TB8-03840

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 : TB8-03840 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, ON Appel instruit / entendu à Date of decision November 14, 2018 Date de la décision Panel Charles A. McDermott Tribunal Counsel for the person(s) who is(are) the subject of the appeal Dotun Mosun Davies 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 January 4, 2018, rejecting her claim for refugee protection. The Appellant has not submitted any new evidence and requests an oral hearing. DETERMINATION [2] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). REQUEST FOR ORAL HEARING [3] Section 110(6) of the IRPA gives me the discretion to hold an oral hearing under certain circumstances if new evidence is admitted. In this case, no new evidence has been submitted. [4] The request for an oral hearing is denied. ROLE OF THE RAD [5] When reviewing the RPD decision, I am required to independently 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. Reasons will be provided in my analysis if I find that the RPD has a meaningful advantage. BACKGROUND AND OVERVIEW OF APPEAL [6] The Appellant alleges that her same-sex relationship was discovered by the husband of her same-sex partner and her brother-in-law in XXXX 2016. The husband of her same-sex partner stated he would remain silent about the relationship if the Appellant and her partner broke off the relationship which they did. The Appellant's brother-in-law agreed to remain silent if the Appellant transferred her late husband's business over to him and the Appellant slept with him, to which she agreed. While in Canada helping her son settle at school in XXXX 2017, the Appellant received word that the Nigerian police sought to arrest the Appellant. [7] The RPD found that the Appellant was not a credible witness and that she had not established that it is more likely than not that she is bisexual, or that she is perceived as such, and consequently, she has not established that she faces more than a mere possibility of persecution in Nigeria. [8] The Appellant argues that the RPD erred in its assessment of the Appellant's credibility and that the RPD erred in its assessment of the documentary evidence. ANALYSIS Determinative issue [9] The determinative issue in this appeal is whether the RPD erred in its assessment of the appellant's credibility. SOGIE guidelines [10] As this appeal deals with a claim related to sexual orientation, I have considered and applied the Chairperson's SOGIE guidelines1 as appropriate. The RPD was correct in finding that the Appellant's testimony regarding the alleged relationship was vague [11] The RPD found that the Appellant was vague in her testimony regarding the alleged relationship with her former same-sex partner (XXXX). The Appellant argues that her testimony was based on her account in an attempt to establish her sexual orientation. The Appellant further argues that the RPD failed to consider the difficulties involved in narrating one's sexual orientation. [12] In my view the RPD did not err. In its decision, the RPD specifically mentioned section 7.6 of the SOGIE Guidelines, which deals with vagueness and adequately applied the guidelines. The Appellant had known XXXX for a number of years, and according to the Appellant's narrative, XXXX was her closest friend and confidante. The RPD questions regarding the relationship were to determine if these statements were true. Having listened to the audio recording of the RPD hearing, I note that the Appellant easily answered the RPD question regarding XXXX children's names and ages, but beyond that, gave very little information about XXXX. I find that the RPD correctly applied section 7.3 of the SOGIE guidelines when questioning the Appellant. I further find that the testimony provided by the Appellant did not establish, on a balance of probabilities, that she had a same-sex relationship with XXXX. The RPD was correct in finding that the Appellant was not wanted by police [13] The RPD found that the Appellant was not wanted by the police. The RPD based this conclusion on differences between her narrative and the Schedule 12 form she completed; vagueness with respect to how the Appellant learned of the police interest in her; and inconsistencies about the police interest in her. The Appellant argues that the RPD focused on a microscopic examination of issues. In my view the RPD did not err. [14] The RPD noted that on her Schedule 12 form,2 the Appellant answered "no" to the question "Have you ever been sought, arrested, or detained by the police or military or any other authorities in any country, including Canada?" However, the narrative3 on her basis of claim form states: "Two days later I received another phone call from my other siblings telling me that the police had been to their homes along with XXXX and that he was accusing me of being a lesbian and killing my husband so that I could sleep with women." [15] When the RPD put this inconsistency to the Appellant, the Appellant responded that she did not know what was written on the form and she made a mistake in filling in the Schedule 12 form. The RPD did not accept this explanation. The Appellant argues that she admitted genuinely to this human error and that the RPD was microscopic in its examination. I find that the Appellant's argument has merit. The RPD was microscopic in assessing how the Appellant checked one box on a form, however, this is not fatal to the RPD finding as a whole. [16] The RPD also found the Appellant's narrative to be vague about how the Appellant learned of the police interest in her. The narrative did not include the names of the siblings that contacted her or were visited by the police and the RPD found this to be an important omission. The Appellant argues that omissions in a basis of claim form should not be a basis to reach a credibility finding and the RPD should not draw a negative inference where the Appellant is merely adding details to their narrative. [17] In my view the RPD did not err. The instructions for the basis of claim form specifically states "Indicate dates, names and places, wherever possible." The Appellant had benefit of counsel when completing the form and knows which of her siblings she spoke to. The task of the RPD is to determine whether the Appellant is a credible witness and comparing oral testimony with the written narrative is an important element in establishing credibility. The RPD was entitled to rely on vagueness and omissions in the BOC narrative in assessing the Appellant's overall credibility. I find that the Appellant's credibility is impugned by the vagueness of the narrative. [18] The RPD noted that the Appellant's narrative stated that she was informed by multiple siblings that the police were searching for her and had searched at multiple homes for her. However, in her oral testimony, the Appellant stated that she only received one phone call, from one sister, and that the sister's home was the only one visited. When the RPD put this inconsistency to the Appellant, the Appellant stated that a mistake may have been made when typing her narrative. The RPD did not accept this explanation, based in part on the Appellant's earlier statement that she was familiar with the contents of the form and that they were complete, true and correct. The RPD drew a negative inference about the Appellant's credibility from this inconsistency. The Appellant argues that the RPD microscopically dichotomised the oral and documentary evidence and did not view it holistically with an open mind. [19] In my view the RPD did not err. I find that the use of the plural in the statement:4 "Two days later, I received another phone call from my other siblings telling me that the police had been to their homes along with XXXX..." cannot be explained away as a superficial error in grammar and spelling. The Appellant had benefit of counsel when completing the form and at the beginning of the RPD hearing had stated that the narrative was correct. The Appellant's argument must fail and I find that this inconsistency negatively affects her credibility. [20] Based on all the issues noted, even though the RPD was microscopic in examining the inconsistency between the Appellant's narrative and her Schedule 12 form, I find that the Appellant had not established on a balance of probabilities that she was wanted by the police or that the police have in any way investigated her sexual activities. The RPD was correct to conclude that the Appellant's delay in leaving Nigeria affected her credibility [21] The RPD found that the Appellant unreasonably delayed leaving Nigeria. The RPD concluded that the Appellant did not subjectively fear remaining there and drew an adverse inference about her credibility. The Appellant argues that her actions were reasonable and she believed the details of her same-sex relationship were reasonably safe with her brother-in-law and the husband of her same-sex partner. The Appellant further argues that subjective fear should be forward looking, not whether the Appellant had valid reasons to fear persecution in the past. [22] In my view the RPD did not err. Taken in isolation, delay in leaving a country of persecution is not proof of a lack of subjective fear. However, that is not what the RPD did. The RPD used the unreasonable delay to further impugn the Appellant's credibility. The Appellant is well-educated, a successful business woman with international travel experience, had just returned from Canada and had a valid visa for Canada. Yet, when confronted with exposure of her same-sex relationship, the Appellant stated that it did not occur to her to leave Nigeria. The Appellant stated that she only thought about her children still in Nigeria and accepted being financially and sexually exploited by her brother-in-law. I find that the Appellant's explanation is not credible for the same reasons as the RPD and this further negatively affects the Appellant's overall credibility. The RPD was correct in assigning low weight to the affidavits from Nigeria [23] The RPD assigned low weight to the affidavits from family members in Nigeria supporting her claim. The RPD noted that a Response to Information Request (RIR)5 states that swearing such an affidavit in Nigeria is not a standard practice and that it would be strange to do so. Being homosexual is a crime in Nigeria and swearing such an affidavit would amount to reporting that person to the law (and reporting the affiant as their accomplice). The RPD also determined that the affidavits were vague and simply reiterate the contents of the Appellant's narrative. The Appellant argues that the affidavits submitted established core elements of the Appellant's claim and the RPD's inference that the affidavits were fraudulent was flawed. The Appellant argues that affiants may be more willing if the LGBT individual/ally is guaranteed absolute confidentiality or security. [24] In my view the RPD did not err. The affidavits were supposedly sworn in high courts in Nigeria. As the RPD correctly noted, the National Documentation Package for Nigeria includes a RIR6 which states that court officials are required to keep a copy of affidavits deposed before them. There is therefore no presumption of "guaranteed absolute confidentiality". The Appellant's argument must fail. The RPD was correct in its conclusion regarding the lack of documents supporting the alleged relationship [25] The RPD noted that the only documents the Appellant provided that supported the existence of the same-sex relationship were two photos of the Appellant and her partner. The RPD did not accept the Appellant's explanation that she deliberately deleted all text messages immediately after reading them and threw away other items because of the risk of detection. The Appellant argues that the RPD was not alert to the fact that claimants may not have been in contact with their former same-sex partners and additionally they may not have documents to establish their relationship with them. [26] In my view the RPD did not err. Having concluded that the Appellant was not a credible witness, the RPD then correctly looked to determine if there were any documents that could corroborate the Appellant's story of a multi-year same-sex relationship. The Appellant alleges that she and XXXX were friends long before the relationship turned sexual and even once the relationship did become sexual, presumably the two remained friends as before. Friends legitimately meet for coffee and meals, go to each other's homes, and send each other text messages, email messages and cards. It is not credible that the only explanation the Appellant can provide for having no records of any of this is that she destroyed them to avoid detection. The Appellant's argument must fail and I find that the Appellant has not provided sufficient credible evidence to establish, on a balance of probabilities, a same-sex relationship. The RPD was correct in its assessment of the Appellant's attendance at the XXXX XXXX Church of Toronto [27] The RPD accepted that the Appellant has attended meetings held by the XXXX XXXX Church of Toronto (XXXX Toronto), but gave little evidentiary weight to this establishing that the Appellant is bisexual. The Appellant argues that the RPD incorrectly assessed the documents and that the MCC Toronto support letter and photographs are probative in establishing the Appellant's sexual identity. [28] In my view the RPD did not err. The XXXX Toronto letter is not independent corroboration of what the Appellant claims, but simply repeats the Appellant's story as told to the author by the Appellant. In addition, there is no evidence presented that MCC Toronto can or does verify the sexual orientation of church attendees. The Appellant has not demonstrated how the letter and the photographs are probative and I therefore give them no evidentiary weight in establishing the sexual orientation of the Appellant. Additional finding of credibility [29] In my independent review of the evidence, I discovered a contradiction that was not put to the Appellant by the RPD. In the Appellant's narrative,7 the Appellant, in describing the scene leading up to the relationship becoming romantic: "My closest friend and confidant at the time was XXXX XXXX. XXXX was married and she lived not far from my house, she had helped to look after the children when they were younger but we had remained friends over the years. In XXXX 2012 XXXX had come over to spend the night with me while the children were at their uncle's place.... That night, after we took our baths and were lying in bed talking..." [30] At the RPD hearing, however, when asked by the RPD to describe the friendship prior to it turning romantic, the Appellant stated:8 "We are not too close, we just discuss things casually" [31] The Federal Court has found9 that when the appellant was already on notice that credibility was a live issue based on the RPD's original decision and the RAD finds an additional basis to question the appellant's credibility using the evidentiary record before the RPD, it is not a new issue. Therefore, there is no need for me to put this contradiction to the Appellant. I find that this contradiction further undermines the Appellant's credibility. CONCLUSION [32] I find that the Appellant is not a credible witness for the same reasons as the RPD did. Accordingly, the presumption of truth of her sworn statement10 has been rebutted. The Appellant failed to provide sufficient credible or trustworthy evidence to establish her sexual identity or her claim, on a balance of probabilities. [33] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "Charles A. McDermott" Charles A. McDermott November 14, 2018 Date 1 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, IRB, 1 May 2017. 2 RPD-1, RPD Record, page 41. 3 Ibid., page 22. 4 RPD-1, RPD Record, page 22. 5 RPD-1, RPD Record, Exhibit 3, Nigeria NDP dated November 30, 2017, Item 6.10, Response to Information Request (RIR) n. NGA105379.E, 7 January 2016. 6 Ibid., item 9.2, RIR NGA104978.E at s. 8.2. 7 RPD-1, RPD Record, page 25. 8 P-2, Appellant Record, page 52. 9 Adeoye v. M.C.I., 2018 FC 246. 10 Maldonado v. Canada (MEI), [1980] 2 FC 302. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-03840 RAD.25.02 (August 08, 2018) Disponible en français 10 RAD.25.02 (August 08, 2018) Disponible en français