TB7-22052

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 : TB7-22052 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 Vancouver, BC Appel instruit / entendu à Date of decision August 9, 2018 Date de la décision Panel Patricia Broad Tribunal Counsel for the person(s) who is(are) the subject of the appeal Orr Kolesnik 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 INTRODUCTION [1] XXXX XXXX XXXX (appellant), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. He requests to submit new evidence. He also requests an oral hearing to consider that evidence. He requests that the Refugee Appeal Division (RAD) set aside the RPD's decision and substitute it for its own determination that he is a Convention1 refugee or a person in need of protection. BACKGROUND [2] The appellant is a citizen of Nigeria. He was born on XXXX XXXX, 1992. He bases his claim on the following. [3] He states that he was in a sexual relationship of about eight years with another young man called XXXX. He started the process of applying for student status in Canada to study engineering in October 2016.2 He acquired a visa to allow him to stay from XXXX XXXX, 2017 to XXXX XXXX 2021.3 On March XXXX, 2017, XXXX was at a party and had too much to drink. He had left the party and was kissing another man. He was caught by the police. He was taken into custody and was tortured. He revealed the appellant's name to the authorities. The appellant tried to find out what happened to his partner in April 2017, but was unable to do so. [4] The appellant left for Lagos after finding out about XXXX. From there he came to Canada in March 2017.4 The police went to his home in Nigeria on March XXXX, 2017.5 His mother was devastated when she learned her son was a homosexual and refuses to have anything to do with him. [5] The appellant claimed he was a Convention refugee. The RPD held a hearing on August 23, 2017. In a decision dated October 13, 2017, the RPD denied his claim. It held, amongst other things, that the appellant was not credible. It questioned why the appellant had a lack of documentation with regards to school when he came to Canada. In addition, the appellant testified that he found out that his partner had been arrested at 8 p.m.; in his Basis of Claim (BOC) he stated that it was at midnight. [6] The appellant has appealed to the RAD. He argues that the RPD erred in its credibility assessment. ISSUES [7] Is there sufficient credible evidence that the appellant is a member of the lesbian, gay, bisexual, trans, intersex, queer (LGBTIQ) community and is a Convention refugee and/or a person in need of protection? HELD [8] The RAD therefore exercises its discretion under section 111(1)(c) of IRPA to refer the matter back to the RPD for redetermination in accordance with these reasons for this decision. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [9] The appellant presented the following evidence upon appeal to the RAD: * a poster stating that he was wanted by the police. [10] According to section 110(4) of the Immigration and Refugee Protection Act (Act or IRPA), the appellant must establish that the evidence arose after the rejection of their claim or that it was not reasonably available. Alternatively, the appellant must establish that he could not have reasonably been expected to have presented the evidence at the time of the rejection. In terms of evidence that arose after the rejection of the claim, it is the content of the evidence and not the date of the document that is determinative. Refugee Appeal Division Rule6 3 states that there should be submissions on this as well as the relevance of the evidence. [11] I have also considered the "Raza7 principles" as modified by Federal Court of Appeal (FCA) in Singh.8 It directs the Tribunal to consider the credibility, relevance and the newness of the evidence. In terms of credibility, RAD should consider credibility in terms of its source and the circumstances that it came into existence. This is different than a credibility assessment for the purpose of adjudicating the appeal, which looks at the credibility of the content of the document. [12] While the appellant wrote in his memorandum that there was an envelope submitted with the poster, there was not one on record. However, I accept the appellant's statement through counsel in memo that a friend mailed it after seeing in on a visit to XXXX after the hearing. The envelope, at best, would show a postmark from Nigeria after the hearing date. [13] However, the date of the decision is October 13, 2017 and the date of the poster is March 23, 2017. The date of the poster is the same date that the party was held when the appellant's partner, XXXX, was arrested. The party began in the evening. According to the appellant's testimony, XXXX was arrested at about 8 p.m.. According to the BOC, he was arrested at midnight. He revealed the appellant's name under torture. At best, somehow, between 8 p.m. and midnight on March 23 the appellant's boyfriend was arrested, tortured, released the name of the appellant, and a poster with the appellant's picture was made. [14] Further, if the authorities made and posted this poster in XXXX, it is difficult to know how it existed for months before the RPD decision of October 13, 2017 without the appellant knowing about it. Surely a friend or a family member would have seen it and informed him of it. The appellant stated that he was afraid of all of his family members and yet there is nothing on record that indicates that there was any reaction from them in view of this poster which was dated March 23, 2017. [15] There are other difficulties. There is no evidence about how the police obtained a picture of the appellant, and where it was taken. The quality of the picture is so poor that it is difficult to identify who it could be even if the appellant were in front of me. [16] The appellant has the burden of proof to establish that the evidence meets the criteria of section 110(4) and the Raza principles. The submissions with the poster provides an explanation to support his contention that it was not reasonably available beforehand even though it is dated beforehand. However, even if it were mailed to the appellant, it is unclear how the family of the appellant could not have known about it. It was posted in their town; it was dated March 23, 2015 and if the poster is accurate it is more likely than not that it was up for months. The date of the poster is not credible. It is dated March XXXX, 2018. However, the appellant testified that his friend was arrested after 6 p.m. on March XXXX, 2018. This would mean that his friend was arrested, tortured, gave the appellant's name, and the police managed to get a picture of the appellant and print a poster all within six hours. While insufficient in and of itself to lead to a conclusion that the source of the poster does not have a credible source, it does weigh against the credibility of the authentic nature of the document. [17] There is further ambiguity in the evidence of the credibility of the source of the affidavits. The evidence regarding who XXXX is unclear. The affidavit of July 17, 2017 states that the deponent is XXXX XXXX XXXX.9 Prior to the RPD hearing, the appellant provided a second affidavit from XXXX XXXX XXXX with the same information in it dated July 27, 2017.10 At the hearing the appellant stated that the same person [XXXX] sent him both affidavits. There is no information in the appellant's record from XXXX himself which describes how he got the poster. In the BOC, the appellant's mother's last name is also listed as XXXX.11 At the hearing, XXXX was described as a "family friend". The information about who XXXX is and how he found the poster is scarce and calls into question the credibility of the source and the circumstances of this evidence. [18] The appellant, through his counsel, has been given a full and fair opportunity to provide sufficient arguments to meet the burden of proof regarding the credibility of the source of the document. The flaws in the poster are self-evident. The submissions are sparse. For these reasons, although I accept that it was mailed from Nigeria to the appellant after the hearing, there is insufficient credible evidence about the source of the poster to accept it into evidence. [19] Further, I have considered whether to hold a hearing. Section 110(6) of the Act delineates when the RAD is permitted to hold a hearing. It states that the RAD can hold a hearing when there is new evidence that raises a serious credibility issue. Further, the evidence must be central to the decision. In addition, there is a requirement that the evidence would justify a final decision allowing or rejecting the claim. As there is no new evidence, the RAD does not have jurisdiction to accept this into evidence. There is some ambiguity as to whether a hearing should be held to examine the credibility of the document before accepting it into evidence. However, section 110(6) states that the RAD has the jurisdiction to hold a hearing when the new documentary evidence raises an issue with respect to the appellant; it does not state that the hearing is to explore the credibility of the source and/or the circumstances of the document itself. Further, I do not find that the poster raises a credibility issue; the appellant's credibility was already in question. For these reasons, and in these particular circumstances, the RAD will not hold a hearing to explore if the poster is admissible into evidence. SCOPE OF RAD APPEAL [20] The role of the RAD has been considered in depth by the Federal Court of Appeal. In the Huruglica12 decision, Madame Justice Gauthier wrote that the RAD must apply the standard of correctness when considering RPD decisions where there is a finding of fact and mixed law and fact which does not raise an issue of credibility of oral evidence. After doing an independent analysis of the record to determine if the RPD erred, the RAD provides a final determination by confirming the RPD decision or by setting aside the RPD decision and substituting its own decision for it. If the RAD cannot provide a final determination without hearing the oral evidence presented to the RPD, the RAD can refer the matter back to the RPD for a determination. ANALYSIS OF THE MERITS OF THE APPEAL [21] I have conducted an independent assessment of the evidence and arguments.13 This review includes listening to the entire recording of the hearing. The recording of this recording is in evidence. Deference to the Credibility Assessment [22] In this instance, the RPD did not have any real advantage in assessing the credibility that would lead to deference to its finding regarding it. The RPD does not state that there were any difficulties with the appellant's testimony where the RPD would have been in a better position than the RAD to judge it. The RPD states that there were inconsistencies with the appellant's evidence and made a plausibility finding regarding the appellant's documentation when travelling. These comments relate to the substance of the testimony and not to any behavioural or any other item that the RPD could observe and the RAD could not. For these reasons, I do not find that the credibility findings are owed deference. Is the Appellant a Credible Witness? [23] A factor to also consider when assessing credibility is the evidence from Dr. Pilowsky, a Clinical and Rehabilitation Psychologist, dated June 21, 2017. In it, she writes that the appellant: ...may experience a great deal of difficulty when testifying at his immigration hearing, considering his struggle to disclose his ordeal and articulate himself at my office - an environment that is very supportive and conducive to cultivating strong rapport with patients. Given that he has lived in fear of the authorities for many years, and was even rejected by his family, a heightened inability to disclose could be expected in a more formal environment.14 [24] I agree with the RPD that the report should be given little weight as the psychologist only saw the appellant for one occasion for the assessment. However, there is an opinion on record that the appellant would have difficulties testifying because of hiding his nature and language barrier. I find that the expert opinion that it could affect his testimony should be given some weight. In addition, the simple reason that one is not articulate is not a sufficient reason to find that one is not credible. [25] Even with this in mind, there are some issues with the credibility of the appellant's testimony and evidence. The biggest credibility issue was the issue regarding when the appellant found out that his partner had been arrested. In his basis of claim form, the appellant stated that his partner was arrested at about midnight.15 The appellant testified that he found out at about 8 p.m. This discrepancy was pointed out in the RPD decision. Upon appeal to the RAD, counsel has argued that the appellant meant 8 a.m.. Having listened to the recording of the hearing, I do not agree. The appellant was clearly stating that a friend told him that night.16 When asked by the RPD about the discrepancy between the BOC stating it was midnight and not 8 p.m., he said it was already late and dark, and upon the second time the discrepancy was pointed out, the appellant stated that it was already late in the night.17 Later in the hearing, the appellant and his counsel discussed the difference between 8 a.m. and 8 p.m.. However, given that the appellant had already testified twice that it was dark when he found out, I do not find that the argument that the appellant meant 8 a.m. is consistent with the evidence. This is a significant difference in the narrative that forms part of the appellant's claim; his credibility on these issues is affected. However, whether it is sufficient to find that it is more likely than not that the appellant's partner was arrested is not clear. [26] Further, the RPD decision focuses on whether the appellant tried to contact his partner and or find out about him. In fact, a heading in the decision is entitled, "Zero Attempts to Contact His Sole Same-Sex Partner in the Past Four Months".18 The appellant testified that he did try to find out something from his friend XXXX, but did not receive any information and did not follow up.19 It is unclear how the appellant could have contacted his partner in jail. It is odd that the appellant did not do more to find out what happened to his partner. However, this and the time difference appear to be the only issues the RPD point out with the appellant's narrative. It may not be sufficient to find that the appellant is not credible about his sexuality; the appellant may have a residual claim despite the flaws in his narrative. This is discussed later in the decision. [27] The RPD decision is based in large part about the appellant's application for a student visa. It found that he could not be credible as he did not have many of the documents that the RPD would have expected the appellant to have when he left Nigeria to be a student in Canada. This is peripheral finding. It has limited relevance with regards to the appellant's sexuality. Clearly, one could fear persecution due to one's sexual orientation and lie to authorities about being a student. [28] There is a confusing amount of evidence about the circumstances about the appellant's departure. According to the appellant, he left in a hurry because the authorities were looking for him. However, he was also planning to study in Canada. Again, it sounds like he left in a hurry because of the event, but he was going to go to school in Canada and spoke of an agent. There was an update to his visa application on March 18, 2017.20 There is a significant lack of clarity on this point. Is there a residual claim? [29] However, even if the story about the partner is not supported, because there is insufficient credible evidence to accept it, the question remains as to whether the appellant is a member of the LGBTIQ community. If so, there is the possibility that he could still be a Convention refugee as the documentary evidence is clear that members of the LGBTIQ community are persecuted. [30] The evidence regarding the appellant's sexual orientation is mixed. He has provided a membership card from "519", pictures of him with partners and at a pride parade, and a letter from the Black Coalition for Aids Prevention [Black CAP] dated July 14, 2017.21 The RPD noted that the letter from Black CAP stated that the meetings were bi-weekly and the appellant testified that he attended meetings on a weekly basis.22 The difference between weekly and bi-weekly meetings is a minimal difference and I do not find that it is a sufficient reason to disregard the evidence. The main issue is that the letter from Black CAP states that the appellant is bisexual and that the appellant stated that he was never attracted to women.23 This difference was not put to the appellant. [31] Further, while the appellant stated that he only had one partner, there was not sufficient evidence regarding why he did not date anyone else. In his Schedule A, the appellant wrote that he was in school for two years in XXXX, a different town, from June 2014 to November 2016.24 It is unclear as to how the appellant carried on the relationship with XXXX while in the school at XXXX. As noted before, another source of confusion is the fact that his mother is called XXXX, which is also was the name of the friend who helped him. Further evidence of a possible connection between them would be of assistance. In addition, while in Canada, has the appellant dated anyone? If not, why not? [32] While the RPD took a negative inference from the fact that the appellant did not try to contact his former boyfriend or find out what had happened to him, I do not find that a great deal of time elapsed between when the boyfriend was arrested in March and when the appellant had his hearing in August. During that time period, the appellant did try to contact the friend, XXXX, to find out what happened to the boyfriend. While he did not make assiduous efforts to find out about him, this in and of itself would not be sufficient to find that it is more likely than not that he is a homosexual. It is relevant, but that there are flaws in the narrative of his story alone is not sufficient to find that it is more likely than not that the appellant is not a homosexual. [33] Further, the RPD did not address relevant evidence that supported the appellant. It does not provide reasons as to why there is less weight to the affidavits of XXXX, wherein he states that the appellant is a homosexual. On record are affidavits of XXXX with different dates stating the same information. This is in light of documentary evidence that it is unlikely that anyone in Nigeria would swear an affidavit because of the criminalization and homophobia25 that it could be dangerous for someone to request one if the lawyer is not familiar with LGBTIQ issues and it could be dangerous for the lawyer.26 The affidavits have different addresses and the appellant stated that he received them by e-mail. The RPD did not make a finding with regards to how much weight to give them. While on the face of it, the discrepancies in the affidavits, how the appellant received them, and the documentary evidence provides grounds to give this evidence less weight, it is fair to question the appellant on all of this before reaching a conclusion about how much weight should be given to the affidavits. [34] As noted above, there are some issues with the appellant's narrative. However, there may still be a residual claim that the appellant is a homosexual, regardless of the narrative. There are flaws with this evidence. There is a problem with the letter from Black CAP stating that the appellant is a bisexual when he testified that he was never attracted to women; this should be explored at the hearing. Essentially, the decision is so flawed it appears that the entire claim would have to be readjudicated. [35] The cumulative effect of the flaws in the decision are such that it is not correct. I have also considered whether there is sufficient credible evidence to assess whether there is more than a mere possibility of persecution. I have done so in light of Guideline 9 - Sexual Orientation and Gender Identity and Expression27 set out in the Chairperson's Directive. There are issues that need to be explored at a hearing. As I have not accepted the new evidence, the RAD does not have jurisdiction to hold a hearing. Further, even if I did accept the evidence, the entire claim would have to be readjudicated. The credibility flaws noted by the RPD were either peripheral and/or minimal in the face of flaws that were more egregious and central. The evidence regarding the central elements to the claim would have to be readjudicated. REMEDIES [36] For the reasons given, the decision of the RPD is wrong in mixed law and fact. [37] The RAD is unable to confirm or set aside the RPD decision without hearing evidence that was presented to the RPD with respect to the issue of his sexual orientation. [38] The RAD therefore exercises its discretion under section 111(1)(c) of IRPA to refer the matter back to the RPD for redetermination in accordance with these reasons for decision and the following directions: to make credibility findings on more central aspects of the appellant's claim, such as how he pursued the relationship with XXXX when he was in XXXX. (signed) "Patricia Broad" August 9, 2018 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 Refugee Protection Division (RPD) Record, Global Case Management System (GCMS) Notes, p. 52. 3 RPD Record, GCMS, p. 52. 4 RPD Record, p. 38. 5 RPD Record, Basis of Claim. 6 Refugee Appeal Division Rules, SOR/2012-257. 7 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 8 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 9 Exhibit 3, RPD Record, p. 110. 10 Exhibit 3,RPD Record, p. 143. 11 Exhibit 3, RPD Record, p. 21. 12 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 13 Tekle v. Canada (Minister of Citizenship and Immigration) 2017 FC 1040. 14 Exhibit 3, RPD Record, Report by Dr. Pilowksy dated June 21, 2017, p. 115. 15 Exhibit 3, RPD Record, p. 25-26. 16 Recording of RPD Hearing at 21:00. 17 Recording of RPD Hearing, discussion beginning at 27.25. 18 Exhibit 3, RPD Record, Member's Decision, p. 9. 19 Recording of RPD Hearing at 1:04. 20 Exhibit 3, RPD Record, CGMS Notes, p. 52. 21 Exhibit 3, RPD Record, p. 117. 22 Recording of RPD Hearing, discussion beginning at 47:00. 23 Recording of RPD Hearing at at 1:30 24 Exhibit 3, RPD Record, p. 37. 25 Exhibit 3, RPD Record, National Documentation Package (NDP), Nigeria, March 31, 2017, Item 6.10, 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 ..., Immigration and Refugee Board of Canada, January 7 2016. 26 Exhibit 3, RPD Record, National Documentation Package (NDP), Nigeria, March 31, 2017, Item 6.14, Whether lawyers or barristers 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 (2014-October 2016), Immigration and Refugee Board, November 18, 2016. 27 Immigration and Refugee Board of Canada, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Effective date: May 1, 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-22052