TB4-05527

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 : TB4-05527 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 1, 2014 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola Barrister and 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 ministre REASONS FOR DECISION [1] 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. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find him to be a Convention refugee or a person in need of protection or, in the alternative, refer his claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant alleged before the RPD that his sister is a bisexual. He alleges that, due to his efforts to defend her, he is perceived to also be bisexual. He alleges that, in XXXX 2013, shortly after his sister was discovered to be bisexual, he and his sister were attacked and beaten by unknown persons. He and his sister traveled to XXXX and went into hiding with their aunt. [4] The Appellant's sister traveled to Canada in XXXX 2013, and the Appellant remained in XXXX with his aunt. In XXXX 2014, the Appellant was attacked by two unknown men and beaten. Fearing for his safety, the Appellant left Nigeria and traveled to Canada within days of the attack. [5] The Appellant's application for refugee protection was heard on May 12, 2014. In a decision of May 22, 2014, the RPD rejected the Appellant's claim finding that the Appellant was not a credible witness and that, on a balance of probabilities, the Appellant is not perceived to be bisexual as he has alleged. [6] The Appellant submits that the RPD "erred [in its credibility findings] by applying an incorrect test and further erred by ignoring relevant evidence that directly contradicts the conclusion that the [RPD] made".1 The RAD finds that the Appellant's Record lacks clarity and organization. Some of the submissions and arguments are decidedly vague and convoluted. Fluctuating format changes makes it difficult at times to discern the Appellant's arguments from the case law he provided to support his arguments. Nonetheless, the RAD has been able to discern the following issues from the Appellant's pleadings. In particular, the Appellant submits that: (a) The RPD erred in its adverse credibility findings. (b) The RPD failed to consider the personal and documentary evidence concerning the risk faced by the Appellant due to the perception that he is bisexual. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [7] As provided for in s. 110(3) of 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 refugee claimant. Subsection 110(4) of IRPA provides 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. [8] The Appellant has tendered an affidavit of his father dated XXXX XXXX, 2014 as proposed new evidence in support of his appeal. [9] In considering the statutory provisions of Section 110(4), the RAD considered the following: First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim.2 [10] The RAD will consider not only the date on which the document came into existence but the timing of the event or circumstance which the document seeks to prove.3 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. [11] It is important to note here that Section 110(4) does not contemplate whether the evidence arose after the RPD hearing but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. [12] If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and materiality of the document.4 [13] Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in Section 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim,5 or that it proves a fact that was unknown to him at the time of the hearing?6 If so, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [14] Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim and that it was reasonably available at the time of the rejection, it must consider the final part of the Section 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered.7 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [15] In the case at hand, the proposed new evidence fails to meet the requirements of s. 110(4) in that the events referred to in the new affidavit occurred prior to the rejection of the claim and the Appellant has not provided any explanation why they could not have been tendered prior to the rejection of the claim. Accordingly, the RAD finds that the proposed new evidence not meet the test of new evidence and as such will not be accepted as new evidence in this appeal. ROLE OF THE RAD [16] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,8 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [17] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person is need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL Did the RPD err in its credibility findings? Omissions and Vague Testimony [18] The Appellant argues that, in paragraph 11 of its reasons, the RPD drew adverse credibility findings from the failure of the Appellant to include some details of his allegations that were not included in his Basis of Claim (BoC) and, further, that his testimony was vague. The Appellant argues that the RPD failed to indicate how his testimony differed from his BoC narrative. The Appellant further argues that the RPD failed to provide examples of how his testimony was vague. In the alternative, the Appellant argues that, even if he did provide details not included in his BoC, it was only in response to the questions of the RPD and was not intended to bolster his narrative or mislead the panel. [19] The RAD is not persuaded by the Appellant's argument in this regard. Although the RPD's reasons could have been articulated more clearly, the RAD notes that the RPD did not draw an adverse credibility finding based on omissions from the BoC. Rather, the RAD finds that the RPD was making some general comments about the assessment of credibility in refugee claims but did not allege that there were omissions from the BoC in this case. Rather, the RPD found the Appellant's testimony in this claim was vague and inconsistent. In this case the claimant's overall testimony was very vague and inconsistent. This added to the concerns the panel had with the credibility of the claimant's allegations.9 [20] The RPD then went on to analyze the testimony of the Appellant concerning whom he feared in Nigeria and why he feared them. In reviewing the complete record, including the testimony of the Appellant, the RAD finds that the Appellant's testimony concerning his allegations of persecution is lacking in details and specificity. The Appellant provided very little in the way of details of the events alleged. His testimony was punctuated by long pauses and one-word responses. [21] He was also confused with regard to the number of incidents which occurred. He initially testified that the XXXX 2013 attack was the only incident which was inconsistent with his BoC and his subsequent testimony. The RAD finds that, given his allegation that the events of the XXXX 2013 attack were significant enough for him to go into hiding in another city, it is reasonable to expect that the details of the attack would be significant enough for him to provide a fulsome account of those details. [22] Accordingly, the RAD finds that the Appellant's arguments in this regard fail. Appellant's Visa [23] The RPD drew an adverse credibility finding from the Appellant's testimony concerning the acquisition of his visa and his departure from Nigeria. The RPD noted that, although the Appellant testified that the visa was obtained after his sister's sexual orientation was discovered; the record reflects that the visa was obtained over four months previous to the discovery. The Appellant submits that he provided an explanation that his father obtained the visa and only gave it to him after the incident. He argues that he ought not to have his credibility impugned because of the actions of his father. The Appellant further relies on statements made in his affidavit which accompanied the Appellant's Record. [24] The RAD is not persuaded by the Appellant's argument in this regard. Although the Appellant relies on statements made in the affidavit to support his arguments in this regard, the Appellant's affidavit is not evidence in this appeal and cannot be used to explain away his testimonial failings. The RAD finds that the record reflects that the Appellant's testimony was that he got the visa to Canada in order to obtain protection only after the attack in XXXX 2013. The Appellant later testified that he had obtained the visa previously in order to attend school in Canada. The RAD finds that the Appellant's testimony evolved when confronted by the contraction in the visa's date of issue. The RAD finds that it was open to the RPD to draw an adverse credibility finding from the Appellant's testimony in this regard. The RAD further finds that this finding undermines the general credibility of the Appellant's allegations of persecution. Did the RPD fail to consider the personal and documentary evidence concerning the risk faced by the Appellant due to the perception he is bisexual? [25] The Appellant tendered several personal documents before the RPD in order to support his application for refugee protection. Those documents included affidavits from his family in Nigeria, an affidavit from the Appellant's current partner in Canada and a psychological report as well as objective documentary evidence concerning the risk faced by those perceived to be gay in Nigeria. The Appellant seems to submit that the RPD failed to give full consideration to this evidence. [26] The RAD is not persuaded by the Appellant's argument in this regard. It is clear from the record that the RPD carefully considered the Appellant's personal documentary evidence and appropriately found that it could give those documents little weight. The Appellant also seems to argue that, although the RPD found that there were inconsistencies between some of the documents tendered and the evidence and allegations of the Appellant, those inconsistencies did not exist.10 However, the RAD finds that the record shows that there were clear discrepancies between the Appellant's allegations and some of the information contained in the affidavits from his family.11 The RPD notes that contrary to the Appellant's testimony that there was only one incident in XXXX 2013, the affidavits describe several incidents as having occurred. [27] The RPD also noted that, although the Appellant's testimony was that he was attacked again in XXXX 2013, the incident involved no accusations, threats or inferences that the attack was as a result of any knowledge of the Appellant's sister's sexual orientation or the perception that he was bisexual. Accordingly, the RAD finds that it was open to the RPD to place little weight on these affidavits. [28] The RPD also appropriately placed little weight on the affidavit from the partner of the Appellant's sister.12 This affidavit provided no evidence that the Appellant faced risk in Nigeria nor did it provide any corroboration of the Appellant's allegations that he was attacked due to his actions in defending his sister. It could be true that the Appellant's sister is bisexual, but this does not provide persuasive evidence that the Appellant is at risk because of her sexual orientation. [29] The RAD also notes that the RPD gave careful consideration to the psychological report prepared by Dr. XXXX.13 The RPD notes that the report of Dr. XXXX provided a summary of allegations that were self-reported by the Appellant and that they did not establish that the allegations took place. The RAD also notes that the report states that there were "violent attacks, beatings and threatening telephone calls", which is inconsistent with the allegations he made at his RPD hearing. The RAD finds that it was open to the RPD to place little weight on this report in establishing the Appellant's allegations. [30] The RAD finds that the RPD considered the personal documentary evidence of the Appellant and appropriately gave the documents little weight in establishing the allegations of the Appellant. [31] The Appellant further submits that the RPD erred when is used part of the contents of the supporting affidavits and psychological report to undermine the credibility of the Appellant. The Appellant argues that this amounts to "reprobating and approbating at the same time". The Appellant argues that the law does not allow the RPD to reject a document or "place no weight" on a document and then subsequently use a portion of that document to impugn the credibility of the Appellant. The Appellant relies on the Federal Court decision, in Tekie,14 to support his argument. The Appellant provided an excerpt15 from the decision it relies on; however, the RAD finds that the circumstances in that case are distinguishable from the circumstances in this case. In the case at hand, the RPD merely used the inconsistencies between the documents and the Appellant's testimony to assess the weight it should give the documents. The RPD did not draw further credibility findings. The RAD finds that the Appellant's argument fails in this regard. [32] The Appellant further submits that the RPD failed to give full consideration to the objective documentary evidence. The Appellant argues that, even if the RPD was of the opinion that the Appellant was not credible, the RPD failed to consider that the Appellant was still at risk in Nigeria because he was perceived to be bisexual. [33] The RAD is not persuaded by the Appellant's argument in this regard. The Appellant seems to argue that regardless of the credibility findings of the RPD, the Appellant's personal documentary evidence establishes that the Appellant is perceived to be gay. The Appellant further argues that the objective evidence establishes that persons who are perceived to be gay are at risk in Nigeria. While it may be true that persons perceived to be gay in Nigeria are at risk of persecution, the RPD found that the Appellant has failed to provide persuasive evidence that he is perceived to be gay or bisexual. The RAD has found that that RPD fairly and appropriately assessed the probative value of the personal supporting documents. The RAD has also found that the RPD has made credibility findings which undermine the credibility of the Appellant's allegations. SUMMARY AND DETERMINATION [34] The RAD finds that the RPD's credibility findings are absent any error which prevents the RAD from affording deference to those findings. The RAD reviewed the evidence on the record and finds that is sufficient evidence to find that the Appellant does not face a well-founded fear of persecution, or a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture by any authority in Nigeria [35] Accordingly, the Appellant's appeal fails. (signed) "L. Favreau" L. Favreau October 1, 2014 Date 1 Exhibit P-2, Appellant's Record, Memorandum, p. 59, para.1. 2 Raza, para. 13.3(a). 3 Raza, para. 16. 4 Raza, para. 13.5(b) 5 Raza, para. 13.5(a) 6 Raza, para. 13.3(b) 7 Raza, para. 13.5(a) 8 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 9 Exhibit P-2, Appellant's Record, RPD's Reasons, p. 6, para.11. 10 Appellant's Record, Memorandum, p. 69, para. 63. 11 Exhibit RPD-1, p. 167-171. 12 Exhibit RPD-1, pp. 165-166. 13 Exhibit RPD-1, pp. 158-161. 14 Tekie, Estifanos Hagos v. M.C.I. (F.C. no., IMM-2093-04), Phelan, January 12, 2005; 2005 FC 27. 15 Appellant's Record, Memorandum, p. 73. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05527