TB9-00705

RAD File / Dossier de la SAR : TB9-00705 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 Toronto, ON Appel instruit / entendu à Date of decision June 23, 2020 Date de la décision Panel T. Russell Tribunal Counsel for the person who is the subject of the appeal Temitope T. Ayodele 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 this appeal. XXXX XXXX XXXX (Appellant) is a citizen of Nigeria. a. The Appellant alleges a fear of persecution on the basis of her sexual orientation as a bisexual woman. She alleges that her sexual orientation was revealed when her girlfriend's boyfriend discovered intimate photos of them on her laptop. The Appellant had travelled to Canada on a student visa and learned of these events in XXXX 2015, approximately seven months after her arrival. She alleges that following the discovery, police attended at her mother's home. The Appellant fears harm at the hands of the police, as well as her father's family, who have insisted she undergo a cleansing ritual. b. The Appellant filed for refugee protection in XXXX 2015. In XXXX 2016, she met her now husband; they married in XXXX 2016 and he proceeded to file a sponsorship application for her in 2017 (month unspecified). c. The Refugee Protection Division ("RPD") found that the Appellant's life in Canada did not reflect her allegation that she is bisexual, because she failed to establish her sexual orientation and her fear of return to Nigeria. The panel also found the supporting evidence submitted insufficient to support her allegations, and that the Appellant's delay in claiming protection undermined her credibility. Lastly the RPD found that since the Appellant's husband is sponsoring her, the refugee claim is a delay tactic until her sponsorship goes through. d. The Appellant argues that the RPD erred in its credibility determination and in its assessment of her supporting evidence. e. The determinative issue on appeal is credibility. DECISION [2] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. BACKGROUND [3] There was a hearing of this claim on November 26, 2015 but no reasons were rendered. The file was administratively adjourned de novo on May 22, 2018. On November 12, 2018, the Appellant submitted an amendment to her Basis of Claim Form, updating her narrative. The RPD heard this matter again on November 21, 2018 and dismissed it on December 17, 2018. The Appellant appeals this decision. ROLE OF THE REFUGEE APPEAL DIVISION [4] The Refugee Appeal Division ("RAD") reviews RPD decisions by conducting an independent assessment of the refugee claim. If the RAD's assessment differs from that of the RPD, the RAD may substitute its own decision.1 If the RPD has a meaningful advantage in assessing the credibility of oral testimony, then the RPD's finding will normally be respected and accorded deference.2 Otherwise, the standard of correctness applies.3 [5] In this case, the RPD did not have a meaningful advantage; the evidence is fully captured in the record. Accordingly, I have conducted an independent assessment of the oral and documentary evidence using the correctness standard. I have also considered the Chairperson's Guideline 9 related to sexual orientation and gender identity and expression ("SOGIE Guideline")4 and Guideline 4 related to women refugee claimants fearing gender-related persecution.5 [6] The Appellant is not submitting any new evidence and is not asking for an oral hearing. ANALYSIS [7] For the reasons that follow, I agree with the Appellant that the RPD erred in its credibility assessment in finding that the Appellant is not a bisexual woman. RPD failed to consider and apply SOGIE Guideline [8] I find that the RPD erred by failing to apply the SOGIE Guideline and incorrectly made stereotypical findings that because the Appellant was married, she could not be bisexual. The SOGIE Guideline, at 6.1 states that "[d]ecision-makers should not rely on stereotypes or inappropriate assumptions in adjudicating cases involving SOGIE as they derogate from the essential human dignity of an individual." An example from this section of stereotypes not to be relied on is "[i]ndividuals with diverse SOGIE would not voluntarily enter a heterosexual marriage or have children". [9] I also agree with the Appellant's argument that the RPD was not mindful of the inherent difficulties in proving one's sexuality, especially considering the Appellant's background.6 Section 3 of the SOGIE Guideline discusses the need for decision makers to understand the challenges faced by individuals with diverse SOGIE in establishing their SOGIE. In this case section 3.2 is relevant in that "[a]n individual's testimony may be the only evidence of their SOGIE where, in a given case, corroborative or additional evidence is not reasonably available." Appellant credible with respect to core aspects of claim [10] The RPD did not raise any issues of inconsistency or omissions regarding the Appellant's sexuality. The central issue in the claim is whether the Appellant is a bisexual woman. In my independent assessment of the record, I find the Appellant has established her sexual orientation on a balance of probabilities. [11] I find that the RPD needed to engage with the evidence from the Appellant's family, as well as the testimony of the Appellant's husband to establish whether they believed the Appellant was bisexual. [12] I also find that the Appellant provided a plausible explanation in response to the RPD's question about why she did not practice her sexuality but instead got married and had a child. The Appellant testified that she did not pursue another bisexual relationship in Canada because she was faithful to her girlfriend; she had come for a one-year course and planned to return to Nigeria in XXXX 20157 to continue their relationship. [13] The fact that the Appellant is married does not mean she is not bisexual. I find that her husband's testimony that he believed his wife is bisexual is credible. I found the husband's testimony credible and the RPD did not make any findings as to the credibility of his testimony. I find it credible that the husband would be angry on finding out about his wife's sexuality after they got married because they had not been intimate and it is plausible the Appellant would not disclose it willingly at the beginning of their relationship because of her background.8 [14] I agree with the Appellant's argument that the fact that the husband chose to sponsor the Appellant after meeting and marrying her is a separate claim that does not affect the assessment of her claim for refugee protection.9 I further find that her claim for protection was filed before she met her husband, so this is a weak finding by the RPD. [15] In my independent assessment of the record, including the audio recording of the hearing, I find that the Appellant was consistent in her testimony that she had only one bisexual relationship in Nigeria, that was discovered while she was in Canada undergoing her studies. The Appellant did not claim to have had any other relationship with another female to bolster her claim. I find the consistency in which the Appellant testified, that she had only one female relationship, credible. I find that this disclosure of her diverse SOGIE has resulted in a serious possibility of persecution on the basis of the Appellant's sexual orientation and forward-looking risk were she to return to Nigeria. Fear of cleansing consistent with documentary evidence [16] I agree with the Appellant that the RPD's finding regarding her fear of cleansing was not intelligible.10 The RPD found that the Appellant's fear of cleansing was not established because it had not accepted her sexual orientation, because the Appellant is educated, and because her mother had not undergone cleansing as a widow. As noted above, I find the Appellant has established her sexual orientation. Whether or not her mother underwent ritual cleansing after the death of her husband is unrelated to the Appellant's fear of cleansing because of her sexuality. The documentary evidence confirms lesbian, gay, bisexual, transgender and queer (LGBTQ) individuals are subject to ritual cleansing.11 Delay in claiming and in filing and support letters reasonably explained [17] I agree with the Appellant that her two-month delay in claiming refugee protection once her sexual orientation was revealed in Nigeria was reasonably explained. The RPD found that the delay in filing her claim two months after her sexual orientation was revealed in Nigeria undermined her subjective fear, but I accept the Appellant's explanation that she did not know what to do and was advised by a friend at college to seek help.12 [18] I also find that the RPD erred in drawing a negative inference from the submission of supporting evidence, including letters from LGBTQ organizations in Toronto and a XXXX assessment, after the Appellant filed her claim. Evidence cannot be rejected just because it was produced for a claim.13 There would have been no need for support letters before making a claim for refugee protection. Appellant has established risk on a Convention ground [19] The RPD was not correct in finding the Appellant was not bisexual. I find that the Appellant faces persecution based on her membership in a particular social group, namely bisexual women. [20] The evidence before me is that LGBTQ individuals face persecution in Nigeria. For example, same-sex marriage is illegal, as is any form of promoting or supporting LGBTQ rights.14 The government has charged individuals under these laws.15 There have been reports of human rights violations of members of the LGBTQ community by both state and non-state actors, including torture, sexual violence, arbitrary detention and extortion.16 I therefore find that the Appellant would face a serious possibility of persecution on the basis of her perceived sexual orientation. As the Supreme Court held in Ward, "The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution."17 State protection and internal flight alternative are not available to the Appellant [21] I therefore find that, given that agents of the state persecute the LGBTQ community in Nigeria, state protection and an internal flight alternative are not available to the Appellant as a bisexual woman. CONCLUSION [22] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee.18 (signed) Tiisetso Russell T. Russell 2020/06/23 Date 1 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, at paragraphs 54-55. 2 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paragraph 105. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157, at paragraphs 70, 103. 4 Immigration and Refugee Board of Canada, 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, Effective Date: 1 May 2017. 5 Immigration and Refugee Board of Canada, Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines issued by the Chairperson pursuant to section 65(3) of the Immigration Act, Effective Date: November 13, 1996, as continued in effect by the Chairperson on June 28, 2002 under the authority found in paragraph 159(1)(h) of the Immigration and Refugee Protection Act. 6 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at page 35, paragraph 24. 7 RPD Hearing Recording, November 21, 2018, at approximately minute 42-43. 8 RPD Hearing Recording, November 21, 2018, at approximately minute 1.27.00-1.31.00. 9 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at page 46, paragraph 66. 10 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at page 43, paragraph 58. 11 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at page 44, paragraphs 59-60. 12 RPD Hearing Recording, November 21, 2018, at approximately minute 47-48. 13 B.C. v. Canada (Minister of Citizenship and Immigration), 2003 FC 826. 14 National Documentation Package (NDP) for Nigeria (29 November 2019), item 2.1, United States Department of State, Nigeria. Country Reports on Human Rights Practices 2018, 13 March 2019, at page 41. 15 Ibid. 16 Ibid. See also, NDP for Nigeria (29 November 2019), item 6.9, The Initiative for Equal Rights (TIERs), 2018 Report on Human Rights Violations based on Real or Perceived Sexual Orientation and Gender Identity in Nigeria, 2018, at page 18; item 2.6, Amnesty International, ?Nigeria. Amnesty International Report 2017/2018 Report: The State of the World's Human Rights, 22 February 2018, at pages 6-7. 17 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. 18 Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-00705 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