TB9-16662

RAD File / Dossier de la SAR : TB9-16662 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 Montreal, QC Appel instruit / entendu à Date of decision August 9, 2019 Date de la décision Panel Me Jo-Anne Pickel Tribunal Counsel for the person who is the subject of the appeal Jeffrey L Goldman 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] XXXX XXXX XXXX is a citizen of Nigeria who has appealed a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. [2] Mr. XXXX fears he would be persecuted if he returned to Nigeria because he is bisexual. He also fears vandals who have targeted him due to his work in the government's anti-vandalism unit. In addition, he fears retribution from thugs of the people's Democratic Party (PDP) because he shifted his allegiance and supporters to another party. Mr. XXXX left Nigeria for the United States on XXXX XXXX, 2017. He ended up crossing the border into Canada in February 2018. [3] The RPD found that Mr. XXXX had not established his allegation that he is bisexual on a balance of probabilities. It found that the lack of credibility of his account of his bisexuality wholly undermined the credibility of his account of the threats he received and the actions taken against him by vandals in retaliation for his government work because these allegations were interwoven with his alleged bisexuality. The RPD found that the evidence did not establish a reasonable chance of persecution by the PDP thugs nor a likelihood that Mr. XXXX removal to Nigeria would subject him personally to a risk to life or to a risk of cruel and unusual treatment or punishment or to a danger of torture at the hands of such thugs. Finally, it dismissed a sur place claim relating to Mr. XXXX filing with the RPD a letter from the XXXX XXXX XXXX. Mr. XXXX challenges the RPD's findings relating to his sexual orientation and alleged persecution by vandals. [4] Based on the new evidence filed by Mr. XXXX, I grant the appeal. Although I agree with the RPD that there may be reasons to doubt Mr. XXXX account of his sexual orientation and his persecution by vandals, I find that at least two of the factors relied upon by the RPD were in error. However, I find that the new evidence filed by Mr. XXXX raises additional issues of credibility that extend beyond the RAD's jurisdiction to address as it requires additional questioning regarding the credibility of the substance of his claim. Therefore, his claim must be referred back to the RPD for re-determination by a different member. ROLE OF THE RAD [5] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.1 The exception to this rule is that the RAD may apply a deferential standard in some circumstances.2 I have conducted my own independent assessment of all of the evidence in this case, including the audio-recording of the hearing. Unless specifically stated and explained below, I have applied a correctness standard in this case. In deciding this appeal, I have carefully taken into account the IRB's Sexual Orientation and Gender Identity and Expression Guideline.3 PROPOSED NEW EVIDENCE [6] Evidence from the person who is the subject of the appeal is only admissible if it meets the conditions set out in s. 110(4) of the Immigration and Refugee Protection Act (IRPA). That is, proposed new evidence is only admissible if it arose after the claim was rejected, or it was not reasonably available, or the person could not reasonably have been expected to present it at the time the claim was rejected.4 If one of these conditions is met, the RAD will also consider if the evidence is credible, relevant, and new.5 [7] Mr. XXXX tenders as proposed new evidence appointment notes from his psychotherapist that he obtained after the RPD's decision. The notes are for appointments held between XXXX XXXX, 2019, and XXXX XXXX, 2019, including a progress note from an appointment on XXXX XXXX, 2019. Among other things, in the XXXX XXXX, 2019, note, the psychotherapist indicated that one of the main themes of the session was an "exploration of anxieties regarding sexual identity and gender; expression and exploration of crisis of identity". At the very end of the note under the section entitled "Plan" included in all of his other notes, the progress notes states, "Mr. XXXX disclosed his sexual preference during the course of the session. He indicated that his sexuality is one of the reasons he is in Canada." [8] The psychotherapist's notes are admissible as new evidence. Mr. XXXX could not reasonably have been expected to present the notes at the time his claim was rejected. In my view, there would have been no reason for Mr. XXXX to know from the RPD hearing that the lack of any mention of his sexual orientation in the report from his psychotherapist was an issue for the RPD. The RPD did not ask him why the report did not mention the issue of sexual orientation nor did the RPD ask Mr. XXXX whether he had discussed his sexual orientation with his psychotherapist. Had the RPD asked Mr. XXXX about either of these issues, I would have found that the notes were inadmissible as new evidence. In the precise circumstances of this case, I find that the psychotherapist's notes meet the conditions set out in s. 110(4) for the admission of new evidence. [9] I also find that the notes meet the conditions set out in the Singh decision as they appear credible, at least on their face. They are also relevant in that they are potentially probative of the issue of Mr. XXXX sexual orientation and they are new in that they potentially contradict a finding made by the RPD as the RPD assumed that Mr. XXXX had not disclosed his alleged sexual orientation to his psychotherapist.6 [10] For all the reasons set out above, the psychotherapist's notes are admitted as new evidence and marked at Exhibit A-1. ANALYSIS RPD's decision [11] The RPD found Mr. XXXX account of his alleged sexual orientation and the alleged persecution related to it was not credible for the following reasons: a) An omission or contradiction in Mr. XXXX account of his awareness of his sexual orientation; b) The lack of any mention of Mr. XXXX sexual orientation in the report he filed from his psychotherapist; c) Mr. XXXX account of how he became aware of the XXXX XXXX XXXX was too coincidental to be credible; and d) Mr. XXXX omission from his BoC of two home visits made by the police in 2018 and an inconsistency regarding the address of the home that was visited. [12] The RPD also denied a sur place claim that Mr. XXXX made in relation to his filing a letter from the XXXX XXXX XXXX. Finally, the RPD found that Mr. XXXX had not established a prospective risk of either persecution under s. 96 of the IRPA or serious harm under s. 97 of the IRPA at the hands of thugs from the PDP. Mr. XXXX does not challenge either of these last two findings. Therefore, I will simply note that these findings are correct for the reasons provided by the RPD at paras. 25-26 and 32-33 of its decision. [13] I agree with Mr. XXXX that the RPD erred with respect to some of its credibility findings. I find that the following errors are sufficiently significant to return this matter to the RPD for re-determination. Psychotherapist's report [14] I agree with Mr. XXXX that the RPD erred with respect to its treatment of the psychotherapist's report he filed. I agree with the RPD's conclusion that, since it does not mention Mr. XXXX sexual orientation, the report should be given no weight insofar as supporting the credibility of his account of his sexual orientation or the intertwined account of the vandals who targeted him and disclosed to the police that he is bisexual. However, the RPD also drew a negative inference as to Mr. XXXX credibility based on the fact that he had not mentioned his sexual orientation as part of the presenting difficulties he discussed with his psychotherapist. As noted above, the RPD did not question Mr. XXXX about why the psychotherapist report did not mention his sexual orientation nor did it ask him whether he had discussed his sexual orientation with his psychotherapist. It is clear from the RPD's decision that it assumed he had not. The psychotherapist's notes admitted as new evidence suggest that this was not the case-that Mr. XXXX did raise the issue with his psychotherapist, albeit not until their XXXX XXXX, 2019, session. [15] While the RPD erred in assuming that Mr. XXXX had not mentioned his alleged sexual orientation to his psychotherapist, the psychotherapist's notes raise the issue of Mr. XXXX failure to mention his sexual orientation to his psychotherapist until shortly before the hearing. This delay may be of concern from the perspective of Mr. XXXX credibility about his alleged sexual orientation. Such a delay may be understandable on the basis that, as noted by the psychotherapist, "many people with issues of sexual orientation struggle with disclosing their sexual identity". However, it is not clear that this would explain the delay in this case since Mr. XXXX claims in his appeal memorandum that he accepts his sexual orientation and this is why he did not initially mention it. [16] In my view, this matter must be returned to the RPD to address this issue and any other issues that flow from it relating to Mr. XXXX credibility. Finding re. home visits in 2018 [17] I agree with Mr. XXXX that the RPD's reasons for finding that an omission and inconsistency relating to alleged home visits by the police in 2018 undermined the credibility of his account of such visits. [18] On the one hand, the RPD was correct to note that Mr. XXXX omitted from his BoC a specific mention of these two home visits by the police in 2018 after he had left Nigeria. However, his amended BoC does state that the police were "tracing her [his wife] about with a view to know her husband where about and get him arrested for prosecution. (sic)" I agree with the RPD that "tracing" would normally mean following and the amended BoC does not specifically mention the home visits. However, in my view, the RPD's parsing out of the language used in the amended BoC was microscopic especially since the rest of the BoC does not use perfect English. [19] In my view, it was also incorrect for RPD to find that the inconsistency in Mr. XXXX evidence about the address he lived at before leaving Nigeria further undermined the credibility of his account of the two alleged police visits in 2018. While it was accurate for the RPD to note that there was an inconsistency with respect to the address Mr. XXXX gave on his immigration forms for where he lived before he left Nigeria and the address he provided for the home that was alleged burgled by vandals in XXXX 2017. However, that is a separate issue from the house the alleged police visits in 2018 and I find that it was incorrect for the RPD to amalgamate these issues and find that Mr. XXXX inconsistent evidence about his address at the time his home was allegedly burgled undermines the credibility of his account of the alleged home visits after he had already left the country. Overall assessment of credibility [20] Even if the RPD were correct that the other factors it relied upon had a negative effect on the credibility of Mr. XXXX account of his sexual orientation and his interwoven allegations regarding the vandals, I find that the errors set out above were sufficiently significant to refer the matter back to the RPD for re-determination taking into account the findings in this decision. Such a re-determination should also address the credibility, or non-credibility of the documentary evidence filed by Mr. XXXX in support of his claim. CONCLUSION [21] The appeal is allowed. In accordance with section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently member. (signed) Jo-Anne Pickel Me Jo-Anne Pickel August 9, 2019 Date JP/tm 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Immigration and Refugee Board of Canada Chairperson's Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression. 4 Immigration and Refugee Protection Act (IRPA), s. 110 (4). 5 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 6 Paras. 17 and 18 of the RPD decision. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-16662 RAD.25.02 (April 04, 2019) Disponible en français 7 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 (April 04, 2019) Disponible en français