MB8-06392

RAD File / Dossier de la SAR : MB8-06392 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 Vancouver, AB Appel instruit / entendu à Date of Decision September 11, 2019 Date de la décision Panel Kim Polowek Tribunal Counsel for the person who is the subject of the appeal Catherine LeBlanc 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 INTRODUCTION [1] XXXX XXXX XXXX (Principal Appellant), citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated February 21, 2018, rejecting his claim for refugee protection. The Appellant alleges a fear of persecution and harm in Nigeria because he is bisexual. He is asking the Refugee Appeal Division (RAD) to send the matter back to the RPD for redetermination. The Appellant has made a request to admit new evidence and hold an oral hearing. DETERMINATION [2] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA),1 the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. BACKGROUND and OVERVIEW OF THE APPEAL [3] The Appellant alleges that he is a bisexual male who was caught with his long term same-sex partner in Nigeria on XXXX XXXX, 2015 and that he was publically ostracized by his home community as a result of a public decree issued by a traditional ruler. He left Nigeria on XXXX XXXX, 2015 through an agent on a visitor's visa. He claimed refugee protection following the expiry of his visitor's visa. [4] The RPD rejected the claim finding that the Appellant's credibility was undermined by his presentation of a forged doctor's note, lack of corroborative evidence of the Appellant's long term same-sex relationship, his delay in claiming asylum, and an omission related to his employment situation in Nigeria. These credibility findings undermined the Appellant's cumulative credibility and led the RPD to afford little or no weight to the Appellant's evidence. [5] On Appeal, the Appellant has requested to admit new evidence to respond to a number of RPD findings. The Appellant submits that the RPD erred in specific credibility findings and in its overall finding that the Appellant was not credible. In particular, it is argued that the RPD erred when it found that the Appellant was not bisexual due to his lack of supporting documentation relating to his same-sex partner, the RPD erred in finding a lack of subjective fear due to delay in claiming asylum, and the RPD did not fairly assess some of the Appellant's evidence, such as the public decree, as the RPD had already concluded that the Appellant was not credible. NEW EVIDENCE [6] Subsection 110(4)2 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. [7] 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. [8] The Appellant has requested to admit the following as new evidence: a) Documentation from Dr. XXXX including a sworn affidavit statement from Dr. XXXX dated XXXX XXXX, 2018, a copy of Dr. XXXX handwritten note dated XXXX XXXX, 2015, a copy of Dr. XXXX handwritten note dated XXXX XXXX, 2018 and a copy of Dr. XXXX identification certificate dated XXXX XXXX, 2006. b) X-ray report from a Canadian physician, Dr. XXXX dated XXXX XXXX, 2016. c) Two Photographs of the Appellant with reportedly his same sex partner in Nigeria in a public setting d) Five photographs of the Appellant with unidentified other persons which reportedly depict the Appellant at a pride parade. e) An email reportedly from XXXX XXXX, dated XXXX XXXX, 2018 sent to the email of XXXX XXXX, who is reported to be a lawyer who had met with the Appellant. [9] For the reasons that follow, the RAD admits the evidence from Dr. XXXX and Dr. XXXX but not the other documents as new evidence. Documentation from Nigerian physician Dr. XXXX [10] This Appellant indicates that this evidence was not submitted with the initial claim because the Appellant did not expect that the medical note he provided to the RPD from Dr. XXXX would be contested and assessed by the RPD as a forged document due to the discrepancy in the name of the doctor who authored the document. [11] Given that the Appellant could not reasonably have expected the RPD to have had concerns with the validity of the medical note from Dr. XXXX submitted to the RPD and presents as relevant on its face as it speaks to a key credibility finding of the RPD, the RAD will accept this new evidence. X-ray report from a Canadian physician, Dr. XXXX, dated XXXX XXXX, 2016 [12] The Appellant submits that he did not provide this x-ray report with his claim as he did not expect that the note from Dr. XXXX would be found to be fraudulent by the RPD. The Appellant submits that this x-ray report is relevant in that it assists in corroborating his visit in Nigeria to a Nigerian doctor for a shoulder dislocation and adds credibility to the initial document from Dr. XXXX which was found to be fraudulent by the RPD. [13] Given that the Appellant could not reasonably have expected the RPD to have had concerns with the validity of the medical note from Dr. XXXX and the evidence presents as relevant and credible on its face as it speaks to a key credibility finding of the RPD, the RAD will accept this new evidence. Email Message dated XXXX XXXX, 20184 [14] The Appellant has submitted an email from XXXX XXXX, the Appellant's sister, dated XXXX XXXX, 2018 which is sent to another email account of an individual named, XXXX XXXX, who the Appellant states is a lawyer who had previously met with him. [15] The Appellant explains that he is submitting this email as little weight was given by the RPD to his evidence that a decree existed against him in Nigeria. He submits that the public decree issued against him is a key document relating to the credibility of the facts he presented to the RPD. It is argued that the email is relevant and new as it provides corroborative evidence that the Appellant still faces a risk to his safety if he is to return to Nigeria. [16] The Appellant has not explained why information from his sister relating to central elements in his claim could not have been provided to the RPD and this is exactly the sort of corroborative evidence that should have been before the RPD. Clearly, the Appellant's sister could have provided this information to the RPD in support of her brother's claim given that in part of the email she refers to material events related to the Appellant's claim. The RAD finds that the portion of the email that refers to events outlined in the Appellant's Basis of Claim (BOC) does not meet the criteria of subsection 110(4) of the IRPA as it was reasonably available to the Appellant before rejection. And further, regarding the portion of the email that contains information concerning the current risk to the Appellant which is new information and post-dates rejection and could not reasonably have been available to present to the RPD, the RAD finds that there are overall credibility concerns with the email. The Appellant has not provided any explanation as to how he came to be in possession of this email, given that it is reportedly from the account of his sister. The timing of the email if suspect given that it came following the rejection of the Appellant's claim. There is also no way for the RAD to authenticate that the email correspondence is actually from the Appellant's sister. The email correspondence does not include any identity documentation which would confirm the identity of who generated this correspondence. Further, emails are vulnerable to fabrication. For these reasons, the email from the Appellant's sister will not be admitted as the email fails to meet the jurisprudential requirement of credibility. The Federal Court has outlined the following test for determining the credibility of new evidence: "Is the evidence credible, considering its sources and the circumstances in which it came in to existence? If not, the new evidence need not be considered."5 Photographs6 [17] The Appellant has submitted two photographs which are stated to be the Appellant with in the first photo, 2 other men, and in the second photograph, the Appellant and four other men sitting around a table. The Appellant submits that these pictures show the Appellant with his same sex partner in a public setting and represent corroborative evidence of his sexual orientation. [18] The RAD observes that the photographs are not dated. The appellant has not provided any explanation as to why he did not submit these photographs to the RPD in support his claim. At his hearing, the Appellant was asked by the RPD whether he had any evidence that the relationship with his same sex partner existed and he replied that he had "showed a photo" to his lawyer. This photo of the Appellant and reportedly his same sex partner was faxed to the RPD following the hearing. The Appellant could have provided these additional photos at that time in support of his claim. In the absence of any explanation, the fact that the photos are undated, and the RAD's finding that these photographs would have been reasonably available to the Appellant, the RAD declines to accept these photographs into evidence. [19] The Appellant has submitted five photographs which he states were taken while he was at a Canada pride parade and represent corroborative evidence of his sexual orientation. Again, the RAD observes that these photographs are not dated, the name and date of the pride parade event is not indicated, and there is no explanation as to why he did not submit these photographs to the RPD in support of his claim. As noted above, the Appellant was aware of the importance of any evidence, including photographic evidence in support of his claim, and he could have forwarded these photos to the RPD prior to the rejection of his claim. [20] The RAD has another concern with these photographs of the Appellant appearing at what he reports to be a gay pride parade. At his hearing, the Appellant was asked by the RPD member" "What is your involvement with the LGBTQ community after arriving in Canada". He replied: "we attend seminars, conference, parties, helped new arrivals".7 He made no mention of attending a gay pride parade. [21] In the absence of any explanation as to why these photos could not have been provided to the RPD, the fact that the photos are undated, and the RAD's finding that these photographs would have been reasonably available to the Appellant, the RAD declines to accept these photographs into evidence. Corroboration of the Appellant's same-sex attraction was a central aspect of this refugee claim and the Appellant cannot now correct a deficient record before the RPD. The photographs are not admitted into new evidence. Request for an Oral Hearing [22] The Appellant has 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.8 One of the determining factors is that evidence presented on appeal must have been found to be admissible. While the RAD has found that some of the new evidence to be admissible the requirements of subsection 110(6) of IRPA for an oral hearing are not met, because the new evidence in itself may does not warrant accepting or rejecting the claim. Further, in this case, the Appellant's Appeal is successful and is being sent back to the RPD for determination where the Appellant's evidence will be thoroughly assessed in the context of a review of the entire evidentiary record that was before the RPD. For these reasons, the request for an oral hearing is denied. ROLE OF THE RAD [23] When reviewing the RPD decision, the RAD is required to independently assess all the evidence and determine whether the RPD erred in relation to each alleged error of law, fact or mixed fact and law. For this assessment, the standard of correctness as per the Federal Court of Appeal decision in Huruglica9 is applied. ANALYSIS [24] The RAD has listened to the hearing and considered all of the documentation in both the RPD and Appellant's record in order to conduct an independent assessment of the Appellant's claim in light of his arguments on appeal. In assessing this case the RAD also considered the applicability of the Sexual Orientation and Gender Identity and Expression (SOGIE) Guidelines.10 [25] The RAD is 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 Appellant's identity documentation and work history 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, or perceived to be, on a balance of probabilities. Despite testifying to being involved in a relationship with a same-sex partner since 1993, very little hearing time was dedicated to an exploration of this relationship or other relationships the Appellant had or was involved in. Further, the RPD did not question the Appellant on imputed sexual orientation despite evidence submitted. As the RAD is unable to make a final determination without hearing evidence which was presented to the RPD, the RAD is sending this matter back to the RPD for re-determination pursuant to subsection 111(2) of IRPA.11 RPD findings on peripheral matters [26] The RPD spent time at the hearing and in its decision describing a contradiction in his employment history which the RPD found that the Appellant's explanations for the contradiction in the evidence to not be reasonable, and that his credibility was undermined by his omission to truthfully declare his occupation. The RPD also devoted considerable time to exploring issues relating to the Appellant's identity documentation and the process for obtaining such documentation. Further, a key credibility finding related to the Appellant's presentation of what was assessed by the RPD to be a forged document related to a medical visit in Nigeria, which in the RAD's view was peripheral to the claim. [27] Ultimately, where the Appellant worked or his knowledge of the process to secure a passport in Nigeria are peripheral issues to this refugee claim. The most important questions to answer in this claim is whether or not the Appellant is bisexual, as alleged or whether there is sufficient evidence of imputed sexual orientation. Sexual Orientation was under-examined at the hearing [28] The Appellant testified at his hearing to having been involved in a relationship with a same sex partner in Nigeria from 1993 to 2015 with his contact with this person continuing since his arrival in Canada. He also testified to involvement with a female partner for a significant period of time in Nigeria and to be involved in a relationship with a female partner in Canada. However, very little time is devoted to exploring the nature of these relationships, key details relating to his Nigerian same-sex partner and their long term relationship, how the Appellant's sexual orientation evolved over time, events which occurred following him being discovered naked with his partner in Nigeria, and his relationships in Canada. It is the testimony about these experiences, relationships and events, and giving an opportunity to the Appellant to expand on these core allegations, which would be most helpful in establishing whether or not the Appellant is bisexual or homosexual on a balance of probabilities. [29] As per SOGIE guidelines, an individual's testimony may be the only evidence of their SOGIE, where, in a given case, corroborate or additional evidence is not reasonably available. Further, corroborating evidence may not be available in a case where an individual has concealed their SOGIE because of perceived stigma or risk of harm. The RPD found the Appellant's minimal efforts to obtain corroborative evidence of his same-sex relationship were minimal and this seriously undermined his credibility.12 However, the RPD does not explain in its reasons why the Appellant's testimony regarding his bi-sexuality and relationship with a long-term same-sex partner was not believed. Further, at the hearing the RPD asked the Appellant if he had submitted any evidence that the man exists to which the Appellant replied he had a photograph of him and his partner. The RPD then asks who was in the picture and agrees to accept a faxed copy of the photo post-hearing. No further inquiries are made by the RPD regarding corroborative evidence of the relationship and in the RAD's view this was a missed opportunity to test the Appellant's explanation for why further corroborative evidence was not reasonably available given the long term nature of the relationship and his ongoing contact with him. [30] The Appellant was not questioned by the RPD in relation to a key piece of evidence submitted to the RPD, namely a decree titled "notice to the general public", dated July 6, 2017 and the RPD reasons are brief indicating that "the panel gives very minimal weight to this document, which aims at corroborating facts that are not believed."13. Again, the RAD finds that this was a missed opportunity to test the credibility of the Appellant regarding events which occurred following being found in a sexually compromising position with his partner but more importantly the extent to which there was knowledge of his sexual orientation in Nigeria. [31] On Appeal the Appellant submits that it is clear that the RPD member was unable to fairly assess the decree document as the RPD had already concluded that the Appellant was not credible and this is an error. It is submitted on appeal that a fair assessment would consist of an adequate consideration of all the evidence that the member finds credible and a determination based upon that evidence and this is not what occurred in the Appellant's case.14 The RAD agrees with the Appellant on this point. SOGIE Guidelines not followed by RPD [32] While the RPD is not required to make a claimant's case or advance a grounds for a claim that an applicant did not contend, the RPD has an obligation to consider any ground of persecution that obviously emerges from the evidence before it, regardless of whether the claimant has specifically mentioned it. [33] In this case the Appellant submitted evidence of a public decree of his sexual orientation, evidence of imputed sexual orientation, but this was not explored at the hearing and the reasons are insufficient in explaining how SOGIE guidelines were considered and applied. Accordingly, the RAD finds that the RPD erred by not evaluating the Appellant's claim from the perspective of imputed sexual orientation which is required as per Chairperson's Guideline 9 - Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guideline).15 This Guideline refers to individuals with diverse sexual orientations and gender identities and expressions (SOGIE), who are individuals with, or who are perceived to have, a sexual orientation or gender identity or expression that does not conform to socially accepted norms. Such individuals include, but are not limited to, lesbians, gay men, and bisexual, trans, intersex and queer individuals. This Guideline also refers to cisgender individuals and/or heterosexual individuals who may not conform, or who may not appear to conform, to socially accepted SOGIE norms. Only option is to refer this matter back to the RPD [34] The RAD finds 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, and the evidence related to imputed sexual orientation such as the public decree and imputed sexual orientation, the RAD is unable to come to a final determination, either positive or negative. The RAD finds that the conditions described in subsection 111(2) have been met and the RAD refers this matter back to the RPD for re-determination by a differently-constituted panel. CONCLUSION [35] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. (signed) "Kim Polowek" Kim Polowek September 11, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. Subsection 111(1) - After considering the appeal, the Refugee Appeal Division shall make one of the following decisions: (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate. 2 Section110(4) - On appeal, 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. 3 M.C.I. v. Singh, Parminder, Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 4 Exhibit P-2 Appellant's record at p. 42. 5 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385 (CanLII), paragraph 13. 6 Exhibit P-2 Appellant's record at pp. 43 to 46. 7 CD of RPD hearing at approximately 59 minute mark. 8 Horvath v. Canada (Minister of Citizenship and Immigration), Mosley, February 8, 2018, 2018 FC 147, at para. 18. 9 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 10 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, May 1, 2017 (SOGIE Guideline). 11 Section 111(2) - The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that: (a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. 2001, c. 27, s. 111; 2010, c. 8, s. 14; 2012, c. 17, s. 37. 12 Exhibit RPD-1 RPD Reasons at para. 11. RPD record at p. 9. 13 Exhibit RPD-1 RPD Decision at para. 19. RPD record at p. 10. 14 Exhibit P-2 Appellant's memorandum at paras. 73 to 82. Appellant's record at pp. 193 and 194. 15 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, May 1, 2017 (SOGIE Guideline). --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MB8-06392 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 (April 04, 2019) Disponible en français