TB4-03779

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 : TB4-03779 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 5, 2014 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Cari Gombinsky 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 AND DECISION [1] XXXX XXXX, (the Appellant), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. [2] The Appellant asks the Refugee Appeal Division (RAD) to allow the appeal. [3] The Appellant has submitted new evidence in support of her appeal. The Appellant is asking for a hearing. The Minister is not intervening in this Appeal. DETERMINATION [4] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA),1 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 [5] The Appellant alleged before the RPD that she is a bisexual woman. In XXXX 2013, the Appellant came to Canada on a student visa. In XXXX 2013, the Appellant returned to Nigeria for a XXXX holiday. The Appellant's cousin saw some of the Appellant's photos with her female partner in Canada. He showed those pictures to the Appellant's stepfather. The Appellant's stepfather became very angry and showed those pictures to Dr. XXXX XXXX who had sponsored the Appellant to come to Canada to study. Thereafter, Dr. XXXX started talking about marrying off the Appellant to her deceased biological father's friend. The Appellant's stepfather was threatening to report her to the police. During all this time, the Appellant stayed in hiding until she was able to leave Nigeria and come to Canada on XXXX XXXX, 2014. [6] The Appellant filed her claim for refugee protection in Canada on February 6, 2014. [7] The Appellant's application for refugee protection was heard on April 1, 2014. By a decision of April 10, 2014, the RPD rejected the claim. [8] The RPD found that there was, on a balance of probabilities, insufficient persuasive evidence forwarded by the Appellant to establish her sexual identity as a bisexual woman. Therefore, the RPD concluded that the Appellant had not established her sexual identity as a bisexual woman. In consideration of the Appellant's evidence as a whole and the credibility concerns cumulatively, the RPD found, on a balance of probabilities, the Appellant to be not a credible witness. [9] The Appellant submits that the RPD failed to assess all pieces of evidence submitted by the Appellant, and did not take into account some of the evidence based on the fact that the Appellant is not trustworthy. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [10] As provided for in Section 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and person subject to the appeal. Section 110(4) of the IRPA indicates 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." RAD Rule 3(3) (g) (iii) directs applicants to include an explanation of how the documentary evidence meets the requirements of Subsection 110(4) of the IRPA. The Appellant has provided two affidavits,2 one from her mother and one from her cousin, in support of her Appeal. The RAD assesses the Appellant's alleged new evidence, as per Section 110(4) of the IRPA and in the context of the totality of the Appellant's evidence adduced at the RPD, including the recording of the RPD proceedings. [11] The Appellant submits: "The appellant has since secured relevant documentation to support her credibility. The appellant would benefit from having the documents reviewed and having oral hearing to corroborate supporting documents now available."3 [12] The RAD reviewed the Appellant's affidavits. The RAD finds the two affidavits provide the same factual information which was included in the Appellant's documents submitted to the RPD and in her testimony provided at the RPD. Therefore, in view of the criteria set out in Section 110(4) of the IRPA, the RAD finds the Appellant's alleged new evidence is not new as the facts in the affidavits did not arise after the rejection of the Appellant's claim. This evidence was available to the RPD at the rejection of the claim. The RAD notes the affidavits are provided by members of the Appellant's family, her mother and her cousin. The Appellant did not provide any explanation as to why this alleged new evidence was not reasonably available to her prior to the rejection of the claim. The RAD also finds it was reasonable in the circumstances to expect the Appellant to have presented this evidence to the RPD prior to the rejection of the claim. [13] Based on these reasons, the RAD finds the Appellant's alleged new evidence does not meet the requirements of Section 110(4) of the IRPA. Therefore, the RAD does not accept the two affidavits as new evidence pursuant to Section 110(4) of the IRPA. APPLICATION FOR AN ORAL HEARING [14] 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. [15] When read together, sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal 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 Appellants, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [16] The RAD finds the Appellant has not submitted any new evidence as per requirements of Section 110(4) of the IRPA. As such, the RAD must proceed without a hearing, and the Appellant's request for an oral hearing is denied. THE ROLE OF RAD IN THE APPEAL [17] In assessing the appeal, the RAD is guided by the recent Huruglica4 decision which outlines the approach that the RAD should take as an appellate body in reviewing the first level decisions of the RPD. Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD determination that, in its opinion, should have been made as per s. 111(b) of the IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusion; however, the RAD has equal or greater expertise to the RPD in the interpretation of country conditions evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. [18] The RAD adopts and applies the Huruglica case law in this appeal. ANALYSIS OF THE MERITS OF THE APPEAL [19] The Appellant submits that the RPD failed to assess all pieces of evidence submitted by the Appellant, and did not take into account some of the evidence based on the fact that the RPD found that the Appellant is not trustworthy. [20] The RPD found that there was, on a balance of probabilities, insufficient persuasive evidence forwarded by the Appellant to establish her sexual identity as a bisexual woman. Therefore, the RPD concluded that the Appellant had not established her sexual identity as a bisexual woman. In consideration of the Appellant's evidence as a whole and the credibility concerns cumulatively, the RPD found, on a balance of probabilities, the Appellant to be not a credible witness. Appellant's Same-sex Relationships in Canada Relationship with XXXX5 [21] The Appellant testified that her first same-sex relationship in Canada was with a woman named XXXX whom she met in XXXX2013. The Appellant testified that she met XXXX at a friend's party. The RPD asked the Appellant about this friend's name; although the Appellant told the RPD the name, the RPD found the Appellant to be hesitant and unable to readily provide the name. [22] The Appellant testified that she and XXXX danced close to each other and exchanged telephone numbers. The RPD asked the Appellant if XXXX disclosed her sexual orientation to the Appellant at the birthday party; the Appellant replied no, XXXX did not tell her. The RPD pointed to the Appellant that she had stated in her Basis of Claim (BoC) form narrative that XXXX was a lesbian when they met at the birthday party. The Appellant's explanation to the RPD for this discrepancy in her evidence was that the Appellant stated so in her BoC narrative because the Appellant had assumed XXXX was a lesbian from XXXX actions and what the Appellant saw, not because XXXX had told the Appellant that XXXX was a lesbian. The RPD rejected the Appellant's explanation for the discrepancy. The RPD wrote in its "Reasons for Decision" that the Appellant clearly wrote in her BoC narrative that it was from XXXX "discussion" that the Appellant "got to know she was an international student too in Canada and she is a lesbian too". The RAD reviewed the RPD Record and concurs with the RPD that the Appellant did write the above in her BoC narrative. The above excerpt is part of the following segment from a paragraph in the Appellant's BoC narrative: During my stay in Canada for my studies, my class mate invited me for a birthday party around XXXX 2013, which I attended. I met a girl called XXXX who happens to be invited to the party; we got along talking from her discussion I got to know she was an international student too in Canada from Jamaica and she is a lesbian too.6 [23] Due to the above-mentioned unresolved discrepancy in the Appellant's evidence, the RPD drew a negative inference with respect to the Appellant's credibility. [24] The RPD also asked the Appellant about her relationship with XXXX. The RPD found that the Appellant's lack of certainty, hesitation and lack of spontaneity, with respect to basic details about XXXX, the Appellant's alleged same-sex partner; such as XXXX last name, XXXX address, and the academic program that XXXX was in, undermined her credibility. The Appellant was in a relationship with XXXX for about five months. Since XXXX lived alone, the Appellant would go to her apartment. They met two or three times a week, and those times they would end up making love. Considering the above, the recording of the proceedings, and that the RPD had the opportunity to see and question the Appellant, the RAD concurs with the RPD that the Appellant's lack of certainty, and hesitation and lack of spontaneity, with respect to basic details about XXXX, the Appellant's alleged same-sex partner, undermined the Appellant's credibility. Relationship with XXXX XXXX7 [25] The Appellant testified that she met her current same-sex partner XXXX XXXX in XXXX 2014 at XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX) when the Appellant visited there to make some inquiries. They moved in together in XXXX2014; however, they were not in a romantic relationship. The Appellant testified that their romantic relationship began on XXXX XXXX, 2014, and that prior to XXXX XXXX, 2014 the Appellant and her partner did not have any discussions about their sexual orientation. The Appellant was asked what they discussed when they initially met at the XXXX in XXXX2014. The Appellant stated that her partner told her that she was a member of the XXXX and that she came there for relaxation and because there is a restaurant close to that place. The RPD noted, the RAD as well, that XXXX XXXX, in her affidavit, submitted to the RPD, stated that she and the Appellant met at the XXXX XXXX XXXX and "[t]hat being a Nigerian I knew firsthand what it is like to be ostracized and persecuted because of one's sexuality and we connected over this". In consideration of the above-mentioned inconsistent evidence, and given: that the Appellant and XXXX XXXX had their initial meeting at a popular community centre known for its focus and outreach to sexual minorities; that XXXX XXXX is a member of the XXXX and told the Appellant at their first meeting at XXXX; and that XXXX XXXX affidavit mentions that she and the Appellant connected over their sexuality, the RPD did not find the Appellant's allegations of how she met and began her relationship with XXXX XXXX credible. Based on the totality of the evidence in this case, the RAD concurs with the RPD. [26] The Appellant testified at the RPD hearing that she was in a committed relationship with XXXX XXXX at the time. The RPD asked the Appellant basic questions about her alleged same-sex partner, XXXX XXXX, such as where she currently worked, how long she had been employed there, where she went to school, what she studied, and how old was XXXX XXXX. Considering the above, the recording of the proceedings, and that the RPD had the opportunity to see and question the Appellant, the RAD concurs with the RPD's finding that the Appellant's hesitance, evasiveness, and lack of knowledge about the basic details about her partner, with whom she was in a committed relationship, undermined the Appellant's credibility. The Appellant's Documents Submitted to the RPD Letters from XXXX XXXX XXXX XXXX XXXX and the XXXX XXXX XXXX XXXX XXXX:8 [27] The letters show that the Appellant has been a client of these organizations since XXXX 2014.9 The Appellant testified about another group facilitated through XXXX XXXX XXXX XXXX XXXX called XXXX XXXX that she got involved in 2014. The RPD reasoned that the Appellant testified that she was aware of her bisexual identity since high school and had two same-sex relationships in Nigeria before coming to Canada. The Appellant arrived in Canada in XXXX 2013. The RPD asked the Appellant why she waited until 2014, XXXX XXXX after her arrival in Canada, before seeking out organizations such as XXXX XXXX XXXX XXXX XXXX and the XXXX XXXX XXXX XXXX XXXX. The Appellant's explanation was that she was very busy with her studies and academic work and that it was only after she attended the Gay Pride Parade in June 2013 that she became aware of such organizations. The RPD followed up by asking the Appellant why then did she not make efforts to seek out such organizations when she became aware of the organizations in XXXX 2013; the Appellant replied she lived very far from those organizations. The RPD found the Appellant had not provided a reasonable explanation for the XXXX XXXX XXXX delay before making efforts to seek out organizations for sexual minorities. The RPD accepted, given the letters from XXXX XXXX XXXX XXXX XXXX and the XXXX XXXX XXXX XXXX XXXX, that the Appellant has attended meetings at both organizations since XXXX 2014; however, the RPD gave little evidentiary weight to those letters with respect to establishing the Appellant's sexual orientation as a bisexual woman. Considering the totality of the evidence, including the recording of the proceedings at the RPD, the RAD concurs with the RPD in giving the letters from XXXX XXXX XXXX XXXX XXXX and the XXXX XXXX XXXX XXXX XXXX little evidentiary weight with respect to establishing the Appellant's sexual orientation as a bisexual woman. Affidavits submitted to the RPD10 [28] The Appellant submitted to the RPD affidavits from her friend XXXX XXXX XXXX her twin XXXX XXXX XXXX,11 and her alleged current same-sex partner XXXX XXXX,12 in support of her allegations. [29] The Appellant's friend and her XXXX XXXX both state that the Appellant told them that she is bisexual. Both of them provided no details regarding the Appellant's same-sex relationships in Nigeria. Since the RPD found the Appellant to be generally lacking in credibility otherwise, and given that the two affidavits do not provide any details regarding the Appellant's life as a lesbian in Nigeria, the RPD gave these affidavits little evidentiary weight in establishing the Appellant's sexual orientation as a bisexual woman. [30] The affidavit from the Appellant's alleged current same-sex partner XXXX XXXX states that she and the Appellant are currently in a relationship. XXXX XXXX makes no mention in her affidavit that she and the Appellant have been living together since XXXX XXXX, 2014, as alleged by the Appellant. Considering the above, the RPD found that the affidavit from XXXX XXXX provided insufficient persuasive evidence to overcome the RPD's overall concerns with respect to the Appellant's alleged same-sex relationship with XXXX XXXX. In consideration of the totality of the evidence in this case, the RAD finds the RPD did not err in giving the affidavit from XXXX XXXX little weight in establishing the Appellant's sexual orientation as a bisexual woman. Photographs13 [31] The Appellant provided several photographs of herself posing with her family members and with XXXX XXXX. Given all of the credibility concerns relating to the Appellant identity as a bisexual woman, the RPD found that the photographs do not provide sufficient persuasive evidence to establish the Appellant identity as a bisexual woman. The RAD concurs with the RPD; in view of the credibility concerns regarding the identity of the Appellant as a bisexual woman, the RAD finds these photographs do not in and of themselves provide sufficient reliable and satisfactory evidence to establish the Appellant's identity as a bisexual woman. The Psychotherapist Report14 [32] The RAD notes that the RPD considered the report by Psychotherapist XXXX XXXX, member of the Canadian Association for Psychodynamic Therapy (C.A.P.T.). The RAD finds the RPD was mindful of the psychotherapist's report which stated that the Appellant's "memory problems will affect her ability to testify" 15 at the RPD hearing. The RPD, however, noted that the psychotherapist's report dated XXXX XXXX, 2014 did not mention the Appellant's allegations that the Appellant was at the time in a same-sex relationship with XXXX XXXX, and has been since XXXX XXXX, 2014, nor did the report include the fact that the Appellant has been living with XXXX XXXX since XXXX XXXX, 2014.16 Therefore, the RPD gave the psychotherapist's report little weight in establishing, on a balance of probabilities, the Appellant's sexual orientation. Based on the above, the RAD concurs with the RPD's finding. [33] The RPD considered the Chairperson's Guidelines for Women Refugee Claimants Fearing Gender-Related Persecution17 in the assessment of the credibility of, and the weight given to the Appellant's evidence, as well as considered matters of procedural accommodation specific to this Appellant's situation. The RAD finds the RPD proceeded in a fair and judicious manner in conducting the hearing, and in assessing the credibility and assigning weight to the Appellant's evidence. [34] Based on all of the above, the RAD finds that the RPD considered the totality of the evidence submitted to the RPD, including the Appellant's testimony. The RAD finds the RPD did not ignore any of the Appellant's evidence, and did not err in making its credibility findings. [35] In consideration of the totality of the evidence in this case, the RAD finds that, when considered cumulatively, the RPD's credibility findings are sufficient to support the RPD's conclusion that the Appellant was generally lacking in credibility. [36] Based on all of the foregoing, the RAD confirms the RPD's determination that the Appellant is neither a Convention refugee, nor a person in need of Canada's protection pursuant to sections 96 and 97(1) of the IRPA. DISPOSITION [37] 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. (signed) "S.S. Kular" S.S. Kular November 5, 2014 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Exhibit P-2, Appellant's Record, Written affidavit from the Appellant's mother XXXX XXXX and copy of her passport; Written affidavit from the Appellant's cousin XXXX XXXX and copy of his Business ID card; and copy of DHL Shipment waybill. 3 Exhibit P-2, Appellant's Record, Memorandum, para. 17. 4 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 5 Exhibit P-2, Appellant's Record, the RPD's Reasons and decision, paras. 9-10. 6 Exhibit RPD-1, p. 73. 7 Exhibit P-2, Appellant's Record, the RPD's Reasons and Decision, paras. 11-12. 8 Exhibit P-2, Appellant's Record, the RPD's Reasons and decision, para.13. 9 Exhibit RPD-1, p. 166 and p. 171. 10 Exhibit P-2, Appellant's Record, the RPD's Reasons and decision, paras.14-16. 11 Exhibit RPD-1, RPD's Record, p. 174. 12 Exhibit RPD-1, RPD's Record, pp. 161-162. 13 Exhibit RPD-1, RPD's Record, pp. 176, 179-180, and 182. 14 Exhibit RPD-1, RPD's Record, pp. 114-116. 15 Exhibit RPD-1, RPD's Record, pp. 115. 16 Exhibit P-2, Appellant's Record, the RPD's Reasons and Decision, para. 18. 17 Guideline on Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993; Update: November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, pursuant to section 159(1) (h) of the Immigration and Refugee Protection Act. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-03779