VB9-08820

RAD File / Dossier de la SAR : VB9-08820 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 Calgary, AB Appel instruit / entendu à Date of decision December 3, 2020 Date de la décision Panel Derek Vermette Tribunal Counsel for the person who is the subject of the appeal Amado Alexis Garcia Claros 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 XXXX XXXX or Appellant) is a citizen of Nigeria. He is appealing a Refugee Protection Division (RPD) decision that denied his claim for protection. [2] XXXX alleges that he fears that if he returns to Nigeria he will face persecution, harm or death because he is bisexual. [3] The RPD did not believe that XXXX was bisexual. The RPD reasoned that XXXX had not shown that he feared returning to Nigeria (this was based on XXXX having lived in the United States of America (USA) for 28 years without making a claim for refugee protection). The RPD also referred to inconsistences and omissions in XXXX evidence. [4] XXXX has appealed because he believes the RPD erred in its decision. XXXX argues that he had reasons to not make a claim for protection in the USA while he was living there prior to coming to Canada, and that the inconsistencies and omissions in his evidence are attributable to XXXX dealing with the challenges of him coming to terms with his identity and trauma from sexual abuse. [5] I find that the RPD correctly decided XXXX claim. I do not believe XXXX is bisexual. He is not entitled to refugee protection. DECISION [6] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention1 refugee nor a person in need of protection. BACKGROUND [7] When XXXX was XXXX years old, he and his parents flew from Nigeria to Mexico. They then entered the USA through the San Diego crossing. XXXX parents did not have any status in the USA, and did not seek asylum. His parents returned to Nigeria when XXXX was approximately 15 or 16, and XXXX remained in the USA. XXXX continued to live with a Mexican family that had employed him and his dad. The Mexican man started sexually abusing XXXX when he was 15. XXXX continued to live with the Mexican family until the age of 22. XXXX indicated that he did not have any status during this time, and he was working for and living with that Mexican man whose house he was staying at.2 [8] XXXX indicated he received his working papers through an amnesty program in 2005. By XXXXorXXXX XXXX 2010, XXXX no longer had working status, and his appeal to be a permanent resident had been denied. After that point, he remained in the USA, but did not have any formal work documents or status.3 XXXX arrived in Canada on XXXX XXXX XXXX 2018, just shy of his XXXX birthday, and sought protection. ANALYSIS [9] I find that the RPD was correct in its decision that XXXX is not entitled to protection under sections 96 or 97(1) of the Immigration and Refugee Protection Act (IRPA).4 XXXX has not established that he is bisexual. He therefore does not face a risk of persecution, harm or torture in Nigeria. [10] XXXX has not established that he has a subjective fear of returning to Nigeria. This finding that XXXX has a lack of subjective fear is based on the substantial period of time he spent in the USA while not making a claim for refugee protection, and his inability to provide a satisfactory explanation for that failure to claim protection in the USA. This lack of subjective fear means that XXXX has not established that his fear is well-founded under section 96 of the IRPA (i.e., which requires both a subjective and objective basis for the fear). [11] There are several concerns that undermine the credibility of his allegation that he is bisexual and faces a risk of harm in Nigeria: he did not give a valid explanation for failing to claim protection in the USA when there was a significant eight-year period when he had the opportunity to do so; and in his Basis of Claim (BOC) form he omitted to mention the number of relationships he had, without reasonable explanation. XXXX did not provide any medical opinion evidence to support his argument that he failed to claim in the USA, or omitted information in his BOC form, because of the impact of dealing with his sexual orientation or the trauma from his sexual abuse. I considered letters and photographs provided in support of XXXX claim that he is bisexual, but this evidence is not persuasive. I will discuss each of these findings below. XXXX inability to provide a satisfactory explanation for his failure to claim protection in the USA [12] XXXX spent a significant period of time in the USA and did not claim protection during this time. I find that he has not provided a satisfactory explanation for his failure to claim such protection. The lack of a valid explanation for his failure to claim protection in the USA impacts XXXX claim that he has a subjective fear of returning to Nigeria, and also undermines the overall credibility of his allegations. [13] In a recent Federal Court decision, Justice Norris summarized the principles concerning the significance of delay in seeking refugee protection, and then set out three factual questions that must be answered. I find that these three questions are a good framework for my analysis as well:5 [61] I summarized the governing principles concerning the significance of delay in seeking refugee protection in Chen v Canada (Citizenship and Immigration), 2019 FC 334 at para 24, and in Guecha Rincon v Canada (Citizenship and Immigration), 2020 FC 173 at para 19. To reiterate: a) Delay in seeking refugee protection is not determinative of the claim; rather, it is a factor the decision maker may take into account in assessing the claim's credibility (Calderon Garcia v Canada (Citizenship and Immigration), 2012 FC 412 at paras 19-20). b) In particular, delay can indicate a lack of fear of persecution in the country of reference on the part of the claimant (Huerta v Canada (Minister of Employment & Immigration), [1993] FCJ No 271 (FCA), 157 NR 225). Put another way, delay can be probative of the credibility of the claimant's assertion that he or she fears persecution in the country of reference (Kostrzewa v Canada (Citizenship and Immigration), 2012 FC 1449 at para 27). c) Whether there has been delay and, if so, its length must be determined with regard to the time of inception of the claimant's fear as determined from the claimant's personal narrative. d) The governing question is: Did the claimant act in a way that is consistent with the fear of persecution he or she claims to have? e) Delay in seeking protection can be inconsistent with subjective fear because generally one expects that a genuinely fearful claimant would seek protection at the first opportunity (Osorio Mejia v Canada (Citizenship and Immigration), 2011 FC 851 at paras 14-15). f) When a claimant has not sought protection at the first opportunity, the decision maker must consider why not when assessing the significance of this fact. A satisfactory alternative explanation for why the claimant waited to seek refugee protection can support the conclusion that the delay is not inconsistent with the fear of persecution alleged by the claimant. Absent a satisfactory alternative explanation, it may be open to a decision maker to conclude that, despite what the claimant now says, he or she does not actually fear persecution and this is the real reason why protection was not sought sooner (Espinosa v Canada (Minister of Citizenship and Immigration), 2003 FC 1324 at para 17; Dion John v Canada (Citizenship and Immigration), 2010 FC 1283 at para 23; Velez v Canada (Citizenship and Immigration), 2010 FC 923 at para 28). g) Whether an alternative explanation is satisfactory or not depends on the facts of the specific case, including the claimant's personal attributes and circumstances and his or her understanding of the immigration and refugee process (Gurung v Canada (Citizenship and Immigration), 2010 FC 1097 at paras 21-23; Licao v Canada (Citizenship and Immigration), 2014 FC 89 at paras 57-60; Dion John at paras 21-29). [62] It will be apparent from the foregoing that, to assess the significance of delay in claiming refugee protection, three key factual questions must be answered. First, according to the claimant, when did their subjective fear of persecution crystalize? Second, when did the claimant first have an opportunity to make a refugee claim? And third, why, according to the claimant, did they not take up that opportunity? It is only unexplained delay after the fear has crystalized and after it was possible to seek protection that can reasonably support an inference that the claim of subjective fear should not be believed because of the delay in seeking protection. [14] With respect to the first question of when XXXX alleged subjective fear of persecution crystallized, I find that it was when XXXX was 17 years old (he turned 17 onXXXX XXXX XXXX XXXX XXXX). XXXX testified at the RPD hearing that he realized he was bisexual when he was 17.6 XXXX knew at that time that Nigeria was a country where that would not be acceptable.7 [15] With respect to the second question of when XXXX first had an opportunity to make a refugee claim, I find this date was in XXXX 2010. Unlike the RPD, I am not taking into account the entire 28-year period that XXXX was in the USA (i.e., from 1990 to 2018) in considering the issue of his failure to claim protection in the USA. XXXX was a minor for the first XXXX years of his time in the USA, and this explains why he might not have claimed refugee protection during that period.8 There was also an approximately five year period where XXXX had been granted status to work in the USA through an amnesty program, and this is a reason why he might not have claimed refugee protection during that period.9 However, XXXX temporary working status, and the process of him making a claim for residency, which he was ultimately denied, ended in approximately XXXX 2010. Between XXXX 2010 to XXXX 2018, XXXX remained undocumented in the USA and did not seek protection.10 [16] With respect to the third question of why, according to XXXX, he did not take up that opportunity to claim refugee protection in the USA, XXXX explained at the RPD hearing that he did not seek protection in the USA between 2010 and 2018, because he was told by a Haitian he met, and people that he had heard of, that if you make a claim for protection while you are illegally in the USA, then you will be arrested, put in prison and deported when you are released. When asked if he ever sought the counsel of a lawyer or an advocate on this issue, XXXX explained that, "I just spoke with people and they told me that they know a lot of people that been deported through these means, that it is not a good idea."11 XXXX counsel submits on this appeal that many have lived in the USA for periods similar or longer in length out of fear of disrupting the life they have built in the USA, not only for themselves but for their families. XXXX counsel also argues that XXXX fear of being deported after making a refugee claim should not be equated to the risk of being sent back to Nigeria due to being caught living undocumented in the USA. [17] I find that XXXX explanation for not claiming protection during the eight-year period, when his alleged subjective fear of returning to Nigeria had been crystallized many years before, is not satisfactory. [18] The period in question is of significant length, being more than eight years. I acknowledge the arguments that XXXX did not want to seek refugee protection in the USA because he did not want to disrupt the life he and his family had in the USA by making a refugee claim there, or that he thought it was preferable instead to take what he might have perceived as a less certain risk that he might be caught and deported for lack of documentation. However, given his alleged fear that returning to Nigeria could result in imprisonment or death, I find his explanation that he did not seek out proper advice on the issue of claiming protection in the USA for the lengthy period of eight years in question, and instead simply relied upon a "Haitian" or "people" he spoke with, to be inadequate. Consulting with an immigration professional with respect to the possibility of making a refugee claim in the USA at any point during the eight years in question would have posed no risk. The Federal Court has held that, "If the applicant had truly feared for his life, he would have applied at the first available opportunity, rather than relying on what others told him."12 [19] The lack of satisfactory explanation for the lengthy eight-year period when XXXX could have made a claim for refugee protection in the USA, impugns his credibility and leads to a finding that he has a lack of subjective fear. In this regard, Justice O'Keefe of the Federal Court stated:13 [30] However, the Board's finding that there was a lack of serious effort on the part of the applicant to apply for asylum is reasonable despite the applicant's submissions. As Mr. Justice Yvon Pinard held in Bobic v. Canada (Minister of Citizenship and Immigration), 2004 FC 1488 at paragraph 6, an applicant's reasons for not claiming refugee status in a foreign country must be valid in order to avoid an adverse inference. Serious efforts require more than having a friend inquire about the asylum process. A Mr. Justice Roger Hughes held in Stojmenovic v. Canada (Minister of Citizenship and Immigration) 2010 FC 873 at paragraph 5, that "a refugee claim should not be looked at simply as one of many choices as to how best to seek status in Canada." The applicant's submission that he did not apply for asylum because it would be granted more easily in Canada or because he would gain permanent residence faster in Canada are not valid reasons for negating the adverse inference that he lacked subjective fear by not applying for asylum in the United States. A finding that the applicant lacked subjective fear due to his failure to apply for asylum in the United States is sufficient, alone, for the Board to reasonably deny the refugee claim (see Goltsberg v. Canada (Minister of Citizenship and Immigration), 2010 FC 886 at paragraph 28; Gamassi c. Canada (Ministre de la Citoyenneté et de l'Immigration) (2000), 2000 CanLII 16473 (FC), 194 F.T.R. 178 at paragraph 6). [20] I considered XXXX argument that the RPD erred by not dealing with the issues of a lack of subjective fear, and the credibility of XXXX evidence, separately. However, XXXX lack of satisfactory explanation for failing to claim protection in the USA during the eight-year period in question affects both the issues of subjective fear and credibility. In this regard, Justice Kelen of the Federal Court has stated:14 This Court has held on a number of occasions that failure to claim refugee status in a foreign state or delay in claiming refugee status in Canada is an important factor which the RPD is entitled to consider in assessing the basis of the applicants' subjective and objective fear of persecution and their credibility: Espinosa v. Canada (MCI), 2003 FC 1324, per Justice Rouleau at para. 16; Negwenya v. Canada (MCI), 2008 FC 156, per D.J. Frenette at para. 19. The reasons for not claiming refugee status in a foreign country must be valid in order to avoid an adverse inference: Bobic v. Canada (MCI), 2004 FC 1488, per Justice Pinard at para. 6. [21] XXXX lack of a valid reason for his failure to claim refugee protection in the USA affects his claim under both section 96 and 97(1) of IRPA. The finding that there is a lack of subjective fear applies directly to section 96 of the IRPA, and the finding that there is a lack of credibility in XXXX story (i.e., which also flows from XXXX lack of a valid explanation for failing to claim protection in the USA), affects both section 96 and 97(1) of the IRPA. In this regard, Justice Diner of the Federal Court has stated, "Negative credibility findings made under section 96 may also affect the validity of a claim under section 97, even though subjective fear is not part of the assessment for the latter section."15 Justice Montigny of the Federal Court has stated, "It is true that the applicant's subjective fear, on which some doubt may be cast, given the delay in filing his claim, is not relevant under section 97 of the Act. Nonetheless, the objective risk allegedly faced by the applicant must be based on a credible story."16 [22] With respect to the issue of credibility, XXXX argued that there is no legal requirement for a claimant to corroborate sworn testimony that is uncontradicted and otherwise credible, and also that sworn evidence is presumed to be true. However, this presumption may be rebutted, as it is here, by the existence of reasons to doubt its truthfulness. In this case, reasons to doubt the truthfulness of XXXX evidence are not just the failure to claim in the USA without valid explanation, discussed above, but also the material omission in XXXX BOC form without a satisfactory explanation, which will be discussed next. XXXX failure to provide a satisfactory explanation for the material omission in his BOC form [23] Prior to the RPD hearing, XXXX counsel sent a fax to the Immigration and Refugee Board (IRB) indicating that he had learned that day that XXXX had two relationships with men in the USA that were not mentioned in his BOC form.17 At the RPD hearing, XXXX indicated that he had relationships with five men.18 He explained that two of them were relationships for a long time, and the other three he met in a bar and had a short encounter. XXXX provided the following explanation for his omitting these relationships:19 MEMBER: So can I ask you then, sir, why you didn't mention any of your male relationships while you were in the US in you Basis of Claim narrative given that your claim revolves around sexual orientation? CLAIMANT: When I came in the first person that I met I told the person that I love men. MEMBER: Okay, but that wasn't the question, the question was why in your Basis of Claim, so this is your claim for protection, why didn't you mention any of these male relationships that you have? CLAIMANT: It wasn't written down then as at that time I didn't talk about the details of what was happening to me or what my situation. MEMBER: Well, you talked about the details of being sexually abused, which you know is pretty horrific, but you didn't mention the fact that you had, what sounds like, two fairly positive relationships with men. It seems a bit odd. CLAIMANT: You are right, I think it would have been good if had spoken about that, but at that time my state of mind, I was like the abuse that I received, that was what I talked about but later on when I began to recollect that I was supposed to say everything that was happening to me, that is when I decided to put it forward. [24] The omission of relationships is significant as it goes to the very core of XXXX claim. XXXX failed to provide a valid explanation for omitting such important details that are at the heart of his claim, and instead just suggested that he later recollected and decided to put it forward. XXXX failure to include these important facts and details in his BOC form affects the credibility of all of XXXX evidence. In this regard, Justice McDonald of the Federal Court has stated:20 [18] The requirements for the completion of a BOC form are outlined in the Refugee Protection Division Rules, SOR/2012-256 and referenced in the Refugee Appeal Division Rules, SOR/2012-257. The BOC is intended to provide details about the claimant, his or her family, related documents, travel history, and most importantly the reason refugee protection is being sought. This Court has confirmed on numerous occasions that all the important facts and details of a claim must be included, and failing to do so can affect the credibility of all or part of a claimant's testimony (Zeferino v Canada (Minister of Citizenship and Immigration), 2011 FC 456 at para 31). [19] The Applicant argues that his oral testimony simply provided additional details to his BOC narrative and he relies upon Selvakumaran v Canada (Minister of Citizenship and Immigration), 2002 FCT 623 [Selvakumaran] at paragraph 21 to argue that this should not be a basis for impugning his credibility. However, Selvakumaran explicitly states at paragraph 20 that, although oral testimony may provide details not included in a personal information form, this will not serve to impugn an applicant's credibility unless the omitted incident is significant to the claim. [20] Here, details of the attack are significant as they go to the very core of the Applicant's claim. Therefore this omission from the BOC is not a minor detail or collateral information, but rather, is important to the Applicant's claim. Omissions and contradictions are a reasonable basis for doubting an applicant's credibility (Jele v Canada (Immigration, Refugees and Citizenship), 2017 FC 24 at para 50). [25] The Federal Court has held that important omissions regarding central allegations of an applicant's claim can be dispositive of the claim, and general findings of lack of credibility can affect all relevant evidence submitted by an applicant, including documentary evidence, and ultimately cause the rejection of a claim.21 [26] I considered XXXX argument that he has been dealing with coming to terms with his identity and with the trauma of his sexual abuse when he was younger. I considered Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guideline).22 Section 7.7 of the SOGIE Guideline dealing with material omissions indicates that decision-makers should examine whether there are cultural, psychological or other barriers that may reasonably explain the omission. Section 8.5.11 of the SOGIE Guideline indicates that a reasonable delay in making a claim may also arise out of an individual's reluctance to reveal their SOGIE to a spouse or other family member, or in their realizing or accepting their SOGIE. I have no evidence to support that there are any barriers, including evidence of his psychological state, that reasonably explains either his lack of a valid reason for failing to claim protection in the USA for eight years, or for making material omissions in his BOC form narrative. As discussed above, XXXX had come to terms with his bisexual orientation when he was 17. XXXX letters of support and photographs are not persuasive [27] XXXX did not provide any witness statements from people that he has been in a relationship with. He explained that he could not reach them because the telephone line does not work, and that, with respect to his common law partner, he has not come out to her yet.23 The support letters provided do not establish that XXXX is bisexual, but rather that XXXX attended Lesbian, Gay, Bisexual, Transgender and Queer programs and that he told one of the authors that he was bisexual.24 [28] I reviewed the photographs submitted in evidence, but those photographs do not establish that XXXX is bisexual.25 Instead, the photographs only prove that a photograph was taken of XXXX with other people. XXXX argument that the RPD erred in its assessment of the risk faced by bisexuals in Nigeria is not persuasive [29] XXXX argues that the RPD erred by deciding that there is a not a danger with respect to same-sex activity in Nigeria, and cites a number of documents from the National Documentation Package for Nigeria that supports the danger associated with same-sex activity in that country. I disagree with XXXX interpretation of the RPD decision. The RPD member did not decide that there is no danger for individuals engaged in same-sex activity in Nigeria. Rather, the RPD member correctly decided that XXXX does not face that risk in Nigeria because he has not established that he is bisexual. CONCLUSION [30] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Derek Vermette Derek Vermette December 3, 2020 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 RPD Hearing Transcript, at p. 8, line 16 to p. 9, line 21. 3 RPD Hearing Transcript, at p. 10, line 23 to p. 15, line 25. 4 Immigration and Refugee Protection Act, S.C. 2001, c. 27, section 96 and section 97(1). 5 Zeah v. Canada (Citizenship and Immigration), 2020 FC 711, at paras. 61-62. 6 RPD Hearing Transcript, at p. 17, line 29 to p. 18, line 46. 7 Exhibit RPD-1, RPD Record, Basis of Claim Narrative, at p. 2: "But after I start to have more feeling for men I knew I liked men. However, I couldn't admit it to anyone as I was scared of consequence. Been gay or bisexually is a taboo in my country and most of Africa countries." See also RPD Hearing Transcript, at p. 18, line 48 to p. 19, line 31; and RPD Hearing Transcript, at p. 26, line 39 to p. 27, line 18. 8 Pulido Ruiz v. Canada (Citizenship and Immigration), 2012 FC 258, at para. 61. 9 See as analagous the discussion of student visas and sailor's papers in El Balazi v. Canada (Minister of Citizenship and Immigration), 2006 FC 38, at paras. 7-10. 10 RPD Hearing Transcript, at p. 15, line 16 to 43. 11 RPD Hearing Transcript, at p. 15, line 45 to p. 17, line 27. 12 Bobic v. Canada (Minister of Citizenship and Immigration), 2004 FC 1488, at para 6. 13 Ortiz Garzon v. Canada (Citizenship and Immigration), 2011 FC 299, at para. 30. 14 Baykus v. Canada (Citizenship and Immigration), 2010 FC 851, at para. 19. 15 Dowansingh v. Canada (Citizenship and Immigration), 2015 FC 933, at para. 18. 16 Singh v. Canada (Citizenship and Immigration), 2009 FC 1070, at para. 21. 17 Exhibit RPD-1, RPD Record, Fax dated October 4, 2019, from XXXX counsel, p. 138. 18 RPD Hearing Transcript, at p. 5, line 11 to p. 6, line 28. 19 RPD Hearing Transcript, at p. 28, lines 15-35. 20 Ogaulu v. Canada (Citizenship and Immigration), 2019 FC 547, at paras. 18-20. 21 Gebetas v. Canada (Citizenship and Immigration), 2013 FC 1241, at paras. 26-29. 22 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Effective May 1, 2017, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. 23 RPD Hearing Transcript, at p. 29, lines 11-36. 24 Exhibit RPD-1, RPD Record, Letters from XXXX XXXX XXXX XXXX and XXXX XXXX, at pp. 103-107. 25 Exhibit RPD-1, RPD Record, Photographs of XXXX with others, at pp. 108-120. --------------- ------------------------------------------------------------ ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-08820 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français