TB6-05669

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 : TB6-05669 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 August 16, 2016 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mercy Dadepo 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 XXXX (the Appellant), a citizen of Nigeria, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside and substitute the negative determination with a positive determination or in the alternative, that the matter be referred back to a different member of the RPD for re-determination. The Appellant submitted new evidence in support of his appeal. He did not request an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [2] The RAD accepts the appeal and refers the matter back to the RPD for redetermination by a differently constituted panel.1 The RAD finds the RPD erred in its credibility assessment. The RAD finds that information gathered during the hearing before the RPD is insufficient for the RAD to make its own credibility findings. The RAD is, therefore, unable to conclude that the Appellant is a Convention refugee. Background [3] The Appellant alleges that he is a homosexual. [4] The Appellant's first homosexual relationship began in XXXX 1986 with his friend, XXXX XXXX. The relationship lasted until 1990 when the Appellant and XXXX XXXX completed their studies at college and then attended different universities. [5] The Appellant's brother, XXXX, advised the Appellant that he suspected the Appellant of a relationship with XXXX. XXXX advised the Appellant to enter into a relationship with a girl. In 1991 the Appellant married XXXX XXXX when she became pregnant with his child. [6] The Appellant met XXXX XXXX through his ex-partner XXXX XXXX. The Appellant entered a homosexual relationship with XXXX. The relationship came to an end when XXXX relocated. [7] The Appellant began work for the XXXX XXXX XXXX XXXX XXXX in 2012. In XXXX 2013 he entered a homosexual relationship with XXXX XXXX XXXX (XXXX), his boss, when they stayed in the same Lagos hotel during business. Through his work the Appellant travelled to Germany and the United States (U.S.). [8] On XXXX XXXX XXXX 2015, the Appellant and XXXX where in a hotel room when the Appellant's brother-in-law, XXXX XXXX (XXXX) entered their room and subsequently took photographs with his cell phone. The Appellant hit XXXX and threw him to the floor. This caused the cell phone to break. As XXXX exited the hotel room he told XXXX and the Appellant that they would be destroyed by god. [9] XXXX informed his sister, XXXX, the Appellant's wife, of his encounter with the Appellant and XXXX in their hotel room. XXXX sided with the Appellant and did not believe XXXX. [10] On XXXX XXXX, 2015, while at work, the Appellant and XXXX saw a police car arrive at their office. The Appellant and XXXX escaped through the back of the office and hid in nearby bushes. [11] The Appellant's cousin helped him to leave Nigeria. XXXX escaped to the United Kingdom. The Appellant travelled to the U.S. He arrived in the U.S. on XXXX XXXX, 2015. [12] The Appellant arrived in Canada on XXXX XXXX XXXX 2015 and made a claim for refugee protection on January 12, 2016. [13] The Appellant had a refugee determination hearing on March 11, 2016. In a written decision issued on March 29, 2016, the RPD rejected the claim. The RPD member found that the Appellant was not a credible witness. [14] Appeal pleadings were received on May 26, 2016. In his appeal, the Appellant argues that the RPD's assessment of the totality of the evidence was patently unreasonable, perverse, and capricious. The Appellant pleads that the RPD committed an error in law when it misstated and misapprehended material evidence. The Appellant pleads that the RPD misstated rules of the Board when it disregarded supporting letters and affidavits. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [15] 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 refugee claimant. Section 110(4) of the 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. [16] The Appellant submitted the following new evidence with his Appellant's Record: a) A letter from XXXX XXXX, the Appellant's wife, dated XXXX XXXX XXXX 20162 and accompanying 'Invitation to the Police Station' from the Nigeria Police, dated XXXX XXXX XXXX 20163 as well as a DHL envelope from XXXX XXXX, Benin City, Nigeria.4 b) A letter, undated, from Dr. XXXX XXXX, York University and an e-mail, dated XXXX XXXX XXXX 2016, from Dr. XXXX.5 c) E-mail messages, dated XXXX XXXX, 2016 and XXXX XXXX XXXX 2016, between the Appellant and XXXX XXXX, regarding a XXXX XXXX Workshop as well as an attached document regarding the workshop.6 d) E-mails between the Appellant and XXXX XXXX, dated XXXX XXXX, 2016 and XXXX XXXX XXXX 2016.7 e) A letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX at Metropolitan Community Church, dated XXXX XXXX, 2016.8 f) The Facebook page of XXXX XXXX and accompanying photograph.9 g) A letter from Black Coalition for Aids Prevention (BlackCAP), dated XXXX XXXX, 2016, Certificate of Completion from BlackCAP, dated XXXX XXXX XXXX 2016, and a photograph from BlackCAP.10 h) A letter from 519 Community Centre, dated XXXX XXXX XXXX 2016, and accompanying document.11 [17] The RAD is following the guidance in the Federal Court of Appeal (FCA) decision of Singh, 2016 FCA 96, on March 29, 2016, in determining the admissibility of new evidence under section 110(4) of the IRPA. The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in section 110(4). [18] If the proposed new evidence meets the tests set out in the statutory requirements the RAD will then go on to assess the FCA's considerations in Raza with the exception of materiality which is to be considered only in relation to section 110(6) of the IRPA. [19] In the case at hand, the RAD finds that document a), the letter from the Appellant's wife and the notice from the police, is dated after the date of the RPD's decision and provide information regarding events that occurred after the RPD's decision. For the following reasons the RAD does not accept document a). In the letter from the Appellant's wife she advises the Appellant not to call her again and that sending the notice from the police is the last favour she will do for him. However, according to the recording of the hearing, the Appellant testified that he spoke once to his wife since he arrived in Canada and she told him that he had lied to her. He testified that when he called again he discovered that his wife's phone was no longer working. Upon being asked, he testified that he did not know where his wife now was. In his Memorandum, the Appellant provides no explanation as to how, after the RPD made its decision, he, the Appellant, was in contact with his wife. The Invitation to the Police Station, provided by the Appellant, is a copy of a copy. The Appellant provided no explanation why the original document was not forwarded in the DHL envelope. The RAD finds it highly coincidental that a notice from the police arrived at the Appellant's home more than eight months after the police allegedly first visited his home on XXXX XXXX, 2015 and one month after the Appellant received the decision from the RPD. [20] The RAD does not accept document b), a letter, undated, from Dr. XXXX XXXX, York University and an e-mail, dated XXXX XXXX, 2016, from Dr. XXXX. The RAD's reasons are as follows. Dr. XXXX letter indicates that she first met the Appellant in XXXX 2016 when he agreed to participate in her study. She also states that the Appellant subsequently attended four workshops in XXXX 2016. In his appeal, the Appellant provided no explanation as to why the document was not provided before the RPD made its decision or, for that matter, for his hearing before the RPD. [21] For the following reasons the RPD does not accept document c). All of the e-mails predate the Appellant's hearing before the RPD. In his appeal, the Appellant did not explain why the e-mails were not provided prior to his hearing before the RPD. [22] The RAD does not accept document d), e-mails from XXXX XXXX, explaining why he was unable to obtain receipts from the hotel where he and the Appellant were discovered by the Appellant's brother-in-law. The RAD appreciates that one e-mail is dated two days prior to the issuance of the RPD's decision and the other e-mail was sent shortly after the decision was made. The RAD notes that according to the recording of the hearing, the RPD questioned the Appellant about the lack of documents from the hotel. However, in his Memorandum the Appellant provided no explanation as to why he did not obtain information from XXXX XXXX to provide post-hearing. [23] The RAD does not accept document e), a letter from the Metropolitan Community Church because similar evidence12 was provided by the church for the Appellant's hearing. [24] The Appellant states in his appeal that he accessed the information regarding XXXX XXXX (his brother-in-law), document f), by "googling" his name. The Appellant submits that he would not have known until his hearing that he would be required to provide documents about XXXX. For the following reasons the RAD does not accept document f). The Appellant provided no explanation as to why this document was not provided as a post-hearing submission. There were almost three weeks between the Appellant's hearing and the date of the RPD's decision. The RAD reasonably believes that a "Google" search could have been completed within this time frame. [25] The RAD does not accept document g), information provided by BlackCAP after the RPD decision was rendered, because similar information13 was provided from BlackCAP for the Appellant's hearing. [26] The RAD does not accept document h), a letter from the 519 Community Centre, because similar information14 was provided for the Appellant's hearing. ROLE OF RAD: [27] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,15 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. [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. ANALYSIS OF THE EVIDENCE [28] The RAD will focus on whether the RPD erred in its credibility findings. The Appellant's sexual orientation [29] In its written the decision, the RPD referred to the Appellant's sexual identity as bisexual. [30] The Appellant submits that the RPD should be able to distinguish the difference between a bisexual and a gay man irrespective of the fact that the Appellant has a wife and children. The Appellant argues that during his testimony before the RPD he testified that his first homosexual partner was with XXXX XXXX and that he married to cover up his homosexuality. [31] For the following reasons, the RAD agrees with the Appellant. [32] The RAD notes that the Appellant did not indicate his sexual orientation in his Basis of Claim (BOC) form. The RAD also notes that according to the recording of the hearing the RPD did not ask the Appellant to identify his sexual orientation. The recording of the hearing, however, indicates that counsel for the Appellant asked the Appellant if he knew the difference between a bisexual man and a gay man. The Appellant responded in the affirmative. When then asked by counsel to identify his sexual orientation, the Appellant testified that he was gay. He testified further that he had married his wife, XXXX, after his brother advised him that he was aware of his sexual relationship with XXXX XXXX and that suspicions could arise about the Appellant's sexuality if he was not married. [33] The RAD, thus, finds that the RPD speculated in its conclusion that the Appellant was alleging that he is bisexual. [34] The RAD is unable to make a finding regarding the Appellant's sexuality because of various credibility concerns not addressed by the RPD. Lack of documents The hotel [35] The RPD found that it disbelieved that the Appellant and his boss (his alleged homosexual partner) spent XXXX XXXX, 2015 at the XXXX Hotel. The RPD based this finding on the lack of documentation from the hotel, such as an invoice from the hotel or a receipt for food purchased. [36] The Appellant submits that according to the Court of Appeal, in Maldonado,16 when a claimant swears that certain facts are truth, this creates a presumption that they are true, unless there is valid reason to doubt their truthfulness. The Appellant argues that as a corollary, there is no legal requirement for a claimant to corroborate sworn testimony that is uncontradicted. [37] The RAD agrees that the RPD's reliance on the lack of documentary evidence for its credibility findings is flawed. The RAD notes that the RPD, in its reasons, found one omission in the Appellant's BOC as compared to his oral testimony about the alleged incident at the hotel. The RAD discusses this finding below. The RPD may reasonably draw an adverse credibility inference from an Appellant's failure to present evidence supporting his claim if the account consists of a lack of credibility on key issues, stemming from clear inconsistencies and implausibilities in oral testimony. The RAD is guided by the jurisprudence for the proposition that the RPD is entitled to draw a negative inference from an Appellant's failure to provide corroborating evidence when there are inconsistencies in the claimant's testimony.17 In addition, Justice Martineau held in Morka that in certain circumstances, where the claimant's account lacks credibility on key issues, it is reasonable to ground an adverse credibility finding on an absence of documentation to support an applicant's allegations.18 The Appellant's testimony regarding the incident at the hotel [38] The RPD noted in its written decision that the Appellant testified during the hearing that the hotel manager was called to their room when fighting erupted between the Appellant and XXXX (the Appellant's brother-in-law). The RPD stated that when the Appellant was asked why he omitted this information from his BOC, the Appellant testified that he forgot to mention it. The RPD did not find the Appellant's explanation reasonable since this information was material to the Appellant's claim since the hotel manager intervened and threw XXXX out of the hotel. [39] The Appellant submits that in his BOC narrative he focused on what happened between him, his partner, XXXX, and his brother-in-law, XXXX. The Appellant argues that during his hearing he testified that in his BOC narrative he focused on the phone over which he and XXXX fought. The Appellant argues further that the details he provided during the hearing, regarding the hotel manager's intervention, did not in any way contradict his claim. [40] The RAD appreciates that if the information regarding the hotel manager had been included in the BOC narrative it could have provided a clearer picture how it was that XXXX left the hotel room. Nevertheless, the RAD finds that the Appellant's argument has merit. The RAD finds it reasonable that the Appellant, in his written narrative, focused on the interaction with XXXX, the person who discovered the Appellant's sexual orientation and ultimately caused the Appellant to flee Nigeria. It is XXXX who is one of the alleged agents of persecution, not the hotel manager. The RAD, therefore, draws no negative inference from this omission. XXXX XXXX [41] The RPD found that without documentary evidence regarding XXXX XXXX, such as photographic identity (photo ID) or a birth certificate, it was not persuaded that the Appellant has a brother-in-law XXXX. The RPD then drew the conclusion that it did not find that XXXX XXXX found the Appellant and his boss at a hotel on XXXX XXXX, 2015 or that XXXX exposed their sexuality to the police. [42] The Appellant submits that the RPD provided no methods by which the Appellant could have obtained the photo ID or birth certificate of his persecutor. The Appellant argues that it is patently unreasonable for the RPD to find that XXXX XXXX does not exist simply because he, the Appellant, provided no identity documents of XXXX XXXX. [43] The RAD agrees with the Appellant's arguments. As the RAD has stated above, the jurisprudence clearly states that the RPD is entitled to draw a negative inference from an Appellant's failure to provide corroborating evidence when there are inconsistencies in the claimant's testimony. The RPD found no such inconsistencies in its decision. The RAD, having listened to the recording of the hearing, found no such inconsistencies. The actions of the police [44] The Appellant alleges in his BOC narrative that XXXX XXXX brought the police to the Appellant's office on XXXX XXXX XXXX 2015. According to the recording of the hearing, the Appellant provided similar testimony. He also testified that the police had first attended his home and were directed by his wife to his office. The Appellant also testified that on that occasion the police informed his wife that he is homosexual. [45] As a result of the findings of the RPD, discussed above, that is, it was not persuaded that the Appellant has a brother-in-law XXXX, the RPD made the following findings. The RPD disbelieved that the police went to the Appellant's home where they met his wife, who told them the Appellant was at work and hence the police went to his office looking for the Appellant and his boss. The RPD found that the Appellant fabricated his story about XXXX exposing the Appellant's and the Appellant's homosexual partner's sexual orientation to the police. The RPD found further that the Appellant never had a bisexual relationship with his boss, XXXX. [46] The Appellant submits that the RPD gave no sufficient reasons to disbelieve his testimony regarding the actions of the police other than the fact that the Appellant provided no identity documents of XXXX XXXX. [47] The RAD concurs with the Appellant. As stated above, the RPD did not, in its decision, refer to any contradictions or inconsistencies regarding the Appellant's testimony about the actions of the police on XXXX XXXX XXXX 2015. [48] However, the RAD has the following two concerns regarding the Appellant's testimony about the actions of the police. 1) According to the recording of the hearing, the RPD asked the Appellant how he knew that the police had attended his home. The Appellant testified that after he escaped from the police at his office he went home. Later in the hearing, when the RPD asked the Appellant what he did after he escaped from his office, the Appellant testified that he and his same-sex partner, XXXX, went to the home of XXXX uncle. He testified further that when XXXX left for the United Kingdom (UK) two days later, he, the Appellant, left the city to make arrangements to leave Nigeria. The RPD did not put the contradiction regarding where he went after he escaped from his office to the Appellant. 2) According to the recording of the hearing, the RPD asked the Appellant what the police asked his wife when they attended his home on XXXX XXXX, 2015. He testified that she mentioned to the police that he was not at home and that he could be found at his office. The RPD then asked the Appellant if the police told his wife why they were looking for him. The Appellant responded in the affirmative and testified that their information was based on the report made to them by his brother-in-law, XXXX. When the RPD then asked the Appellant if the police had informed his wife that he is gay, he responded in the affirmative. The RAD notes that the Appellant provided none of this information in his BOC form.19 According to the recording of the hearing, the RPD asked the Appellant why he did not provide this information in his BOC form. The Appellant testified that he initially didn't know but when he got home he learned this information. The RPD made no finding regarding these serious omissions. The RAD finds the Appellant's explanation unsatisfactory and, as a result, finds the Appellant's credibility seriously undermined. XXXX XXXX [49] In his BOC the Appellant alleges that in XXXX 1986 he and his school friend XXXX XXXX began a sexual relationship.20 He provided similar testimony. [50] The RPD gave no probative weight to a letter21 provided by XXXX XXXX. The RPD provided the following two reasons. XXXX XXXX states in his letter that the relationship between him and the Appellant began in 1984; the RPD found that this contradicted the Appellant's testimony that the relationship began in 1986. The letter from XXXX XXXX is not notarized. [51] The Appellant submits that he testified that he and XXXX had been childhood friends since 1984 and their sexual relationship began in 1986. He argues that there is, thus, no contradiction between his testimony and information in XXXX XXXX letter. The Appellant argues that there is no mandatory requirement for documents to be notarized and, moreover, for a sexual minority to go before a notary would amount to him exposing his sexual identity. To support his argument the Appellant provided a Response to Information Request (RIR), NGA105379.E22 which indicates that it is not standard practice in Nigeria for a Commissioner of Oaths to swear an affidavit regarding a person's sexual orientation given that certain sexual orientations are crimes. [52] For the following reasons the RAD finds that the Appellant's arguments have merit. [53] XXXX XXXX, in his letter, indicates that he and the Appellant were childhood friends from Junior through Senior Secondary Schools, 1984 to 1990. XXXX XXXX does not provide any specific date when their sexual relationship began. The RAD, therefore, finds there to be no contradiction between this information and that provided by the Appellant. Given the independent documentary evidence regarding the situation for sexual minorities in Nigeria, the RAD finds that it is unreasonable to expect that a gay man, such as XXXX XXXX, would provide information about his sexual orientation to a public official in an attempt to provide a sworn affidavit. [54] The RAD declines to assign weight to the letter provided by XXXX XXXX because of various credibility concerns not addressed by the RPD. The psychological report23 [55] The RPD in its decision found that the psychological report does not mention anything about the Appellant's sexual relationship with a man in Canada named XXXX XXXX. The RPD then found that it did not believe that the Appellant had a sexual relationship with Mr. XXXX. [56] The Appellant submits that the RPD did not raise this issue during the hearing. The Appellant argues that it is, therefore, prejudicial against him for the RPD to make a decision on an issue upon which the Appellant did not have the opportunity to speak. [57] The RAD agrees with the Appellant. Having listened to the recording of the hearing, the RAD notes that the omission from the psychological report of the relationship between the Appellant and Mr. XXXX was not put to the Appellant by the RPD. The RAD finds this to be a denial of natural justice. [58] In any event, for the following reasons the RAD gives no weight to the report. The report's author, XXXX XXXX, is a registered psychotherapist "specializing in the assessment and treatment of serious disorders of thought, cognition, mood, emotional regulation, perception, and memory." Her assessments are based on "in-depth clinical and psychodynamic interviews, typically extending for 60 to 90 minutes." 24 [59] While Ms. XXXX is not a medical doctor, psychiatrist, or psychologist, she appears to communicate a diagnosis: "...it is my clinical impression that XXXX XXXX (the Appellant) is exhibiting symptoms consistent with adjustment disorder with mixed anxiety and depressed mood."25 [60] Section 27 of the Regulated Health Professionals Act, S.O. 1991, Chapter 18 describes the communication of a diagnosis as a "controlled act," not to be performed unless the communicator is so authorized by a Health Profession Act, or unless the action has been delegated by a person who is so authorized. It does not appear that Ms. XXXX meets either qualification. The controlled act of diagnosis, at S.27(2)(1), is: ...communicating to the individual or his personal representative a diagnosis identifying a disease or disorder as the cause of symptoms of the individual in circumstances in which it is reasonably foreseeable that the individual or his personal representative will rely on the diagnosis. [61] Ms. XXXX letter clearly sets out to communicate a diagnosis, to be relied upon in the proceedings before the RPD. The RAD notes that contravention of the Regulated Health Professionals Act by a psychotherapist is considered professional misconduct.26 This assessment deserves little weight, as its author is neither a doctor nor a psychologist and therefore not qualified to make or communicate a diagnosis.27 [62] Further, Ms. XXXX went well beyond the scope of even a psychological or psychiatric report when she apparently made her own finding with respect to the Appellant's allegations of past persecution. She wrote, "Current symptomology is understood as.... responses to a number of circumstances and events, including the prolonged concealment of his sexual orientation, and the imminent threat resulting from its sudden exposure".28 Ms. XXXX subsequently wrote that "If Mr. XXXX were returned to Nigeria and the imminent threat of incarceration or physical harm, his physical and psychological state would undoubtedly suffer and there would be a concomitant negative impact on his family...".29 She went on to advocate for the Appellant to remain in Canada. [63] It is the role of the RPD and the RAD, to determine the credibility of the Appellant's allegations and to determine the risk faced upon return to Nigeria. Here the psychotherapist's report appears to have first strayed beyond her scope of practice - assessment and treatment30 - to provide a diagnosis, and then even further to conduct a credibility analysis and risk assessment. The author of the report has inappropriately mixed opinion with advocacy, and for this reason too her report warrants little, if any, weight.31 [64] The RAD finds that the RPD's credibility findings which it has sustained are insufficient to impeach the Appellant's testimony that he is homosexual and at risk in Nigeria. Subjective Fear [65] The RAD has unresolved credibility issues regarding subjective fear, that is failure to claim and reavailment, which are outlined in the following paragraphs. [66] According to the recording of the hearing, counsel for the Appellant asked him why he married. The Appellant testified that his brother had advised him that he was aware of his homosexual relationship with XXXX XXXX and he, the Appellant, then assumed maybe others were watching him and XXXX XXXX. He testified that his brother also advised him that by 25 years of age people marry or their sexuality is questioned. The Appellant testified that he married in 1997 as a way to hide his homosexuality. [67] The Appellant stated at the Port of Entry (POE) that he travelled to Germany in 2013 to attend a seminar on XXXX XXXX.32 The RPD did not ask the Appellant why he did not make a claim for refugee protection at that time in Germany or why he returned to Nigeria where he was aware of the serious problems for homosexuals. [68] The Appellant stated at the Port of Entry (POE) that he also travelled to the US in 2013 to attend a seminar on XXXX XXXX.33 The RPD did not ask the Appellant why he did not make a claim for asylum in the US at that time or why he returned to Nigeria where he was aware of the serious problems for homosexuals. [69] According to the recording of the hearing, the Appellant testified that he left Nigeria in 2015 because the authorities has been advised of his homosexuality and were looking for him. He testified that he had a US visa and subsequently arrived in the US on XXXX XXXX XXXX 2015. He remained in the US until XXXX XXXX, 2015 at which time he entered Canada using false documents. During the hearing, the RPD asked the Appellant why he did not make a claim for asylum in the US. The Appellant testified that he knew no one in the US and he preferred to come to Canada where his cousin resides. The RPD did not make a finding regarding subjective fear. The RAD finds the Appellant's explanation unsatisfactory. The RAD depends upon jurisprudence in this finding. [70] In the decision of Hibo Farah Mohamed and Ardo Abdi Omer v. MCI, the Court held: The Geneva Convention exists for persons who require protection and not to assist persons who simply prefer asylum in one country over another. The Convention and the Immigration Act should be interpreted with the correct purpose in mind.34 [71] Similarly, in the Case of Assadi, Nasser-Eddin v. MCI, the Court held: Failure to immediately seek protection can impugn the claimant's credibility, including his or her testimony about events in his country of origin.35 [72] The RPD finds that the Appellant could have sought the protection of the US if he genuinely feared persecution in Nigeria. The RAD determines that the Appellant's failure to seek protection in the US seriously undermines his subjective fear of persecution. [73] On the basis of the totality of the evidence, the RAD finds that the RPD's overall determination cannot be confirmed. DISPOSITION [74] Section 111(1) of the IRPA allows the RAD to: a) confirm the determination of the RPD; b) set aside a decision of the RPD and substitute a determination that, in its opinion, should have been made; or c) refer the matter back to the RPD, giving the directions to the RPD that it considers appropriate. [75] The RAD can make the referral described in section 111(1)(c) only if it was of the opinion that the decision of the RPD was wrong in law, in fact, or in mixed law and fact, and if the RAD cannot make a decision to confirm or substitute the RPD's decision without hearing evidence that was presented to the RPD.36 The Appellant asks the RAD to substitute its own determination that he is a Convention refugee. The RAD is not in a position to do so. The RAD finds that there remain significant credibility concerns which were not addressed by the RPD. The RAD has not seen or questioned the Appellant and is therefore in no position to make its own credibility finding on his refugee claim. Similarly, the RAD is unable to make a finding regarding the Appellant's sexuality. For these reasons, the RAD cannot substitute its own determination for that of the RPD, and it cannot find the Appellant to be a Convention refugee or a person in need of protection. CONCLUSION [76] Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. This appeal is allowed. (signed) "Lesley Mason" Lesley Mason August 16, 2016 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c.27, at s. 111(1)(c). 2 Exhibit P-2, Appellant's Record, pp. 39-40. 3 Ibid., p. 41. 4 Ibid., p. 42. 5 Ibid., pp. 43-44. 6 Ibid., pp. 45-49. 7 Ibid., pp. 50-51. 8 Ibid., p. 52. 9 Ibid., pp. 53-54. 10 Ibid., pp. 55-57. 11 Ibid., pp. 58-59. 12 Exhibit RPD-1, RPD's Record, p. 154. 13 Ibid., p. 153. 14 Ibid., p. 155-156. 15 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 16 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 17 Encinas, Migual Nagel Vasquez v. M.C.I. (F.C., no. IMM-4548-05), Noël, January 23, 2006, 2006 FC 61; Mejia, Selvin Manrique Villeda v. M.C.I. (F.C., no. IMM-356-09), Pinard, October 29, 2009, 2009 FC 1091. 18 Morka, Maria Obianuju v. M.C.I. (F.C., no. IMM-4120-06), Martineau, March 26, 2007, 2007 FC 315. 19 Exhibit RPD-1, RPD's Record, pp. 14-28. 20 Ibid. 21 Ibid., pp. 160-161. 22 Exhibit P-1, Appellant's Record, Appellant's Memorandum, pp. 61-65. 23 Exhibit RPD-1, RPD's Record, pp. 193-196. 24 Ibid. 25 Ibid. 26 Ontario Regulation 317/12, under the Psychotherapy Act, 2007, S.O. 2007, c. 10, sched. R. The RAD has previously commented on psychotherapist reports such as this one in X (Re), 2014 CanLII 96038 (CA IRB), X (Re), 2013 CanLII 99308 (CA IRB), and X (Re), 2014 CanLII 95954 (CA IRB). 27 See Boros, Andras Erno v. M.C.I. (F.C.T.D., no. IMM-3915-00), Lemieux, July 26, 2001, , para. 13; Boros, Andras Erno v. M.C.I. (F.C.T.D., no. IMM-3915-00), Lemieux, June 12, 2002. 28 Ibid. 29 Ibid. 30 Psychotherapy Act, 2007, Sections 3 and 4. 31 See Egbesola v. Canada (Citizenship and Immigration), 2016 FC 204, para. 13. 32 Exhibit RPD-1, RPD's Record, p. 42, question 8. 33 Exhibit RPD-1, RPD's Record, p. 42, question 8. 34 Mohamed, Hibo Farah v. M.C.I. (F.C.T.D., no. IMM-2248-96), Rothstein, April 9, 1997, para 9. 35 Assadi, Nasser-Eddin v. M.C.I. (F.C.T.D., no. IMM-2683-96), Teitelbaum, March 25, 1997. 36 Immigration and Refugee Protection Act, S.C. 2001, c.27, s. 111(2). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-05669