TB8-16398

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 : TB8-16398 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 Toronto, ON Appel instruit / entendu à Date of decision December 20, 2018 Date de la décision Panel Harold Shepherd Tribunal Counsel for the person(s) who is(are) the subject of the appeal Fernando Monge-Loria 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 BACKGROUND [1] The appellant, XXXX XXXX XXXX XXXX is a twenty-three-year old citizen of Nigeria who seeks refugee protection on the basis of bisexuality and lack of psychiatric services in his home country. He was admitted to Canada on XXXX XXXX, 2016 with a student visa issued on July 15, 2016 and filed his Basis of Claim (BOC) form on November 15, 2016. The Refugee Protection Division (RPD) conducted two hearings: the first on February 19, 2018 and the resumption on May 16, 2018. By decision dated June 20, 2018, his claim was denied because the panel concluded that his testimony is not credible. This is an appeal of that decision. THE RAD'S STANDARD OF REVIEW [2] The RPD's decision was reviewed on a standard of correctness. No issue was identified to which deference should be shown because the RPD had a meaningful advantage over the Refugee Appeal Division (RAD).1 The Issues [3] The appellant sought to admit new evidence in the form of a psychological report and affidavits. [4] Counsel identified credibility as being the determinative issue. He submits that the RPD erred in not assessing the psychological evidence properly before concluding that the appellant is not credible and that the affidavit of his mother, XXXX XXXX, was fraudulent. [5] Counsel did not challenge the RPD's finding that risk solely attributable to the lack of psychological or psychiatric services in Nigeria has no nexus in itself to the Refugee Convention and is excluded from the definition of a person in need of protection because it is a generalized risk described in paragraph 97(1)(b)(iv) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [6] The Refugee Appeal Division allows the appeal and substitutes the determination that the appellant is a Convention refugee, pursuant to paragraph 111(1)(b) of the IRPA. New Evidence [7] The psychiatric report of Dr. XXXX XXXX, dated XXXX XXXX, 2018 is admitted as new evidence.2 The psychiatric assessment was conducted after the rejection of the claim. The issue of the availability of such a report was addressed during the hearing. Counsel explained that she made best efforts to attempt to obtain a psychological report before the hearing but was unable to do so. This included communications with social workers and with the Centre for Addiction and Mental Health, but to no avail. Counsel provided a reasonable explanation as to why it was not possible to obtain one. As a result, it was not reasonably available and could not reasonably have been expected to be presented before the rejection of the claim. [8] The psychiatric report includes a paragraph that outlines the professional credentials of Dr. XXXX as an experienced psychiatrist. The document comes from a reliable source. Second, it is relevant to the issue of credibility. The RPD panel determined that the appellant is not a credible and trustworthy witness. This report directly addresses this finding. Third, it is new in that it can establish facts with respect to the appellant's mental state that were unknown to the RPD and could contradict the finding that he is not bisexual.3 [9] An affidavit from counsel's legal assistant, Anirudh Nathan, dated August 2, 2018, is not admitted pursuant to subsection 110(4). The document provides details about the failed attempt to obtain a psychiatric report from Dr. XXXX. Although this relates to initiatives that took place after the rejection of the claim, this information fails to meet the relevance test of the Singh/Raza factors because it is not capable of proving or disproving a fact that is relevant to the claim itself. It concerns a report that was never obtained. In addition, it does not address the question of the timing of Dr. XXXX psychiatric report. The transcript of the hearing is not new evidence, pursuant to subsection 110(4), but is admissible as part of the Appellant's Record in accordance with RAD Rule 3(3)(b). The Appellant's Submissions [10] Counsel submits that the report of a registered psychotherapist, XXXX XXXX, was not fully taken into consideration. Of particular note is the diagnosis that Mr. XXXX has cognitive problems that include racing thoughts, difficulty in understanding questions, and an inability to recall specific details or to formulate coherent responses. Because the problems are stress-related, it could become more difficult for him to give clear and consistent testimony in the context of a refugee hearing. Although the psychological report was briefly mentioned on a few occasions, no meaningful discussion of its applicability was conducted. The RPD panel concluded that Mr. XXXX lacked credibility in his testimony about inconsistencies between his student visa application and his refugee claim documentation. In addition, his description of his relationship with his boyfriend, XXXX, was superficial. Counsel submits that the RPD panel erred in not engaging in a meaningful assessment of the evidence in light of the psychological report. [11] The RPD panel concluded that the affidavit from XXXX XXXX is likely fraudulent. Three reasons were given to support this conclusion. First, the affidavit states that she overheard the argument between her son and XXXX on XXXX XXXX, 2016. Mr. XXXX testified that this took place after he received his Canadian student visa on July 15, 2016. The panel categorized this as a contradiction that puts the authenticity of the affidavit into question. Second, information in a Response to Information Request (RIR) asserts that it would be dangerous to swear an affidavit in Nigeria that admits to homosexuality.4 Counsel cites the Federal Court case of Gbemudu5 to submit that the RPD panel erred in giving too much credence to this RIR. The affidavit was sworn for use in Canada, not Nigeria, and it contained information that was general knowledge within the community. Third, the RPD panel relied on an RIR that states that fraudulent documents are easily obtained in Nigeria.6 Counsel cites the Oranye7 decision of the Federal Court to submit that this factor alone cannot be used to reject the authenticity of a document. Specific problems with it would need to be cited. Counsel also refers to the X.Y. decision to argue that such a finding must be made in comparison to an authentic sample document.8 [12] Counsel asks the RAD to either vacate the decision and substitute a positive determination or send the claim back to the RPD for redetermination. No oral hearing was requested. Was Mr. XXXX Afforded Procedural Fairness at the Hearing? [13] I listened to the digital recording of both sittings of the hearing in addition to reading the RPD record and the Appellant's Record. [14] The RPD panel did not err in concluding that the psychological evidence did not establish a severe impairment in ability to present one's claim that would warrant a vulnerable person designation. The panel considered the legal requirements for the designation in light of extensive questioning on non-substantive issues before determining that it was not required. The panel then exercised its discretion to accept the accommodation proposed by counsel, namely, that the order of questioning be reversed in some places. In addition, the panel offered to allow frequent breaks, if requested. Procedural fairness was extended to the appellant, and the vulnerable person application was correctly denied. Did the RPD Panel Err in Drawing an Adverse Credibility Inference from Inconsistencies with the Student Visa Application? [15] The RPD panel erred in concluding that inconsistencies between the student visa application and the refugee claim documents can support an adverse inference that extends to Mr. XXXX overall credibility as a witness. The student visa application form indicates that he studied at XXXX XXXX XXXX from XXXX 2014 to XXXX 2016 in a XXXX XXXX diploma program.9 However, his Schedule A form states that he completed six years of secondary school education in 2014 with no subsequent education.10 According to the Global Case Management System (GCMS) notes, the visa officer reviewed the application and supporting documents and was satisfied that he is a genuine student.11 This application to study in Canada was made before Mr. XXXX sexual orientation was disclosed. His explanation for the discrepancy is that his mother completed the paperwork, not him. As a result, he does not know what documents she filed and what educational accomplishments she included in the application. Either his mother misrepresented his education for reasons known to her or the applicant chose to downplay his education for purposes of his refugee claim. [16] Although minor inconsistencies should not lead to adverse inferences, those that are material to the claim may be taken into account.12 Although Mr. XXXX level of education is not directly relevant to the question of his sexual orientation, it is material for purposes of his social vulnerability and internal flight alternative (IFA). A deliberate attempt to mislead about his public profile could legitimately be taken into account, absent a reasonable explanation. The student visa application was made before the emergence of any problem. His statement that he was not aware of the content because his mother completed the form is difficult to reconcile with a visa application that was supported by documentation found to be authentic by the visa officer. It would be difficult to forget that one studied at XXXX XXXX XXXX for two years after high school. This is not a minor detail that could easily be forgotten. On the other hand, Mr. XXXX mother may have misrepresented his academic qualifications in order for him to be admitted for study at a Canadian institution. [17] The RPD panel did not take the psychoanalytical report into consideration before reaching an adverse credibility inference on this issue. The report states that stress is a contributing factor. If Mr. XXXX was the one who misrepresented the facts in the Canadian claim documentation, the issue of stress is not an adequate explanation. Given that he is represented by counsel, this could have been corrected. [18] Although material to the claim, the significance of Mr. XXXX level of education is not of great significance with respect to the ultimate determination of his claim. Country conditions are adverse for members of sexual minorities in Nigeria. His education would not likely provide him greater protection or an enhanced internal flight alternative. It is unclear who was responsible for the misrepresentation, Mr. XXXX or his mother. [19] Although it is fair to take this issue into consideration in light of all of the evidence and any adverse credibility findings, it is insufficient in itself to refute the presumption that his testimony is truthful. Did the RPD err in concluding that the Affidavit of XXXX XXXX is likely fraudulent? [20] Mr. XXXX was accepted to study at the University of Regina on XXXX XXXX XXXX 2016. He then applied for a Canadian student visa on May 4, 2016 that was issued on July 15, 2016.13 According to Mr. XXXX BOC narrative and testimony, the incident with XXXX at his house took place after his student visa was issued. Her affidavit states that she overheard them talking about how their relationship would change after he leaves to study in Canada. This is consistent with Mr. XXXX testimony. Reference to March 20, 2016 is incorrect, but minor, given the corroborating statement found elsewhere in the affidavit. [21] The form of the affidavit is consistent with information contained in the National Documentation Package.14 It contains a wet stamp, crimped seal, and photographs that have been stamped by the notary public. [22] Response to Information Request NGA105379.E states that it is not a standard practice to obtain affidavits about one's sexual orientation, nor would such documents be needed in Nigeria. People would not normally incriminate themselves by swearing that they have violated the law. Fear of exposure inhibits the swearing of such affidavits, either by the person concerned or by others.15 The affidavit in question was obtained for use in Canada, not Nigeria. Both the police and members of the community were already aware of Mr. XXXX sexual orientation. Ms. XXXX did not admit to violating any Nigerian law in her affidavit. The information contained in NGA105379.E does not support the conclusion that the affidavit is likely fraudulent. [23] Federal Court jurisprudence is clear that the mere fact that fraudulent documents are readily available in Nigeria does not establish that a document filed by a claimant is likely fake. Reasons would need to be given based on problems specific to the document. The form of the affidavit is consistent with what one would expect based on documents 6.10 and 9.8 in the NDP. No problems have been identified on the face of the document. One minor inconsistency with respect to the date that is offset elsewhere in the affidavit is insufficient to declare the document to be fraudulent. I have no good reason to doubt that Mr. XXXX mother is indeed the author of the affidavit. [24] There is a distinction between the authenticity of an affidavit and the trustworthiness of its content. In this case, the deponent is the appellant's mother who facilitated his trip to Canada to study. The RPD panel did not consider this issue and make findings of fact about it. Although it was drafted by a family member who may have an interest in the outcome of the refugee claim, this is insufficient to conclude that she is not likely telling the truth. The probative value of this affidavit will be considered in light of the overall credibility assessment of Mr. XXXX. Did the RPD err in concluding that Mr. XXXX is not credible about having been in a relationship with XXXX? [25] The RPD's Reasons for Decision state that Mr. XXXX had been in a six-year relationship with XXXX that began in XXXX 2010. Notwithstanding this length of time, he could not remember how old he or XXXX were when they met. Although they met through his cousin XXXX, he did not know how those two met and how long they had been friends. Mr. XXXX did not know where XXXX was living. When asked to describe XXXX through the use of an open-ended question, he responded by saying little more than he was his boyfriend who came to visit. In response to a question about their first kiss, he repeated what is written in the BOC narrative without meaningful additional details. When asked about a memory of XXXX, he talked about playing games at the carnival. Finally, he contradicted himself when he testified at the first sitting that he had been in a relationship with a girl named XXXX when he was 18 or 19, but, at the second sitting, that he was in an exclusive relationship with XXXX. [26] Mr. XXXX testified at the first sitting of the hearing that he dated a woman named XXXX when he was about 18 or 19. He did not mention this in his BOC narrative because it did not relate to his relationships with men. He testified at the resumption that he was in a committed and exclusive relationship with XXXX. When the RPD panel asked how he could be in an exclusive relationship if he was also dating XXXX, he responded by saying that these two relationships took place at different times. [27] According to the BOC, Mr. XXXX met XXXX after the death of his father in 2010. A death certificate shows that his father died on XXXX XXXX, 2010.16 Given that he was born in XXXX 1995, he was 14 years old at the time. His six-year relationship with XXXX from 2010 until 2016 included the period when he was 18 or 19. Mr. XXXX did not testify that he interrupted his relationship with XXXX during this six-year period, including in his late teenage years. The RPD panel did not err in concluding that Mr. XXXX testimony is inconsistent on this point. [28] Mr. XXXX testified that he does not know anything about XXXX background, nor where he lives. He knows nothing about his parents. He stated that XXXX finished high school and works, but he is unaware of what he does. They would communicate by phone and meet at Mr. XXXX place. When asked about a memory of him, reference was made to dancing at a carnival. The RPD panel asked directed questions about the first time they kissed and received direct answers about this issue. Given the allegation that Mr. XXXX was in a six-year committed relationship with XXXX, the lack of basic details about his background, family, and employment indeed raises questions about the alleged relationship. Although the reports from the psychotherapist and psychiatrist explain to some degree of forgetfulness due to stress, this does not adequately explain this total lack of knowledge about basic aspects of XXXX life. The RPD panel did not err in drawing an adverse inference from this. [29] When asked for a memory of what they did together, Mr. XXXX was able to respond by reference to attending a carnival and playing soccer together. Specific questions about their first kiss were met with specific answers that were coherent with the BOC narrative. Additional questions were not asked about what they did together. Mr. XXXX responses with respect to information obtained through direct contact with XXXX were consistent and reasonable. Other Considerations [30] Mr. XXXX arrived in Canada on XXXX XXXX, 2016 with a permit to study at the University of Regina. According to his BOC narrative, his brother was supposed to book a ticket from Toronto to Regina the next day. When he tried unsuccessfully to contact his brother, his mother told him that his brother was no longer willing to buy the ticket because of his sexual orientation. This scenario is inherently implausible. He was travelling from Nigeria to Regina to begin studies in that city. Toronto was a transit stop, not the final destination. The idea that he had a ticket with Toronto as the final destination and that he would then pick up another ticket to Regina at the airport in Toronto the day before the flight does not correspond with how such arrangements are made in the ordinary course of events. Although exceptional circumstances could explain it, no such clarification is evident on the facts of the case. [31] After leaving the airport, he was taken to a shelter operated by XXXX XXXX XXXX. He first attended a meeting of Black CAP on XXXX XXXX, 2016, the Metropolitan Community Church (MCC) on XXXX XXXX XXXX 2016, the 519 Community Centre in XXXX 2016, and the FCJ Refugee Centre in XXXX 2016. He was also referred to the Canadian Centre for Victims of Torture for counselling on XXXX XXXX, 2016.17 First contact with Black CAP took place XXXX days after his arrival. His refugee claim documents were signed on October 7, 2016. He has not attended any of these institutions "in a while." A more specific time-frame was not solicited. In response to a question by counsel, Mr. XXXX stated that he stopped attending because each time he went, people were talking to him. Additional questions were not asked to clarify this response. The testimonial letter from the 519 Community Centre describes Mr. XXXX role as a volunteer at a donation drive. He "worked in a fast paced environment requiring a high level of enthusiasm, exceptional customer service skills, and meticulous attention to detail."18 The record of the hearing does not provide a plausible explanation as to why he stopped attending. [32] The report from the psychotherapist was signed on XXXX XXXX, 2018 based on a recent interview. The results of the interview showed symptoms of depression, hopelessness, irritability, guilt. He was diagnosed with impaired cognitive functions. Youth Without Shelter referred Mr. XXXX to the Canadian Centre for Victims of Torture on XXXX XXXX, 2016 for counselling.19 Counsel raised the issue of Mr. XXXX psychological issues at the beginning of the hearing in support of a vulnerable person designation. [33] New evidence has been filed that provides more details about Mr. XXXX psychological state. Dr. XXXX XXXX is a psychiatrist who diagnosed him as suffering from severe and chronic Post-Traumatic Stress Disorder (PTSD), severe and chronic Major Depressive Disorder (MDD), and psychosis. In his professional opinion, trauma, abandonment by family and mental health issues likely significantly impaired his ability to testify at the hearing. A disorganized presentation can be indicative of the disorganizing effect of trauma on the human brain. Traumatized people often appear to be tentative, disorganized and forgetful, especially when they are anxious or reminded of their traumatic past. Dr. XXXX reports that Mr. XXXX left the Toronto support groups because he would hear voices and could not focus. Talking about his sexual orientation triggered these voices. In addition, the explanation for remaining in Toronto and not proceeding to Regina was not that he did not have a ticket for the final leg of the journey but that he called his mother from Toronto and was informed that his brother refused to provide financial support for his studies. This is the reason that he decided to stay in this city. Testimony elicited from the psychiatrist is inherently more plausible than the versions of events described at the hearing. Assessment [34] The RPD panel correctly identified serious problems with Mr. XXXX testimony. Vagueness and inconsistencies were noted and used to support a determination that he is not a credible and trustworthy witness. This finding was extended to all of his evidence. His mother's affidavit was determined to be fake and his intimate relationships with men to be fabricated. [35] Although I conclude that the affidavit in question was likely sworn by his mother, the credibility of what she says needs to be assessed in light of Mr. XXXX overall reliability. After reviewing all of the evidence, I conclude that the appellant has not established, on a balance of probabilities, that he was in a relationship with XXXX for six years. First, he testified that he dated XXXX when he was 18 or 19 (2013-2014), but also that he was in an exclusive, committed relationship with XXXX from 2010 until 2016. Both statements cannot be true. Second, his knowledge about XXXX is not consistent with someone who was in a serious relationship for six year. Mr. XXXX was not likely telling the truth about the length and nature of this relationship. [36] Mr. XXXX explanation for not going to Regina (his brother did not buy the ticket) is not likely true. [37] Although I agree with the RPD panel that there are serious credibility concerns with Mr. XXXX testimony, the psychological evidence must be taken in account. Although it does not rehabilitate the lack of substantive details that are not related to stress in the hearing room, it does provide a context to help understand what happened. [38] The affidavit from Ms. XXXX is generally consistent with information found in the BOC, oral testimony and in what he related to Mr. XXXX. Despite the credibility concerns identified above, the psychological evidence provides sufficient context to conclude that some of the underlying issues may be related to his mental health. Credibility problems largely concerned the length and depth of the relationship, not that XXXX was a casual friend whom he spent time with over a shorter period of time. In light of this, I have no good reason to doubt that his mother provided truthful testimony. She mentions that she became suspicious of the relationship between her son and XXXX. After she pretended to leave the house, she overheard the two arguing about what would happen to their relationship after her son went to Canada to study. She informed her oldest son, XXXX, who in turn told XXXX and his cousin, XXXX, to stay away from Mr. XXXX. XXXX was upset and told a religious leader about this, who in turn informed the police. By then, Mr. XXXX was already in Canada. Community leaders and the police went to their home on XXXX XXXX XXXX 2016. She and XXXX were the ones who made the plans for the appellant to study in Canada. After the family became aware of his sexual orientation, XXXX refused to provide the promised financial support for his studies. Ms. XXXX does not say how long her son was friends with XXXX. [39] When all of the evidence is considered together, a likely scenario emerges. Mr. XXXX family decided that he should study in Canada. His mother and older brother filled out the application and filed it with supporting documents. After the visa was issued, Mr. XXXX got into an argument with XXXX about what would happen to their relationship after he left the country. This was overhead by his mother who then informed his older brother about his sexual orientation. This information was then passed on to his cousin, a religious leader, and to the police. As this was unfolding, Mr. XXXX flew to Canada on the first leg of the flight to Toronto. Upon arrival, he called his mother to find out what was going on. Upon being informed that he could expect no further financial support from the family, he found his way to a Toronto shelter rather than proceed to Regina. He began joining LGBTQI support groups in Toronto about two weeks later. Psychological problems became apparent at an early stage that included PTSD, MDD, and psychosis. After he started hearing threatening voices in Yoruba when he attended Toronto events in the support community, he dropped out. The stress of the two sittings of the refugee hearing caused a degree of confusion during his testimony. Nevertheless, this does not explain everything for reasons previously stated. He likely embellished his testimony about the length of his relationship with XXXX. The panel gives more weight to information found in the visa application that was filed before the problem arose than to Mr. XXXX representation about his education that was found in his refugee claim documents. He likely failed to disclose fully his education. [40] The determinative issue is not whether he was in a relationship with XXXX for six years or whether he has two years of post-secondary school education. The important question to be answered is whether Mr. XXXX is likely a bisexual. Secondly, his public profile must be considered on a forward-looking basis. Refugee law does not expect people to conceal their sexual orientation in order to be safe.20 [41] In light of all of the evidence, I conclude that Mr. XXXX is likely bisexual and that this has likely come to the attention of his family and his community in Nigeria. Although his testimony about the nature and duration of his relationship with XXXX is not reliable in all respects, I have no good reason to doubt that the two of them were involved in some form of close relationship that led the community to perceive them as being homosexual. [42] There is a nexus between Mr. XXXX risk and the definition of a Convention refugee because sexual orientation is an innate or unchangeable characteristic that engages a fundamental human right.21 Canadian jurisprudence on this point has been accepted as settled law in the SOGIE Guidelines.22 [43] The risk rises to the level of persecution because treatment in Nigeria would involve a sustained or systemic denial of core human rights.23 First, Mr. XXXX would be at risk from the police as outlined in RIR NGA105321.E.24 The Nigerian Criminal Code Act provides for a prison term not exceeding seven years for engaging in a carnal act against nature, or three years for gross indecency.25 The 2014 Same Sex Marriage Prohibition Act (SSMPA) makes supporting or promoting sexual diversity illegal. A November 2016 Response to Information Request quotes sources that document arrests by the police, including those made on arbitrary grounds.26 Arrests are sometimes used for purposes of blackmail and extortion. Sexual minorities report that they had been humiliated, physically abused and tortured while in police custody. [44] The United States Department of State Report provides consistent information that arrests continue.27 Since passage of the SSMPA, harassment and threats increased on the basis of sexual orientation or advocacy in support of the sexual diversity. Although there have been numerous arrests, there has been no evidence of prosecutions related to the SSMPA. Prosecutions are typically conducted under other public order provisions of the criminal law. Human Rights Watch reports that those arrested can be subject to torture, sexual violence, extortion, arbitrary detention, and lack of due legal process. [45] Nigerian society is generally homophobic. According to a 2014-2015 study, only about 16% of Nigerians accept homosexuality.28 Politicians use this issue to hold themselves out as being defenders of traditional African values against ones brought by colonial powers. The passage of the SSMPA led to an increase in stigmatization and homophobic violence. This has led to an increased fear to seek medical care or places to socialize because of non-conforming gender identity or expression. Those who do not conceal their sexual orientation risk blackmail, extortion, rejection and violence, both at home, at work, or at school. Hostility is sometimes led by religious leaders. [46] Bisexuality is not distinguished from homosexuality in the eyes of the police or of the community.29 [47] Given that Mr. XXXX sexual orientation is likely public knowledge, he faces a serious possibility of arrest, assault, blackmail and detention without due legal process. In addition, this would risk rejection by the community, violence and discrimination when attempting to access public services. Both on acute and cumulative grounds basis, this treatment reaches the level of persecution as understood in refugee law. [48] Given the complicity of the police, state protection is not available. The risk at the hands of both the police and the general public extends throughout the country. He does not have an internal flight alternative. [49] Return of Mr. XXXX to Nigeria would expose him to a serious possibility of persecution as understood in section 96 of the Act. DETERMINATION [50] The Refugee Appeal Division sets aside the decision of the Refugee Protection Division and substitutes its determination that the appellant is a Convention Refugee in accordance with paragraph 111(1)(b) of the IRPA. [51] This appeal is allowed. (signed) "Harold Shepherd" Harold Shepherd December 20, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93 (CanLII). 2 IRPA, subsection 110(4). 3 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 4 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Nigeria (November 30, 2017), item 6.14, Immigration and Refugee Board (IRB), Response to Information Request (RIR) NGA105653.E, November 18, 2016. 5 Gbemudu, Richard Obiajulu v. Canada (Minister of Immigration, Refugees and Citizenship) (F.C., no. IMM-4320-17), Russell, April 26, 2018, 2018 FC 451, at para. 81. 6 Exhibit RPD-1, RPD Record, NDP for Nigeria (November 30, 2017), item 3.23, IRB, RIR NGA104617.E, "False documents available in Nigeria and from Nigeria," November 13, 2013. 7 Oranye, Onajite Rosemary v. Canada (Minister of Immigration, Refugees and Citizenship) (F.C., no. IMM-3178-17), Ahmed, April 11, 2018, 2018 FC 390. 8 X.Y. v. Canada (Minister of Immigration, Refugees and Citizenship), 2018 FC 290, at para. 28. 9 Exhibit RPD-1 ,RPD Record, p. 216. 10 Exhibit RPD-1, RPD Record, p. 44. 11 Exhibit RPD-1, RPD Record, p. 98. 12 Mahathmasseelan, Malathy v. M.E.I., (F.C.A., no. A-555-90), Desjardins, Mahoney, Linden, November 4, 1991. Reported: Mahathmasseelanm v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 29 (F.C.A.). 13 Exhibit RPD-1, RPD Record, pp. 58, 60, 210. 14 Exhibit RPD-1, RPD Record, NDP for Nigeria (November 30, 2017), item 9.8, IRB, RIR NGA106019.E, "Requirement for lawyers to affix stamps on legal documents; validity of documents issued without stamps" (2015-November 2017), November 23, 2017; and item 9.2, IRB, RIR NGA104978.E, "Requirements and procedures for the issuance of affidavits; availability of fraudulent affidavits", November 4, 2014. 15 Exhibit RPD-1, RPD Record, NDP for Nigeria (November 30, 2017), item 6.10, IRB, RIR NGA105379.E, "Nigeria: Whether a Commissioner of Oaths or a notary public would notarize a statement or swear an affidavit in which an individual admits to being bisexual or homosexual, or to knowing of someone's sexual orientation; documentation taken by police upon arrest for same-sex activity (2014-December 2015).", January 7, 2016. 16 Exhibit RPD-1, RPD Record, p. 180. 17 Exhibit RPD-1, RPD Record, pp. 170, 171, 176, 177 and 178. 18 Exhibit RPD-1, RPD Record, p. 171. 19 Exhibit P-2, Appellant's Record, p. 139; and Exhibit RPD-1, RPD Record, p. 177. 20 Fosu Atta, Frank v. Canada (Minister of Immigration, Refugees and Citizenship), (F.C., no. IMM-935-08), Zinn, October 8, 2008, 2008 FC 1135. 21 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. 22 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. 23 Ward, supra, footnote 21. 24 Exhibit RPD-1, RPD Record, NDP for Nigeria (November 30, 2017), item 6.1, IRB, RIR, 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)", November 13 2015. 25 Criminal Code Act, Chapter 21, sections 214 and 217. 26 Exhibit RPD-1, RPD Record, NDP for Nigeria (November 30, 2017), item 6.13, IRB, RIR NGA105655.E, "Nigeria: 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 is being pursued or investigated is provided with or can obtain a copy of documents pertaining to the case from the police (2014-October 2016)", November 11, 2016. 27 NDP for Nigeria (November 30, 2018), item 2.1, United States Department of State, "Nigeria: Country Reports on Human Rights Practices for 2017", April 20, 2018. 28 Exhibit RPD-1, RPD Record, NDP for Nigeria (November 30, 2017), item 6.6, Gouvernement du Québec, Ministère de l'immigration, de la diversité et de l'inclusion, "Réalités juridiques et sociales des minorités sexuelles dans les principaux pays d'origine des personnes nouvellement arrivées au Québec, Guide d'information, July 7, 2017. 29 Exhibit RPD-1, RPD Record, NDP for Nigeria (November 30, 2017), item 6.7, IRB, RIR NGA105219.E, "Information on how bisexuality is understood and perceived in Nigeria; whether bisexuality is distinguished from both male and female homosexuality (2014-June 2015)", September 9, 2015. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-16398 RAD.25.02 (September 18, 2018) Disponible en français 16 RAD.25.02 (September 18, 2018) Disponible en français