MB9-16611

RAD File / Dossier de la SAR : MB9-16611 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision September 2, 2020 Date de la décision Panel Alison Kennedy Tribunal Counsel for the person who is the subject of the appeal Patil Tutunjian Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I allow this appeal. XXXX XXXX XXXX (Principal Appellant) is a citizen of Nigeria. He is appealing a decision of the Refugee Protection Division (RPD) that he is not a Convention refugee or a person in need of protection. DETERMINATION [2] I find that several of the RPD's credibility findings are unsustainable in this case. However, given that I find some of the RPD's credibility concerns to be valid, I find that this claim must be sent back to the RPD for redetermination. BACKGROUND [3] The Appellant alleges that he was beaten up and threatened by vigilantes who now want to kill him because of his advocacy for members of the LGBT community in Lagos. He also alleged that he risks being arrested by police if he returns to Nigeria, where homosexuality and supporting homosexuality are illegal. [4] The Appellant travelled to the United States (U.S.) in XXXX 2015. While in the U.S., the Appellant learned that vigilantes allegedly threatened to kill his wife because of his advocacy. He then advised her to leave their home in Lagos. This same day, both the Appellant's wife and son were killed in a car accident. The Appellant alleges that his wife's family blames him for their deaths and might also want to harm him. [5] The RPD found that the Appellant's allegations were not credible because of omissions in his Basis of Claim form (BOC) as well as a lack of knowledge of LGBT penalties and activities. The RPD also found that some aspects of the Appellant's claim were implausible. [6] The Appellant argues that the RPD erred in its credibility findings. He further alleges that the RPD was microscopic in its analysis and failed to consider the documentary evidence in the National Documentation Package (NDP) in reaching its plausibility findings. NEW EVIDENCE The evidence presented by the Appellant is accepted [7] The Appellant seeks to enter three new pieces of evidence on appeal pursuant to Rule 29 of the Refugee Appeal Division Rules1: a) Affidavit from the Appellant's sister July 13, 2020 b) News article titled "A police raid, viral videos and the broken lives of Nigerian gay law suspects" February 24, 2020 c) News article titled "Homosexual: civil rights crusader escape(s) death" November 14, 2019 [8] In determining whether to allow the application to admit new evidence pursuant to Rule 29, I must consider any relevant factors, including: i. the document's relevance and probative value; ii. any new evidence the document brings to the appeal; and iii. whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. [9] I find that these documents are admissible on appeal. First, I find that the affidavit from the Appellant's sister is relevant and probative to the risk he faces upon returning to Nigeria. It also brings new evidence into the appeal regarding events that took place in January 2020. Given that these events did not occur until after the Appellant submitted his appeal record in August 2019, I find that the Appellant could not reasonably have provided this document with his record. I also find this document to be credible insofar as I do not have any reason, on the face of the document, to doubt the source of this document or the circumstances in which it came into existence. [10] I also accept that both news articles submitted by the Appellant are relevant as they speak to the current country conditions for the LGBT community and their advocates in Nigeria. I also find that they bring new evidence of these country conditions to light, given that they were authored after the Appellant submitted his appeal record. I find these documents to be credible, given that they originate from reliable news sources. As such, I find that these articles are admissible. Oral Hearing [11] Given that I have admitted new evidence on appeal, I must consider whether an oral hearing is necessary under s. 110(6) of IRPA. Having reviewed the new evidence and the record, I find that an oral hearing is not required in this appeal because the new evidence does not raise a serious issue about the Appellant's credibility that is central to the decision and that, if accepted, would justify allowing or rejecting his claim. ANALYSIS BOC omissions 2014 intervention omitted from both BOCs [12] When asked how people knew that he was an LGBT advocate, the Appellant testified that in 2014 he had intervened to prevent the beating of two homosexual individuals. When asked why this was not in his BOCs, the Appellant said that he had spoken to officers at the border about the incident and they had recorded his interview. He then testified that he thought his BOC should be a summary of his claim and only later found out he needed to provide more details. [13] The RPD found that, in providing an amended BOC, the Appellant understood the importance of providing details. However, the amended BOC still did not include this incident which goes to the heart of his claim. The RPD found it not credible that this incident was omitted from the BOC and the BOC amendment. [14] The Appellant argues that he provided a reasonable explanation for this BOC omission, that being that he had already provided this information in his POE interview.2 The Appellant argues that the RPD erred in making a negative credibility finding as a result of this omission, given that this incident was not a central event that led to the Appellant's departure from Nigeria.3 [15] I find that this omission from both BOCs is significant, given that this is the example he provided to the RPD when explaining how people came to know he was an LGBT advocate. Furthermore, a BOC is intended to contain all relevant and important facts related to a person's claim.4 The initial incident that led to the Appellant being characterized as an LGBT advocate is an important fact related to the Appellant's claim, which he omitted from both his initial and amended BOC. I do not find that this omission is reasonably explained by the Appellant already having given this information in his POE interview. This is especially so given that the Appellant was represented by counsel when both BOCs were written. Rather, I find that the RPD reasonably drew a negative inference regarding the Appellant's allegations because of these omissions. Attack omission from first BOC [16] Similarly, the RPD found it was not credible that the November 2014 attack referenced in the amended narrative was omitted from his first BOC. The RPD did not accept the Appellant's explanation that he only later realized the importance of including specific details, noting that he had already included very specific information regarding the death of his wife and son in the first BOC. The RPD found that this incident was the only time the Appellant alleges he was the victim of violence, and consequently, was key to his claim. [17] The Appellant notes that, while details about this event were omitted from his first BOC, the BOC did reference an assault he faced. The Appellant argues that he provided more specific details about this assault in his amended BOC.5 Consequently, the Appellant argues that this is not a new allegation, but rather just an addition of details about the event. The RPD erred in determining that this alone undermines his credibility.6 Furthermore, the RPD also failed to reference the Appellant's corroborating evidence regarding this event, that being a medical report concerning injuries he suffered after the November 2014 assault.7 [18] I find that the RPD's negative credibility finding based on the omission of this event from the Appellant's initial BOC is not sustainable. While it is incumbent on the Appellant to provide all important details of his claim in his BOC, in this instance, he provided an amended BOC to give more details about the attack he faced. Furthermore, while this attack was not described in any detail in his initial BOC, he did refer to undergoing beatings because of his advocacy for LGBT people. He then provided an amendment containing these details prior to the hearing. Moreover, in reaching its finding on this point, the RPD failed to consider the Appellant's medical evidence corroborating this alleged event. As such, I do not find that the RPD's findings on this point are sustainable. Microscopic examination [19] The RPD found it not credible that both the Appellant's BOCs referred to "beatings", while in testimony he stated that he had only been attacked on one occasion. The Appellant argues that this was a microscopic examination of the evidence. Similarly, the Appellant argues that the RPD was microscopic in focusing on the Appellant's use of the word "advocate" and whether his activities in support of the LGBT community fit within the strict definition of the word.8 [20] I agree with the RPD that concern arises based on the inconsistency between the Appellant's BOC that he sustained numerous beatings, while his testimony only described one such event. I am not convinced that the RPD's credibility finding on this point is microscopic as alleged by the Appellant. However, I do find that the negative inference drawn from the Appellant's use of the word "advocate" to describe his work with the LGBT community is a relatively weak credibility finding that does not reliably sustain a negative inference regarding the Appellant's credibility. Lack of knowledge of LGBT penalties [21] The RPD found the Appellant's lack of knowledge of the penalties for homosexuality in Nigeria was inconsistent with his alleged status as an LGBT advocate, finding that the Appellant simply stated that an LGBT person could be arrested. However, the Appellant argues that the RPD failed to consider his entire answer, as he actually testified that LGBTQ people sometimes get beat up by the community, killed, and/or arrested.9 The Appellant further argues that he also clearly demonstrated he knew that it was against the law to support the LGBT. However, given that the RPD did not specifically question the Appellant about the sentences imposed on LGBT individuals, the RPD erred in impugning the Appellant for failing to reference this.10 [22] I find that the RPD's credibility finding on this basis is not sustainable. Indeed, in reaching its credibility finding on this point, the RPD failed to consider the entirety of the Appellant's answer. Furthermore, the RPD drew a negative inference on the basis that the Appellant did not provide the sentences imposed on LGBT persons in Nigeria. However, given that the RPD failed to ask the Appellant this question directly, I find that it erred in making a negative credibility finding on this basis. Implausibility findings regarding LGBT activities [23] The RPD also found the Appellant's description of LGBT activities in Nigeria implausible. Specifically, the RPD found it implausible that, according to the Appellant, LGBT individuals would gather in groups and openly wear non-gender confirmative clothing ("men dressed as women, and the women acted as men"). The RPD found it implausible that in a society where being LGBT is criminalized, that members of the LGBT community would openly flaunt their sexuality. [24] The Appellant argues that the RPD's findings on this point are not in line with NDP evidence, which states that LGBT individuals can live openly in major cities such as Lagos.11 The Appellant argues that the RPD failed to consider any specific documentary evidence in reaching this finding, and that the RPD should have considered this evidence prior to determining that the Appellant's description of LGBT individuals publicly gathering and wearing non-gender confirmative clothing to be implausible.12 [25] I find that the Appellant has demonstrated that there is documentary evidence that reasonably supports the Appellant's statements of the activities of the LGBT community in Lagos, and that the RPD failed to consider this evidence in reaching its implausibility finding on this point. As such, I do not find that the RPD's implausibility finding regarding the Appellant's statements about the activities of the LGBT community in Lagos can be upheld. Credibility conclusion [26] Sworn evidence is presumed to be true unless there is a valid reason to doubt its truthfulness.13 Reasons to doubt the credibility of sworn evidence include inconsistencies and omissions. In this instance, the RPD found that an accumulation of inconsistencies, omissions, and implausibilities supported a negative conclusion about the PA's credibility. However, as considered above, many of the RPD's credibility findings cannot be upheld. Nevertheless, given that I have determined that some of the credibility concerns identified by the RPD are valid in this instance, I find that this claim must be sent back to the RPD for reconsideration. CONCLUSION [27] The appeal is allowed. I send this matter back to the RPD to be redetermined. (signed) Alison Kennedy Alison Kennedy September 2, 2020 Date 1 Exhibit P-3, Appellant's Rule 29 Application. 2 Exhibit P-2, Appellant's Record, Memorandum at p. 192. 3 Ibid. 4 Basseghi, Kourosh v. Canada (MCI) (F.C.T.D., no. IMM-2227-94), Teitelbaum, December 6, 1994. 5 Ibid. 6 Ibid. 7 Ibid. at p.193. 8 Ibid. 9 Ibid. at p.195. 10 Ibid. at p.196. 11 See, for example, National Documentation Package, Nigeria, 30 April 2019, tab 6.1: ?Treatment of sexual minorities, including legislation, state protection, and support services; the safety of sexual minorities living in Lagos and Abuja (February 2012-October 2015). Immigration and Refugee Board of Canada. 13 November 2015. NGA105321.E. 12 Ibid. at p.197. 13 Maldonado v. Canada (MEI), [1980] 2 F.C. 302 (C.A,); 31 N.R. 34 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-16611 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français