TB8-00476

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 : TB8-00476 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, ON Appel instruit / entendu à Date of decision December 12, 2018 Date de la décision Panel Sasha Kiran Cragg-Gore Tribunal Counsel for the person(s) who is(are) the subject of the appeal Peter J. Chmiel Barrister and Solicitor 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 INTRODUCTION [1] XXXX XXXX XXXX (the "Appellant"), a citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated September 28, 2017, rejecting his claim for refugee protection. He is now asking the Refugee Appeal Division (RAD) to substitute the RPD decision with a positive one recognizing him as a Convention refugee or a person in need of protection or, in the alternative, to send this matter back to the RPD for re-determination. He seeks to admit new evidence but has not requested an oral hearing. DETERMINATION [2] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. BACKGROUND AND OVERVIEW OF APPEAL [3] The Appellant alleges that he is bisexual and has had two long-term same-sex relationships in Nigeria first with B and more recently with G. He is also married to XXXX XXXX, his wife, since March 2009, but she did not know about the Appellant's relationship with other men until recently. [4] He alleges that he paid an agent to assist him in obtaining a student visa and admission into a community college in Canada. The Appellant first came to Canada in January 2014 but after finding out that his fees had not been paid to the college by his agent, he returned to Nigeria in April 2014 to confront him. In response, the agent threatened to reveal his sexual orientation and that of his partner G. He further alleges that he and his partner were eventually outed by the agent as threatened, that G was arrested and that his family home was covered in anti-LGBT graffiti. The Appellant's wife came to Canada in September 2014 but they have not been on good terms since the Appellant has been outed. The Appellant alleges that the police in Nigeria are currently looking for him. [5] The RPD rejected the claim finding significant contradictions in his residential and employment history as described in various US and Canadian immigration applications, and a lack of evidence to corroborate the non-payment of his tuition fees, the identity of the agent and G, and his relationships with G and B. [6] On appeal, the Appellant has requested to admit new evidence to respond to a number of RPD findings. The Appellant maintains that the contradictions in his immigration applications are the fault of his agent and that the discrepancies identified are minor and microscopic and do not go to the heart of the claim. The Appellant also argues that the RPD failed to engage with the documentary evidence about the treatment of LGBT individuals in Nigeria. ROLE OF THE RAD [7] The recent Federal Court of Appeal decision in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions made by the first-level administrative tribunal. The RAD will conduct its own analysis of the record to determine whether the RPD erred. With respect to findings of fact and mixed fact and law the RAD is to review the RPD's decisions applying the correctness standard. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment of the credibility and weighing of oral testimony heard, which, in particular cases may require deference to the RPD finding in question.2 [8] I will apply a standard of correctness throughout this decision. NEW EVIDENCE [9] Subsection 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of the claim, or that was not reasonably available, or that the Appellant could not reasonably have been expected in the circumstances to have presented at the time of the rejection. This section establishes a disjunctive test. It is for the Appellant to make full and detailed submissions in the Memorandum about how any proposed new evidence meets the requirements of subsection 110(4) and how that evidence relates to the Appeal. If the factors in subsection 110(4) are not met, the RAD does not have discretion to admit such evidence. [10] If the submitted new evidence meets the requirements of subsection 110(4), the RAD will consider the criteria as set out by the Federal Court of Appeal in Singh.3 The Federal Court of Appeal held that, in addition to the clear language of the statute, the implicit conditions for the admissibility of new evidence include: credibility, relevance and newness. [11] The Appellant has requested to admit the following as new evidence: a. A Statement of Account from XXXX College dated January 26, 2018; b. An Affidavit from the Appellant's father, XXXX XXXX XXXX, dated January 9, 2018; c. An Affidavit from B dated January 5, 2018; and d. Utility bills from the Lagos Waste Management Authority and Ikeja Electric. [12] For the reasons that follow, I admit the utility bills and part of the Appellant's father's affidavit but not the other documents as new evidence. [13] The Statement of Account is dated January 26, 2018 which post-dates the RPD hearing but I find that it should have been submitted before the claim was rejected. The Appellant is now trying to provide evidence of the non-payment of his school fees, something which motivated his return to Nigeria and his conflict with XXXX, which eventually led to him being outed. This is an important fact to corroborate and as all the events in question took place before the RPD hearing, the Appellant should have brought this evidence before the claim was rejected. I find that it does not meet the criteria of subsection 110(4) of the IRPA and I do not admit it as new evidence. [14] The Appellant's father's affidavit and the utility bills both seek to corroborate the residential address of the Appellant's father. The RPD found that the Appellant lacked credibility because he had provided different residential addresses in different immigration applications and did not accept his explanation that he sometimes indicated his father's address for important mail. I find that his explanation is reasonable and these documents, which corroborate that the other residence indicated by the Appellant, is indeed his father's residence, address the RPD finding which I find to be in error. They both post-date the RPD hearing and they are new, credible and reliable. I admit them as new evidence in so much as they corroborate the Appellant's father's address. [15] The affidavit from the Appellant's father also discusses his son's sexuality. This segment of the affidavit is not admitted as new evidence as it should have been before the RPD. Corroboration of the Appellant's same-sex attraction is a central aspect of this refugee claim and the Appellant cannot now correct a deficient record before the RPD. There is no new information or events described in this affidavit. I therefore find that the sections of the Appellant's father's affidavit which discuss the Appellant's sexuality are not admitted into new evidence. [16] The Affidavit from B, a previous same-sex partner of the Appellant, is not admitted as new evidence. There is already a letter from B that was before the RPD and this affidavit contains no new information or developments since the claim was rejected despite the fact that it post-dates the rejection of the claim. The Appellant has not explained why this affidavit could not have been provided to the RPD and this is exactly the sort of corroborative evidence that should have been before the RPD. I find that this affidavit does not meet the criteria of subsection 110(4) of the IRPA and I reject the request to admit it as new evidence. ORAL HEARING [17] The Appellant has not requested an oral hearing. According to the case law, the onus is on the RAD to determine whether the requirements for an oral hearing set out in subsection 110(6) of the IRPA have been met.4 One of the determining factors is that evidence presented on appeal must have been found to be admissible. I have found some of the new evidence to be admissible, particularly the evidence pertaining to the Appellant's father's residence. I find that through this evidence, the Appellant has established the residential address of his father, but this is not a central aspect of the claim, it does not impact the credibility of the Appellant and it would not justify accepting or rejecting the claim. For these reasons, an oral hearing was not held in the context of this appeal. ANALYSIS Summary [18] I am referring this matter back to the RPD for re-determination because the RPD spent a lot of time making findings on peripheral matters such as the residential and educational history of the Appellant both at the hearing and in the decision. The RPD failed to examine the crux of this refugee claim: whether or not the Appellant has established that he is bisexual or homosexual on a balance of probabilities. Despite providing significant details about the development of his sexuality and his two same-sex relationships in his Basis of Claim (BOC) form, very little hearing time was dedicated to these issues. As I am unable to make a final determination without hearing evidence which was presented to the RPD, I am sending this matter back to the RPD for re-determination pursuant to IRPA subsection 111(2). RPD findings on peripheral matters [19] The RPD spent the majority of its hearing time and decision describing employment and residence contradictions between various US and Canadian immigration applications. To be fair, the inconsistencies in the Appellant's employment and residence histories were significant. For example, the Appellant, at one point in the hearing, admits that certain declared degrees and places of employment were completely made up. He justified this by stating that the agent who had been assisting him is the one that prepared the forms. On appeal, the Appellant asserts that he was truthful when placed under oath at the hearing and continues to blame the agent that assisted him in completing the various applications. [20] Ultimately, the employment and residential history of the Appellant is peripheral to this refugee claim. Wherever he lived and worked, the most important question to answer in this claim is whether or not the Appellant is bisexual or homosexual, as alleged. Detailed BOC was under-examined at the hearing [21] The Appellant describes in his BOC two long-term same-sex relationships in detail, how he met each partner, their personalities, and how the relationships ended. He also describes how he realized he was attracted to men over time referring to specific key events and how he has been dating a man here in Canada since he arrived. However, the RPD addressed these allegations in passing and seemed to focus on explanations for why certain documents or evidence was not presented rather than giving an opportunity to the Appellant to expand on these core allegations. It is the testimony about these experiences and events which would be most helpful in establishing whether or not the Appellant is bisexual or homosexual on a balance of probabilities. [22] While the RPD was correct in pointing out that the Appellant should have provided more evidence of his relationship with G and his partner here in Canada, the RPD failed to question the Appellant in detail about these two relationships. This could have been a fruitful exercise as the BOC is highly detailed and this represents a missed opportunity to test the Appellant's credibility in relation to the core elements of his claim. Only option is to refer this matter back to the RPD [23] I find that without hearing evidence presented to the RPD, such as the evidence surrounding the Appellant's same-sex relationships and the development of his sexuality, I am unable to come to a final determination, either positive or negative. I find that the conditions described in IRPA subsection 111(2) have been met and I refer this matter back to the RPD for re-determination by a differently-constituted panel. CONCLUSION [24] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. (signed) "Sasha Kiran Cragg-Gore" Sasha Kiran Cragg-Gore December 12, 2018 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 Rozas del Solar v. Canada, 2018 FC 1145. 3 M.C.I. v. Singh, Parminder, (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 4 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018, 2018 FC 147, at para. 18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-00476 RAD.25.02 (August 08, 2018) Disponible en français 8 RAD.25.02 (August 08, 2018) Disponible en français