TB8-11679

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 / Dossier de la SAR : TB8-11679 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 Ottawa, ON Appel instruit / entendu à Date of decision November 2, 2018 Date de la décision Panel Anna Wyse Tribunal Counsel for the person(s) who is(are) the subject of the appeal Jerome Fanmi Olorunpomi Conseil(s) (de la/des) personne(s) 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 (the Appellant), a citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated May 1, 2018, rejecting his claim for refugee protection. He has not submitted new evidence and he has not requested an oral hearing. He has asked the Refugee Appeal Division (RAD) to substitute a positive determination, or in the alternative, to return the matter to the RPD for redetermination. DETERMINATION [1] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). BACKGROUND AND OVERVIEW OF APPEAL [2] The Appellant's allegations are set out in his Basis of Claim (BOC) form1 and in his amended narrative.2 In summary, he fears persecution in Nigeria based on his sexual orientation, specifically as a bisexual male. The Appellant declared in his BOC that he began a relationship when he was XXXX with his classmate XXXX, who is two years older than him. The relationship ended in XXXX of 2013 and recommenced sometime in 2015. [3] On XXXX XXXX, 2016, XXXX father came to the Appellant's family home where the Appellant's father's family were gathered for a family meeting. XXXX father was shouting inside their compound, and when the Appellant and his family members came outside, XXXX father slapped him and began beating him. He showed the Appellant's father some suggestive photos and love letters. Before leaving, XXXX father threatened to report the matter to the police. [4] The Appellant's family began to curse and abuse him, and concluded that he must be spiritually cleansed. The Appellant's father send the Appellant to Lagos to hide with a family friend until he could leave the country. The Appellant came to Canada on a student visa which was issued on XXXX XXXX, 2016. He left Nigeria and arrived in Canada on December 31, 2016. ANALYSIS [5] I have conducted an independent assessment of the evidence, the testimony before the RPD, the RPD decision, as well as the Appellant's submissions, and find that the RPD did not err in its assessment of the Appellant's credibility for the reasons discussed below. The fraudulant wanted poster [6] The RPD found that the Appellant's presentation of a picture of a fraudulent wanted poster had the effect of tainting the remainder of his oral and documentary evidence with respect to his claim that he is bisexual. The Appellant admits that since receiving the RPD decision he has determined that wanted poster was fake, however he argues that even though the poster did not come from the Nigerian police, it was still posted where his family lives and it still had the effect of exposing his sexual orientation. The Appellant further argues that he unintentionally presented a fraudulent document that was relative to a material element of his claim, therefore it should not taint the remainder of his evidence. [7] The RPD spent 11 minutes questioning the Appellant regarding the wanted poster.3 During the questioning, the RPD asked the Appellant how many posters were up and when the Appellant was told about the posters by his father. The Appellant did not know how many posters were up and could not remember when he was told about them. The Appellant could not say where the photo of the wanted poster was taken. The Appellant guessed that the police obtained his photo from the social media website Facebook to use for the poster. When pointed to the discrepancies in the police logo on the poster, the Appellant could not provide an explanation. The Appellant stated that he was told about the posters by his father, and he then instructed his father to send a picture of the poster. The Appellant holds that he was unaware that it was not actually the police who put up the posters until after the RPD decision. [8] According to the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression4 (SOGIE Guideline): Cases involving individuals with diverse SOGIE are no different from other cases before the IRB in that decision-makers may draw a negative inference from material inconsistencies or contradictions in the evidence that have no reasonable explanations. Further, the burden of proving that the claimant fits the definition of a Convention refugee or person in need of protection lies with claimant themselves. [9] The Appellant submitted a photo of the wanted poster to corroborate his claim. As this document is material to his claim, I do not find that the RPD erred by finding this document to be fraudulent, and as a result, that it impugned the appellant's credibility. I further find that the RPD did not err by finding that this document had the effect of tainting the remainder of the Appellant's oral and documentary evidence with respect to his core allegation that he is bisexual as the document is material to his claim. [10] The Appellant submits that regardless of whether the police created the poster, the fact that it was displayed still had the effect of exposing the Appellant's sexual orientation. However, even after his father gathered information from the police regarding the origin of the poster, the Appellant has not provided answers to the RPD's questions regarding how many posters there were, the timing of when the poster was displayed and where the poster was located. In the face of an evolving explanation for the poster's origins, the Appellant has not established, on a balance of probabilities, that this poster was displayed in a manner that would expose the Appellant's sexuality. As such, I assign this poster no weight, and I find that this document continues to taint the remainder of the Appellant's oral and documentary evidence with respect to his core allegation. The remainder of the findings were not solely based on the fraudulent poster [11] Finally, the Appellant argues that the RPD erred by making further conclusions that were substantially based on the finding that the wanted poster was fake. Specifically, the Appellant argues that the RPD used this reasoning for conclusions regarding whether the police visited the Appellant's house and were looking for him, whether XXXX father confronted the Appellant at his father's house, whether the members of the Appellant's family demanded that he be spiritually cleansed, and whether he was in a relationship with XXXX. The Appellant argues that these allegations should be assessed on their own merit, independent of the fraudulent wanted poster. [12] The remainder of the RPD's findings were not solely based on the fraudulent poster. The RPD provided further reasons for its conclusions. [13] In reaching the conclusion that the Nigerian police are not searching for the Appellant, the RPD noted contradictions between the dates given in the Appellant's testimony and the documentary evidence, as well as a lack of knowledge of the number of times the police have subsequently come looking for him. [14] In reaching the conclusion that the Appellant's sexuality was not exposed, and that the Appellant was not in a same-sex relationship with XXXX, the RPD considered the two letters from the Appellant's father,5 the letter from the Appellant's mother,6 and the letter from the Appellant's father's friend in Lagos.7 The RPD found on a balance of probabilities, that the Appellant wrote these letters himself in an attempt to mislead the panel. The panel drew a negative credibility inference and further stated that there was no other persuasive evidence before the panel that would serve to corroborate the claimant's allegation that he was in a same-sex relationship. [15] During the hearing, the Appellant stated that the police became involved on XXXX XXXX, 2016. He stated that they attended at his house that evening, that they had a search warrant and that they did not leave a copy of the warrant with his parents. The Appellant further stated that they returned, but he could not remember when or how many times, as he is really bad with numbers.8 Later in the hearing the RPD asked why the letter from the Appellant's father states that the police came on XXXX XXXX, 2016. The Appellant responded that when his father called him, his father told him they came 2-3 times, but that one of the times was the XXXX, and further, that his father did not write the letter himself as he cannot read and write.9 [16] Upon questioning, the Appellant stated that the letter from his mother and the Appellant's father's friend were also written by someone else as neither of them can read or write. The Appellant was unsure who did write them, but accounted for the similar format and mistakes in the address of the Board as he sent them the address himself for them to use.10 [17] These supporting letters are therefore of unknown origin. While they may not have been, as the RPD found, written by the Appellant himself, the Appellant has not advanced a possible author. I therefore assign these letters no weight. [18] There is no other evidence that specifically supports the Appellant's claim that his family called for him to be spiritually cleansed. As there are sufficient credibility concerns to rebut the presumption that his sworn testimony is true,11 the RPD did not err when it did not provide further reasons for concluding that, on a balance, the Appellant's family did not call for him to be spiritually cleansed. Remainder of the evidence [19] The findings regarding the information provided by XXXX XXXX,12 the letter from XXXX XXXX XXXX,13 the photographs of the Appellant in Canada,14 and the assessment completed by XXXX XXXX XXXX XXXX,15 are uncontested. I have nevertheless reviewed the entire record and completed my independent assessment and I see no reason to interfere with these RPD findings that are not contested by the Appellant. Summary [20] The RPD found that the Appellant's submission of a fraudulent wanted poster, as well as the inconsistencies in his testimony, were enough to rebut the presumption that his sworn testimony is true. I agree with the RPD and find that the Appellant did not have reasonable explanations when confronted with the problems with the fraudulent poster, the letters from his family and family friend, or the inconsistences in his testimony. [21] For the reasons listed above, I find that the Appellant has not established on the balance of probabilities that he is bisexual and that he faces a serious possibility of persecution in Nigeria and is therefore not a Convention refugee. [22] For the same reasons, I find that the Appellant has not established, on a balance of probabilities, that he faces a risk to his life or risk of cruel and unusual treatment or punishment or danger of torture and is therefore not a person in need of protection under section 97. CONCLUSION [23] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "Anna Wyse" Anna Wyse November 2, 2018 Date 1 RPD-1, RPD record, Exhibit 2. 2 Ibid., Exhibit 10. 3 RPD Hearing at 1:30:00-1:41:00. 4 Immigration and Refugee Board (IRB), Chairperson's Guideline 9: Proceedings before the Immigration and Refugee Board of Canada involving Sexual Orientation and Gender Identity Expression, effective May 1, 2017 (SOGIE Guideline). 5 RPD-1, RPD Record Exhibit 7, pp. 12-13 and Exhibit 9 pp. 30-31. 6 RPD-1, RPD Record, Exhibit 7, pp. 16-17. 7 Ibid., pp. 14-15. 8 RPD Hearing, 00:37:00-00:41:00. 9 Ibid. 01:18:40-01:20:30. 10 Ibid. 01:21:20-01:28:25. 11 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.). 12 RPD-1, RPD Record, Exhibit 6, p. 2 and 3. 13 Ibid., p. 1. 14 RPD-1, RPD Record, Exhibit 8, pp. 27-29 and Exhibit 9, pp. 37-41. 15 RPD-1, RPD Record Exhibit 7, pp. 18 to 23. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-11679 RAD.25.02 (September 18, 2018) Disponible en français 8 RAD.25.02 (September 18, 2018) Disponible en français