TB6-07651

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 : TB6-07651 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 September 8, 2016 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola Barrister & 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 XXXX (the "Appellant"), a citizen of Nigeria, appeals the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has tendered new evidence in this appeal, and requests an oral hearing. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision and substitute a determination that he is a Convention refugee or a person in need of protection. In the alternative, the Appellant asks that RAD refer his claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. His appeal is denied. BACKGROUND [3] The Appellant alleged before the RPD that he is a citizen of Nigeria and that he fears returning there because his bisexuality has become known to family and other community members including the police. He fears he will be jailed and/or killed for his bisexual identity. [4] The Appellant's refugee determination hearing was held on February 25, 2016. In a written decision of May 19, 2016, the RPD rejected the Appellant's claim finding that the Appellant was not a credible witness. ROLE OF THE RAD [5] The RAD finds that the Federal Court of Appeal decision, in Huruglica,1 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. [6] The RAD concludes from its statutory analysis that, with respect to findings of fact (and mixed fact and law), the RAD is to review the RPD's decisions applying the correctness standard. Thus, after carefully considering the RPD's decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [7] As provided for in s. 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. Subsection 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. [8] The Appellant has submitted one additional document, an undated letter of support from Dr. XXXX XXXX, who indicates in her letter that the Appellant attended four workshops with members of the LGBT community in XXXX 2016 in which he disclosed persecution on the basis of his sexual orientation. [9] The Appellant submits that the proposed new evidence meets the test for new evidence as set out in Raza.2 The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4). The RAD agrees with the Appellant that further analysis of the evidence is required before the RAD can accept the proposed new evidence. In this regard, the RAD is guided by the Federal Court of Appeal decision in Singh.3 [10] In assessing whether the proposed new evidence meets the statutory provisions of s. 110(4), the RAD considered the following: (a) 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.4 (b) 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.5 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. (c) It is important to note here that s. 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. (d) 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.6 (e) 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 s. 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,7 or that it proves a fact that was unknown to him at the time of the hearing?8 If so, the RAD will proceed to assess the newness, credibility and relevance of the evidence. (f) 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 s. 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of the refugee claim? If so, the evidence need not be considered.9 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the newness, credibility, and relevance of the evidence. (g) If the proposed new evidence meets the tests set out in the statutory requirements and in Raza, the evidence will be admitted as evidence in the appeal. The materiality of the evidence will be considered in the context of the assessment made under section 110(6) of the IRPA. [11] In the case at hand, the RAD notes that the Appellant has not provided any argument or explanation of how this proposed new evidence meets the test set out in s. 110(4) of the IRPA. The RAD finds that, although the document refers to the Appellant's attendance at workshops after his RPD hearing, he has not provided any explanation why this letter could not have been tendered prior to the rejection of his claim in May 2016. The RAD finds that the Appellant bears the burden of establishing how the new evidence meets the statutory requirements of the Act but has not done so. Accordingly, this document is not admitted as new evidence in this appeal. Oral Hearing [12] Section 110(3) of the 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. According to subsection 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. When read together, subsections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence (i.e., evidence admitted under section 110(4), section 110(5) or Minister's 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 Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [13] The RAD finds that, given there was no new evidence which has been admitted in this appeal, it cannot hold a hearing. ANALYSIS OF THE MERITS OF THE CLAIM Credibility [14] The Appellant submits that, in many instances throughout the RPD's decision and reasons, the panel member's reasons were not intelligible or sufficiently clear for him to understand why his claim failed. He argues that there were merely three findings made by the RPD which the RPD found were indicative of his lack of credibility. He argues that these were derived from the panel member's skepticism rather than a reasoned analysis of the facts and that they were insufficient to undermine his credibility. [15] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the RPD's findings were based on more than three adverse credibility findings. After its own assessment of the evidence in this appeal, the RAD finds that, while the RPD's reasons would benefit from further analysis of the facts and further clarity with findings of fact, there is sufficient reason to find that the Appellant's allegations lack credibility. Sexual Activity in Nigeria [16] The RPD drew adverse credibility findings with regard to the Appellant's allegations concerning his sexual activities in Nigeria. In particular, the RPD found the Appellant's testimony that he disclosed his sexual orientation to his uncle when he pressured him to marry the daughter of his friend and that he was involved in a sexual relationship with two different men in Nigeria was not credible. [17] The RPD drew an adverse inference from the fact that, when questioned by the RPD when he dated anyone after the year 2000, the Appellant testified "no one seriously". The RPD noted that the Appellant's Basis of Claim (BoC) narrative stated that he began a sexual relationship with a man whom he had met in a bar in 2009. [18] The Appellant submits that the RPD's adverse credibility finding is based on an inconsistency which does not exist. He argues that an individual can maintain a sexual relationship with someone without the relationship being serious. [19] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the Appellant believed the relationship was important enough to mention it in his BoC narrative. The RAD notes that the Appellant alleges that he was engaged in this relationship at the time the Appellant alleges his uncle was pressuring him to marry a woman and when he disclosed to his uncle that he was bisexual. The RAD finds it reasonable to expect that, given this relationship was the only other sexual relationship he had with a man in Nigeria and given he provided the name of the individual and circumstances of how he entered the relationship with this man in his BoC, he would have provided this information when questioned by the RPD. In addition, the RAD notes that the RPD found that when the inconsistency was pointed out to the Appellant during the hearing, the Appellant appeared to be taken by surprise. The RAD defers to the RPD's finding on this point, as the RPD is better positioned to draw findings from the manner that the Appellant testified on this issue. [20] The RAD finds this inconsistency undermines the Appellant's allegation that he was involved in a sexual relationship with a male in 2009 while living in Nigeria and further undermines his allegations that he was being pressured to marry a woman at the time he was engaged in a sexual relationship with a man. [21] The RPD drew a further adverse credibility finding based on the Appellant's testimony that he disclosed his sexual orientation to his uncle. The RPD essentially found it was not credible that the Appellant would disclose his sexual orientation to his uncle. [22] The Appellant submits that he only disclosed his sexual orientation to his uncle under pressure to marry. He argues that the exchange took place in the course of a heated argument and that he blurted out the information out of anger and passion. [23] The RAD is not persuaded by the Appellant's argument in this regard. As also noted by the RPD, it makes little sense that the Appellant would disclose his sexual orientation to his alleged uncle given the circumstances. First, the RAD notes that the Appellant alleged that he was aware that same-sex activities were taboo in Nigeria and that he would be at risk of harm if it was disclosed. Second, he alleged that his uncle was a very influential and powerful chief in Nigeria with many connections. Thirdly, he alleged that the woman his uncle wanted him to marry was the daughter of a XXXX XXXX XXXX. Fourthly, the Appellant had always been perceived to be heterosexual in Nigeria, having been involved in two previous long-term heterosexual relationships with women and having fathered five children. Lastly, there is no reliable evidence before in the record that independent businessmen of 49 years of age, such as the Appellant, can be forced into arranged marriages in Nigeria. The RAD also notes that, although the Appellant has alleged his uncle is a powerful and influential chief, there is no documentary evidence tendered which corroborates this allegation. [24] Based on the foregoing, the RAD finds that it is neither plausible nor credible that the Appellant would disclose his sexual orientation to his uncle as he has alleged. [25] The RAD further notes that the RPD found that there is no reliable evidence to substantiate the allegation that the Appellant had a five-year sexual relationship with XXXX or that he had a sexual relationship with a man named XXXX in 2009. The RAD finds that these relationships are the heart of his claim for protection, and it reasonable to expect that the Appellant would be able to provide some evidence such as photographs, letters, texts, emails or phone records to assist in corroborating that these relationships existed. [26] In light of the findings noted above and in the context of the totality of the findings in these reasons, the RAD agrees with the RPD and finds, on a balance of probabilities, that the Appellant was not perceived to be a bisexual man while he was living in Nigeria and that he did not have a same-sex relationship with XXXX, XXXX or any other man in Nigeria. Alleged Sexual Activity in the United States [27] The RPD found that the Appellant's allegations he maintained a bisexual lifestyle in the United States was not credible. The RPD noted that the Appellant alleged he had a same-sex partner in the USA named XXXX XXXX and that it was this man who introduced him to the smuggler that brought him to Canada. The RPD noted that the affidavit of XXXX XXXX10 affirmed that the Appellant is a close friend whom he has known for many years. Although the affiant stated that he is aware of the Appellant's sexual orientation, there is no reference to his own sexual orientation and no indication that the affiant is in a sexual relationship with the Appellant. The RPD found that this undermined the Appellant's credibility. [28] The Appellant submits that the RPD's finding is flawed. He argues that the affidavit does not state that he and XXXX were in a sexual relationship because they were not in a sexual relationship. [29] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the Appellant's argument is not only internally inconsistent with other arguments in his memorandum of appeal,11 it is also inconsistent with information contained in the affidavit he tendered from XXXX XXXX in which it is alleged that the Appellant had been in a relationship with XXXX for "some years". The argument is also directly contradicted by the Appellant's BoC narrative in which he alleges that he dated several men while in America and further referred to XXXX as his same-sex partner.12 The RAD finds that this contradiction undermines the credibility of his allegations in this regard. The RAD agrees with the RPD and finds that the Appellant's allegation that he was engaged in a bisexual relationship with XXXX XXXX or any other male in the USA is not credible. [30] The Appellant further submits that the RPD ignored that the affidavit corroborated that he is bisexual, that his uncle threatened him and that his life would be in danger in Nigeria. He argues that it was an error for the RPD to ignore this evidence. [31] The RAD is not persuaded by this argument. While it would have been preferable for the RPD to address this aspect of the affidavit, after its own review, the RAD finds that the affidavit can be given little weight in corroborating the Appellant's allegations in Nigeria. The RAD notes that the affiant's account appears to be based solely on the information he received from the Appellant. There is no indication that it was based on independent observation or knowledge acquired through other sources. Repeating information provided by the Appellant does not make the information true nor does it raise the credibility of the original source of the information. Failure to Claim in the U.S. [32] The RPD drew an adverse inference from the Appellant's failure to claim for protection in the U.S. or to take steps to regularize his status there. The RPD found that the Appellant failed to provide a reasonable explanation for failing to take steps to inquire on how he could regularize his status there. [33] The Appellant submits that his explanation that the believed his former female partner in the U.S. would sponsor him is a reasonable explanation that the RPD ought to have accepted. He further submits that when he discovered that his female partner was not going to sponsor him, he sought assistance of a lawyer in New Jersey to find out how he could regularize his status. He argues that he was told that, since he had entered the U.S. illegally and had been there for more than one year, he could not file for asylum. He also submits that the affidavit of XXXX XXXX and the letter from the Law Offices of XXXX XXXX corroborate his explanation for failing to claim. He argues that he felt safe in the U.S. with the belief that his female partner would sponsor him and was not motivated to seek legal assistance until after she failed to sponsor him. [34] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the Appellant has alleged that he left Nigeria for fear of harm after his sexual identity was exposed. He claimed he entered, lived and worked in the U.S. illegally under false identity. His explanation that he expected his female partner to sponsor him when he was living under a false identity strains credulity. The RAD notes that the Appellant had been residing in the U.S. illegally for a year before he started his relationship with his female partner in the U.S. He alleges that he lived in the U.S. under the fear of deportation but took no action to determine what steps he could take to regularize his status in the U.S. Although he claimed to be affiliated with a church in the U.S. shortly after his arrival, he made no inquires with church staff or fellow parishioners with regard to immigration or asylum procedures. He arrived in the U.S. in XXXX 2010, but he did not contact anyone with regard to his status there until XXXX 2013. [35] The RAD finds that the letter13 from a law office in New York dated XXXX XXXX, 2016 offers little corroboration of his allegations in this regard. The letter is very vague and only refers to the fact that the Appellant discussed possible immigration benefits in XXXX 2013 with the lawyer. [36] The Appellant further submits that the psychological report he tendered establishes that he was not operating under a sound mind when living in the U.S., and it implies that this could explain his actions of failing to claim. [37] The RAD has considered the Appellant's argument in this regard and finds that the psychological report does not address the Appellant's alleged state of mind in the U.S. The RAD has reviewed Dr. XXXX psychological report and acknowledges Dr. XXXX substantial clinical experience. The RAD notes as well the references to the theoretical and clinical literature provided by Dr. XXXX as a context for his conclusions. [38] The RAD finds, however, that Dr. XXXX reaches very serious conclusions as to the Appellant's psychological health after only a one-hour interview. The RAD also notes, however, that Dr. XXXX does not make a "clinical diagnosis" but rather provides a "clinical impression" that the Appellant satisfies the diagnostic criteria for a person with stressor-related disorder with prolonged duration. [39] Although Dr. XXXX finds that the Appellant provided a credible account of his experiences, the RAD notes that Dr. XXXX did not have the benefit of the evidence and testimony that is before this panel. The RAD finds that Dr. XXXX assessment of the Appellant's credibility cannot usurp the findings of the RAD in this regard. [40] The RAD further notes that Dr. XXXX indicates in his report that concentration and memory problems are common among people who are exposed to traumatic stress and that difficulties are exacerbated under pressure, such as in the high-stakes context of Immigration proceedings. Symptoms may arise in the fore of difficulty understanding questions, requests for questions to be repeated or rephrased, inability to retrieve specific details or the past or an apparent inability to formulate a coherent response. Dr. XXXX further indicates in his report that stress-related cognitive problems can lead to difficulties in providing clear and consistent testimony. He states that if "such problems become evident, it will be important to understand that they likely reflect the disorganizing effects of traumatic stress rather than an effort to evade or obfuscate." [41] The RAD finds that Dr. XXXX statement attempts to explain away all of the Appellant's testimonial failings in advance of the hearing based upon his clinical impression made one month in advance of the hearing. The RAD finds that such an assessment may have had more value if Dr. XXXX had the opportunity to assess the Appellant's actual testimony rather than to speculate about how his testimony may be affected. [42] The RAD notes that Dr. XXXX reports that the psychological interview was stressful for the Appellant. He stated that the Appellant "experienced painful memories, threat and vulnerability. He signed repeatedly, at times emphatically. Concentration rendered it difficult to focus". Despite the fact that the Appellant displayed all of these symptoms, Dr. XXXX found the Appellant's responses to his question credible and internally consistent. The RAD finds it reasonable that if Dr. XXXX could accurately assess the Appellant's credibility in the face of his displaying all of these symptoms than it would be equally reasonable for the RPD to make such an assessment, particularly in light of the fact that the RPD had access to evidence not considered by Dr. XXXX. After its own review of the testimony, the RAD finds that, where the Appellant's testimony was called into question, there is no indication that he was suffering from the symptoms as described by Dr. XXXX. [43] The RAD further finds that, while Dr. XXXX report falls short of crossing the line separating expert opinion from advocacy, the RAD takes note that Dr. XXXX indicates in his report that the assessment was done to "accompany [the Appellant's] request for refugee protection" rather than as an independent assessment of his psychological health. [44] The RAD is guided in this regard by the decision of the Federal Court Molefe14 in which the Court stated that,"Expert opinion reports should not be given exalted status in administrative proceedings simply because they are prepared by a licensed profession." In Molefe, Mr. Justice Mosley cites the Court's decision in Czesak15 in which Mr. Justice Annis warned of the dangers posed by expert reports submitted to administrative tribunals. [37] Moreover, I am of the view that decision-makers should be wary of reliance upon forensic expert evidence obtained for the purpose of litigation, unless it is subject to some form of validation. This remark would apply to the report of Dr. Koczorowska which went as far as to advocate on the applicant's behalf in the guise of an opinion on the very issue before the panel. [38] Our legal system has a long experience in dealing with forensic experts testifying on matters relating to technical evidence for the purpose of assisting courts in their determinations. From that experience, the courts have developed what I would describe as a guarded and cautionary view on conclusions of forensic experts which have not undergone a rigorous validation process under court procedures. [...] [40] This is not to say that every expert report prepared for litigation should be dismissed as having no, or little, weight. But what the court's experience with forensic experts does suggest in relation to these reports being proffered before administrative tribunals where there exists no defined procedure to allow for their validation, is that caution should be exercised in accepting them at face value, particularly when they propose to settle important issues to be decided by the tribunal. In my view therefore, unless there is some means to corroborate either the neutrality or lack of self interest of the expert in relation to the litigation process, they generally should be accorded little weight.16 [45] The RAD finds that, on the basis of its analysis, the report of Dr. XXXX should be given little weight in regard to assessment of the credibility of the Appellant's allegations and further finds that it does not explain the Appellant's failure to claim in the U.S. [46] The RAD finds that the Appellant's failure to claim in the U.S. not only undermines his subjective fear but also the credibility of his allegations. Treatment of the Appellant's Documentary Evidence [47] The Appellant submits that the RPD failed to thoroughly assess the documentary evidence with an open mind. He implies that the RPD discounted the documents based on a global credibility finding. The RAD finds, however, that the RPD did individually consider the supporting documents and made findings with regard to each of them. Supporting letter from Black CAP [48] The Appellant tendered a letter17 from the Black Coalition For Aids Prevention (Black CAP) dated XXXX XXXX, 2016. This letter states that the Appellant is a volunteer who assists with preparing condom kits for HIV prevention and distribution during community outreach events. A second letter from Black CAP is allegedly a support letter dated XXXX XXXX, 2016. This letter states that the Appellant sought the services of the group and attended a number of occasions. [49] The RPD noted that the letter states that there is nothing to indicate that the Appellant is not authentic about his sexuality; however, this letter does not state how this assessment is carried out. The RPD reasoned that the fact that the Appellant attended the Black CAP premises four or five times is not confirmation of his sexual identity as a bisexual man. [50] The Appellant submits that the letter from Black CAP was written by a representative with no vested interest in the outcome of this matter, and, as such, it can be implied that the contents of the letter were presented in a genuine manner as the author of the letter perceived it. [51] The RAD is not persuaded by this argument. The RAD accepts that the author of the letter is genuine in his opinion. However, the RAD finds that the opinion of this individual cannot usurp the analysis that the panel must make. The RAD notes that the author of the letter did not have the advantage of the information that was before the RPD and this panel. Furthermore, this letter does not attest to the sexual identity of the Appellant, only that the Appellant has self-identified. The RAD agrees with the RPD and affords no weight to this document for the purpose of establishing the Appellant's sexual identity. Supporting letter from 519 Church Street [52] The RPD found that the letter18 from 519 Church Street states that the Appellant is an active member of 519's Community Centre but does not confirm the Appellant's sexual orientation as a bisexual man. The Appellant submits that, while the letter does not explicitly confirm his sexual orientation, the letter confirms that the group he attends is open only to LGBT refugee claimants. The Appellant essentially argues that, by virtue of the restriction applied to this group, it can be implied that his sexuality is confirmed. [53] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the Appellant meets the criteria for attending the meetings by virtue of having made a refugee claim on the basis of his sexual orientation. There is no evidence that the 519 conducts any assessment of the veracity of those claims. [54] Accordingly, the RAD finds that little weight can be given to this letter in establishing the Appellant's sexual orientation. Supporting letter from the Metropolitan Community Church of Toronto (MCCT) [55] The RPD found that the letter19 merely reiterated allegations that the Appellant made in his BoC and that, on a balance of probabilities, while the Appellant attended the MCCT, the purpose was solely to advance his refugee claim. [56] The Appellant submits that the RPD failed to provide reasons for dismissing the letter and finding that he attended solely for the purpose of advancing his refugee claim. He also argues that the RPD ignored sections of the letter that indicated that there was no reason to doubt his fear. [57] The RAD finds that, while the RPD's reasons could have been more fulsome, there is reason to give this letter little weight. The RAD notes that the letter does not provide independent evidence of the Appellant's sexuality but only repeats what the Appellant has disclosed. The RAD accepts that the author of the letter is genuine in his opinion. However, the RAD again finds that the opinion of this individual cannot usurp the analysis that the panel must make. The RAD notes that the author of the letter did not have the advantage of the information that was before the RPD and this panel. The RAD affords no weight to this document for the purpose of establishing the Appellant's sexual identity. [58] The RAD finds that the totality of the adverse credibility findings noted above undermine the Appellant's allegations that he is bisexual. The RAD further finds that, in the context of the totality of the adverse credibility findings made and the evidence adduced in this claim, it agrees with the RPD that, on a balance of probabilities, the sole purpose of the Appellant's attendance at this church was to advance his refugee claim. Affidavit of XXXX XXXX dated XXXX XXXX XXXX 2016 [59] The Appellant tendered an affidavit from XXXX XXXX, a successful refugee claimant, in which the affiant declared that he and the Appellant have been engaged in a sexual relationship since XXXX 2016. The RPD noted that the affiant stated that on XXXX XXXX XXXX 2016, despite the Appellant having a low libido,20 according to Dr. XXXX in his psychology report, the two made love five days after the claimant's psychological assessment. The RPD gave little weight to this affidavit and found, on a balance of probabilities, that it was produced solely to buttress the claim. [60] The Appellant submits that the RPD made very little effort to engage with the affidavit and argues that the importance of the affidavit cannot be ignored. He argues that the evidence directly corroborates the Appellant's assertion that he is bisexual. The Appellant further argues that the RPD erred by seemingly drawing a negative inference from the fact that he engaged in a sexual relationship after having previously stated that he had a low libido. [61] The RAD finds that the Appellant's argument in this regard has merit. The RPD has failed to provide adequate reasons to justify its findings in this regard. Nonetheless, the RAD finds, after its own review and assessment of the evidence, that there is reason to give this affidavit little weight. [62] The RAD notes that the affiant states that the reason he and the Appellant did not engage in a romantic relationship when they first met was "because of all he went through in Nigeria, he wasn't trusting of people and he needed time to open up and learn how to trust people again". Whereas, according to the psychological report of Dr. XXXX, the Appellant alleged that he was simply disinterested in this aspect of life and that his mind was not at rest. There was no indication that his low libido was the result of his experiences in Nigeria that caused him to lose trust in others. [63] Furthermore, the RAD notes that the Appellant alleged in his BoC narrative that, shortly after leaving Nigeria, he was engaged in an long-term romantic relationship with a woman and sexual relationships with other men in the U.S. His alleged sexual activity in the U.S. undermines the statement that his experiences in Nigeria were the cause of his unwillingness to engage in romantic relationships when he first arrived in Canada. [64] The RAD finds that the inconsistency between the Appellant's actions and statements undermines the weight that can be given to the affidavit. The RAD notes that the affiant did not testify, and, as such, his evidence was not tested. The RAD finds that the evidence provided by this affidavit cannot overcome the totality of the adverse credibility finding in this appeal. [65] After its own review and assessment of the evidence in this matter, the RAD agrees with the RPD and finds, on a balance of probabilities, that the Appellant's evidence is not credible or trustworthy and, on a balance of probabilities, that the Appellant is not a bisexual man. CONCLUSION [66] The RAD agrees with the RPD and finds, based on the totality of the evidence, that the Appellant has not established his sexual identity and has not established that there is a serious possibility that he would be persecuted in Nigeria or that, on a balance of probabilities, he would be personally subjected to a danger of torture, or face a risk to life, or a risk of cruel and unusual treatment or punishment in Nigeria. [67] The RAD finds that the Appellant is neither a Convention refugee nor a person in need of protection. [68] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the decision of the Refugee Protection Division. (signed) "L. Favreau" L. Favreau September 8, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 3 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 4 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, para. 13.3(a). 5 Raza, para. 16. 6 Raza, para. 13.5(b). 7 Raza, para. 13.5(a). 8 Raza, para. 13.3(b). 9 Raza, para. 13.5(a). 10 Exhibit RPD-1, RPD's Record, pp. 122-123, Exhibit 5, item 6, Sworn Affidavit of XXX XXX. 11 Exhibit P-2, Appellant's Record, p. 47, Memorandum of Appeal, para. 35. 12 Exhibit RPD-1, RPD's Record, p. 19, Exhibit 2, Appellant's BoC Narrative, paragraph 6. 13 Exhibit RPD-1, RPD's Record, p. 126, Exhibit 5, item 8, Letter from the Law Offices of XXX XXXX. 14 Molefe, Nana Joy v. M.C.I. (F.C., no. IMM-8071-13), Mosley, March 12, 2015, 2015 FC 317. 15 Czesak, Maria v. M.C.I. (F.C., no. IMM-09539-12), Annis, November 4, 2013, 2013 FC 1149. 16 Ibid., Czesak, 2013 FC 1149, paras. 37, 38 and 40. 17 Exhibit RPD-1, RPD's Record, p. 168, Exhibit 10, item 19, Letter from the Volunteer Coordinator at Black CAP. 18 Exhibit RPD-1, RPD's Record, p. 129, Exhibit 5, item 11, Support Letter from Coordinator of the LGBT Newcomer Community Services at 519 Church. 19 Exhibit RPD-1, RPD's Record, p. 130, Exhibit 5, item 12, Support Letter from MCC Toronto. 20 Exhibit RPD-1, RPD's Record, p. 144, Exhibit 7, Psychological report of Dr. XXX, p. 4, paragraph 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-07651