TB6-03946

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 No. / N° de dossier de la SAR : TB6-03946 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, Ontario Appel instruit à Date of decision July 11, 2016 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen Nigeria, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside and substitute the negative determination with a positive determination or in the alternative, that the matter be referred back to a different member of the RPD for re-determination. The Appellant submitted new evidence in support of his appeal and requested an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [2] This appeal is allowed. Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently constituted panel. Background [3] The Appellant alleges that he is a bisexual. [4] The Appellant had his first same-sex relationship with his close friend XXXX XXXX when he was fifteen years of age. However, shortly after having had sexual intercourse a few times, XXXX told the Appellant that this was not his life style and the sexual relationship came to an end. XXXX promised to keep the Appellant's sexuality a secret. The Appellant had a few dates with two girls but broke off the short lived relationships because he could not tell them about his sexuality. [5] The Appellant arrived in Canada on XXXX XXXX, 2015 to begin studies at XXXX XXXX College. He wanted to be in a country where he no longer had to pretend to be heterosexual. When the Appellant learned about the Pride parade to be held in Toronto he wanted to attend but feared that someone might see him and report his attendance to his father. [6] In XXXX 2015, while travelling on a bus, the Appellant encountered a young man named XXXX, from his area in Nigeria. The Appellant and XXXX exchanged phone numbers and began to spend time together. Because XXXX father is a policeman in Nigeria, the Appellant hid his sexuality from XXXX. However, the Appellant eventually revealed his bisexual identity to XXXX and XXXX informed the Appellant that he too is bisexual. The two men then entered an intimate relationship. [7] In XXXX 2015 the Appellant received a telephone call from his sister in Nigeria. She informed him that she had heard their uncle XXXX inform their father that the Appellant had a boyfriend in Canada. The Appellant's sister advised him to call his father and explain the situation, which the Appellant did. His father asked the Appellant to telephone XXXX and tell him that it was not true that he had a boyfriend in Canada. When the Appellant spoke to XXXX on the telephone, XXXX informed him that someone had sent him a picture (the photograph) of the Appellant and his boyfriend. XXXX told the Appellant that he should return to Nigeria immediately to face punishment. The Appellant then telephoned his father who advised him not to return to Nigeria because he would be jailed for fourteen years. [8] The Appellant made a claim for refugee protection on November 26, 2015. [9] The Appellant had a refugee determination hearing on February 10, 2016. In a written decision issued the same day the RPD rejected the claim. The RPD member found the determinative issue to be credibility. The RPD found that the Appellant did not establish his sexual identity as a bisexual. [10] Appeal pleadings were received on April 15, 2016. In his appeal, the Appellant argues that the RPD erred in its credibility findings. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [11] As provided for in section 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD, and may accept documentary evidence and written submissions from the Minister and refugee claimant. section 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [12] The Appellant states in his Memorandum that he submits the following new evidence: a) An Affidavit of XXXX XXXX XXXX dated XXXX XXXX, 2016, and a supporting photograph.1 b) A letter from the XXXXCentre, dated XXXX XXXX, 2016.2 [13] The Appellant submits the following as explanations why the proposed new evidence meets the test of section 110(4) of the IRPA. [14] The affidavit and photograph were not available to the Appellant, as the affiant explains; the affiant was not able to communicate with the Appellant until March 2016. The document from the XXXX Centre was not available to the Appellant at the time of his hearing because he did not go through the centre's intake process until April 7, 2016. [15] The RAD finds that document a) provides information that was not reasonably available to the Appellant before the rejection of his claim and, thus, satisfies section 110(4) of the IRPA. The RAD will, therefore, accept document a) and assess the affidavit and the photograph within the analysis below. [16] The RAD does not accept document b) as new evidence. The RAD's reasons are provided in the following paragraph. [17] Document b) is a letter from the XXXXCentre written by a XXXX XXXX Worker, in which the author sets out the support provided to the Appellant by the centre and the history of the Appellant's refugee claim. The support with resettlement issues, such as housing, education and access to community resources are not pertinent to the Appellant's claim. Although the letter is dated after the rejection of the Appellant's refugee claim, the evidence therein regarding the Appellant's reasons for making a refugee claim is not new. The particular information in document b) did not arise after the rejection of the Appellant's refugee claim; in fact, it is already in the record and it cannot be considered as new evidence in this appeal. ROLE OF RAD: [18] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,3 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. ANALYSIS OF THE EVIDENCE [19] The RAD will focus on one issue in assessing this appeal. Was there sufficient evidence on the record to support the RPD's negative credibility findings? The Appellant's same-sex partner in Canada [20] The RPD found it highly improbable that the Appellant would meet his present partner, XXXX XXXX, a former acquaintance from Nigeria, on a bus in Toronto. The RPD also found that the Appellant could not provide specific details surrounding when they first met in Nigeria. The RPD, thus, rejected the Appellant's testimony about meeting Mr. XXXX in Canada. [21] The Appellant submits that the RPD relied solely on conjecture and speculative reasoning in coming to this conclusion. The Appellant argues that the finding was not with respect to his credibility but was a plausibility finding. The Appellant refers to jurisprudence where the courts have drawn a distinction between credibility and implausibility findings, and following Vatchev (sic), have emphasised that the later must be made only in the "clearest of cases". The Appellant submits that the RPD failed to provide a reliable and verifiable evidentiary base against which the plausibility of his evidence might be judged. [22] The RAD concurs with the RPD for the following reasons. [23] The RAD believes that the case at hand distinguishes itself from Valtchev.4 In Valtchev the tribunal found that the applicant, a Bulgarian Roma, provided a story that was implausible when the tribunal stated, without evidence, that it could not believe that a neighbour would deliberately start a blaze wrongly to blame the applicant's mother. The tribunal also questioned the plausibility of the applicant's evidence again when it asked him to explain the actions of the authorities who interrogated his children. The Honourable Mr. Justice Muldoon found that a tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu.5 In the Appellant's case, the RAD believes that the RPD was discussing the probability of a person from Nigeria, a country with a population of over 181 million,6 encountering an acquaintance from home in the foreign city of Toronto, a city of approximately 3 million. The RAD is guided by the words of Mr. Justice Mahoney in Orelien7 wherein he stated: It seems to me one cannot be satisfied the evidence is credible or trustworthy unless satisfied that it is probably so, not just possibly so. [24] In any event, the RAD made its findings not only on the improbable meeting of the Appellant and Mr. XXXX, but also on the Appellant's vague testimony regarding how he and Mr. XXXX first met in Nigeria. Having read the transcript of the recording of the hearing, the RAD agrees with the RPD regarding the Appellant's evasive testimony. The RAD found, that while the Appellant may not have known Mr. XXXX well when they resided in Nigeria, the Appellant was unable to provide any details without the RPD continually asking and repeating questions. [25] The RAD wishes to note the following. The Appellant testified before the RPD that he and Mr. XXXX grew up as childhood friends in the same neighbourhood. However, the Appellant alleges in his Basis of Claim (BOC) form narrative, that he recognized Mr. XXXX on a Toronto bus because they were from the same area in Nigeria.8 The Appellant made no mention in his BOC narrative that he and Mr. XXXX had been childhood friends. This omission was not put to the Appellant by the RPD. Additionally, as affidavit9 from XXXX XXXX was provided as evidence for the Appellant's hearing. Mr. XXXX states that he and the Appellant "were from the same area in Nigeria and this is how we started talking to each other that day (on the bus)".10 In his affidavit Mr. XXXX makes no mention that he and the Appellant were childhood friends from the same neighbourhood. This was not put to the Appellant. Gay Pride Parade [26] The RPD drew a negative inference from the Appellant's inability to be consistent about his attendance at the Pride parade. [27] In his appeal the Appellant concedes that his oral testimony and documentary evidence about attending the Pride parade was inconsistent. The Appellant submits that he was 18 years of age at an RPD hearing to determine the fate of his standing in Canada. The Appellant argues that he was understandably intimidated, nervous and confused. The Appellant argues further that the RPD should have appreciated the immense amount of pressure he was under and appreciated that it was possible for him to have inaccuracies about past allegations without compromising the truthfulness of his sexual orientation. The Appellant argues that whether he attended the Pride parade is peripheral to the core of his claim and a microscopic detail. [28] The RAD is cognizant of the many difficulties faced by a claimant in establishing a claim for protection, including cultural factors, the milieu of the hearing room, and the stress inherent in responding to oral questions. The RAD has taken these considerations into account. Nevertheless, the RAD agrees with the finding of the RPD for reasons that follow. [29] The transcript of the recording of the hearing indicates that the Appellant was asked a straight forward question: did he attend the June Pride parade? He responded in the affirmative. The RPD asked the Appellant when he attended. The Appellant responded that he attended in December and then changed his answer to June. When asked with whom he attended the parade, the Appellant testified that he went alone. The RPD then asked the Appellant to describe the parade. The Appellant testified that he couldn't remember and then repeated this testimony. Upon being asked to explain why he could not remember, the Appellant testified that he was thinking of many things. The RPD asked the Appellant to be more specific. The Appellant then testified that he had been thinking how his life could be saved. When the RPD repeated the Appellant's response, he agreed that this was why he could not recall anything about the parade. It was only when the RPD referred the Appellant to his BOC form narrative, in which he states that he did not attend the parade, that the Appellant testified that he had been on his way to the parade but could not reach the parade. When the RPD asked the Appellant to explain why he had testified that he had attended the parade, the Appellant testified that he was confused. The RAD finds this explanation unsatisfactory. The Appellant provided evidence about attending the parade and why he could not recall details until the RPD pointed out a contradiction. An important indicator of credibility is whether a witness can consistently tell his particular story.11 The RAD does not find this contradiction to be a peripheral detail. For a bisexual from a country where his sexual identity is a crime, the opportunity to openly and safely attend the Pride parade is significant. The RAD agrees with the RPD that it is expected that such an important event would be remembered, given the Appellant's claim rests on his sexual orientation. The RAD finds that the Appellant attempted to embellish his claim by testifying that he attended the Pride parade. The discovery of the Appellant's sexual orientation in Nigeria [30] The RPD found that the Appellant's lack of specificity in his written evidence surrounding how his sexual orientation was exposed in Nigeria, including the specific event, undermined his credibility. In its reasons the RPD noted that while the Appellant had testified that when he was drunk he posted a picture of himself and his partner kissing using his Blackberry Messenger; he testified that a cousin showed the picture to his uncle. The RPD noted that the Appellant had not provided these details in his BOC form narrative. [31] The Appellant pleads that he did include information in his narrative about how his sexuality was discovered. The Appellant pleads that oral testimony is generally allowed to provide additional details of a claimant's narrative. The Appellant argues that it is trite law that the RPD should not draw adverse inferences in cases where claimants are merely adding details to what is already in the narrative. [32] For the following reasons the RAD agrees with the RPD. [33] The Appellant alleges in his written narrative that his sister informed him that his uncle had informed their father that the Appellant had a boyfriend in Canada. The Appellant alleges further that when he called his uncle, his uncle informed him that someone had sent him a picture with the Appellant and his boyfriend. The RAD finds that the Appellant's narrative was constructed such that just about any circumstances regarding how the photograph was taken as well as how his uncle obtained a photograph could have been inserted and, thusly, argued that his testimony was simply a more fulsome description of existing statements. The RAD finds it significant that the Appellant, allegedly a bisexual who is aware of the serious problems for sexual minorities in Nigeria, chose to send a photograph of him and his same-sex partner kissing to someone in Nigeria. The RPD did not question the Appellant about his choice to post the photograph on Blackberry Messenger and send it to his cousin in Nigeria. The RAD appreciates that the Appellant testified that he was drunk at the time he posted the photograph. Nevertheless, the RAD notes that the Appellant's boyfriend, XXXX XXXX, states in his affidavit that because his father is a policeman in Nigeria, he and the Appellant had to be discreet in their relationship because they are aware of the consequences if caught.12 The Appellant was not questioned about Mr. XXXX part in having the photograph taken and having it forwarded to someone in Nigeria. The Appellant was not questioned as to whether he posted the photograph to more people than his cousin and why he chose to send it to the people he did. The Appellant was not asked why his cousin would have shown the compromising photograph to the uncle. The Appellant was not asked whether he had attempted to obtain a screenshot of the photograph from anyone to whom he had posted the photograph. Assessment of documentary evidence Affidavit from XXXX XXXX [34] The RPD noted in its decision that Mr. XXXX, the Appellant's present same-sex partner, failed to mention in his affidavit how the Appellant's sexuality was exposed in Nigeria. The RPD noted also that Mr. XXXX failed to mention in his affidavit that his own bisexual identity had been exposed in Nigeria, information provided by the Appellant during his hearing. The RPD failed to assign any weight to this document. [35] The Appellant argues that it is trite that documents should be assessed for the information contained therein. The Appellant argues further that it seems that the RPD was looking for reasons to discount the document. The Appellant argues that the RPD did not refer to information in the affidavit that corroborates the sexual relationship between him and the affiant and that the Appellant told the affiant that his sexuality had been found out in Nigeria. [36] The RAD appreciates that the RPD made no mention of information contained in the affidavit, particularly information regarding the alleged homosexual relationship between the affiant and the Appellant. However, the RAD declines to assign weight to the affidavit because the RAD has serious concerns with certain information within the affidavit that was not put to the Appellant by RPD. The concerns are outlined below. a) The affiant affirms that the Appellant told him that his uncle had reported him, the Appellant, to the police. The Appellant did not allege in his written narrative that his uncle had reported him to the police nor did he provide this information in his oral testimony. This serious contradiction was not put to the Appellant by the RPD. b) As stated earlier in this decision, the Appellant testified before the RPD that he and Mr. XXXX grew up as childhood friends in the same neighbourhood. Mr. XXXX states in his affidavit that he and the Appellant "were from the same area in Nigeria and this is how we started talking to each other that day (on the bus)".1 Mr. XXXX makes no mention that he and the Appellant were childhood friends from the same neighbourhood. This apparent contradiction was not put to the Appellant. The Appellant did not make a request to the RPD for Mr. XXXX to be called as a witness at his hearing. [37] To the extent that an affidavit purports to provide hearsay evidence, such as what the Appellant told the affiant, the RAD finds little or no weight ought to be afforded to it. Affidavits from the Appellant's father and former same-sex partner [38] The RPD awarded no probative value to the sworn affidavits prepared by the Appellant's mother and his alleged former partner because of various irregularities on the face of the documents, suggesting the documents were not originals and because the affidavits failed to provide information regarding how the Appellant's sexuality was exposed in Nigeria. The RPD found that the Appellant could not provide an explanation for the irregularities or the missing information. The RAD notes that the RPD mistakenly identified the affiant, XXXX XXXX XXXX, as the Appellant's mother whereas, according to the Appellant's BOC, XXXX XXXX XXXX is his father. [39] The Appellant made no submissions with regards to these findings. [40] The RAD defers to the RPD; the RPD had the advantage of observing the documents that were offered as originals at the hearing. However, the RAD wishes to note that documents found to be counterfeit cast doubt on the Appellant's allegations themselves. [41] In addition to the RPD's findings, the RAD has serious concerns regarding information contained in both affidavits. The concerns are outlined below. Affidavit from the Appellant's former same-sex partner13 [42] The Appellant states in his BOC form narrative that his first same sex relationship was with XXXX XXXX. The Appellant alleges that he and XXXX XXXX kissed and. although they never had sex, they did "some intimate things".14 In the affidavit prepared by XXXX XXXX, he affirms that he and the Appellant have been friends since childhood. The affiant states that when the Appellant was fifteen years old the Appellant told the affiant that he was bisexual. Mr. XXXX makes no mention of any intimate activity between him and the Appellant. This significant omission was not put to the Appellant by the RPD. [43] Mr. XXXX affirms in his affidavit that in late XXXX 2015 the Appellant telephoned him and told him that his uncle and father were aware of his bisexuality and that his uncle had reported him, the Appellant, to the police. Neither in his BOC form narrative nor in his oral testimony did the Appellant allege that his uncle reported him to the police. This serious omission was not put to the Appellant by the RPD. [44] The RAD notes that when the Appellant provided testimony about his former same-sex partner, he was asked to spell his partner's name. He spelled it XXXX XXXX.15 The Appellant was not questioned by the RPD by the obvious misspelling of both first and last names of XXXX XXXX. Affidavit from the Appellant's father16 [45] The affiant, XXXX XXXX XXXX, affirms that on XXXX XXXX, 2015 three members of the Nigerian Police came to his house asking for his son, the Appellant. The police informed the affiant that XXXX XXXX (the Appellant's uncle) had reported to them that the Appellant is gay. The affiant affirms that when he informed the police that the Appellant had been studying abroad since XXXX 2015, the police told him that the Appellant would be arrested when he returned to Nigeria. The affiant states that when the Appellant called him on XXXX XXXX, 2015 he informed the Appellant of what his uncle had done and that the police were looking for the Appellant. The affiant states that the Appellant was very upset at this news. The RAD notes that the Appellant signed his BOC form on November 26, 2016, declaring that the information he provided was complete, true and correct. He affirmed the same at the beginning of the hearing. However, none of the critical information provided by the affiant regarding the reaction of the uncle as a result of being informed of the Appellant's sexual identity is found in the BOC form narrative. The Appellant also did not provide this significant information in his oral testimony. The Appellant was not questioned by the RPD about these significant omissions. [46] The affiant states that the police returned to his house on XXXX XXXX, 2015, again looking for the Appellant and saying that they would make sure the Appellant rots in jail. XXXX XXXX also affirms that because of the police visits, the news of the Appellant's bisexuality has spread throughout members of the community, who threaten to kill the Appellant or hand him over to the police. The RAD notes that the affidavit is dated XXXX XXXX, 2016. The Appellant provided an updated narrative, dated February 8, 2016, in which he provides information about his father's actions regarding his school fees.17 The Appellant provided no information in this narrative about further visits of the police to his family home in Nigeria or threats from the community. He also did not provide any of this information during oral testimony before the RPD. These serious omissions were not put to the Appellant by the RPD. Lack of documentary evidence [47] The RPD found to be not credible the Appellant's account of how he no longer had the cell phone which he used to contact his former sex-partner in Nigeria. The RPD noted that the Appellant testified that the phone was stolen but he was too busy to report the incident to the police. The RAD found that the Appellant could not corroborate the theft of the phone which was used to phone Nigeria and thus this particular testimony was likely an embellishment. [48] The Appellant made no submissions with regards to these findings. [49] The RAD has read the transcript of the recording of the Appellant's hearing before the RPD. The RAD will not interfere with the RPD's findings where the conclusions result from the RPD's distinct advantages of hearing and observing the Appellant during the hearing. New Evidence [50] The RAD gives the affidavit of XXXX XXXX XXXX dated XXXX XXXX, 2016, and the attached photograph, no evidentiary weight. The RAD's reasons follow. [51] The RAD notes that the RAD received the Appellant's Notice of Appeal on March 17, 2016.18 The affiant states that in November 2015 he received the photograph sent by the Appellant on his Blackberry Messenger. The affiant states that he attempted to respond to the Appellant at that time but the message did not go through. He states further that he then travelled to northern Nigeria where there was no telephone service and, consequently, he was unable to contact the Appellant until an unspecified date in March 2016. The RAD finds the inability of the affiant, who received the photograph in November 2015, to communicate with the Appellant until shortly after the rejection of the Appellant's claim to be an extraordinary coincidence that raises a significant doubt regarding its timing. [52] The RAD also notes that the Appellant provided for his hearing two affidavits issued in XXXX, XXXX State, Nigeria,19 discussed above, which the RPD found to have irregularities that the Appellant could not explain. The RPD concluded by assigning no weight to the affidavits and referring to the prevalence of fraudulent documents in Nigeria as indicated in the National Documentation Package for Nigeria. The Appellant made no submissions on these findings and the RAD concurred with the findings. The affidavit of XXXX XXXX, under discussion, was also issued in XXXX, XXXX State, Nigeria. Given the findings on two previous affidavits submitted by the Appellant and the various credibility concerns of the RPD upon which the RAD has agreed, the RAD has considerable doubts as to the genuineness of the affidavit of XXXX XXXX. [53] The photograph is undated. The RAD is unable to establish the provenance of the photograph. The RAD is unable to identify both parties in the photograph. A photograph of one man kissing another man's cheek while they both pose for the camera does not establish the sexuality of the subjects of the photograph. [54] The RAD, therefore, finds that document a), offered as new evidence, is not credible. CONCLUSION [55] The RAD finds that the RPD's credibility findings which it has sustained are insufficient to impeach the Appellant's testimony that he is bisexual and at risk in Nigeria. [56] The RAD has two other unresolved credibility issues, besides those discussed above, which are outlined in the following two paragraphs. [57] During the hearing the RPD asked the Appellant if there was any reason he chose to study in Canada. The Appellant testified that Canada was free and so he chose Canada for his studies. The RPD then asked the Appellant how he had known that Canada was free. The Appellant testified that he had received this information from his uncle who resides in the United Kingdom. When the RPD asked the Appellant if he had been aware of how Canada treated the gay community, the Appellant testified that he had not been aware until he arrived in Canada. However, in his BOC form narrative the Appellant alleges that he "had chosen to come to school in Canada because of how free and liberating Canadians were" and he "wanted to be in a country where [he] no longer had to live a lie, pretending to be a heterosexual when [he is] a bisexual."20 The RPD did not confront the Appellant with this significant contradiction. The RAD notes, in addition, that in the affidavit from the Appellant's former same-sex partner in Nigeria, the affiant states that he "knows that (the Appellant) was very excited to travel to Canada to study because he knew that Canada was open and allowed bisexuals and gays to be open with each other."21 The RAD also notes that during the hearing the Appellant testified that he was worried that his life could be in danger when he lived in Nigeria because Nigeria is a country that does not accept bisexuals. The information provided by the Appellant in his written narrative indicates that he was aware, before he arrived in Canada, of the treatment of sexual minorities in Canada and he was aware, when he lived in Nigeria, of the danger he was in due to his sexuality. The RPD did not question the Appellant why he delayed making his claim given his awareness, while he lived in Nigeria, of the situation for sexual minorities in Nigeria and in Canada. [58] As stated above, the Appellant provided an amended narrative, dated February 8, 2016, in which he alleges that things were tough for him at that time because his father contacted him and told him that he would no longer pay the Appellant's school fees because friends were making fun of him because of the Appellant's sexuality.22 According to the transcript of the recording of the hearing, when asked by the RPD, the Appellant testified that his father paid for the first two semesters of his school fees. When asked if anyone else was involved in the payment of his fees, the Appellant responded in the negative. However, according to information contained in the Appellant's visa application to Canada, the Appellant states that his parents and his uncle XXXX XXXX XXXX would pay his fees in Canada and a credit card payment receipt indicates that XXXX XXXX XXXX of London, England paid fees of $7507.00 to XXXX XXXX College.23 This contradiction was not put to the Appellant by the RPD. Given that the inability of the Appellant to continue his education is, allegedly, due to his sexuality, the RAD finds this contradiction to be significant. [59] On the basis of the totality of the evidence, the RAD finds that the RPD's overall determination cannot be confirmed. DISPOSITION AND REMEDY [60] Since the RAD does allow new evidence in the form of a letter from the XXXXCentre and gives no probative value to new evidence in the form of an affidavit from XXXX XXXX and an attached photograph, an oral hearing pursuant to section 110(6) of the IRPA is not allowed. [61] Section 111(1) of the IRPA allows the RAD to: a) confirm the determination of the RPD; b) set aside a decision of the RPD and substitute a determination that, in its opinion, should have been made; or c) refer the matter back to the RPD, giving the directions to the RPD that it considers appropriate. [62] The RAD can make the referral described in section 111(1)(c) only if it was of the opinion that the decision of the RPD was wrong in law, in fact, or in mixed law and fact, and if the RAD cannot make a decision to confirm or substitute the RPD's decision without hearing evidence that was presented to the RPD.24 The Appellant asks the RAD to substitute its own determination that he is a Convention refugee. The RAD is not in a position to do so. The RAD finds that there remain significant credibility concerns which were not addressed by the RPD. The RAD has not seen or questioned the Appellant and is therefore in no position to make its own credibility finding on his refugee claim. Similarly, the RAD is unable to make a finding regarding the Appellant's sexuality. For these reasons, the RAD cannot substitute its own determination for that of the RPD, and it cannot find the Appellant to be a Convention refugee or a person in need of protection. Directions [63] In conducting a de novo hearing, the RPD may wish to examine the areas where numerous contradictions were noted in this analysis. CONCLUSION [64] Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. This appeal is allowed. (signed) "Lesley Mason" Lesley Mason July 11, 2016 Date 1 Exhibit P-2, Appellant's Record, pp. 30, 31, 33. 2 Ibid., p. 34. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 4 Valtchev, Rousko v. M.C.I. (F.C.T.D., no. IMM-4497-99), Muldoon, July 6, 2001. 5 Ibid. 6 Exhibit RPD-1, RPD's Record, exhibit 3, National Documentation Package (NDP) for Nigeria (November 30, 2015), Item 1.6. 7 Orelien v. Canada (Minister of Employment and Immigration) [1992] 1 F.C. 592 (C.A.); (1991), 15 Imm. L.R. (2d) 1 (F.C.A.). 8 Exhibit RPD-1, RPD's Record, pp. 11-25. 9 Ibid., pp. 157-158. 10 Ibid. 11 Dan-Ash v. Canada (Minister of Employment and Immigration) (1988), 93 N.R. 33 (F.C.A.). 12 Exhibit RPD-1, RPD Record, pages 157-158 13 Ibid., pp. 159-160. 14 Ibid., pp. 16-18. 15 Exhibit P-2, Appellant's Record, Transcript of Record of the Hearing, p. 43. 16 Ibid., pp. 161-162. 17 Ibid., p. 25. 18 Exhibit P-1. 19 Exhibit RPD-1, RPD's Record, pp. 159-162. 20 Ibid., pp. 16-18. 21 Ibid., pp. 159-160. 22 Ibid., p. 27. 23 Ibid., pp. 103-139. 24 Immigration and Refugee Protection Act, S.C. 2001, c.27, s. 111(2). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-03946