TB7-24284

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 : TB7-24284 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 August 28, 2018 Date de la décision Panel T. Card Tribunal Counsel for the person(s) who is(are) the subject of the appeal Letebrhan Beyene Nugusse 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 [1] XXXX XXXX XXXX (the "Appellant") is a citizen of Nigeria and is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside the RPD's negative determination and find he is a Convention refugee or a person in need of protection. RAD DETERMINATION [2] Pursuant to s.111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD allows the appeal and finds that the Appellant is a Convention refugee.1 BACKGROUND [3] The Appellant alleges that he is a citizen of Nigeria and that he is bisexual. The Appellant was involved in two same sex relationships while in Nigeria. The first was with a man named XXXX (XXXX) for three years while the Appellant was studying for his undergraduate degree. The second was with a man named XXXX for about four months between August and November 2016. [4] The Appellant was caught being intimate with JXXXX by XXXX's brother in November 2016. XXXXs brother told the Appellant's family about this in May 2017, and the Appellant fled to his friend XXXX's home. The Appellant left Nigeria and went to Canada in XXXX 2017 where he made his refugee claim. [5] The Appellant's claim was rejected on the grounds that he was found not credible and found not to be bisexual as claimed. ROLE OF THE RAD [6] For questions of fact, mixed fact and law, and law, the RAD applies the standard of correctness in accordance with the Federal Court of Appeal's decision in Huruglica.2 In assessing findings involving the credibility of oral testimony, the RAD may apply the modified standard of reasonableness in situations where the RPD enjoys a meaningful advantage.3 Unless otherwise stated in the reasons, the RAD uses the correctness standard on all findings and will consider the overall refugee determination on a standard of correctness, even where the RAD has deferred on some or all findings. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [7] In support of this appeal, the Appellant proposed the admission of the following documents as new evidence: a. An affidavit by XXXX XXXX XXXX (XXXX), the Appellant's current same sex partner, dated 19 December 2017;4 b. An affidavit by XXXX XXXX XXXX (XXXX), the Appellant's current roommate along with XXXX, dated 19 December 2017;5 c. An affidavit from the Appellant's mother dated 21 December 2017;6 d. Photographs of the Appellant with XXXX;7 and, e. The Appellant's phone from Nigeria containing photographs from Nigeria. [8] S.110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected8 in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of s.110(4) and how that evidence relates to the Appellant.9 [9] In addition, if the new evidence meets one of the explicit legislative factors in s.110(4), then the second step of the analysis is for the RAD to apply the adapted Raza factors endorsed in Singh.10 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. The RAD is not to consider the fourth Raza factor of materiality to the admission of new evidence, which is a consideration for s.110(6) and the request for an oral hearing.11 XXXX and XXXX's affidavits and photographs rejected [10] The Appellant has submitted an affidavit from XXXX detailing their same sex relationship, including how it began. XXXX explains that he met the Appellant in July, but it was not until after the Appellant's hearing (the wording suggests it was after the second sitting on 28 September) that XXXX attempted to console the Appellant who seemed down and told the Appellant he liked him. The Appellant reciprocated and their relationship began. [11] The RAD notes that the RPD rejection took place on 2 November 2017, about one month after the relationship began. The Appellant's Memorandum only submits that the evidence should be considered as new because the relationship began after the RPD hearing. As stated above, the relevant date for considering new evidence under s.110(4) of the IRPA is the RPD decision date, not the date of any RPD hearing. [12] The RAD has considered the Chairperson's Guidelines on Sexual Orientation and Gender Identity and Expression12 (the SOGIE Guidelines) and whether the fact that SOGIE is a very personal matter should be considered. However, the onus lies with the Appellant, who has the benefit of paid Counsel, to provide all reasons as to how the proposed evidence meets the requirements of s.110(4), as required by Rule 3(3)(g)(iii) of the RAD Rules and as confirmed by the case of Ilias v. Canada.13 In the absence of such submissions, the RAD has nothing before it to explain why XXXXl's affidavit was not reasonably available at the time of rejection, nor why he could not reasonably have been expected to present the affidavit at the time of rejection. XXXX's affidavit does not meet the requirements of s.110(4) of the IRPA and is therefore rejected. [13] XXXX's affidavit refers to his knowledge of the Appellant's relationship with XXXX and confirms he knew about the relationship as it evolved. The RAD therefore finds that XXXX's affidavit also must be rejected for the same reasons as XXXX's affidavit. [14] The photographs14 provided by the Appellant relate to the alleged same sex relationship with XXXX. The photographs are undated and the only submission again as to how the photographs meet the requirements of s.110(4) is that the relationship did not exist at the time of the RPD Hearing. The RAD finds that the photographs work together with XXXX and XXXX's affidavits and should be treated in the same manner. The RAD therefore rejects the photographs for the same reasons as XXXX and XXXX's affidavits. Mother's affidavit rejected [15] The Appellant also provided an affidavit15 from his mother in Nigeria. The affidavit is little more than a restatement of the troubles already alleged before the RPD and contains no new evidence that post-dates the RPD rejection. The RAD therefore finds the document does not meet the requirements of s.110(4) of the IRPA and is rejected. Phone rejected [16] The Appellant has also provided his phone from Nigeria. The Appellant argues that this corroborates that photographs that were on the phone were deleted. The Appellant also argues that he could not reasonably have been expected to present the phone at the time of the rejection as he did not know such evidence would be requested or required by the RPD. [17] The RAD notes that the issue of the phone was raised over the course of the two sittings and was known to the Appellant ahead of the RPD rejection date. The RAD therefore does not accept the Appellant's contention he could not have reasonably been expected to have presented the phone ahead of the RPD rejection date. The RAD finds the phone does not meet the requirements of s.110(4) of the IRPA and rejects the proposed evidence. NO ORAL HEARING [18] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in s.110(3) of the IRPA that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.16 As no new evidence has been accepted, the RAD cannot hold an oral hearing. ISSUES IN APPEAL [19] The Appellant argued the following issues in his appeal: a. The RPD erred in its assessment of the Appellant's evidence and in its credibility findings. The RPD was too microscopic in its adverse credibility findings. b. The RPD erred by failing to adequately consider the documentary evidence submitted when making its assessment. c. The RPD erred by failing to conduct an analysis of the Appellant's case under s.97 of the IRPA. [20] The RAD finds that the determinative issue in this case is the Appellant's sexual orientation identity as a bisexual man. RAD ANALYSIS [21] The RAD has conducted an independent analysis of the evidence concerned, including reviewing the RPD hearing, as well as considering the Appellants' Memorandum,17 the RPD Decision18 and the Appellant's Basis of Claim (BOC) form,19 amongst other documents. [22] The RAD has also taken into account the SOGIE Guidelines while assessing this appeal. RPD erred in assessing Appellant's sexual orientation identity [23] The RPD found that the Appellant was not credible in his assertion that he is bisexual. A major reason for this was that the RPD found that the Appellant's testimony about his relationships was vague and lacked detail. [24] The RPD gives the example that when asked about the similar interests between him and both of his main same sex partners in Nigeria at the first sitting, he only stated "swimming" in both cases, and it was not until his second sitting that he gave other shared interests. [25] This is certainly a cause for concern, but the RAD also notes that in other aspects of his testimony, the Appellant did give details, such as the circumstances in which he got together with XXXX, and particular details regarding the last date the Appellant had with Jacob on the day he was discovered by XXXX's brother. The Appellant also gave details about what being bisexual meant to him. [26] The RAD also notes that the Appellant had difficulty understanding a number of the RPD Member's questions. This was not the fault of anyone in particular, but was simply a by-product of discussing a very difficult and personal subject. [27] The RAD finds that the Appellant answered the questions to his ability as best as possible, and with particular detail in some areas. Where less detail was given, the RAD notes that the Appellant often had difficulty understanding the question. The RAD is also mindful, under Section 3.6 of the SOGIE Guidelines, that appellants may have difficulty expressing themselves about a deeply personal subject. Additionally, appellants may also have difficulty giving details due to the trauma endured. Given that the Appellant has given particular detail in some aspects, the RAD finds, on a balance of probabilities, that the lack of detail in other areas can be attributed to the difficulties the Appellant has had while hiding his bisexuality and the overall trauma endured, rather than to any deception. [28] Having reviewed the evidence in its entirety, the RAD finds that the RPD erred in its assessment of the Appellant's evidence about his two same-sex relationships in Nigeria and quashes its findings in this regard. The RAD substitutes its finding that, on a balance of probabilities, the Appellant was in the two same-sex relationships with XXXX and XXXX as claimed. The RAD therefore also substitutes its finding that, on a balance of probabilities, the Appellant is bisexual as claimed. Appellant Faces a Serious Possibility of Persecution [29] The ill-treatment of those who are even suspected of being LGBTQ in Nigeria is well documented. The United States Department of State Report (DOS Report)20 states that with the passing of the Same-Sex Marriage (Prohibition) Act, this legislation "...effectively renders illegal all forms of activity supporting or promoting lesbian, gay, bisexual, transgender and intersex (LGBTI) rights."21 The DOS Report then goes on to say that after the passing of this legislation, "...LGBTI persons reported increased harassment and threats against them based on their perceived sexual orientation...."22 [30] Furthermore, the Response to Information Request (RIR) dated 13 November 201523 stated that in "...northern states, the maximum penalty for same-sex acts between men is the death penalty..."24 and in southern states "'...under the criminal code, consensual homosexual conduct can result in a 14-year prison term' [citation omitted]."25 [31] Accordingly, given the RAD's finding that the Appellant is a bisexual man, the RAD finds that he would face a serious possibility of persecution for his Particular Social Group (PSG) membership as a gay man if he were to be returned to Nigeria. STATE PROTECTION AND INTERNAL FLIGHT ALTERNATIVE [32] Based on the country information already described, it is clear that persecution of LGBTQ persons is state sponsored and nationwide. Accordingly, the RAD finds, on a balance of probabilities, that state protection is not available to the Appellant due to his sexual orientation as a bisexual man, and that there is no safe or reasonable Internal Flight Alternative as the persecution he would face exists throughout all of Nigeria. CONCLUSION [33] Pursuant to s.111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. The Appellant has a well-founded fear of persecution due to his PSG membership as a bisexual man. The appeal is allowed. (signed) "T. Card" T. Card August 28, 2018 Date 1 S.111(1)(b), Immigration and Refugee Protection Act, S.C. 2001, c.27. [IRPA] 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 X (Re), 2017 CanLII 33034 (CA IRB). 4 Exhibit P-2, Appellant's Record, Pages 19-21. 5 Ibid, Pages 22-23. 6 Ibid, Pages 24-25. 7 Ibid, Pages 26-28. 8 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, Paragraph 51. 9 Rule 3(3)(g)(iii), Immigration and Refugee Board of Canada, Refugee Appeal Division Rules, SOR/2012-257. 10 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 11 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 12 Immigration and Refugee Board of Canada (IRB), 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. 13 Ilias v. Canada (Citizenship and Immigration) 2018 FC 661. 14 Exhibit P-2, Appellant's Record, Pages 26-28. 15 Ibid, Pages 24-25. 16 S.110(6), Immigration and Refugee Protection Act, S.C. 2001, c.27. [IRPA]. 17 Exhibit P-2, Appellant's Record, Pages 119-141. 18 Ibid, Pages 4-17(a). 19 Exhibit RPD-1, RPD Record, Pages 18-30. 20 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Nigeria (31 March 2017), Item 2.1, United States. Department of State (3 March 2017). 21 Ibid, Page 39. 22 Ibid. 23 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (31 March 2017), Item 6.1, Response to Information Request (RIR) NGA105321.E, Immigration and Refugee Board of Canada (13 November 2015). 24 Ibid, Page 1. 25 Ibid, Page 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-24284 RAD.25.02 (August 08, 2018) Disponible en français 10 RAD.25.02 (July 05, 2018) Disponible en français