TB8-06756

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 / Dossier de la SAR : TB8-06756 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 Ottawa, ON Appel instruit / entendu à Date of decision February 12, 2019 Date de la décision Panel D. Lewis Tribunal Counsel for the person(s) who is(are) the subject of the appeal Jerome Fanmi Olorunpomi Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW OF APPEAL [1] XXXX XXXX XXXX (the Appellant), a citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated November 29, 2017, rejecting her claim for refugee protection. [2] The Appellant claims that she fears persecution in Nigeria because she is a bisexual woman. She alleges that while she was in Canada in XXXX 2017, as part of an official Nigerian delegation, her same-sex partner was arrested in Nigeria and confessed that she was in a relationship with the Appellant. As a result, the Appellant decided to claim refugee protection rather than return to Nigeria where she claims she would be in danger of persecution and easily recognizable because of her work as a business woman and XXXX XXXX XXXX XXXX XXXX. [3] The RPD found that the Appellant was not a credible witness because there were significant inconsistencies and omissions in her evidence which could not be reasonably explained regarding her same-sex relationships, her marital status, and how her sexuality was discovered. Therefore, the RPD determined that she had not established that she was a bisexual woman on a balance of probabilities. [4] The Appellant claims that the RPD erred by reaching unreasonable credibility findings and drawing negative inferences unsupported by the evidence. I have listened to the audio recording of the RPD hearing and conducted an independent analysis of the record and the Appellant's submissions. In conducting my analysis I have also considered Guideline 9 - Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guideline) as this appeal involves a claim of persecution based on sexual orientation.1 For the reasons that follow, I agree with the RPD's findings and find that the Appellant is neither a Convention refugee nor a person in need of protection. DETERMINATION [5] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). ANALYSIS Role of the RAD [6] The RAD reviews RPD decisions on a standard of correctness. In limited circumstances, the RPD may have a meaningful advantage over the RAD in assessing evidence that was before the RPD. In those cases, the RAD will show deference to the RPD. In this appeal, I have applied the correctness standard unless specifically stated otherwise. Request for Oral Hearing [7] The Appellant Record contains a statement pursuant to RAD Rule 3(D)2 in which the Appellant states that she is not relying on new evidence pursuant to s. 110(4) of the IRPA but requests an oral hearing. Under s. 110(6), the RAD may hold a hearing if in the RAD's opinion there is new documentary evidence that raises a serious issue with respect to the Appellant's credibility, that is central to the Appellant's refugee claim and that, if accepted, would justify allowing or rejecting the claim. As the Appellant is not seeking to rely on any such new evidence, the RAD does not have jurisdiction to hold an oral hearing and must proceed on the basis of the record. Therefore, I dismiss the Appellant's request for an oral hearing. Merits of the Appeal The RPD did not err in its assessment of the Appellant's credibility [8] The Appellant submits that the RPD engaged in an unreasonable assessment of the Appellant's credibility by making negative inferences regarding the Appellant's testimony with regard to her same-sex partners in Nigeria based on inconsistencies and omissions that the Appellant characterizes as not relevant to the central allegation made by the Appellant. The Appellant also alleges that the RPD erred by making negative credibility inferences based on the RPD's view of the Appellant's demeanor at the hearing. a. Relationship with XXXX XXXX [9] In her Basis of Claim (BOC)3 narrative, the Appellant stated that she attended XXXX XXXXHigh School in Osogbo, Nigeria and that from the age of fourteen, she realized that she was attracted to both sexes. She claims in her BOC that when she was in Form Three, XXXX XXXX XXXX XXXX XXXX XXXX XXXXbecause she was caught kissing a female classmate XXXX XXXX. She claims that the principal reported the incident to her parents and told them that he would have reported them to the police but only XXXX XXXX XXXX XXXX XXXXbecause they were still teenagers. [10] During the hearing the Appellant testified that when she was caught with her classmate she was first beaten and then told to bring her parents to the school.4 When asked why she had not included that she had been beaten at school in her BOC, the Appellant replied that everything was done in a rush because of her state of mind and shock and that she had summarized some things and planned to give details when asked to narrate.5 During the hearing the RPD asked the Appellant to elaborate on her relationship with XXXX. The Appellant stated that they met some time in 1985 and that they would meet about three times a week and that it was almost a year before they became romantically involved. The Appellant did not provide any further detail in her testimony regarding how their relationship evolved. [11] The RPD noted that question 2(a) on the BOC form specifically requires claimants to provide details of all harms or threats and that question 2(h) asks for other details important to the refugee claim. The RPD found that the Appellant was represented by counsel who could have explained the necessity of providing all significant incidents of harm in the BOC. In light of this, the RPD Panel rejected the Appellant's explanation for the omission of the beating from her BOC because the beating occurred due to the Appellant's sexual orientation which is the central issue of the claim.6 In addition to the omission of this instance of physical abuse, the RPD found that the vagueness of the Appellant's testimony regarding her same-sex relationship seriously undermined the Appellant's credibility.7 The RPD concluded that, on a balance of probabilities, the Appellant was not in a same-sex relationship with XXXX and drew a negative credibility inference from this conclusion.8 [12] I find that the RPD did not inappropriately base its findings on the Appellant's demeanor at the hearing as the Appellant suggests. Rather, the RPD relied upon an assessment of the omissions and lack of detail in the Appellant's evidence. I do not agree with the Appellant that these inconsistencies and omissions are not relevant to the central allegation made by the Appellant. I find that the RPD's credibility analysis with regard to the Appellant's relationship with XXXX was correct. The SOGIE Guideline states that omissions from testimony of significant events or details relating to the life of an individual with diverse SOGIE may support a negative credibility assessment if there is no reasonable explanation for the omission.9 In my view, the omission from her BOC of the alleged school beating which was physically violent persecution for her sexual orientation, as well as the Appellant's failure to provide details concerning her relationship with XXXX after having been asked several direct questions about their relationship, were significant and were not reasonably explained by the Appellant. b. Relationship with XXXX XXXX [13] The Appellant claims that XXXX is her common-law husband in Nigeria. She stated that they never married because she knew of her sexual orientation and wanted to be free to have relationships with women.10 The RPD noted that he was initially listed on her BOC as her husband and that this was later amended to indicate that he was her common-law partner. During her testimony the Appellant stated that she was not legally married and that they did not live together but that he would regularly come to visit her and their child at her home.11 In her XXXX XXXX, 2017 visa application, the Appellant stated that she was married to XXXX XXXX XXXX, that they lived together at the same address, and that she also used the name XXXX.12 Also in the record is a letter from XXXX in which he refers to the Appellant as his matrimonial wife and states that they have been living together for over ten years.13 [14] Based on these inconsistencies, the RPD found that, on a balance of probabilities, the Appellant was downplaying her marriage and close relationship with her husband to support her assertion that she led a lifestyle that allowed her to enter into a same-sex relationship with XXXX, which undermined her overall credibility.14 After independently assessing the Appellant's testimony and the documentary evidence, I agree with the RPD's assessment and find that the RPD was correct in its credibility finding against the Appellant because of these unexplained inconsistencies in the Appellant's evidence regarding her marital status. c. Same-sex relationship with XXXX XXXX and XXXX's arrest [15] The Appellant alleges that she had a same-sex relationship with a classmate XXXX XXXX when she attended XXXX XXXX XXXX in 1989. She claims that the relationship ended when XXXX left college but they reconnected in 2016 and began seeing each other again. The Appellant testified that she and XXXX would meet in their hostel where they could have privacy. She stated that they would read together, had both participated in class outings such as camping, and had gone to the zoo together.15 The Appellant listed these activities in her testimony but did not provide details or specific memories related to these activities or her alleged relationship with XXXX. When questioned by the RPD, the Appellant stated that the relationship ended when XXXX was admitted to university but could not recall the year she gained admission.16 The RPD concluded that the Appellant's testimony regarding how her relationship with XXXX began lacked detail and spontaneity and, given that this was her first adult same-sex relationship and that she had recently rekindled this relationship, it was reasonable to expect that the Appellant would be able to recall memorable outings they shared.17 In addition, when asked whether she had any photos, letters, cards or other documentation to support the existence of this relationship, the Appellant sated that she had photos but that they were worn out through wear and tear that that she was unable to get someone to obtain them from her house. The RPD found this explanation to be unsatisfactory because the Appellant had obtained other supporting documents with help from family members. As a result of the Appellant's vague answers and lack of documentation, the RPD drew a negative credibility inference with respect to the existence of the relationship. [16] The Appellant testified that she spoke to XXXX on the XXXXth and XXXXh after she arrived in Canada but that she did not have the call log because she used a calling card to call her. When asked by the RPD where the Appellant placed the call from, the Appellant first stated that it was from the airport but then stated that the question had not been clear, and she had actually called from the place where the Appellant was staying in Canada.18 When asked where she was staying as part of an official delegation with a XXXX XXXX, the Appellant said that "...I do not know the particular place, but I remember it was on the way to York University."19 When asked by the RPD whether she was staying at a house or a hotel the Appellant stated that she did not know if where she stayed was a hotel or a house. The RPD panel then stated that in Canada, hotels generally have a name on them and asked whether the Appellant had seen anything on the building to indicate that it was a hotel, and the Appellant replied that she did not remember.20 [17] The Appellant was also questioned during the hearing about her contact with XXXX's family members.21 She indicated that she knew XXXX's mother but, when asked, stated that she did not know her name. The Appellant stated that she knew one of XXXX's siblings, XXXX. When asked whether she could contact her to check to see if she could get some evidence of the relationship, the Appellant testified that it had been a very long time since she had seen her and did not know her contact information. The Appellant also stated that she knows XXXX's coworkers at the school where she worked but that it would be impossible for her to contact any of XXXX's coworkers because nobody wants to associate with the case. The RPD found the answers to these questions to be unsatisfactory. I find that these questions are directly connected to establishing that the Appellant was in a same-sex relationship with XXXX, which is material to the Appellant's claim. Furthermore, in my view this RPD finding was in accordance with the SOGIE Guideline which states that vague and evasive testimony and lack of corroborating documentary evidence may support a negative credibility inference.22 Therefore, I find that the RPD was correct to conclude that, on a balance of probabilities, the Appellant was not a credible witness and was not in a same-sex relationship with XXXX. The RPD did not err in its assessment of the Appellant's evidence a. Newspaper Article [18] The Appellant alleges that someone went into XXXX's house and caught her in a sexual act with a woman and that she was arrested and confessed that she and the Appellant were in a same-sex relationship. She testified that she became aware that XXXX had been caught by the police through an email she received from a friend who was like a cousin to her.23 The Appellant stated that she called him and he was told by her neighbors that the police had been to her house twice looking for her since XXXX's arrest.24 The Appellant also testified that she called another cousin who told her that someone went into XXXX's house and found her in a sexual act with another woman and they called neighbors who gathered on them.25 Part of the Appellant's evidence before the RPD was a newspaper article that she alleges was sent to her by her brother in Nigeria. The article is from an online website called "XXXX XXXX XXXX," it is dated XXXX XXXX, 2017, and entitled "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX."26 The article names the Appellant as a suspected bisexual woman and claims that she did not return to Nigeria XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The article states that the Appellant's XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Counsel informed the RPD at the beginning of the hearing that the Appellant had to amend the BOC to reflect that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The RPD reviewed the article and found that there was no reporter listed as the author of the article, the article had many spelling errors and contained an incomplete sentence. The RPD concluded that these glaring mistakes in the copy caused a serious doubt as to whether the article was authentic given the prevalence of "brown envelope journalism" in Nigeria, which is the publication of customized inauthentic news articles for a fee.27 [19] The Appellant alleges that the RPD engaged in an unreasonable assessment of the article because it focused on the format of the article and overlooked the substance of the article which corroborated facts alleged by the Appellant. I have reviewed the article and, in my opinion, the RPD was correct in its assessment of the article given the poor quality of the writing, which does not appear, on the balance of probabilities, to be a piece of professional journalism. I cannot agree, on a balance of probabilities, that that the contents of the article are credible and corroborate the facts as asserted by the Appellant given the poor quality of the article and the inconsistencies between the article and the Appellant's testimony. The article states that XXXX was apprehended by a group of youths who were suspicious of her sexuality, which contradicts the Appellant's testimony that XXXX was caught in a sexual act with another woman, and states that the Appellant lived with XXXX. When the Appellant was asked about these discrepancies at the RPD hearing, she claimed that she had not read the article in detail as it was a very sad thing for her.28 I find that this is not a credible explanation for the discrepancies in the evidence because it does not explain why there are two versions of how XXXX was allegedly apprehended. b. Letters from LGBT Organizations [20] The Appellant's evidence before the RPD included letters from LGBT organizations including the XXXX XXXX XXXX (XXXX) and the XXXX. The RPD gave little weight to these documents finding they were not sufficiently probative to help establish the Appellant's sexual identity as the XXXX letter contained information that had been relayed by the Appellant, who had been found not to be a credible witness, and the XXXX XXXX XXXX is open to the general public regardless of sexual orientation.29 The Appellant alleges that the RPD unreasonably disregarded this evidence and that the primary clientele of these organizations are members of the gay and lesbian community. Therefore the letters from the LGBT organizations are probative of the fact that the Appellant is a member of the LGBT community in Canada. I have read the documentary evidence and I find that the RPD was correct in its assessment of their probative value because they cannot establish the Appellant's sexual orientation for the reasons provided by the RPD. Individuals are not required to be members of the LGBT community to participate in activities led by these organizations. As such, these letters are not probative evidence of the Appellant's sexual orientation and therefore cannot overcome the credibility issues in this claim. c. Psychological Report [21] The Appellant also submits that the RPD was unreasonable in its assessment of the Appellant's psychological assessment, authored by a registered psychotherapist, which stated that the Appellant exhibited symptoms consistent with post-traumatic stress disorder, generalized anxiety, and depression.30 The RPD gave the report little weight because the psychotherapist did not attend the hearing to explain and defend her conclusions, and had strayed beyond her scope of practice and inappropriately mixed opinion with advocacy because she included statements in the report characterizing the claimant's allegations of persecution as genuine, forthcoming and valid.31 The Appellant submits that the panel ignored the totality of the psychological trauma suffered by the Appellant resulting from the persecution she was likely going to receive from the Nigerian police. The Appellant also alleges that the RPD applied the wrong test when it assessed the psychological report and was insensitive to the trauma suffered by the Appellant. I have reviewed the report and I agree that the RPD was correct to find that it inappropriately assessed the validity of the Appellant's claim. For this reason I find that the RPD appropriately gave the report little weight as it can only be relied upon for its findings concerning the Appellant's psychological condition but cannot establish that the Appellant's allegations of persecution meet relevant tests set out in the IRPA. [22] I find that the Appellant's psychological condition as stated in the report could have caused the Appellant some difficulty in testifying and in recalling information. However, given the totality of the evidence, I find that the various omissions and inconsistencies in the Appellant's evidence were beyond any that could be expected or attributed solely to her psychological condition. [23] I agree with the RPD's global credibility assessment that the Appellant was not a credible witness and has not established on a balance of probabilities that she is a bisexual woman. As a result, I find that she has not established that under s. 96, there is a serious possibility that she would be persecuted based on her sexual orientation should she return to Nigeria. Nor, based on the above analysis, has the Appellant established, on a balance of probabilities, that she is a person in need of protection, who under s. 97, would face a risk to life, or a risk of cruel and unusual treatment should she return to Nigeria. CONCLUSION [24] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) D. Lewis D. Lewis February 12, 2019 Date 1 Chairperson Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (May 1, 2017) (The SOGIE Guideline). 2 P-2, Appellant Record, at page 16. 3 RPD-1, RPD Record, Exhibit 2, Basis of Claim (BOC) 4 Audio recording of October 5, 2017 RPD hearing at approximately 00:30:00-00:33:00. 5 Ibid. at approximately 02:20:00-02:24:00. 6 RPD-1, RPD Record, RPD Reasons at paragraph 16. 7 Ibid. at paragraph 17. 8 Ibid. 9 Supra note 1. 10 Audio recording of October 5, 2017 RPD hearing at approximately 01:05:00-01:10:00. 11 Ibid. at approximately 00:19:00-00:22:00. 12 RPD-1, RPD Record, visa application, page 85. 13 RPD-1, RPD Record, letter of support from XXXX at page 95. 14 RPD-1, RPD Decision at paragraph 20. 15 Audio recording of October 5, 2017 RPD hearing at approximately 00:55:00-00:01:03. 16 Ibid. 17 RPD-1, RPD Record, RPD Reasons at paragraph 22. 18 Audio recording of October 5, 2017 RPD hearing at approximately 01:36:00-01:42:00. 19Ibid. at approximately 01:42:00-01:46:00. 20 Ibid. 21 Ibid. at approximately 01:47:00-01:51:00. 22Supra note 1. 23 Audio recording of October 5, 2017 RPD Hearing at approximately 01:27:00:00-01:31:00. 24 Ibid. 25 Ibid. at approximately 01:31:00-01:33:00. 26 RPD-1, RPD Record, Exhibit 8 at page 160. 27 RPD-1, RPD Record, Exhibit 3, Nigeria National Documentation Package, version: 31 March 2017, Item 4.1. 28 Audio recording of October 5, 2017 RPD hearing at approximately 02:00:00-02:10:00. 29 RPD-1, RPD Record, RPD Reasons at paragraph 34. 30 RPD-1, RPD Record, page 182, Exhibit 8, Psycholgical Report. 31 RPD-1, RPD Record, RPD Reasons paragraph 37. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-06756 RAD.25.02 (September 18, 2018) Disponible en français 2 RAD.25.02 (September 18, 2018) Disponible en français