MC0-08857

RAD File / Dossier de la SAR : MC0-08857 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 April 30, 2021 Date de la décision Panel Anna Wyse Tribunal Counsel for the person who is the subject of the appeal Claudette Menghile 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. [2] XXXX XXXX XXXX (Appellant) is a citizen of Nigeria. She alleges that she fears returning to Nigeria due to her sexual orientation. She fears persecution from her family, the community and from the government. [3] The Refugee Protection Division (RPD) found that the Appellant was not credible and had not established her claims. [4] The Appellant argues that the RPD was microscopic in its analysis of her testimony. [5] I find that the RPD made several errors when assessing the Appellant's testimony. I further find that the Appellant has established her claims. DECISION [6] The appeal is allowed. I substitute my own decision that the Appellant is a Convention1 refugee. ANALYSIS [7] My role is to look at all the evidence and decide if the RPD made the correct decision.2 [8] When assessing this case, I took into consideration the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution3 and the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.4 [9] I found errors in the RPD's decision. I find that there were insufficient inconsistencies and omissions in the Appellant's testimony and in her evidence, to rebut the presumption that sworn testimony is true.5 I find that the Appellant is credible with respect to her allegations. My reasons for these finds are below. The RPD erred when assessing the Appellant's testimony regarding her awareness of her sexual orientation [10] The RPD erred by taking a negative credibility inference from the Appellant's testimony regarding her early realizations regarding her sexual orientation. I find that the Appellant's answers were sufficiently detailed given the topic of the RPD's questions. [11] The RPD found that the Appellant's testimony was lacking in detail when answering questions regarding how she felt when she first became aware of her sexual orientation, given her parents' religious convictions. The RPD found that the Appellant's testimony was short of any meaningful details, and further found that there were no cultural, psychological, or other barriers that would explain the vagueness of the Appellant's testimony. The RPD found that the Appellant's inability to explain thoroughly and convincingly how she felt when realizing that she was different from the majority of heterosexual people undermined her credibility. [12] The Appellant argues that she described very well what she felt at 13 years old when she discovered her sexual orientation. The Appellant notes that the RPD incorrectly quoted her testimony, and incorrectly used her parents' religion in its assessment, as same-sex relations are illegal for everyone in Nigeria, not just Muslims. [13] I have listed to the RPD hearing and I find that the Appellant testified with sufficient detail regarding her feelings when she realized she was having same-sex attractions. The Appellant stated that she could tell she was different, and that she had questions that she could not ask anyone. She stated that she felt disorganized and had no one to talk to about how she was feeling.6 [14] The Appellant's testimony was sufficiently detailed given that the Appellant was testifying about her state of mind when she was barely a teenager, and given that realizations about sexual orientation are often not sudden epiphanies that spur rational internal monologues that can then easily be translated into coherent testimony. For these reasons, I find that the RPD erred by taking a negative credibility inference from this portion of the Appellant's testimony. The Appellant's alleged same-sex relationship in Canada [15] The RPD erred by taking a negative credibility inference from the Appellant's girlfriend's absence at the RPD hearing. I find that the Appellant gave a reasonable explanation for why her girlfriend was unable to attend the hearing. [16] The RPD found that, by selecting not to bring her girlfriend with her to the hearing, the Appellant willingly choose to deprive herself of the best proof available to establish her sexual orientation. The RPD further found that, given that the Appellant was represented by Counsel, and given that she filed other affidavits as evidence, if the relationship with her girlfriend was genuine, the RPD would have expected the Appellant's girlfriend to take a half day off work to testify. [17] The Appellant argues that she testified that her girlfriend was working and did not want to take time off work to come to the hearing. The Appellant argues that it is easy for the RPD Member to conclude that a half day off work is nothing, as it may not represent a lot of money to the RPD Member, but for her girlfriend it was very different. Further, the Appellant argues that the relationship was very new as they have only been dating for XXXX months at the time of the hearing. [18] I note that the Appellant could have provided an affidavit from her girlfriend to the RPD, or to the Refugee Appeal Division, and that the Appellant has not provided a reason for why an affidavit has not been provided, despite the RPD's explicit notation of the absence of such a document. However, the presumption of truth has not been rebutted in this case, and for this reason, I find that the Appellant has established that she was dating her alleged girlfriend at the time of the RPD hearing. Given that the Appellant claims that it was financially prohibitive for her girlfriend to attend the RPD hearing, I take no negative credibility inference from the absence of the Appellant's girlfriend at the RPD hearing. The RPD incorrectly assessed the Appellant's extortion payments [19] The RPD erred by engaging in a microscopic assessment of the Appellant's testimony regarding the incident that exposed her sexual orientation and subsequent extortion. [20] The RPD found that the Appellant did not establish that she was caught having sexual relations with her girlfriend in Nigeria, and further, that she did not establish that she was extorted by her neighbour under threat of releasing a tape he made of her having sexual relations with her girlfriend. The RPD further found that the testimony of the Appellant regarding these aspects of her claim negatively affected the Appellant's credibility. The RPD made these findings based on the Appellant's inability to remember the specific date that her neighbour caught her and her girlfriend, and based on the Appellant's inconsistency regarding the extortion demands made by the neighbour. [21] The Appellant notes that she testified that she was caught around XXXX XXXX XXXX 2017, as it could have been XXXX XXXX XXXX XXXX XXXXor XXXX, 2017. The Appellant argues that this date range is pretty accurate. I agree. I have considered that this was a significant event, and that the RPD found that this significance should have solidified this date in the Appellant's memory. Nonetheless, I find that the trauma of being discovered in a legally compromising situation that has severe consequences in Nigeria could easily have affected the Appellant's ability to recall the exact date. The Appellant has provided a 72-hour window for the incident, and, on a balance of probabilities, I find that to be sufficiently accurate. [22] The Appellant further argues that the RPD engaged in a microscopic analysis of her testimony regarding the extortion payments. [23] I have listened to the hearing, and I find the RPD's summary of the testimony regarding the neighbor's extortion to be accurate: [20] Asked by the tribunal to explain what the man who caught them did after recording the video, the claimant responded that first, he had said no problem, but then, XXXX or XXXX days later, he had started asking, first, for recharge cards for his cell phone, then for XXXX XXXX XXXX Nairas, then for XXXX XXXX XXXX Nairas, then for more recharge cards, and that he would come whenever he wanted to ask for more extortion. [21] Confronted by the tribunal to her narrative document stating that they had begged him not to expose their sexuality, and that the man kept asking for XXXX XXXX XXXX Nairas, the claimant explained that, prior to XXXX XXXX XXXX Nairas, the man had come randomly asking for money. Asked by the tribunal to state when the man had asked for XXXX XXXX XXXX Nairas, the claimant answered that she cannot remember, that it was about the beginning of 2017.7 [24] The RPD found that the Appellant's testimony that the neighbour first demanded several little things from her and her girlfriend is nowhere to be found in the narrative document. However, in the Appellant's Basis of Claim form narrative, she states that: We begged him not to expose our sexuality to others, but he kept demanding the sum of XXXX XXXX Naira from us before concealing our sexuality. We paid him, but he didn't stop demanding money from us and he always threatened us anytime we said no to him that he will release our sex tape and we will be expelled from school and also go to jail, so we were compelled to pay him whenever he demanded money. This went on until we finished college, but it didn't stop even after college. I don't know how he got my dad's number, but he kept threatening me that he will send the sex tape if I didn't pay him XXXX XXXX Naira.8 [25] During testimony, the Appellant estimated that she and her girlfriend paid the neighbour a total of about XXXX XXXX XXXX Naira, and that he eventually asked for XXXX XXXX XXXX Naira to pay him off for good.9 In her narrative as excerpted above, the Appellant describes paying the neighbour several times, and eventually the neighbour asked for XXXX XXXX XXXX Naira which proved to be too big a sum for the Appellant and her girlfriend to manage. [26] I do not find that the Appellant's testimony and her narrative were sufficiently different to draw a negative credibly inference. While her narrative began with the amount of XXXX XXXX XXXX Naira, and her testimony began with phone cards, I find that the Appellant was consistent that the neighbour asked for varying amounts several times, and at least one time the amount was XXXX XXXX XXXX Naira, and the final amount requested about was XXXX XXXX XXXX Naira. For these reasons, I find that the RPD erred when taking a negative credibility inference from this aspect of the Appellant's testimony. [27] Given that the presumption of truth of sworn testimony has not be rebutted, I find that the Appellant has established that she and her girlfriend were discovered in a legally compromising situation, and her neighbour extorted her as a result. The RPD incorrectly assessed the Appellant's escape from her parents [28] The RPD erred when assessing the Appellant's corroborating evidence, and by giving the Appellant's omission on her immigration forms too much weight when assessing her credibility. [29] The RPD did not accept the Appellant's explanation for why she did not list the location in Nigeria where she fled and stayed for three months, on her Schedule A form under the section title Addresses.10 The RPD found that, if the alleged move had been genuine, the RPD would expect it to appear distinctly on the immigration form, and not be omitted without a proper explanation. The RPD concluded that the Appellant's testimony that she fled to Lanlate before leaving Nigeria was a contradiction with her Schedule A form, and that this diminished the credibility of her allegations. [30] Further, the RPD gave no weight to the affidavit signed by XXXX XXXX, as his affidavit states that the Appellant was one of his tenants during her studies, and the Appellant testified that this was not the case, and that XXXX XXXX must have made a mistake. [31] The Appellant argues that the RPD incorrectly rejected the affidavit, which was corroborating evidence of the Appellant's testimony that she fled to Lanlate. The Appellant argues that the affidavit's authenticity was not questioned, and therefore it should have been given weight to corroborate the Appellant's claims despite the inconsistency regarding whether the Appellant was a student when she lived in XXXX XXXX compound. [32] I am persuaded by the Appellant's arguments. During testimony, the Appellant explained that XXXX XXXX may have written that she was a student in his affidavit as he considered her to be the same as the other students who lived in his compound.11 The Appellant has consistently held that XXXX XXXX was incorrect to state that she was a student when she lived in his compound. For this reason, and because there are no other credibility issues with XXXX XXXX affidavit, I give the affidavit weight to establish that the Appellant fled to Lanlate after her parents were sent the video of the Appellant and her girlfriend. [33] While I do find that the omission on her Schedule A form negatively impacts the Appellant's credibility, I do not find that this is a significant omission that would be sufficient, on its own, to rebut the presumption of truth of sworn testimony. I find that the Appellant's testimony and her corroborating evidence establishes that she fled to XXXX XXXX house when her parents were sent the video from her neighbour. The RPD erred when assessing the Appellant's involvement with LGBTQ+ organizations in Canada [34] The RPD erred by taking a negative credibly inference from the Appellant's delayed involvement in Lesbian, Gay, Transgender and Queer+ (LGBTQ+) organizations. [35] The RPD concluded that the Appellant only tried to join this organization a few months before her refugee hearing to create self-serving evidence for her hearing. The RPD further found that the failure of the Appellant to provide a satisfactory explanation for her lateness to join the LGBTQ+ Community Center, while pretending that this had been her idea since coming to Canada, further undermined the credibility of the Appellant's claims regarding her sexual orientation. [36] The Appellant argues that she testified that she attempted to go to the XXXX XXXX XXXX XXXX XXXX shortly after her arrival in XXXX 2017, but the centre was closed. She argues that she volunteered at the XXXX XXXX XXXX in Toronto in XXXX 2018 and managed to join the organization in Montreal in XXXX 2019. [37] I find that the RPD drew conclusions from the Appellant's behaviour that were not supported by the record of evidence. The conclusions were based on inappropriate assumptions that individuals fleeing homophobic societies will act in typical and predicable ways once they have arrived in Canada. I find that the RPD erred when drawing these conclusions and I give the letter and membership card from the XXXX XXXX XXXX XXXX XXXX, letter from the XXXX XXXX XXXX and the photos of the Appellant at the parade weight to establish the Appellant's claims regarding her sexual orientation. The Appellant has established her allegations [38] The Appellant has established her claims that she fled Nigeria due to the events that unfolded after her sexuality was exposed. Neither state protection nor Internal Flight Alternative is available to the Appellant [39] The country documents12 indicate that the Nigerian government passed a Same-Sex Marriage (Prohibition) Act in 2013, which prohibits same-sex marriage and same-sex civil unions, and penalizes anyone involved in LGBTQ organizations.13 [40] Police in Nigeria are themselves the perpetrators of rights violations against LGBTQ persons, as arrests are often carried out for extortion purposes.14 Police raid gatherings of sexual minorities and arrest them.15 [41] In light of the above analysis, I conclude that the Appellant is credible and has established that she will face persecution in Nigeria based on her sexual orientation. CONCLUSION [42] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee (signed) Anna Wyse Anna Wyse April 30, 2021 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Immigration and Refugee Board, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution, Effective date: 13 November 1996. 4 Immigration and Refugee Board of Canada, Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Effective date: May 1, 2017. 5 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.). 6 RPD Hearing at 00:11:40 - 00:14:25. 7 Exhibit RPD-1, RPD Record, RPD Decision, at p. 7, paras. 20 and 21. 8 Basis of claim narrative, pag 21. 9 RPD Hearing at 00:56:50 - 01:10:00. 10 Exhibit RPD-1, RPD Record, at p. 86. 11 RPD hearing at 02:00:00. 12 Exhibit RAD-1, National Documentation Package (NDP) for Nigeria (April 16, 2021). 13 NDP for Nigeria (November 29, 2019), item 6.4: Same Sex Marriage (Prohibition) Act, 2013, Nigeria. 14 NDP for Nigeria (November 29, 2019), item 6.11: The Situation of Sexual and Gender Minorities in Nigeria (2014-2018), Immigration and Refugee Board of Canada. 15 NDP for Nigeria (November 29, 2019), item 6.11. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC0-08857 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