TB9-12998

RAD File / Dossier de la SAR : TB9-12998 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 March 23, 2021 Date de la décision Panel Karen Wallace Tribunal Counsel for the person who is the subject of the appeal Astrid Mrkich 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 (the Appellant) is a citizen of Nigeria. He fears persecution in Nigeria based on his sexual orientation as a bisexual man because same-sex relationships are illegal in Nigeria. [2] This is the Appellant's second appeal to the Refugee Appeal Division (RAD). He previously appealed the Refugee Protection Division's (RPD) initial rejection of his claim in 2016. The RAD granted his first appeal and returned the claim to the RPD for a re-determination. [3] Upon re-determination by a different panel, the RPD again rejected the Appellant's claim. They determined that the Appellant was not credible, and did not establish that he is bisexual, based on omissions and inconsistencies in his evidence, and his failure to claim refugee protection during two trips to Europe. [4] The Appellant is appealing the RPD decision. He argues that the RPD erred in its credibility analysis by making unreasonable conclusions about omissions in the Basis of Claim and the Appellant's failure to claim protection in Europe; focusing on microscopic or peripheral matters and inconsistencies; and improperly assessing the supporting documents. [5] New evidence has been submitted in this appeal. An oral hearing is requested. [6] The determinative issue in this appeal is whether the RPD erred in its credibility analysis. DECISION [7] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. NEW EVIDENCE The evidence presented by the Appellant is rejected [8] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [9] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.2 [10] The Appellant submitted an affidavit from his son in Nigeria which is dated XXXX XXXX XXXX 2019. In the affidavit, his son explains that he inadvertently forgot to send his father a letter dated XXXX XXXX XXXX 2016 from a village elder requiring the Appellant's attendance at a spiritual cleansing ceremony due to his bisexuality. He did not send it to his father until August 2018. The affidavit is responding to the RPD's concern about the credibility of the letter since it was not submitted during the original RPD hearing on November 17, 2016 or prior to their decision dated December 7, 2016. It was not submitted until August 2018 during the second RPD hearing. [11] The Appellant also submitted an affidavit from his wife in Nigeria dated XXXX 2019. In the affidavit his wife explains why there are inconsistencies in her birth date in various documents. The RPD had credibility concerns based on the inconsistencies. [12] The Appellant also submitted photographs of himself and his wife at their wedding, as well as photographs of them with their children to establish his marriage to his wife. [13] The Appellant argues that the affidavits and the photographs should be accepted because he could not reasonably have been expected in the circumstances to bring this evidence to the RPD before their decision. He alleges that he was not aware of the credibility issues until he received the RPD decision. [14] The Appellant's new evidence is refused. It does not meet the requirements of the law. The Appellant was very well aware of the credibility issues long before the RPD issued their decision. The Minister of Immigration, Refugees and Citizenship intervened in the RPD hearing in March 2018 and raised the issue of the inconsistency in the wife's birth date. The hearing took place over five different days from March 2018 to March 2019. The credibility concern with the birth date was raised early in the proceeding in 2018 and discussed in detail during the February 26, 2019 hearing.3 The credibility concern with the late submission of the November 2016 letter was also discussed during the February 26, 2019 hearing.4 The RPD decision was issued three months later on April 25, 2019. [15] The Appellant could have presented the evidence he is attempting to present in this appeal to the RPD before their decision was issued. He had many months to do so. He provided no explanation as to why he could not have provided the evidence during the three-month period before the decision was issued. An appeal is not an opportunity to present evidence that could and should have been presented to the RPD. [16] The request for an oral hearing is refused. Since no new evidence has been admitted, the requirements for an oral hearing5 have not been met. ANALYSIS [17] My role is to look at all the evidence and decide if the RPD made the correct decision.6 This included listening to the recording of the RPD hearing and reviewing all the documents submitted. [18] I have considered the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (the SOGIE Guideline) in deciding this appeal. Particularly with respect to evidentiary matters. The RPD erred in its credibility analysis [19] The RPD made negative credibility inferences based on inconsistencies in the Appellant's wife's date of birth; omissions of some details of his same-sex history in his Basis of Claim; his failure to claim refugee protection during two separate trips to Europe; and the failure of his same-sex partner in Canada to appear as a witness at the RPD hearing. The Appellant argues that these issues are not a reasonable basis for negative credibility inferences. I agree. [20] Furthermore, notwithstanding negative credibility findings about the alleged events in a claim, an assessment of a claimant's sexual orientation is still necessary.7 A claimant could be embellishing or even lying about an alleged event and still be found to be truthful about their sexual orientation. The RPD's determinations do not appear to fully recognize this. Failure to claim refugee protection while in Europe [21] The RPD made a negative credibility inference and determined that the Appellant had a lack of subjective fear because he did not claim refugee protection when he travelled to Europe twice in 2008. The Appellant provided a reasonable explanation at the RPD hearing for why he did not claim protection in 2008. There was no immediate threat to his safety at that time. [22] The Appellant's sexual orientation was concealed from his family and the public until his same-sex partner was arrested in 2016. The police found sexually intimate photographs of the Appellant and his same-sex partner in the partner's laptop. The police came to the Appellant's home to look for him after his partner's arrest. The Appellant's family found out about his sexual orientation at that time. The Appellant began to fear for his safety after he was made aware of his partner's arrest and that the police were looking for him. [23] The Appellant's failure to claim refugee protection during his two trips to Europe in 2008, which was years before his sexual orientation was revealed, is not a sufficient basis to support a negative credibility inference or to determine that the Appellant showed a lack of subjective fear. Inconsistencies in wife's date of birth [24] The RPD's credibility concerns surrounding the inconsistency in the Appellant's wife's date of birth on her identification documents initially appear to be very understandable. The wife attached identity documents to her affidavits to establish her identity. Yet, her voter registration card lists a different year of birth than her passport. [25] The National Documentation Package (NDP) for Nigeria states that many identification documents, such as birth certificates and national identity cards, are frequently inaccurate and unreliable. Many are simply based on information that is self-reported and unverified. Also, record keeping systems and databases are not necessarily well maintained or accurate. Rules and regulations regarding the maintenance of public records are often ignored. This leaves the accuracy of most identification documents, except for passports, impossible to verify with any confidence.8 [26] The Appellant argues that, during the RPD hearing, he did mention that cultural factors may explain the inconsistent birth date because there are differences in how things are done in Africa. [27] The RPD's concerns regarding the inconsistencies about the wife's date of birth may have been viewed through a North American standard of a high level of confidence in the accuracy of official government documents. Objective documentation in the NDP establishes that there can be no such high level of confidence in the accuracy of many government documents issued in Nigeria. [28] In this context, the different year of birth on the wife's voter registration card is not all that surprising or implausible. As a result, there is an inadequate basis to make a negative credibility inference about the authenticity of the wife's affidavits or about the overall credibility of the Appellant based on this inconsistency. Omissions in the Basis of Claim [29] The RPD made a negative credibility inference based on omissions in the Appellant's Basis of Claim, such as the name of his first same-sex partner and the failure to mention his same-sex encounters while the Appellant was on a business trip for a few months in Port Harcourt. [30] The Appellant's Basis of Claim mentions his first same-sex attraction and encounter with a boy in high school. The fact that the Appellant did not mention this person by name, who he was involved with over 40 years ago, is a minor omission that is an insufficient basis for a negative credibility inference. [31] Also, the fact that the Appellant did not mention his same-sex encounters while on a busines trip in Port Harcourt is an insufficient basis. There is no requirement for a claimant to list every same-sex encounter or relationship in their Basis of Claim. An overview of the same-sex history, instead of listing every encounter or short-term relationship, is not at all unexpected. The Appellant listed his long-term partners which is reasonable. The failure of the same-sex partner to appear as a witness [32] The RPD made a negative credibility inference because the Appellant's same-sex partner in Canada did not appear as a witness at the RPD hearing. The partner provided two letters of support but did not attend the hearing. One letter is dated XXXX XXXX XXXX 2017.9 The second is dated XXXX XXXX XXXX 2018.10 [33] The Appellant provided a reasonable explanation as to why his same-sex partner did not appear as a witness. During the first RPD hearing in 2016, the relationship was just beginning, and his partner was meeting with his own lawyer to prepare for his own refugee hearing. By the time the second RPD hearing began in March 2018, his partner was ill, the relationship was ending, and the partner was not accepting or responding to the Appellant's calls or text messages. [34] Since the Appellant provided a reasonable explanation, the failure of the partner to attend the RPD hearing is insufficient to support a negative credibility inference. The Appellant provided consistent evidence about the events that led to his claim [35] The Appellant's testimony about his long-term partner in Nigeria, his arrest, how he found out about the arrest, and that the police are looking for him, was consistent throughout his initial RPD hearing in 2016 and during the five separate hearing days during his second RPD hearing. The details he provided were consistent during a lengthy hearing process. The Appellant did not embellish his answers even when certain questions presented him with an opportunity to do so. This increased his credibility. The supporting documents assist in establishing the claim [36] The Appellant presented numerous corroborating documents to support his testimony about his sexual orientation and that the police in Nigeria are looking for him. The RPD did not give any weight to the supporting documents, largely based on their conclusion that the Appellant provided affidavits from his wife that were not genuine. The inconsistency in the wife's birth date led the RPD to determine that the affidavits were not genuine. I have determined that the inconsistent birth date is an insufficient basis to find that the affidavits are not genuine. [37] Letters of support and attendance records at two LGBTQ+ organizations in Toronto establish the Appellant's long term, consistent, and frequent involvement in those organizations. Photographs establish his attendance at a gay pride parade in Toronto. [38] Two letters from the former same-sex partner corroborate the Appellant's testimony about his same-sex relationship in Canada. [39] Affidavits from family in Nigeria corroborate the Appellant's testimony that his family are now aware of his sexual orientation. They also corroborate that family elders expect him to undergo a spiritual cleansing ritual because he is bisexual. [40] Affidavits from former neighbours in Nigeria corroborate the Appellant's testimony that the police have been looking for him due to his sexual orientation. There is a well-founded fear of persecution [41] The Appellant's detailed and consistent testimony, along with the cumulative corroborating evidence establishes, on a balance of probabilities, that the Appellant is a bisexual man. The Appellant's membership in a particular social group as a bisexual man is the nexus and basis for harm or persecution in this case. [42] Having established his sexual orientation as a bisexual man, it must also be established that the Appellant faces a serious possibility or reasonable chance of persecution in Nigeria based on his sexual orientation. [43] The Appellant has a subjective fear of harm or persecution from the police, his family elders, and the general community in Nigeria based on his sexual orientation. He provided sworn testimony that the police and his family are now aware of his sexual orientation. Corroborating evidence of this, as discussed above, was also provided. [44] The Appellant's fear is objectively well-founded. The NDP establishes a well-founded fear of persecution of bisexual men in Nigeria. Same-sex relationships are illegal in Nigeria.11 Same-sex relationships are perceived as taboo, a sin, and bring shame to the entire family. There is widespread homophobia, discrimination, and intolerance of same-sex relationships in Nigeria.12 [45] Documentation in the NDP establishes that Nigeria is known as one of the most homophobic countries in the world due to the criminalization of same-sex relationships, along with discriminatory and violent treatment of LGBTQ+ people by the police and the general public. Arbitrary arrests, blackmail, physical and psychological abuse are common. Next to imprisonment, the local community is the biggest threat to LGBTQ+ individuals. They are frequently the target of violence and lynching.13 [46] Based on the evidence provided in the Appellant's direct testimony, and in the NDP, there is a serious possibility of persecution of the Appellant in Nigeria due to his sexual orientation. State Protection [47] There is no state protection for the Appellant in Nigeria. Same-sex relationships are illegal throughout Nigeria. The state and the police are agents of persecution. Internal Flight Alternative [48] An Internal Flight Alternative (IFA) means that there is another city or area in Nigeria where the Appellant can live safely. If there is an IFA, then the Appellant does not need to seek refuge or safety in Canada. Therefore, his claim for refugee protection would be denied. [49] There is no IFA for the Appellant in Nigeria because same-sex relationships are illegal throughout the country. The Appellant would face a serious possibility of persecution anywhere in the country based on his sexual orientation. CONCLUSION [50] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) Karen Wallace Karen Wallace March 23, 2021 Date 1 Subsection 110(4), Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza, 2007 FC 385. 3 RPD Hearing Recording (Febraury 26, 2019) at 1:30 to 1:45. 4 RPD Hearing Recording (Febraury 26, 2019) at 0:34:00. 5 Subsection 110(6), IRPA, S.C. 2001, c. 27, as amended. 6 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 7 Odetoyinbo v. Canada (Citizenship and Immigration), 2009 FC 501. 8 Exhibit RPD-1, RPD Record, Exhibit 20, National Documentation Package (NDP) for Nigeria (December 21, 2018), item 3.11. Response to Information Request (RIR) NGA106159.E, Immigration and Refugee Board of Canada (IRB), 28 August 2018. 9 Exhibit RPD-1, RPD Record, Exhibit 9, p. 158. 10 Exhibit RPD-1, RPD Record, Exhibit 10, p. 162. 11 Exhibit RPD-1, RPD Record, Exhibit 20, NDP for Nigeria (December 21, 2018), item 6.1, RIR NGA105321.E, IRB, November 13, 2015; item 6.2, International Lesbian, Gay, Bisexual, Trans and Intersex Association, May 2017; and item 6.8, PEN America Center, June 29, 2015. 12 Ibid., item 1.26, European Union. European Asylum Support Office, November, 2018; item 6.1; and item 6.11, Finland. Finnish Immigration Service, June 9, 2015. 13 Ibid., item 1.26; and item 6.11. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-12998 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