TB8-06858

RAD File / Dossier de la SAR : TB8-06858 Private Proceeding / Huis clos Redetermination of Appeal ? Nouvel examen de l'appel Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 23, 2020 Date de la décision Panel R. Seyan Tribunal Counsel for the person who is the subject of the appeal Jerome Fanmi Olorunpomi 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 [1] XXXX XXXX XXXX (the appellant) argues that the Refugee Protection Division (RPD) made a mistake when it denied her claim for refugee protection. [2] She is a citizen of Nigeria and alleges she cannot return because she is bisexual. [3] In February 2018, the RPD rejected the appellant's claim. The appellant appealed this matter to the Refugee Appeal Division (RAD), which dismissed her appeal. The Federal Court returned the appellant's case to the RAD for redetermination. Determination [4] I confirm the determination of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. [5] The determinative issue is the appellant's sexual identity. I find the appellant is not bisexual as alleged. I do not find the appellant to be credible in key aspects of her evidence. Allegations [6] The appellant stated she was in a same-sex relationship with XXXX from 2003 until 2017. [7] In 2016, she married a man. Her relationship with XXXX continued. Her husband found out and assaulted her. The appellant traveled to Canada and gave birth to her son in XXXX 2017. Then she returned to Nigeria and attempted to reconcile with her husband. [8] XXXX came to visit her. Her husband came to know of this visit and disclosed her sexual identity to the community elders. The appellant and her son fled Nigeria. They arrived in XXXX 2019. [9] The appellant made a refugee claim. The role of the RAD [10] I am required to examine the record independently and determine if the RPD arrived at the correct decision.1 The appellant has not submitted any new evidence. Therefore, I have no jurisdiction to convene an oral hearing. [11] I have taken the Gender Guidelines and the SOGIE guidelines into consideration. The uncontested RPD findings [12] The RPD made the following findings that the appellant does not contest other than to argue that the RPD failed in its duty to confront the appellant with discrepancies, inconsistencies, and omissions. After a review of the record, I find that the RPD was correct to arrive at these findings for the reasons provided. [13] The RPD found that the appellant failed to establish that she had a relationship with XXXX. The RPD relied on the appellant's vague testimony, the implausibility of XXXX visiting her only to be discovered by the appellant's husband, and the appellant's failure to ask XXXX for a statement. The appellant is not contesting these findings. [14] I disagree with the appellant's arguments. She has not discharged her duty and identified where she was not confronted with discrepancies, omissions, and contradictions. The RPD's line of questioning made it clear that it had concerns about the appellant's relationship with XXXX. The member asked questions about when they had met, how their relationship had unfolded, if they were still in contact with each other. The member also asked why there was no evidence (an email, a letter etc.) from XXXX. The RPD asked the appellant why she would allow XXXX to visit though her husband had abused her in the past for her relationship with XXXX. [15] The RPD found that the appellant failed to establish her traditional marriage with her husband, one of the agents of persecution. The RPD based this on lack of documentation and the fact that her husband's name does not appear on her son's birth certificate. The appellant did not offer a reasonable explanation why her medical note is not consistent with her testimony. The appellant is not contesting these findings. [16] For these reasons, I find that the presumption of truth has been rebutted. The RPD was correct to reject the photographs of the appellant and XXXX as establishing the appellant's sexual orientation [17] The RPD rejected photographs of the appellant and XXXX and assigned them little weight in establishing the allegations of the claim. [18] The appellant argues that this is an error. There is no provision in IRPA that prescribes a standard for photos of individuals in same-sex relationships. [19] I disagree with the appellant that the RPD erred. [20] The appellant has tendered two photographs of herself and XXXX. One photograph shows two young women standing next to each other,2 the other is a portrait of the same two young women.3 The latter is labelled 'XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX".' [21] The appellant is correct in that the law does not prescribe what photographs of a same-sex couple look like. [22] However, the photographs in of themselves are not definitive proof that the appellant had an intimate relationship with XXXX. This is because the presumption of truth has been rebutted for reasons above. Furthermore, there is nothing on the face of the photographs that establishes the identity of the second woman and/or her relationship with the appellant. I cannot rely on the appellant's testimony, when I find it lacking in the key elements of her claim. [23] The RPD was correct to assign the photographs little weight. I am mindful, as was the RPD, that evidence of sexual orientation is difficult to establish. The SOGIE guidelines draw our attention to this. However, the photographs do not rehabilitate the appellant's evidence. [24] The photographs lack context, which could be supplemented by credible testimony. However, in this case, the appellant's testimony is not credible. The RPD was correct to assign little weight to the appellant's letters of support from the Metropolitan Community Church [25] The RPD found that the appellant's letter from the XXXX XXXX XXXX (the XXXX) only established that she had attended four times in XXXX 2017 and assigned it little weight to establish the appellant's sexual orientation. [26] The appellant argues that the RPD misconstrued the evidence from the XXXX and the XXXX community centre and imposed an unreasonable burden on the appellant. In other words, the RPD expected the appellant to establish that those who attend the XXXX and XXXX are either homosexual or bisexual. These organizations are pro LGBTQ and the RPD's rejection smacks of "unreasonable disregard of their presumed expertise and deep-seated knowledge". 4 [27] The appellant did not submit a letter from the XXXX community centre. Therefore, my analysis is limited to the XXXX letter, which says that the appellant experienced homophobia and domestic abuse because of her sexual orientation. The author of this letter relies entirely upon the appellant's account, which I have found lacks credibility. [28] I find, given the credibility issues in this claim, that the appellant attended the XXXX for purposes of advancing her claim and not because she is bisexual. There is no evidence to suggest that heterosexual and cisgendered individuals cannot attend the XXXX. [29] The RPD was correct to assign little weight to this letter in terms of establishing the appellant's allegations. The RPD was correct to dismiss the appellant's affidavits [30] The RPD rejected the appellant's affidavits from her mother and from her neighbour. The RPD did not think it was credible that the affiants disclosed the appellant's sexual orientation, which is akin to disclosing it to state authorities. The RPD also relied upon country conditions that state people who notarize such affidavits would be exposing themselves to legal consequences. [31] The RPD confronted the appellant with this and the appellant replied that the risk was mitigated as she had already left Nigeria. The RPD found that fraudulent affidavits are rampant in Nigeria and assigned them little weight in establishing the appellant's allegations. [32] The appellant argues that this is an error. The RPD did not subject the affidavits to a forensic analysis and is not an expert in handwriting. Since 2014, no individual has been reported or arrested by the authorities for an affidavit that attests to the sexual orientation of another individual. Furthermore, the statement that attesting to someone's sexual orientation amounts to reporting them to the authorities is an opinion and was not made in the capacity of an expert. [33] I agree with the RPD in this regard. [34] The evidence is that swearing an affidavit with respect to sexual orientation would be tantamount to reporting an individual to the law is not merely an opinion, but the opinion of a representative of the Civil Resource Development and Documentation Centre (CIRDDOC) of Nigeria, an independent non-profit organization that protects and promotes human rights and women's rights, including through activities such as research, litigation, counselling, and legal advising. 5 [35] Furthermore, the appellant herself stated in her testimony that reporting her sexual orientation was like reporting herself to the courts. When asked to explain this, the appellant replied that she had already left Nigeria. The RPD pointed out that her family could be mistreated because of her sexual orientation. The appellant replied "yes."6 [36] The affidavits are not handwritten. They are typed. The RPD did not rely on any handwriting analysis to arrive at the conclusion that the affidavits did not establish the elements of the appellant's claim. At no time did the RPD purport to be a handwriting expert. [37] The appellant states that no one has been reported or arrested because they attested to someone's sexual orientation in an affidavit since 2014. Counsel does not provide a documentary reference for this, but rather in the next point refers to the NDP in general. I have reviewed the two items from the NDP that appear most relevant, which pertain to affidavits attested by lawyers/barristers7 and by commissioners of oath/notary public.8 The documents are silent on this matter. Perhaps counsel is speculating that because the evidence is silent, no one has been arrested. The appellant cannot succeed based on speculative arguments. Her arguments must be based on the evidence that is on the record. [38] Arrest and the attention of authorities are not the only consequences of such an affidavit. Lawyers are also required to report such clients to the authorities under the Same-Sex Marriage Prohibition Act. They may also be associated with or perceived as supporting illegal activity (same-sex relations). Furthermore, there is risk asking for such an affidavit as there is no guarantee how the lawyers will react.9 [39] After an independent review of the record, I find that the RPD was correct to assign little weight to the affidavits with respect to establishing the appellant's sexual orientation. I agree with the RPD for the same reasons though I arrive at my conclusion independently. Summary: the appellant is not bisexual as she alleges [40] After an independent review of the record, I have arrived at the same conclusion as the RPD for the same reasons. The appellant is not a credible witness and has failed to establish her sexual orientation as bisexual. [41] The appellant failed to establish her relationship with XXXX. She failed to establish her relationship with her husband, one of the agents of persecution. She is not a victim of domestic violence at the hands of her husband. She alleged that the domestic violence occurred because he became aware of her sexual orientation. [42] These are central aspects to her claim, not peripheral as the appellant alleges. [43] The RPD was correct to find that the appellant was not bisexual and based this finding on important, fundamental aspects of her claim (her sexual orientation and alleged abuse by her husband once he became aware of her sexual orientation). The RPD did conduct an analysis under s. 97 and is correct to find that the appellant is not a person in need of protection [44] The appellant argues that the RPD was incorrect because it did not conduct an analysis under s. 97(1). [45] I have reviewed the record and I find that the RPD did conduct an analysis under s. 97 and that it was the correct analysis. [46] The RPD found that the appellant was not credible and therefore rejected the claim under both s. 96 and 97. Credibility is determinative of both section 96 and 97 claims. [47] I agree that the appellant is not a credible witness for the above reasons. Therefore, I also reject her claim under s. 96 and s. 97. Conclusion [48] I do not find that the appellant has established her sexual orientation or that she is a victim of domestic violence. After an independent review of the record, I agree with the RPD for the same reasons. [49] She does not face a serious possibility of persecution. Nor is she a person in need of protection. Were she to return to Nigeria, she would not be subject to a risk to life, cruel or unusual treatment or punishment or to a danger of torture on a balance of probabilities. [50] I dismiss the appeal and confirm the decision of the RPD.10 (signed) "R. Seyan" R. Seyan 23 December 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93. 2 Exhibit RPD-1, RPD Record, Exhibit 6, p. 267. 3 Exhibit RPD-1, RPD Record, Exhibit 6, p. 252. 4 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 43. 5 National Documentation Package (NDP) for Nigeria (31 July 2020), Item 6. 10. 6 Transcript of the RPD Hearing, p. 19. 7 NDP for Nigeria (31 July 2020), Item 6.6. 8 Ibid., Item 6.10. 9 Ibid., Item 6.5. 10 Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-06858 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