MB9-30635

RAD File / Dossier de la SAR : MB9-30635 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 Montreal, QC Appel instruit / entendu à Date of decision June 25, 2021 Date de la décision Panel Reisa Khalifa Tribunal Counsel for the person who is the subject of the appeal Arthur Ayers 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] XXXX XXXX XXXX (Appellant), citizen of Nigeria, is appealing the negative decision rendered in his case by the Refugee Protection Division (RPD) on December 5, 2019. [2] The determinative issue for the RPD was credibility. The RPD found that the Appellant was not credible in his allegations regarding his sexual orientation as a bisexual man, due to inconsistencies between his documentary evidence and his testimony, and his failure to establish subjective fear. [3] The Appellant argues that the RPD erred in its credibility findings due to a microscopic examination of peripheral issues and a failure to evaluate his documentary evidence. [4] I find that the RPD erred in its credibility findings regarding the Appellant, due to a misapprehension of the evidence that was demonstrated in its credibility analysis and a failure to give proper weight to multiple pieces of documentary evidence. [5] I find that the Appellant has produced credible evidence that he faces a serious possibility of persecution in Nigeria as the member of a particular social group, namely bisexual Nigerian men. The Appellant has rebutted the presumption of adequate state protection in Nigeria and I find that he faces a serious possibility of persecution throughout Nigeria, as there is no viable Internal Flight Alternative (IFA) there for him. DECISION [6] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee in accordance with section 96 of the Immigration and Refugee Protection Act (IRPA). NEW EVIDENCE [7] No new evidence was submitted. ROLE OF THE RAD [8] When reviewing the RPD decision, I independently assessed the evidence, including listening to the recording of the RPD hearing of November 14, 2019, and reviewing the transcript to determine whether or not the RPD was correct in relation to each alleged error of law, of fact, or of mixed law and fact. Nexus to the Convention [9] As the allegations of the Appellant give rise to the serious possibility of persecution based on his membership in a particular social group, bisexual Nigerian men, there is a nexus to the Convention. I shall therefore examine the allegations in light of section 96 of IRPA. [10] The Appellant's allegations will also be examined in accordance with Chairperson's Guideline 9, regarding Proceedings before the IRB involving Sexual Orientation and Gender Identity and Expression (SOGIE Guideline). RPD's Determinative Issue Regarding the Appellant: Credibility Police report and affidavit from Appellant's mother [11] The RPD found that the Appellant's credibility was undermined by a police report and affidavit from the Appellant's mother, filed as part of one exhibit1, in which the Appellant is reported by his mother to have committed acts with his same-sex partner and then attacked by community members in XXXX 2010 as a result, because it considered that he had failed to provide a reasonable explanation as to why the police would have investigated in an environment where same-sex activity was prohibited. The RPD indicated in its decision that the Appellant had at first said that he did not know why they investigated as he was in the hospital at the time, and that he later said that he had been in hiding. The RPD found that his credibility was mitigated by the fact that the Appellant had not been in hiding, but had been in the hospital, and that if the police had been given information about his forbidden activity, they would have asked community members to provide his whereabouts. Also, the RPD indicated in its decision that the Appellant had testified that the hospital had been in XXXX, not in Benin, and that XXXXwas in another state. The RPD further indicated in its decision that the Appellant had testified that the law prohibiting same-sex relations was enacted in 2014 and the attack had happened in 2010. The RPD found that, as the documentary evidence2 indicated that XXXXis in Edo state and that the Criminal Code Act of 1990 criminalized same-sex activity, and the Appellant as a young and well-educated man should have known this, the Appellant was attempting to mislead the tribunal and his credibility was negatively affected. Finally, the RPD awarded the police report and mother's affidavit no weight due to the criminalized context in which the report would have taken place. [12] The Appellant argues that the RPD's analysis is on peripheral matters and that any errors on his part were unintentional and not with the desire to mislead the tribunal, as he had indicated that same-sex relations were prohibited, and the location of the hospital was a secondary issue. [13] I find that the RPD erred in its credibility findings. During the hearing, the Appellant testified that because he was in the hospital in a city different from the one where the attack had occurred, as the hospital was in XXXXrather than in Benin, and he had not shared this information with authorities, and to his knowledge this information had not been provided to police, that this was why he considered himself in hiding while at the hospital.3 I therefore find that there was no contradiction, as the Appellant satisfactorily explained his reference to being in hiding while at the hospital. Furthermore, as can be clearly seen in the transcript, the Appellant did not say that XXXXwas in another state, but rather he testified that it was a border city between Edo state and Ogun4. With respect to the question of the legislation in force in 2010, the Appellant testified as to his understanding of the law at the time, which he said was that same-sex relationships had not yet been "federalized as a criminal offence"5, and when his counsel asked him to explain this during the hearing, he replied that while the law making same-sex activity a criminal offence was only passed in 2014, it had already been considered an "abomination" in 2010 to be a bisexual6. I therefore consider that the Appellant was explaining his understanding of the law at the time and indicated his understanding that it was considered morally reprehensible in Nigeria to take part in same-sex activity but that he did not think that it was yet enacted into law that it was a federal offence. I do not find that this can be considered an attempt to mislead the tribunal and find that the RPD erred in its finding with respect to this point and the point about the location of XXXXcity. I therefore find that the Appellant's credibility is not undermined in this regard. [14] Furthermore, I find that the RPD erred in awarding no weight to the police report or the mother's affidavit, based on its consideration that the report was made in what it referred to as a "criminalized context". The Appellant testified as to the circumstances of the report7, which is dated in XXXX 2018, as is his mother's affidavit, both of which contain a detailed account, including the identifying information of the mother, the location and date of the affidavit, the identifying information about the Appellant, the context of the attack on the Appellant by members of the community, the details of the attack and subsequent destruction of the items in her store, and the departure of the Appellant from Nigeria. I find that it is an error of the RPD to give no weight to these two documents based on the fact that they allege an attack against the Appellant for his same-sex behaviour, as there is nothing contained therein that has been identified by the RPD as mitigating the authenticity or relevance of the documents, except the apparent presumption that the attack on the Appellant for prohibited behaviour would not have been reported. I consider that the mother was merely reporting to police that which would have already been public knowledge when the Appellant was attacked for same-sex activity by members of his community in 2010, in addition to reporting the damage caused to her business. The purpose of the report and affidavit appears to be to document in 2018 that which occurred in 2010. I find that the documents appear authentic and are relevant. As their probative value is established, I consider that they merit weight in support of the Appellant's allegations of his sexual orientation and subsequent attack. Medical report form [15] The RPD found that a medical report form8 merited no weight due to what it considered errors on the report regarding his hospital stay in 2010, which it said were not explained by the Appellant. In its decision, the RPD indicated that the Appellant had testified that he had been 17 or 18 years old at the time of the attack but that in one part of the report, it said that the Appellant was 26 and in another, it said that he was 19 at the time of the attack. The RPD found that the error regarding the Appellant's age, indicating that he was 26, would have been reflected elsewhere in the report, rather than a different age, 19, appearing in the same report. Due to the two different ages indicated therein, the RPD gave it no weight. [16] The Appellant argues that the two different ages on the report are due to the two different dates in question: the date on which the report was requested, at which time the Appellant was 26; and the date when he had been in the hospital, at which time the Appellant had been 19. [17] After reviewing the evidence, I find that there is a satisfactory explanation for the different ages on the same report: the year in which the report was prepared was 2018, which would explain the age of the Appellant being indicated at the beginning of the report as 26 and reports his age as having been 19 when he had been admitted to hospital in 2010. During the RPD hearing, the Appellant was asked about the indication of his age as 26 in the report, specifically asked to confirm that he had not been 26 at the time of the attack, and he replied that he had not been 26 at the time of the attack, but when the medical report was obtained9. I find that the credibility of the Appellant is not undermined and that the report merits weight in support of the allegation that he was admitted to hospital after being attacked for same-sex activity by members of his community. Witness letter from vigilante leader [18] The RPD found that the Appellant's credibility was mitigated by a contradiction between his testimony and the letter10, regarding whom the vigilante leader had contacted after the attack on the Appellant in 2010. During the hearing, the Appellant had testified that the vigilante leader had called his uncle to bring him to the hospital, but in the letter, the vigilante leader had written that he had told the Appellant's mother to bring him to the hospital for treatment. When the RPD asked the Appellant for an explanation during the hearing, he replied that perhaps the letter writer was making a general reference to his family, but that he could not speak for them. The RPD did not consider this to be an acceptable explanation and found that the Appellant's credibility was negatively affected and that the letter merited no weight. The RPD also noted that the letter was not accompanied by identification and was not a sworn affidavit. [19] The Appellant argues that the RPD erred in focusing on a secondary matter, that this was a minor detail that had no bearing on the core issue of his sexual orientation. [20] I find that the RPD erred in this regard. During the hearing, the RPD asked the Appellant why the letter indicated that the mother had been called, rather than the uncle, and he answered that he did not know, it could have been a general reference to the family, but that it was in fact his uncle and not his mother who had taken him to the hospital11. When I examined the document itself, I found it to be extremely detailed and it provided a considerable amount of information regarding the events surrounding the attack of 2010, including his personal relationship with the Appellant's grandmother and their shared history, and the reason he acted to spare the life of the Appellant who he wrote was being attacked for his sexual orientation. Although there is no accompanying photo identification with the letter, it contains the full name and address of the letter writer. I consider that it is authentic and highly relevant, and consider that the consistent elements of its contents, which are consistent with the Appellant's Basis of Claim Form (BOC) narrative12 and testimony regarding the attack and the reason the vigilante leader helped the Appellant, outweigh the one inconsistent element therein. I therefore find that it merits weight in support of the Appellant's allegations regarding his sexual orientation and subsequent attack. Letter from same-sex partner's father [21] The RPD found that the Appellant's credibility was undermined by an inconsistency in a letter from his same-sex partner's father13. At the hearing, the Appellant testified that his partner had succeeded in leaving at the time of the attack, that he alone had been the one beaten, but in the letter, the father referred to "they" being beaten, as though his son and the Appellant had both been beaten. The Appellant had explained that perhaps the father was speaking in a general way about what had happened, but the RPD found that this was not a satisfactory explanation. The RPD gave no weight to the letter and noted that no identification had been provided by the letter writer. [22] The Appellant argues that this inconsistency is secondary and not relevant to the core issue of his sexual orientation. [23] I find that the RPD erred in its credibility findings and in not awarding any weight to this letter. The letter is a sworn affidavit that contains the full name and address of the affiant, contains the full name and date of birth of his son, whom he states was caught engaging in same-sex activity with the Appellant, and the circumstances of the attack. I consider that the one inconsistency in the document is outweighed by the consistent elements of the information therein that it, in itself, does not undermine the credibility of the Appellant and that the document overall merits weight in establishing the Appellant's core allegations. Appellant's address from XXXX 2010 to XXXX 2013 [24] The RPD considered that the Appellant's credibility was negatively affected by what it stated was his inability to provide the address of the school where he had allegedly resided from XXXX 2010 to XXXX 2013, when he was hiding from his community. In its decision, the RPD indicated that the Appellant had said that he did not remember what the address of the school was and that it had been omitted from his Annexe A form. The RPD found that the Appellant's explanation for the omission, that he had probably misread the date, then that he had written his mother's address because it was his primary address, as not satisfactory. [25] The Appellant argues that his explanation was reasonable and that the omission of a detail from a port of entry form is common and easily attributable to stress. [26] In reviewing the Appellant's testimony during the hearing, I noted that although he was unable to provide a precise address of the school, he did provide information as to where it was located, and did not simply say that he did not remember. Specifically, when he was asked, "What is the address of the school?" the Appellant answered, "it is at XXXX. XXXX, in Benin city." When asked again for the address, he replied, "I cannot precisely, I think it is about 200... I can get the precise address, but it is located on XXXX XXXX... XXXX XXXX XXXX, Benin City."14 He also repeatedly explained that he had indicated his mother's address as his primary address because that had been the address he used while at school, that he had used her address on all official documents while living at the school15. I consider that the information provided regarding the location of the school is satisfactory as is the explanation as to the omission of the school address from the form. I find that the RPD erred in reaching a negative credibility finding due to this issue. Subjective fear due to failure to claim asylum in the United States [27] The RPD found that the Appellant's credibility was undermined by his failure to claim asylum in the United States. In its decision, the RPD indicated that the Appellant had replied during the hearing that he had not asked for protection in the United States because he did not know how to do it and later had said that he had tried to get married in order to be sponsored, which did not work, and that he had learned only after the fact that asylum had to be claimed within the first year there. The RPD indicated in its decision that when the Appellant was asked if he had looked for information on asylum in his first year in the United States, he had replied that he had not because he had not known how. The RPD found that, as the Appellant was a well-educated young man who was allegedly in fear for his life in his home country, it undermined his subjective fear not to have claimed asylum in the United States at the first opportunity. [28] The Appellant argues that the RPD erred in its credibility finding as there is poor treatment of asylum claimants in the United States and thus, he should not be faulted for failing to do so. [29] I find that the RPD erred in this regard. In his BOC, the Appellant wrote that he had not sought asylum in the United States because he realized that his chances of success were low due to the newly elected president there16. During his testimony, he actually explained at length the steps he took to obtain legal status. The Appellant testified that when he had first arrived in the United States, he did not know how to get legal status there, then he was told that if he would marry someone there, he could get sponsored, but that did not come to fruition, and that when his visa was set to expire, he began doing research on how to get protected status, but by that point it was several months too late for the delay required in the United States, and he then did research on other means but realized that he did not qualify17. He explained that he had put in long hours at his job just to meet his basic needs which made it difficult for him to look into obtaining status earlier than when he had done so18. I find that his explanation was satisfactory, that in looking at his situation as a whole and the attempts he made to legalize his status, his credibility should not be impugned as a result. Other documentary evidence [30] The RPD found that the three letters19 produced by witnesses of the alleged 2010 attack in his community merited no weight, based on the credibility problems with the other documents. The RPD also noted that the letters were not sworn affidavits and that only one of them was accompanied by an identification document. The RPD also found that a letter from the Appellant's mother explaining her reasons for supporting his leaving Nigeria20 merited no weight because it had already made a negative credibility finding about one of the allegations in the letter. The letter from the Appellant's former same-sex partner in Canada21 was also given no weight by the RPD because of its credibility concerns already discussed. The RPD also stated that the letter was not a sworn affidavit, not accompanied by identification and the relationship had not been indicated in his BOC. Finally, the RPD gave little weight to the photo22 that the Appellant had produced of himself with his former same-sex partner in Nigeria, because the photo in and of itself did not establish his bisexual orientation. [31] The Appellant argues that the RPD erred in dismissing evidence on the sole basis of credibility problems with other documents, rather than conducting an assessment of each document on its own merits. [32] I am in agreement with the submissions put forth by the Appellant. The RPD erred in not awarding any weight to these documents based on credibility concerns with other evidence, such that a circular reasoning was used (this is not credible because that was not credible). With respect to the photo, although I agree with the RPD that in and of itself it does not establish the Appellant's sexual orientation, it is certainly one piece of the evidence that should be assessed on its own merits and weighted accordingly. I consider that the documents all merit weight, such that when taken as a whole, they help establish the allegations of the Appellant's sexual orientation and public discovery of his same-sex act and subsequent attack, on the balance of probabilities. Testimony and documentary evidence regarding Appellant's sexual orientation not dealt with in RPD decision [33] In considering the documentary evidence as summarized above, I find that the documents that are not accompanied by identification each contain sufficiently detailed identifying information such that they are verifiable and reliable. I find that the documents, when weighed together with the detailed and spontaneous testimony of the Appellant regarding his realization that he was bisexual23; his relationship with his same-sex partner in Nigeria24; the difficulties he had in telling his family members about his sexual orientation and their reaction, specifically his aunt25 and his mother26; his testimony about the attack27; and his testimony about his same-sex partner in Canada28, all establish his sexual orientation as a bisexual man and that he was publicly discovered and attacked by members of his community, on the balance of probabilities. Conclusion regarding credibility [34] After reviewing all the testimonial, personal and documentary evidence, I find the Appellant credible. I find that he has established, on the balance of probabilities, that he is a bisexual man who was caught engaging in same-sex activities and was subsequently assaulted by community members. I find that he has demonstrated that he would be subject to forward-facing harm if he were to return to Nigeria, and that his subjective fear of return is objectively well-founded. State protection [35] I find that the Appellant has provided clear and convincing evidence that rebuts the presumption of state protection in Nigeria, as the agents of persecution include agents of the state, due to the illegality of same-sex activities there.29 Further, as indicated in the SOGIE Guideline, not only do laws that criminalize same-sex behaviour lead to persecution based on the enforcement of laws but they "may create a climate of impunity for perpetrators of violence" against individuals with diverse SOGIE30. I therefore find that if he were to return to Nigeria, the authorities of the state would be either unwilling or unable to provide him with adequate state protection. IFA [36] I find that the Appellant does not have a viable IFA in Nigeria and that there is nowhere in Nigeria that would be safe and reasonable for him to relocate, as he would face the serious possibility of persecution throughout Nigeria. [37] Specifically, the Appellant has provided evidence that the agents of persecution, which includes agents of the state, would have the means and motivation to find and harm him throughout Nigeria, as he would be arrested for having been caught in illegal same-sex behaviour and has established on the balance of probabilities, that he is a bisexual man who would face the serious possibility of persecution throughout Nigeria based on his sexual orientation, if he were to live openly as a bisexual man, which is illegal in Nigeria. The Appellant would be subject to arrest and danger of physical harm, and also suffer the consequences of same-sex activity that is culturally prohibited behaviour, therefore putting him in danger of further attacks by members of the community.31 CONCLUSION [38] I find that the Appellant faces the serious possibility of persecution under section 96 of IRPA, as the member of a particular social group, bisexual Nigerian men, if he were to return to Nigeria. DETERMINATION [39] The appeal is allowed and the RPD decision is set aside. [40] I substitute my own decision that the Appellant is a Convention refugee in accordance with section 96 of IRPA. (signed) Reisa Khalifa Reisa Khalifa June 25, 2021 Date RK/in 1 RPD-1, RPD Record, Document 5- Exhibit C-1. 2 RPD-1, RPD Record, Document 5- Exhibit C-2; Document 3- National document package (NDP) for Nigeria, August 20, 2019, Tab 5.29. 3 Transcript of RPD hearing of November 14, 2019, p. 41 at lines 20 -26 and lines 34 - 50; p. 42 at lines 25 - 37. 4 Transcript of RPD hearing of November 14, 2019, p. 42 at lines 36 - 37. 5 Transcript of RPD hearing of November 14, 2019, p. 41 at lines 31 - 32. 6 Transcript of RPD hearing of November 14, 2019, p. 42 at lines 5 - 23. 7 Transcript of RPD hearing of November 14, 2019, p. 41 at lines 7 - 18. 8 RPD-1, RPD Record, Document 5- Exhibit C-2. 9 Transcript of RPD hearing of November 14, 2019, p. 31 at lines 13 - 18. 10 RPD-1, RPD Record, Document 5- Exhibit C-5. 11 Transcript of RPD hearing of November 14, 2019, at p. 39, lines 28 - 34. 12 RPD-1, RPD Record, Document 2- BOC paragraph 3. 13 RPD-1, RPD Record, Document 5- Exhibit C-6. 14 Transcript of RPD hearing of November 14, 2019, at p. 34, lines 5 - 12. 15 Transcript of RPD hearing of November 14, 2019, at p. 34, lines 22 - 37; p. 35, lines 5 - 11. 16 RPD-1, RPD Record, Document 2- BOC, answer to 2g) 17 Transcript of RPD hearing of November 14, 2019, at p. 47, 48 and 49. 18 Transcript of RPD hearing of November 14, 2019, at p. 48 - 49, lines 47 - 49 and lines 5 - 9. 19 RPD-1, RPD Record, Document 5- Exhibit C-4. 20 RPD-1, RPD Record, Document 5- Exhibit C-7. 21 RPD-1, RPD Record, Document 5- Exhibit C-11. 22 RPD-1, RPD Record, Document 5- Exhibit C-10. 23 Transcript of RPD hearing of November 14, 2019, at p. 15, 16 and 17. 24 Transcript of RPD hearing of November 14, 2019, at p. 18 - 19 and 25. 25 Transcript of RPD hearing of November 14, 2019, at p. 19 - 20. 26 Transcript of RPD hearing of November 14, 2019, at p. 24. 27 Transcript of RPD hearing of November 14, 2019, at p. 26 - 30. 28 Transcript of RPD hearing of November 14, 2019, at p. 18 - 19. 29 RAD-1, NDP for Nigeria, April 16, 2021, Tab 6.2, 6.4, 6.9. 30 Immigration and Refugee Board of Canada, Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guideline), section 8.5.6.1. 31 RAD-1, NDP for Nigeria, April 16, 2021, Tab 6.1, 6.3, 6.5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-30635 RAD.25.02 (May 19, 2021) 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 (May 19, 2021) Disponible en français