TC3-07618

RAD File / Dossier de la SAR : TC3-07618 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Date of decision June 1, 2023 Date de la décision Panel E. Bobkin Tribunal Counsel for the person who is the subject of the appeal Nicholas Owodunni 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] I allow the appeal of XXXX XXXX XXXX (the Appellant), a citizen of Nigeria. [2] The Appellant alleges he is bisexual. He alleges that he has had two same-sex relationships in Nigeria. He also says that he was pressured to marry a woman and did so. The Appellant alleges that his most recent same-sex partner was arrested and disclosed their relationship. Based on this, he fled Nigeria and made a refugee claim. [3] The Refugee Protection Division (RPD) found that the Appellant lacked credibility. Specifically, the RPD found that the Appellant's testimony about his two same-sex partners was vague. The RPD found that the corroborating documents did not overcome this. [4] The Appellant argues that the RPD erred. He argues that it is an error to ask SOGIESC individuals to hide their identity. He also argues that corroborating evidence may not be available. Ultimately, he argues that the RPD did not apply the SOGIESC Guideline.1 He also argues that it was incorrect to discount corroborating documents because they were notarized. Finally, he argues that his membership in the LGBTQ community in Toronto should be given more weight. The Appellant has not submitted new evidence, nor has he requested an oral hearing. [5] I find the RPD's decision is incorrect. On an independent assessment of the evidence, I find errors that arise perceptibly, though the Appellant's Counsel did not raise them. First, while I agree that the Appellant was vague about his testimony about his partners, I find that the RPD did not consider the totality of the evidence. I find that there was credible evidence of the Appellant's sexual orientation, and the RPD did not weigh this against the vague testimony. I find that there were no material inconsistencies and omissions, and the Appellant has met the standard of proof required in a refugee claim. I therefore find that he is a Convention refugee as it is trite that members of sexual minorities face a risk of persecution. [6] I did not give notice to the Minister of Immigration, Refugees and Citizenship Canada (Minister) that I was considering the remainder of the Convention definition, as, in my view, this does not meet the test in Alazar. Given the certainty in the evidence regarding the risks to SOGIESC persons in Nigeria, my findings flow from overturning the credibility determination. DECISION [7] The appeal is allowed. I set aside the determination of the RPD and substitute my own decision that the Appellant is a Convention refugee. ANALYSIS [8] My role is to look at all the evidence and decide if the RPD made the correct decision.2 I find that the RPD's decision is not correct. The RPD did not weigh the totality of the evidence: the Appellant is credible, on a balance of probabilities [9] Reviewing the evidence on the record, I find that the Appellant has established his allegations, on a balance of probabilities. This includes that he is a bisexual man and that he is wanted in Nigeria because of the discovery of his same-sex relationship. On an independent assessment of the evidence, the Appellant's vague evidence does not undermine his credibility [10] The RPD found that the Appellant was vague in his testimony about his two same-sex partners. I find that the RPD's decision in this regard was nuanced and sensitive to the SOGIESC Guideline. [11] Nevertheless, the Refugee Appeal Division's (RAD's) standard of review is one of correctness. I take a different view of the Appellant's explanation that he still felt afraid and had difficulty giving his testimony. I accept that, given his history growing up in a country where same-sex relationships are considered an abomination, it would be difficult to testify openly in detail about these relationships. [12] Therefore, I find that the vagueness in the testimony about his partners does not undermine the Appellant's credibility. [13] Moreover, as I will discuss below, even if I were to confirm the RPD's findings on vagueness, I do not find that these are sufficient concerns to conclude that the Appellant is not credible, on a balance of probabilities. The RPD did not weigh the vague testimony against the remainder of the testimony [14] The RPD's decision focuses only on the vague testimony and does not weigh it against the credible testimony. Reviewing the record in its totality, there was substantial credible evidence. [15] First, there were no material inconsistencies between the testimony and the Basis of Claim form (BOC). There were also no material omissions from the BOC or the testimony. The RPD did not mention this in its decision. [16] Second, and more significant, reviewing the testimony, I found it contained details which had a ring of truth. For example, the Appellant was able to explain how he managed to make a long-term same-sex relationship work in secret, while remaining married. He explained that he kept his boyfriend separate in a different state where he could plausibly be working. He also testified that, when his wife and children came to visit him, his boyfriend would go out of the house and sleep elsewhere. [17] Additionally, the Appellant testified about the pressure to marry and why he got married and why his boyfriend did not. He explained that, as the oldest male child, there was significant pressure for him to marry. He testified that his boyfriend was not the firstborn son, and therefore he did not have the same pressure to marry and did not do so. [18] I find these details to be compelling. The RPD made no mention of this, or of any other testimony. Based on the RPD's reasons, it seems that the only reason for the negative credibility decision was the vague testimony about the relationships. The RPD makes the negative findings and then goes on to state that documentary evidence does not overcome these findings. [19] The standard of proof in a refugee claim is a balance of probabilities. The RPD did not explain how the two negative credibility findings on vagueness are sufficient to outweigh the other credible testimony. In my view, they are not. Even if I accept that the Appellant was unreasonably vague in discussing his boyfriends, I find this vagueness is outweighed by the fact that his testimony is otherwise credible and consistent, and he gave details with the ring of truth. [20] Furthermore, as I will discuss below, I also find that there was documentary evidence which supports the Appellant's credibility. The documentary evidence supports the claim [21] The RPD found that the documentary evidence did not outweigh the credibility concerns. Again, I disagree. As explained above, I find that the credibility concerns were either minor in comparison with the credible testimony, or were incorrect findings. Therefore, I do not find that they are sufficient to outweigh the documentary evidence. [22] I accept that the Appellant's participation in the LGBTQ community in Toronto supports his alleged sexual orientation. [23] Regarding the affidavits from friends and family, I agree with the RPD that they are of limited weight given that they rely largely on reporting from the Appellant. I also agree that they are unusual in that they are sworn affidavits dealing with same-sex relationships which would be rare in Nigeria. I find these to be of limited weight, but they support the allegations. Conclusion on credibility: the allegations are established, on a balance of probabilities [24] Based on the Appellant's testimony, and his evidence of participation in the LGBTQ community in Canada, I accept his allegations as credible, on a balance of probabilities. I find that he has established that he is bisexual and that his same-sex partner was arrested and killed. I find that he has established that his sexual orientation has been exposed as a result. The Appellant meets the test for Convention refugee status [25] I find that the Appellant faces a serious possibility of persecution based upon his sexual orientation. Sexual orientation is a particular social group which has a nexus to the Convention. [26] The objective evidence in the National Documentation Package (NDP) indicates that, "harassment, threats, discrimination, and incidents of violence" against LGBTQI+ persons continue to be reported.3 State actors are reported to be involved in more than 10 percent of these incidents.4 A mere allegation or accusation of same-sex activity is often sufficient for arrest and detention.5 Sexual minorities face persecution in Nigeria from the state as well as members of the community, ranging from extortion and mob violence to death.6 Based upon this, I find that the Appellant faces a serious possibility of persecution based upon his sexual orientation. [27] Regarding state protection, I find that it would be objectively unreasonable for the Appellant to seek the protection of the Nigerian state. Nigerian authorities are known to target sexual minorities, as described above. The Appellant's evidence is that his same-sex partner was arrested, and their relationship is known to authorities. Therefore, the state is one of the agents of persecution in this claim. [28] I also find that there is no internal flight alternative (IFA) for the Appellant. Given that the country evidence of the treatment of sexual minorities is country-wide, and given that persecution comes from the state, I find that the Appellant faces more than a mere possibility of persecution throughout Nigeria. [29] For these reasons, the Appellant meets the definition of a Convention refugee. I did not give notice to the Minister that I would consider the remainder of the Convention definition. I considered whether "the case has materially shifted away from the RPD's decision and the appeal as it was framed by the [person subject to the appeal]"7 such that procedural fairness requires me to notify the Minister before rendering my decision. Given that the state is one of the agents of persecution in Nigeria, and the country documents on the treatment of sexual minorities are quite clear, I find that the case has not materially shifted. It naturally flows from a decision to overturn the credibility findings that the remainder of the test is met. CONCLUSION [30] The appeal is allowed. I set aside the determination of the RPD and substitute my own decision that the Appellant is a Convention refugee. (signed) Erin Bobkin E. Bobkin June 1, 2023 Date 1 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics: issued by the Chairperson, pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act (IRPA), effective date: May 1, 2017; Revised: December 17, 2021. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 NDP for Nigeria (November 30, 2022), Item 2.1, United States (US), Department of State (DOS), Nigeria: Country Reports on Human Rights Practices for 2021, April 12, 2022, p. 51. 4 NDP for Nigeria (November 30, 2022), Item 2.1 (ibid.), p. 51. 5 NDP for Nigeria (November 30, 2022), Item 2.1 (ibid.); Item 6.11, Immigration and Refugee Board of Canada (IRB), "The Situation of Sexual and Gender Minorities in Nigeria (2014-2018)", February 2019; and Item 1.3, European Union, European Asylum Support Office, "EASO COI Meeting Report: Nigeria", August 2017. 6 NDP for Nigeria (November 30, 2022), Item 6.12, United Kingdom Home Office, "Country Policy and Information Note, Nigeria: Sexual orientation and gender identity or expression, Version 3.0", February 2022. 7 Canada (Citizenship and Immigration) v. Alazar, 2021 FC 637, at paras. 74-87. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC3-07618 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français