TB9-20949

RAD File / Dossier de la SAR : TB9-20949 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision October 8, 2019 Date de la décision Panel Anna Wyse Tribunal Counsel for the person who is the subject of the appeal Henry Igbinoba 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 a decision of the Refugee Protection Division (RPD), dated July 18, 2019. The RPD first rejected his claim for refugee protection on September 11, 2015 due to negative credibility findings. On January 6, 2016, the Refugee Appeal Division (RAD) overturned the RPD decision due to errors in the credibility findings. In a July 18, 2019 decision, a differently constituted panel of the RPD rejected the Appellant's claim due to negative credibility findings. [2] The Appellant claims he is bisexual. He further claims that the RPD erred in its assessment of his credibility. He has submitted new evidence and has requested a new hearing. [3] I find that the RPD made errors when stating the facts of this case and when assessing the Appellant's credibility. I find that the Appellant has established his allegations. I further find that the Appellant is a convention refugee. NEW EVIDENCE AND ORAL HEARING [4] Subsection 110(4) of the Immigration and Refugee Protection Act (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 hearing. If the proposed new evidence does meet one of the requirements of subsection 110(4), I must then apply the analysis set out in the Federal Court of Appeal's decision in Raza1 as subsequently modified by the same court's decision in Singh2 (Singh-Raza test). The confidentiality agreement is new, relevant and credible. [5] The Appellant has submitted a confidentiality agreement signed at the office of the notary who notarized the Appellant's sister's affidavit. This agreement states that her affidavit will not be shared with a third party. While the agreement predates the RPD decision, the Appellant argues that he could not have known that it would be necessary to submit this document. As a document of this type is not typically submitted along with an affidavit, I find that the Appellant could not have reasonably been expected to submit this document at the time of rejection. For this reason, I find that the agreement passes the s. 110(4) test. [6] I note that the name of the lawyer on the agreement is different than the lawyer who notarized the agreement, however the address is the same except for the suite number. On a balance of probabilities, I find that the lawyer who signed the agreement is a member of the same law firm as the lawyer who notarized the affidavit. For this reason, I find that the document is credible. The document is relevant as it relates to the Appellant's core allegation that his family is aware of his sexuality. The document is new as it is capable of contradicting the RPD's finding regarding the Appellant's sister's affidavit. For these reasons, I find that the agreement passes the Singh-Raza test. A hearing is not warranted [7] As the newly submitted and accepted evidence does not raise questions regarding the Appellant's credibility, I will not hold a hearing under subsection 110(6) of the IRPA. ROLE OF THE RAD [8] While reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. I may defer to the RPD's credibility assessment of oral testimony if I find that the RPD had a meaningful advantage in the circumstances.3 Reasons will be provided in my analysis if I find that the RPD had a meaningful advantage. ANALYSIS [9] While assessing this case, I was guided by Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression4 (SOGIE Guideline). [10] I did not find that there were any inconsistencies in the Appellant's testimony, and as such, I find that the presumption that sworn testimony is true holds in this case.5 I find that the RPD made several errors in fact and in law. I find that the Appellant has established that he is bisexual. My reasons for this finding are below. The RPD erred when assessing the inconsistency regarding the number of police raids [11] The RPD found the Appellant's evidence on a core issue, the number of police raids on his mother's house, to be confusing, contradictory, and not credible. The Appellant argues that this is essentially a typographical error and should not affect his credibility. [12] In the Appellant's testimony, and in his basis of claim (BOC) narrative, he stated that his mother told him that there were two police raids on his mother's house after his sexuality was discovered. The Appellant testified that he had no explanation for why his mother's affidavit states that there were four raids, that his mother is illiterate, but that a translator helped her to write the affidavits. The Appellant was asked several times regarding this discrepancy and consistently answered that he did not know why the affidavit said four times, as he was told by his mother that there were two police raids.6 [13] The Appellant was consistent that he did not have an explanation for this discrepancy, and he was also consistent that his mother told him that there were two police raids. Given that his mother is illiterate and was relying on a translator to help her create the affidavit, on a balance of probabilities, I find that the RPD erred by taking a negative inference from this inconsistency. The RPD erred when assessing the Appellant's inability to remember his former partner's name [14] The RPD took a negative credibility inference from the Appellant's inability to recall the name of an individual that he had a same-sex relationship with in Canada. The Appellant argues that the RPD failed to take into account the fact that the Appellant has suffered from psychological issues, and that it is overzealous for the RPD to draw a negative credibility finding simply because the Appellant was suffering from the disorganizing effects of PTSD. [15] In the psychological report, it is stated that the Appellant is exhibiting symptoms consistent with generalized anxiety disorder and major depressive disorder. It further states that the Appellant has impaired short-term recall and may be unable to retrieve specific details of the past. [16] As the report specifically notes that there could be impaired inability to recall specific details, and as a name is a specific detail, I find that the RPD erred by taking a negative credibility inference from this memory failure without referencing the psychological report. Further, as the Appellant did eventually recall the name, I do not take a negative credibility inference from his initial inability to recall the name. The RPD did not err when assessing the Appellant's participation in LGBTQ+ community groups [17] The Appellant argues that the RPD unreasonably disregarded the Appellant's membership and participation in LBGTQ+ community groups, as his participation in these groups, despite the backlash, stigma and homophobia in Nigeria, strongly demonstrates that the Appellant is bisexual. The RPD found that the Appellant only joined these groups briefly, and gave the associated letters little weight as they are not proof of sexual identity, but only proof of belonging to a club or group. [18] I accept that the Appellant attended at these organizations and events, however, given that there would be nothing to prevent a heterosexual or cisgender individual from participating in events held by a community group focused on assisting the LGBTQ community where, for example, that person considered that such participation would be advantageous to a refugee claim, evidence of such participation alone is not enough to establish that a claimant is a member of a social group in need of protection. For this reason, I do not find that the RPD erred when assessing this evidence. However, as I have not found significant credibility issues in this case, I give the Appellant's association with these groups weight to indicate that Appellant is bisexual. The RPD did not err by not referencing the Appellant's dating profile [19] The Appellant argues that the RPD erred by not referencing his online dating profile, which shows that he chats with and meets with both men and women. The RPD did not reference the Appellant's online dating profile, however the RPD did note that the Appellant is not currently in a relationship and specifically took no negative credibility inference from this. [20] During testimony, the Appellant stated that he has had the online profile up for about a year and has not met anyone using the profile. He stated that he has not gone out with anyone through the dating site.7 [21] The RPD is not required to reference every piece of evidence when writing a decision. The RPD questioned the Appellant regarding his online dating profile, and took no adverse inference from the fact that the Appellant has not dated anyone for some time. For these reasons, I do not find that the RPD erred by not referencing the Appellant's online dating profile in the written decision. However, as I have not found significant credibility issues in this case, I give this dating profile weight to indicate that the Appellant is bisexual. The RPD erred when assessing the Appellant's sister's affidavit [22] The RPD found that it was not plausible or credible that the Appellant's sister would provide an affidavit regarding the Appellant's sexuality and regarding her time in jail due exposing a plot to lure the Appellant back to Nigeria, given that the affidavit would have logically exposed her to more intense legal scrutiny, and therefore, makes no sense. [23] The Appellant argues that as his sister has already been jailed by the police she would not be putting herself in a worse position than before as she has already borne the shame, embarrassment and punishment for assisting a bisexual person to avoid persecution. Further, the Appellant argues that the evidence does not actually say that it is impossible, implausible or senseless to make such an affidavit, and that family members would swear an affidavit regarding sexual orientation if they believed that they would be granted confidentiality. [24] During testimony, the Appellant explained that his sister wrote the affidavit because she wanted to protect him, and the Appellant did not know if his sister was aware of the risks.8 [25] Given that the Appellant's sister has shown that she is willing go against other family members to protect her brother from a plot to lure him back to Nigeria, I do not find it implausible that she would risk writing an affidavit that may expose her to legal risk. The RPD found no other inconsistencies with the affidavit that would impugn the credibility of the affidavit. For these reasons, I find that the RPD erred when stating that it made no sense that the Appellant's sister would have written this affidavit. I give this affidavit weight in establishing the Appellant's allegations that he is bisexual, and that his sexuality was exposed in Nigeria. The RPD misapprehended the facts when assessing the WhatsApp conversation [26] The RPD assessed this conversation as having occurred in June 2019, and therefore concluded that the conversation made no plausible sense given the alleged timeline of events. The Appellant points out that the translation of the conversation was dated June 20, 2019, however the conversation occurred in September or October 2016 and was submitted to the Immigration and Refugee Board in November of 2018. [27] In testimony, the Appellant stated that the conversation occurred in August of 2016.9 Regardless of the discrepancy between the Appellant's testimony and the Appellant's appeal memorandum regarding the exact month of the conversation, the conversation did not occur in June 2019 as the RPD has stated. As the RPD based its implausibility finding on an incorrect timeline, I find that the RPD erred by misapprehending the facts. [28] As I have found no other inconsistencies between this WhatsApp conversation and the Appellant's allegations, I give this conversation weight to establish that the Appellant's sexuality was exposed to his extended family. The RPD erred when assessing the arrest warrant [29] The RPD found that the arrest warrant was unreliable as it quoted an incorrect section of the Nigerian criminal code. The Appellant argues that this finding is a breach of procedural fairness as this was not put to the Appellant during the hearing. The Appellant argues that he did write the warrant of arrest, and therefore, he cannot explain the error. Further, the Appellant notes that even judges can make errors. [30] The RPD noted that the sections of the code referenced were 214, 216 and 217, however the correct sections are 214, 215 and 217. I have listened to the RPD hearing, and I find that the RPD did not put this discrepancy to the Appellant to allow him the opportunity to provide an explanation. On a balance of probabilities, I find that there could be a legal reason why the judge referenced section 215 instead of section 216. For these reasons, I find that the RPD erred when assessing the arrest warrant. The Appellant has established his sexuality [31] I find that the Basis of Claim (BOC) narrative, the letters and affidavits from friends and family members, information from community organizations, photographs, and the police documents, along with the Appellant's sworn testimony, establish the Appellant's claim that he is bisexual. Neither state protection nor internal flight alternative is available to the Appellant [32] The country documents10 indicate that the general community, media and authorities in Nigeria treat homosexual persons very harshly. Nigeria has severe, homophobic legislation, consensual same-sex activity is illegal under federal law.11 Specifically, in 2014, the government passed its Same-Sex Marriage (Prohibition) Act, which prohibits same-sex marriage and same-sex civil unions, and penalizes anyone involved in LGBTQ organizations.12 Punishments for violations of this legislation, or violations of Sharia law regarding homosexuality, range from 14 years in prison, to lashings, to execution by stoning.13 Police themselves are the perpetrators of rights violations against LGBTQ persons. Police may investigate someone for same-sex activity for a variety of reasons, from being caught engaging in sex with someone of the same gender, to finding documents or photos, or simply based on the person's appearance or mannerisms. These arrests can be arbitrary, based on suspicion and without justification.14 During the investigation, the police may use harassment, physical abuse, extortion, humiliation, torture, or detention for days or weeks without evidence or due process.15 [33] In light of the above analysis, I conclude that the Appellant is credible and has established that he will face persecution in Nigeria based on his sexual orientation. The Appellant is therefore a Convention refugee pursuant to section 96. CONCLUSION [34] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) "Anna Wyse" Anna Wyse October 8, 2019 Date 1 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 3 M.C.I. v. Huruglica, 2016 FCA 93, paras. 70 and 103. 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 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.). 6 RPD hearing June 17, 2019 at 00:09:30 - 00:15:00 and at 01:34:00 - 01:35:30. 7 RPD hearing June 17, 2019 at 00:41:40 - 00:43:00. 8 RPD hearing June 17, 2019 at 00:30: - 00:31:00 and at 01:16:00. 9 RPD hearing June 17, 2019 at 01:03:00 - 01:05:00. 10 RPD-1, RPD Record, National Documentation Packages (NDP) for Nigeria dated April 30, 2019. 11 RPD-1, RPD Record, National Documentation Package for Nigeria, 30 April 2019, Exhibit 6, item 6.1, NGA105321.E, ?Treatment of sexual minorities, including legislation, state protection, and support services; the safety of sexual minorities living in Lagos and Abuja (February 2012-October 2015), 13 November 2015, Immigration and Refugee Board of Canada, 27 November 2015, p. 22. 12 RPD-1, RPD Record, National Documentation Package for Nigeria, 30 April 2019, Exhibit 6, item 6.4, The Same-Sex Marriage (Prohibition) Act (SSMPA), 2013, 2013, Nigeria,20 November 2014. 13 RPD-1, RPD Record, National Documentation Package for Nigeria, 30 April 2019, Exhibit 6, item 6.1, NGA105321.E, Treatment of sexual minorities, including legislation, state protection, and support services; the safety of sexual minorities living in Lagos and Abuja (February 2012-October 2015), 13 November 2015, Immigration and Refugee Board of Canada, 27 November 2015, pp. 1-2. 14 RPD-1, RPD Record, National Documentation Package for Nigeria, Exhibit 6, 30 April 2019, item 6.13, NGA105655.E, Police procedures for investigation and pursuit of individuals for same-sex activity, including documentation; whether police issue warrants of arrest or reports listing the charges and penalties brought against that person; whether a person who ..., Immigration and Refugee Board of Canada, 29 November 2016, p. 1. 15 Ibid., at pp. 4-5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-20949 RAD.25.02 (April 04, 2019) Disponible en français 8 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