the statutory requirements for new evidence. Inadmissibility of affidavit of Appellant's sister [12] The Appellant only identified the two academic articles, addressed in the previous section, as new evidence. However, while reviewing the Appeal Record, I note that the Appellant included an affidavit sworn by his sister, which is not in the RPD Record.7 Rather than identifying this document as new evidence in the index of the Appeal Record, I found it among documents indexed as "Supporting Documents." With the exception of this affidavit, all of the other documents filed under "Supporting Documents" are exhibits that were entered at the RPD. [13] The RPD made negative inferences based on the absence of any corroborating evidence from the Appellant's sister.8 Therefore, I infer from the RPD's reasons that the affidavit from the Appellant's sister was never presented to the RPD for consideration. I also note that the Appellant makes no submissions to suggest that the RPD ignored an affidavit from his sister. [14] For these reasons, I reviewed the affidavit from the Appellant's sister as new evidence, and I find it is inadmissible. None of the information in the sister's affidavit arose after the RPD decision.9 The Appellant makes no submissions, as required under the RAD Rules,10 to explain why this affidavit was not reasonably available to present to the RPD. I need not consider the credibility or relevance of the affidavit, because it does not meet the statutory requirements for new evidence. Request for an oral hearing is denied [15] I can only hold an oral hearing if I admit new evidence on appeal.11 Because no new evidence has been allowed, I deny the Appellant's request for an oral hearing. Scope of RAD Review [16] The determinative issues on appeal are whether: 1) the RPD breached procedural fairness by failing to give adequate reasons, and 2) the RPD erred in finding the Appellant not credible. [17] When reviewing the RPD decision, I am required independently to determine whether the RPD was correct in relation to each alleged error of law, fact, or mixed fact and law. I may defer to the RPD's credibility assessment of oral testimony, if I find that the RPD had a meaningful advantage in the circumstances.12 Having listened to the recording of the RPD hearing, I do not find deference is warranted in the present case. No breach of procedural fairness RPD's reasons are adequate [18] The Appellant submits that the RPD failed to give adequate reasons, and therefore, breached his rights to procedural fairness. He refers to two passages in the decision, where the RPD suggests it was not exhaustive when setting out all of the reasons for doubting the Appellant's credibility. At paragraph 12 of the decision, the RPD states: "There were many credibility issues, but for the sake of brevity, below are some examples of the claimant's unreliable evidence." And, at paragraph 24 of the decision, when assessing a warrant of arrest submitted by the Appellant, the RPD states: "There are many anomalies in this 'warrant of arrest' that I will not enumerate..." [19] I find the RPD's reasons are adequate and do not breach procedural fairness. The RPD's reasons need not be perfect or fulsome. The Supreme Court of Canada has held that where "some form of reasons" for a decision have been provided, the quality or adequacy of those reasons is not a question of procedural fairness.13 In other words, the adequacy of reasons cannot provide a stand-alone basis for setting aside a decision.14 Rather, I must review the RPD reasons and the outcome as an organic whole. The adequacy of the reasons is therefore subsumed into the correctness analysis of the decision. [20] In the present case, the paragraphs cited by the Appellant have to be read with the decision as a whole. Paragraphs 13 to 28 of the RPD decision set out several findings of fact and the evidence upon which those finding were based.15 The RPD only needed to detail those findings that tipped the balance for the RPD to conclude that the Appellant was generally not credible. I understand from these reasons why the RPD found the Appellant not credible, and why no weight was given to the warrant of arrest. It is certainly open to the Appellant to argue that the RPD's selected findings are insufficient to impugn the Appellant's overall credibility or the evidence does not support the RPD's generic statements. These arguments will be considered when I independently review the evidence and assess the correctness of the RPD's findings. But, I do not see these arguments as being a question of procedural fairness. RPD provided Appellant opportunity to respond to inconsistencies [21] The Appellant submits that the RPD failed to confront him with the various inconsistencies in his evidence, and therefore, the RPD decision should be quashed. He points specifically to paragraphs 15, 17 and 18 of the RPD decision. [22] I disagree with the Appellant's statement of law. Procedural fairness does not require claimants to be confronted with information that they themselves supplied.16 They are assumed to know the content of their own evidence, including their BOC, and therefore, they are not entitled to have the decision-maker point out concerns and provide an opportunity for claimants to respond.17 [23] Nevertheless, I listened to the relevant portions of the RPD hearing, and I have reviewed the transcript of the hearing. I find the RPD flagged to the Appellant inconsistencies between his BOC and testimony about being divorced18 and his last interactions with his same-sex lover.19 The RPD's findings are well-supported by the evidence. [24] The RPD also gave the Appellant an opportunity to explain how he was able to produce photos from his phone, but not text messages, when he claimed to have lost his phone.20 I do have some concerns with the inferences the RPD made from the Appellant's latter responses, which I will address in the next section, but the RPD did give the Appellant an opportunity to respond. Errors in the RPD's decision [25] Having conducted my independent review of the record, I find that the RPD made some errors in assessing the Appellant's credibility. These errors are summarized below. [26] First, as noted above, the RPD ignored the Appellant's explanation for why he was able to produce photos taken on a phone that was lost in 2015, but he was unable to produce text messages.21 He explained that the photos were saved in his Google application.22 The RPD fails to explain why this explanation was dismissed. [27] Second, I agree with the Appellant's submission that the RPD erred by impugning his credibility for failing to mention a same-sex relationship while he was in the U.S.23 The Appellant testified that he allegedly only had sex twice with this man. While the Appellant was required to detail in his BOC the facts relating to his alleged persecution in Nigeria, I do not find this requires giving an exhaustive list of all same-sex partners. The Appellant alleges in his BOC that he is bisexual. The RPD questioned him about his current and past same-sex partners. Where the responses to those questions reveal same-sex partners not mentioned in the BOC, and unrelated to the events leading to the Appellant's departure from Nigeria, I see the responses as elaborative details about his bisexuality. [28] Third, I agree with the Appellant that the RPD erred by finding that the Appellant was vague and evasive when answering questions about his Nigerian same-sex lover.24 Having listened to the recording of the hearing, the Appellant clearly stated that he was not in love with his same-sex partner, but rather, this was an alleged relationship based primarily on sex. I found nothing vague about his answers. Rather, I heard from the RPD a tone of disbelief that someone could be in a six year casual sexual relationship, and not be in love. I find the RPD erroneously relied on a heteronormative framework when evaluating the credibility of the Appellant's descriptions and feelings about his same-sex partner.25 This reliance breached the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guidelines).26 [29] Finally, I agree with the Appellant that the RPD erred by making an implausibility finding unsupported by any evidence. The RPD states: "It is common knowledge that Muslims do not believe in gurus or other gods."27 The RPD relied on this "common knowledge" to disbelieve the Appellant's claim that his father, an imam, sent him to a guru to be cleansed of his homosexuality. The RPD must be careful when rendering plausibility findings because actions which appear implausible to an adjudicator might be plausible when considered from the claimants' cultural milieu.28 The Appellant testified that his father still followed the "traditional ways" in Nigeria. Given the lack of evidence before the RPD as to how Nigerian Muslims view traditional spiritual rituals, the RPD wrongly relied on speculation and unsupported assumptions to impugn the Appellant's credibility. Remaining RPD credibility findings are correct and determinative [30] Despite the above-noted errors, I nevertheless find the RPD was correct in respect of several other credibility findings that are central to the claim and accumulatively lead to impugn the Appellant's general credibility. The Appellant submitted that some of these findings were made in error because the RPD gave inadequate reasons or failed to put inconsistencies to the Appellant. I have already addressed these submissions above (supra, paragraphs 18-24). Having found there was no breach of procedural fairness, I find the following inconsistencies, omissions, and delay to claim, as detailed by the RPD, are well-supported by the evidence. [31] First, the Appellant gave inconsistent evidence about his marital status. He states in his BOC that his wife reported him to the police because he refused to sign divorce papers that would give his wife full custody of their children. The Appellant makes no mention of divorcing his wife in his BOC. At the hearing, the RPD pointed to his Generic Application Form completed upon entry into Canada, in which he declares that he is divorced.29 The Appellant then testified that he signed divorce papers prior to leaving Nigeria. Having reviewed the RPD's reasons, the hearing transcript, and the documentary record, I agree with the RPD that this is a significant inconsistency because the question of his divorce underpins the Appellant's allegations of how the police became aware of his alleged bisexuality and his reasons for fleeing Nigeria.30 [32] Second, the Appellant gave contradictory evidence about his last contacts with his alleged same-sex partner. The Appellant testified that he last saw his same-sex partner on XXXX XXXX, 2015, the day after they were caught having sex by the Appellant's wife, at which time the Appellant and his same-sex partner had a big fight. This latter is information is not in the Appellant's BOC. Rather, he states in his BOC that he last contacted his same-sex partner just prior to fleeing for the US in order to warn him that his wife reported them to the police. This would have been weeks after XXXX XXXX. Having reviewed the RPD reasons, the hearing transcript, and the documentary record, I agree with the RPD that this inconsistency undermined the Appellant's credibility.31 [33] Third, the Appellant did not reasonably explain why he made no attempt to claim asylum while he was in the US for more than two years.32 On appeal, the Appellant makes no submissions on this finding. The Appellant arrived in the U.S. on XXXX XXXX, 2015. He testified that an American lawyer told him in XXXX 2015 that he had a better chance of succeeding if he made a refugee claim in Canada.33 I note here that his testimony conflicts with his BOC, in which he states that he spoke to a lawyer just before his stay expired.34 His US visa expired in XXXX 2016.35 And yet, he did not travel to Canada until XXXX 2018. He explained that he "continued to find a way to enter Canada" and kept meeting the wrong people, until he learned from the internet about passage into Canada at the Quebec border.36 [34] I do not find the Appellant's actions are consistent with someone fearing for his life. The Federal Court has held that expecting asylum to be granted more easily in Canada is not a reason to negate an adverse inference that a claimant lacked subjective fear by not applying for asylum in the U.S.37 I apply this latter principle in the context of the Appellant being in the US when President Obama was in power. Despite knowing the possibility of making a refugee claim in the US, the Appellant failed to do so even when he was at risk of being deported after his US visa expired in XXXX 2016. I do not find the Appellant sufficiently explained for the passage of two years between the times he fled Nigeria, because he allegedly feared persecution, and making a refugee claim. I find the length of delay significant.38 Having reviewed the RPD reasons, the Appellant's testimony, and the documentary record, I agree with the RPD's reasons that his delay to claim asylum, and his failure to provide a reasonable explanation for the delay fatally impugns his credibility and his alleged subjective fear.39 RPD's Treatment of Documents Unchallenged by the Appellant [35] Finally, while the Appellant submits that RPD provided inadequate reasons to give no weight to a copy of a warrant of arrest,40 as I previously noted, the RPD does set out reasons for doubting the document. The Appellant did not challenge the substance of these reasons. [36] I acknowledge that documents issued by a foreign state are presumed true, unless there are valid reasons to doubt their authenticity. For operational reasons, the Research Directorate at the Immigration and Refugee Board of Canada is no longer performing any type of document verification.41 I note that the Appellant was unable to produce the original warrant for inspection. [37] In this case, I find the RPD was correct to note that the Appellant's evidence about how his sister obtained a copy of the warrant was incoherent and to question how he could continue use his passport as a flight attendant and exit from Nigeria if there was a warrant for his arrest.42 As well, I have additional reasons for doubting the authenticity of this document based on information in National Documentation Package for Nigeria. [38] First, I note that LGBT and human rights groups in Nigeria report that police do not usually issue a warrant of arrest in cases related to same-sex activities.43 According to the Executive Director of a Nigerian non-governmental organization working to promote and protect sexual minorities, in all cases related to same-sex activity that the organization has documented or worked on, none of their clients were presented with an arrest warrant or given any documents containing information about their investigation or arrest.44 [39] Second, even if one assumes a warrant of arrest could be issued in cases of this nature, only lawyers representing the accused, and perhaps the arrested person, can request a copy of the warrant and other related documents.45 Therefore, I find unlikely that the Appellant's sister, could simply walk into a police station and demand a copy of a warrant of arrest, as the Appellant testified. [40] Third, I note that the warrant of arrest cites that the Appellant has been charged under subsections 5(1) and 8(c) of the Same Sex Marriage (Prohibition) Act, 2013, but subsection 8(c) does not exist in the latter law.46 [41] Finally, I weighed the warrant in the context of the Appellant's testimony. The warrant is unable to overcome the central contradiction about his marital status - recalling that he failed to establish with credible evidence that his refusal to divorce led to his wife complaining to the police and resulting in the warrant. Having weighed the warrant with the Appellant's testimony, I find the Appellant's general lack of credibility extends to his supporting documents.47 Therefore, I agree with the RPD that the warrant should be given no weight, because I find it is not credible, on a balance of probabilities. [42] The RPD also put no weight on photographs provided by the Appellant and a support letter from a LGBTQ organization in Toronto. The Appellant did not challenge these findings in his appeal, and therefore I will not address them.48 The RPD did not err in finding claim not established under s. 97 of the Act [43] Contrary to the Appellant's submissions, I do not find the RPD erred by failing to conduct an analysis under s. 97 of the Act. The Appellant failed to credibly establish his profile as bisexual, and there is no other residual profile requiring an express s. 97 analysis.49 While the Appellant states there is a "plethora of objective documentary evidence on the record," he fails to point out which documents the RPD should have considered in this context.50 Where the Appellant lacked credibility, and in the absence of independent and credible documentary evidence, there was no obligation on the RPD to consider further the s. 97 claim.51 CONCLUSION [44] In summary, I find the RPD was correct to find the Appellant generally lacked credibility, and therefore, he failed to establish his claim or his sexual orientation with credible or trustworthy evidence, on a balance of probabilities. [45] Pursuant to section 111(1)(a) of the Act, I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [46] The appeal is dismissed. (signed) Veena Verma Veena Verma April 3, 2019 Date 1 Subsection 110(4) of the Immigration and Refugee Protection Act (S.C., 2001, c. 27) (hereafter, the Act). 2 M.C.I. v. Singh, 2016 FCA 96, paras 34-35, 63, 74. 3 Ibid., paras 38-49, 74. 4 Ex. RPD-1, RPD Record, Ex. 2, Basis of Claim, p. 39; RPD Decision, para 20. 5 Transcript of RPD Hearing, p. 40. 6 Singh, supra note 2, para 54; Khan v. M.C.I., 2016 FC 855, para 44; Marin v. M.C.I., 2016 FC 847, paras 27-28. 7 Ex. P-2, Appellant's Record, p. 58. 8 RPD Reasons, para 25. 9 Jadallah v. M.C.I., 2016 FC 1240, para 34. 10 Rule 3(3)(g)(iii), RAD Rules, SOR/2012-257. 11 Section 110(6) of the Act. 12 M.C.I. v. Huruglica, 2016 FCA 93, paras 70, 103. 13 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, para 21. See also: Bukvic v. M.C.I., 2017 FC 638, para 36. 14 Newfoundland Nurses, ibid., para 14; Bukvic, ibid. 15 RPD Decision, paras 13-29. 16 Konare v. M.C.I., 2016 FC 985, paras 15-16; Moise v. M.C.I., 2019 FC 93, paras 9-10; Akanniolu v. M.C.I., 2019 FC 311, paras 45-49. 17 Aknniolu, ibid., para 49. 18 RPD Hearing Transcript, pp. 10-11, 13-16, 56-57, 60, 65-66, 73. 19 Ibid., pp. 51, 74. 20 Ibid., pp. 31, 34-35, 53. 21 RPD Decision, para 18. 22 RPD Hearing Transcript, p. 35. 23 RPD Decision, para 19. 24 RPD Decision, para 16 25 Hersh, Nicholas. "Challenges to Assessing Same-Sex Relationships under Refugee Law in Canada," (2015) 60:3 McGill Law Journal 527, pp. 530, 551-556. 26 Immigration and Refugee Board of Canada, SOGIE Guidelines, effective date May 1, 2017, paragraphs 6.1 and 7.6 27 RPD Decision, para 20. 28 Valtchev v. M.C.I., 2001 FCT 776, para 7. 29 Ex. RPD-1, RPD Record, Ex. 1, Generic Application Form for Canada, p. 48. 30 RPD Decision, paras 13-15; Ex. RPD-1, RPD Record, Ex. 2, Basis of Claim, pp. 22, 41-42; RPD Hearing Transcript, pp. 10-11, 13-16, 56-57, 60, 65-66, 73. 31 RPD Decision, paras 17; Ex. RPD-1, RPD Record, Ex. 2, Basis of Claim, p. 42; RPD Hearing Transcript, pp. 31, 50-52, 74. 32 RPD Decision, paras 26-28. 33 RPD Hearing Transcript, pp. 20-21. 34 Ex. RPD-1, RPD Record, Ex. 2, Basis of Claim, p. 42. 35 Ibid., Ex. 1, Appellant's passport, p. 75 36 Supra note 34; RPD Hearing Transcript, p. 21. 37 Ortiz Garzon v. M.C.I., 2011 FC 299, paras 27-30. 38 Wei v. M.C.I., 2019 FC 230, paras 24-27; Ortiz Garzon, ibid. 39 Chinwuba, infra note 47, para 18, and cases cited therein. 40 Ex. RPD-1, RPD Record, Ex. 5, Warrant of Arrest, p. 103. 41 X(Re), 2018 CanLII 131758 (CA IRB), application for leave denied by the Federal Court (IMM-3538-18). 42 RPD Decision, paras 24-25; RPD Hearing Transcript, pp. 63-64, 68-69; Ex. RPD-1, RPD Record, Ex. 3, National Documentation for Nigeria (10 July 2018), Item 10.4, p. 5. 43 Ex. RPD-1, RPD Record, Ex. 3, National Documentation for Nigeria (10 July 2018), Item 6.13, pp. 3-6. 44 Ibid., p. 5. 45 Ibid., p. 7 and Item 10.3, p. 4. 46 Ibid., Item 6.4. 47 Chinwuba v. M.C.I., 2019 FC 312, paras 24-28; Akzibekian v. M.C.I., 2019 FC 278, para 25-26; Lawani v. M.C.I., 2018 FC 924, para 24; Ibrahim v. M.C.I., 2018 FC 654, para 30. See also: Jele v. M.C.I., 2017 FC 24, paras 40-48 and Obinna v. M.C.I., 2018 FC 1152, para 31. 48 Odia v. M.C.I., 2018 FC 363, para 9. 49 Hoyos Soto v. M.C.I., 2019 FC 127, paras 22-24. 50 Ex. P-2, Appellant's Record, Memorandum of Argument, p. 82. 51 Ikeme v. M.I.R.C., 2018 FC 21, paras 39-44; Chinwuba, supra note 47, paras 31-33. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-29019 3 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 (September 18, 2018) Disponible en français