TB7-00257

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 : TB7-00257 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 May 30, 2017 Date de la décision Panel Cynthia Pay 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, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She did not provide new evidence in support of her claim, but has requested a hearing for the purpose of oral argument. The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and find that she is a Convention refugee or a person in need of protection or, in the alternative, to refer the matter back to the RPD. DETERMINATION [2] Pursuant to section 111(1) (c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter back to the RPD for re-determination. The appeal is allowed. Background [3] The Appellant alleged before the RPD that she fears for her safety on the basis of her sexual orientation if she had to return to her home country of Nigeria. She claims that she is a lesbian, but was pressured by her family to marry a man. The Appellant reports that until recently, her sexual orientation was secret, and that she had clandestine relationships with women during her marriage. In May, 2016, while she was in Canada visiting her now adult daughter and grandchildren, the Appellant alleges that her husband was informed of her sexual identity. She states that he threatened to report her to the police in Nigeria as well as to kill her. He also allegedly informed her daughter of the Appellant's sexual orientation, and as a result her daughter threw the Appellant out of her home. The Appellant travelled from her daughter's province to Ontario, and made a claim for refugee status on July 18, 2016. [4] The Appellant's refugee claim was heard on September 23, 2016 and October 31, 2016. The Minister intervened on the issue of credibility. In its oral reasons provided on October 31, 2016, the RPD found that the Appellant had not established her claim on the basis of credibility and delay. [5] The RPD made an overall credibility finding largely on the basis of Facebook posts between the Appellant and her daughter presented by the Minister, as the Appellant and her daughter had communicated over Facebook after the date of their alleged falling-out. As a result, the RPD found that the alleged fight between the Appellant and her daughter did not occur and that this damaged the credibility of her entire story, including her claim regarding her sexual identity. Further, the RPD also put little or no weight on the Appellant's support letters, which the RPD found to have been based on the Appellant's recounting of her story, which lacked credibility. [6] The RPD also found that the Appellant did not provide a reasonable explanation for her delay in making a refugee claim. [7] The Appellant argues that the RPD erred in its credibility findings, and by failing to conduct a thorough s.97 analysis. She did not challenge the RPD's findings regarding delay. Issues 1. Did RPD err in rejecting the Appellant's sexual identity on the basis of: a. credibility findings in relation to Facebook posts between the Appellant and her daughter? b. credibility findings regarding a support letter from the XXXX XXXX XXXX? 2. Did RPD err in failing to conduct a thorough s.97 analysis? Role of the RAD [8] As held by the Federal Court of Appeal in Huruglica1, with respect to questions of law and findings of fact (and mixed fact and law), which raise no issue of credibility of oral evidence, the RAD must review RPD decisions on a correctness standard. More deference may be required when the RPD's findings of fact involve the assessment of oral evidence, and the RPD is in an advantageous position in doing so. [9] In this case, I do not find that the RPD has an advantage over the RAD with respect to the findings regarding the Appellant's Facebook posts or the support letter from XXXX XXXX XXXX. I was able to review the Facebook posts, the letter and to listen to the recording of the Appellant's testimony. The RPD's credibility findings were based on the content of the Appellant's testimony, and not on any issues during the hearing which may not be evident to the RAD, such as hesitation or coaching. Oral hearing before the RAD [10] The Appellant requested an oral hearing for the purpose of oral argument in order to have a better opportunity to present and respond to arguments. [11] This request does not meet the criteria for an oral hearing as set out in IRPA. When read together, subsections 110 (3), (4) and (6) of the IRPA provide that the RAD may not hold an oral hearing unless there is new documentary evidence admitted that raises a serious issue with respect to the Appellant's credibility, that is central to the refugee protection claim, and would justify allowing or rejecting the claim. [12] In this case, there was no new evidence presented by the Appellant. As a result, I deny the Appellant's request for an oral hearing. Credibility findings a. Facebook posts [13] The RPD's decision is largely based on a credibility finding regarding Facebook contact between the Appellant and her daughter after their alleged falling-out. The RPD found that because of this ongoing social media contact, the Appellant's story of her fight with her daughter was not credible, and as a result her entire claim lacked credibility. The RPD therefore gave no weight to most of her supporting documentation, including letters from her son-in-law, brother, mother, XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX, deeming these letters to be a "reiteration of a fabricated account". The Appellant challenged this credibility finding, arguing that the Appellant's daughter was trying to make amends, that they were trying to avoid discussing their conflict and the Appellant's sexual orientation in this public forum, and that the Facebook posts were not relevant to the central issue of her claim, which is her sexual orientation. [14] I agree with the Appellant and find that that RPD erred in this credibility finding. I find that the Appellant's explanation for her ongoing contact with her daughter is plausible and consistent with her account of a fight with her daughter. I also find it problematic that the RPD dismissed the Appellant's entire claim based on credibility findings that are somewhat peripheral to her refugee claim. RPD findings on Facebook posts [15] As stated in her Basis of Claim form and testimony, the Appellant claims that she identifies as a lesbian and had secret relationships with women in Nigeria, but was pressured to marry a man by her family. She had a daughter who is now an adult living in Canada. In 2013, the Appellant travelled to Alberta to visit this daughter and help with childcare for her grandchildren. During this stay, she renewed her visitor's visa a number of times, but testified that she was planning to return to Nigeria in 2016. She presented a copy of a receipt for a plane ticket for this trip at her RPD hearing. [16] On May 29, 2016, a few months before her planned return to Nigeria, she reports that she received a phone call from her husband in Nigeria, confronting her with her lesbian identity and threatening to kill her and to report her to the police in Nigeria. He allegedly had been shown compromising photos of the Appellant and a lesbian partner. The Appellant's husband also informed her daughter of her lesbian identity. The daughter was very upset, reportedly saying she did not want a lesbian in her house, and threw her mother out. The Appellant testified that after being forced to leave her daughter's home, she first stayed with a family friend in Alberta, but then travelled to Toronto where she made her refugee claim. [17] The RPD found that there were 15 instances of contact between the Appellant and her daughter on Facebook between May 29, 2016, when the daughter allegedly kicked her mother out of the house, and July 18, 2016, when the Appellant signed her Basis of Claim form. [18] During the RPD hearing, the Appellant explained the "apparent contradiction" between the story of the fight and their ongoing Facebook contact on the basis that she wanted to keep in touch with her grandchildren. This is the reason she pressed the "like" button on some of their photos. Further, she testified that her daughter regretted the fight and was attempting to reach out to the Appellant via Facebook. The Appellant also surmised that her daughter also did not want people to find out about their rift, especially since it was based on her sexual identity. For that reason they were both putting on a false face for the benefit of their social network, both in Canada and in Nigeria. She also testified that Facebook often does not reflect participants' true feelings, and just because someone presses the "like" button does not necessarily mean that they actually like the person or sentiment involved. [19] The RPD rejected this explanation "given the sheer number of contacts, quality and apparent mood of communication" between the Appellant and daughter over Facebook. As a result, the RPD found the Appellant lacking in credibility, that the fight with her daughter did not occur, and that this further damaged her overall credibility and the credibility of her claim to be a lesbian. RAD review of Facebook posts and findings [20] The Minister provided printouts of these Facebook interactions, which I reviewed2. Several of the Appellant's daughter's posts were Christian prayers or memes, to which the Appellant replied "Amen". These posts seem quite impersonal and mainly focused on the religious sentiment rather than on the relationship between the Appellant and her daughter. [21] The Appellant's daughter posted three pictures of her children and tagged the Appellant in the post. On another post of a photo of the grandchildren, the Appellant wrote, "Your grandma love you...keep on bouncing in The Lord in Jesus Name". I do not find these posts to contradict the Appellant's account of the state of her relationship with her daughter. Rather, they are consistent with the Appellant's explanation that she missed her grandchildren and wanted to keep in touch with them. [22] The Appellant's daughter posted a Facebook quiz result that stated the person she had the best relationship with was her mother and the Appellant replied, "Thank you Lord. It's always been you." On another post, the Appellant's daughter wrote "Happy birthday to my super mom...you are my angel. Wind beneath my wings and I cannot thank you enough for your never ending support in every situation....I love you mom. Many more years to come in good health and prosperity in Jesus name." These posts are more personal, but I find them to be consistent with the Appellant's explanation that her daughter regretted her actions, and was trying to both repair the relationship with her mother, and also to conceal their conflict from the wider community. [23] In response to a photo of the Appellant posted on Facebook, the Appellant's daughter replied "lovely." The Appellant replied in her dialect, but the meaning of the post is unclear. At the hearing, the interpreter stated that the direct translation from Yoruba was "look and do, go in peace," but also stated that the post may have a different meaning in the Appellant's dialect. The Appellant testified that the correct translation was "thank you child, for what you have done to me" (i.e., for bringing her all the way to Canada to help with childcare, but then throwing her out of her house).3 The Appellant also wrote "looking so sweet" regarding a picture of her daughter, and pressed "like" on a post by her daughter thanking God for her Dad, who had allegedly threatened the Appellant. [24] Although there were a number of posts between the Appellant and her daughter following the alleged fight, and they were generally positive in tone, I disagree with the RPD's finding that the Facebook activity was inconsistent with the Appellant's story. I find that the posts are consistent with a mother and daughter who are trying to move forward after a rift, and also consistent with the explanation that they were also trying to keep their fight, and the cause of it, out of the public eye. I also consider this explanation in light of the new Chairperson's Guideline 9: Proceedings Before the Immigration and Refugee Board of Canada Involving Sexual Orientation and Gender Identity and Expression ("SOGIE Guideline"). It is quite plausible that the Appellant and her daughter would try to conceal the Appellant's sexual identity on social media, given the fact that same sex relationships are highly stigmatized and illegal in their country of origin. As noted in the SOGIE Guideline, an individual may conceal their sexuality "because of perceived stigma or risk of harm"4. Fear of stigma may also extend to family members such as the Appellant's daughter. [25] I am also concerned that the RPD's negative credibility findings were based mainly on these Facebook postings and the relationship between the Appellant and her daughter, which are not central to the substance of the Appellant's refugee claim; i.e., her sexual identity. It is an error for the RPD to dismiss the claim on the basis of an issue that is peripheral. [26] As a result, I find that the RPD erred in this credibility finding. b. Letter from XXXX [27] The RPD also gave no weight to a support letter dated August 28, 2016 from the XXXX XXXX XXXX XXXX XXXX XXXX in Toronto.5 XXXX describes itself as a XXXX XXXX offering service to the Lesbian, Gay, Bisexual, Trans and Queer (LGBTQ) community, and the letter states that the Appellant attended the church for the first time in 2014 and now participates in activities for LGBTQ refugees. The RPD found that the Appellant provided the church with selective information and that her "story was fabricated and evolved over time". Also, the RPD noted that the letter does not mention the Appellant's claim to have visited the church again in 2015, and that this was a material omission for which the Appellant provided no reasonable explanation. The Appellant argues that the RPD erred in this finding, as the letter does not purport to state each date of attendance and is a standard letter. [28] As outlined above, I have found that the RPD erred in the credibility finding that was the basis of its rejection of this and other support letters provided by the Appellant. In addition, I find that the RPD errs in its finding regarding a material omission. The letter says: "XXXX's first attendance at XXXX was October 12, 2014 when she came as a visiting guest, she however has been attending XXXX Toronto regularly as a member since June 26, 2016." The letter does not seem to suggest that it provides an exhaustive list of each attendance, but rather simply notes her first visit. I do not find the fact that the Appellant's 2015 visit was not mentioned in the letter to be a material omission. I therefore find that the RPD erred in completely discounting the letter because of its earlier credibility finding and because of the omission of an alleged visit in 2015. The weight given to this letter, however, would likely be limited, given the fact that it is, as described by the Appellant in her memorandum, a "standard letter". Section 97 Analysis [29] In its decision, the RPD found that the Appellant was not a person in need of protection. This decision was based on their credibility findings with respect to the Facebook posts between the Appellant and her daughter. The Appellant argues that the RPD erred by failing to conduct a thorough s.97 analysis. Because I found that the RPD erred in this credibility finding, this issue is moot. Delay [30] The RPD also found that the Appellant's three-year delay in making a refugee claim was unreasonable, and that she failed to give a reasonable explanation for this delay. The Appellant claimed that she was in Canada only to visit her daughter and to provide childcare for her grandchildren, and that she was planning to go back to Nigeria until her husband discovered her sexual identity and threatened her. The RPD found that her explanation for her delay was unreasonable, and that the delay undermined her subjective fear and the credibility of the basis of her claim. This finding regarding delay was not challenged by the Appellant in her memorandum. [31] Delay is relevant to the issue of subjective fear, but rarely a decisive factor in itself.6 In this case, the RPD's finding re: delay is also impacted by its earlier credibility determination, which I have found to be an error. Further, the RPD appears to make an assumption regarding how an LGBTQ claimant should behave: I would have expected you to have taken the first reasonable opportunity to learn about the process and claim refugee protection in Canada given that you knew it was not safe for you to return to Nigeria if you wished to live life openly as a lesbian.7 In the context of the SOGIE Guideline, and the stigma and criminalization attached to LGBTQ identity in Nigeria, it seems inappropriate to assume that a LGBTQ claimant would behave in only one way. It might also be possible that someone would choose not to make a refugee claim until their sexual identity was exposed, and that choice was taken away from them. Because this issue is not determinative, I do not find that it is fatal to her request to overturn the RPD decision. CONCLUSION [32] On the basis of the findings outlined above, and after my own assessment of all of the evidence in the record, including the recording of the hearing, I find that the RPD's credibility finding based on Facebook communications between the Appellant and her daughter is flawed, and insufficient to maintain the determination that the Appellant is not a Convention refugee or a person in need of protection [33] The RAD, however, is not in a position to find that the Appellant is a Convention refugee or a person in need of protection because the RPD did not fully canvass the core of the Appellant's story. I did not find sufficient detail in the record regarding the Appellant's relationships or other aspects of her sexual identity. As a result, I find that additional questioning is needed to ensure sufficient analysis of all of the aspects of the Appellant's refugee protection claim. Although I listened to the recording of the hearing and considered all of the evidence, I am unable to substitute my determination for that of the RPD. [34] As a result, I refer the matter back to the RPD for re-determination by a differently constituted panel as provided under s.111 (1) (c) of IRPA. The appeal is allowed. (signed) "Cynthia Pay" Cynthia Pay May 30, 2017 Date 1 Huruglica: M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit RPD-1, RPD's Record, at pp.125-150. 3 RPD Hearing, October 31, 2016, (CD recording at 38:50). 4 SOGIE Guideline, para 7.2.1. 5 Exhibit RPD-1, RPD's Record, at p.158. 6 Huerta v Canada (Minister of Employment and Immigration) (1993), 157 NR 225 (FCA) at 227. 7 Exhibit RPD-1, RPD's Record, at p.9, line 30. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-00257