TB7-23126

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 No. / N° de dossier de la SAR : TB7-23126 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 28, 2018 Date de la décision Panel G. Erauw Tribunal Counsel for the person(s) who is(are)the subject of the appeal Richard Odeleye Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) 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 that he is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests the RAD refer the matter back to the RPD for redetermination by a differently constituted panel. The Appellant has requested to submit new evidence and has requested an oral hearing. DETERMINATION OF THE APPEAL [2] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA).1 Background [3] The Appellant alleges that he is a bisexual and that he fears he will be killed, arrested, tortured and/or forced to undergo cleansing rituals if he returns to Nigeria due to his sexual orientation. In his Basis of Claim (BOC) Form, he alleges to have had several same-sex relationships with men. One in Nigeria and three while in Canada. Further details are provided in his BOC Form, and his testimony at the RPD hearing.2 [4] The Appellant obtained a student visa on December 8, 2011 and arrived in Canada on XXXX XXXX, 2011. He studied at the XXXX XXXX XXXX for one year, until he allegedly left his studies due to insufficient funds. His study permit expired on April 30, 2014. After dropping out of school, he was unemployed, but he later worked at a XXXX for a period of time. In XXXX 2015, he moved to Ottawa and made an inland refugee claim on February 4, 2016. The RPD's Decision [5] The Appellant had a refugee determination hearing on April 19, 2016. In a written decision issued on May 2, 2016, the RPD rejected the claim. The RPD panel found the Appellant lacking in credibility, including with respect to his allegation that he is a bisexual. Specifically, the RPD found him lacking in credibility about all four same-sex relationships he alleges to have had in Nigeria and Canada. Therefore, the RPD concluded that the Appellant does not have a well-founded fear of persecution on a Convention ground, or that he would not personally be subjected to a risk to life or a risk of cruel and unusual treatment or a danger of torture upon return to Nigeria. [6] The Appellant argues that the RPD erred in its credibility assessment, failed to conduct a section 97 assessment, and the new evidence establishes he is a Convention refugee. ROLE OF THE RAD [7] 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.3 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.4 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. ISSUES IN APPEAL [8] The Appellant argues the following issues in his appeal: 1) The RPD erred in its credibility finding based on incorrectly assessing the evidence or by focussing on tangential issues;5 2) The RPD ignored and/or failed to consider relevant evidence in a perverse or capricious manner;6 3) The RPD erred by failing to conduct an assessment under section 97 of the IRPA;7 and, 4) The new evidence establishes that he is a Convention refugee or person in need of protection.8 ANALYSIS Credibility [9] Since this claim involves allegations of persecution on the basis of sexual orientation and imputed sexual orientation, I have considered this appeal in light of the Chairperson's Guideline on Proceedings Involving Sexual Orientation and Gender Identity and Expression (SOGIE).9 The SOGIE Guideline establishes guiding principles for decision-makers in adjudicating cases involving SOGIE by addressing the particular challenges individuals with diverse SOGIE may face in presenting their cases before the Immigration and Refugee Board of Canada (IRB). Incorrect Assessment of the Evidence or Focusing on Tangential Issues The Appellant's Arguments [10] The Appellant argues that the RPD committed an overriding error when it fixated on peripheral, irrelevant or tangential issues to impugn his credibility. Instead, he submits the RPD focused extensively on the RPD's misstated evidence about whether the Appellant's same-sex partner in Nigeria, XXXX, "completed high school", when in fact he did not state that XXXX did not complete high school, but that he said after a while XXXX moved to another part of Nigeria called Maiduguri, which is an issue that is irrelevant to his sexual orientation as a bisexual.10 The Appellant continues by submitting that while there were "minor problems" with his testimony in the area of describing full and minute details about his same-sex partner in Nigeria, his overall evidence was credible and demonstrated his fear of persecution, especially when viewed through the lens of his background, culture, previous experiences and the psychological report, which the RPD failed to consider. In addition, he submits that the RPD was overzealous to find him not credible simply because he did not remember the entire details of his relationship with XXXX. Rather, the RPD insisted that the Appellant had to remember every detail of his same sex partner, which was unreasonable and an exercise in "memory testing" that had no bearing on his credibility. The Appellant argues that he may not remember every detail about his same-sex partner, which is reasonable given the relationship was carried out in secrecy.11 The RAD's Assessment [11] I reject the Appellant's argument and I find the RPD did not err. In his appeal affidavit, the Appellant states that "the panel misstated my testimony regarding whether my same sex partner in Nigeria, XXXX XXXX, completed high school. I did not state that XXXX did not complete high school, but that after a while XXXX moved to another part of Nigeria called Maiduguri."12 While the Appellant is correct that he did not say that XXXX did not complete high school, neither did the RPD. The Appellant does not provide an accurate characterization of the RPD's finding. In its decision, the RPD observed that the Appellant "testified that he did not think that XXXX finished high school and that after XXXX moved to Maiduguri they did not keep in touch and he never heard from him again nor saw him again."13 This finding of the RPD is supported by the record. At the hearing, the Appellant was asked: Member: Did he finish high school? Appellant: I don't think so, he moved to Maiduguri some time that like, so I don't know if he came back to finish or if he later, but when he moved he moved, I don't think so.14 [12] Based on the record before me, I find the RPD did not misstate the Appellant's testimony about whether XXXX completed high school. The RPD correctly indicated that the Appellant stated during the hearing that he did not think XXXX completed high school. Therefore, the RPD did not err. [13] I also reject the Appellant's argument that the RPD focussed on peripheral, irrelevant or tangential issues to impugn his credibility, and that it focussed on minute details about his same-sex relationship with XXXX. The RPD found the Appellant lacking in credibility about all four of his alleged same-sex relationships. These are unquestionably core to the Appellant's refugee claim that he is bisexual. The Appellant provides no submissions about why he believes the RPD's credibility findings about his alleged same-sex relationships are peripheral matters. In fact, the Appellant fails to identify any errors with the RPD's credibility findings with respect to his alleged same-sex relationships with XXXX XXXX XXXX XXXX XXXX. Considering the Appellant fails to identify any errors with the RPD's credibility findings about his same-sex relationships with XXXX XXXX XXXX XXXX XXXX, I have reviewed those findings and I find no error requiring my intervention. [14] I concur with the RPD's credibility findings about his alleged same-sex relationships. The Appellant was not credible about any of his relationships. There were significant inconsistencies and he lacked basic knowledge of his alleged partner's personal details. The RPD did not require the Appellant to provide minute details of his relationships, in fact the RPD acceptably asked the Appellant to provide basic information of his relationships, which he failed to do. [15] Specifically, in regard to XXXX XXXX XXXX the Appellant's BOC indicated that they were together for two years in high school, but after high school XXXX went to attend the XXXX XXXX XXXX and that they kept in touch for a short time and visited each other from time to time.15 However, at the hearing, he was unable to remember whether XXXX graduated high school and said that he moved to Maiduguri. When he was asked at the hearing if XXXX attended university, he said he did not know, and he also testified that after XXXX moved, they did not keep in touch and they did not see each other again. He was further asked details about what he meant by "made love". In response, he simply repeated that they "made love", when asked again what that meant, he said they had a sexual relationship. When he was asked what they did, he said they kissed, they were naked, and then they kissed. The RPD asked if "kissed" was what he meant by "made love", and he responded it was a long-time ago and could not remember, but they made love. The Appellant also did not know much about XXXX personal information, despite having been in a relationship with XXXX for two years. This includes XXXX father's work, and whether he had any brothers or sisters.16 I find the Appellant's testimony about his two-year relationship with XXXX to be lacking in credibility. One would expect the Appellant to be able to provide greater detail about the relationship than that provided by the Appellant. Therefore, it warrants a negative credibility finding about his relationship with XXXX. The RPD's findings are based on the evidence, correct and without error. [16] With respect to his relationships with XXXX and XXXX, the Appellant identifies no errors in the RPD's decision about these relationships. The Appellant was asked basic personal details about these individuals that he allegedly had relationships with for many months to a year. He also said that he lived with XXXX for eight months. However, he was unable to provide information about where XXXX is from in Nigeria and lacked knowledge about if he had brothers or sisters. He was also unable to explain where he travelled to, even though that was the reason for their break-up. On the other hand, the Appellant was vague and lacked knowledge about when his relationship with XXXX began and ended, and there was a significant delay in his response to why his relationship with XXXX ended. I further note that the Appellant was unsure whether XXXX was a student, or whether he worked in construction at the time they dated.17 Having reviewed the record, and considering the Appellant takes no issue with these findings, I see no reason to interfere with these findings. The RPD was correct to find his relationship with XXXX and XXXX lacking in credibility. [17] Moreover, the RPD's findings about his alleged same-sex relationship with XXXX was confusing, and lacking in credibility. I note that the Appellant takes no issue with the RPD's findings about this relationship either. The Appellant was inconsistent about whether he and XXXX lived together in the same house/apartment, as he testified that they shared a room and also stated he would go to XXXX apartment to keep their relationship secret. The Appellant also indicated that XXXX, the man who allegedly walked in on XXXX and the Appellant having sex in the living room, was another man the Appellant had a relationship with. However, when the RPD confronted the Appellant with the fact that he failed to mention having a relationship with XXXX in his BOC, he reversed his testimony and said he did not have a relationship with XXXX, but confused him for XXXX.18 I find the Appellant's testimony about how his sexual orientation was discovered, and that he had a relationship with XXXX, to not be credible. The RPD's findings are based on the evidence, correct and without error. [18] Finally, in regard to the Appellant's submission that the RPD failed to view his fear of persecution through the lens of his background, culture, previous experiences and the psychological report, the Appellant fails to demonstrate how this is so. Nonetheless, I note that the psychological report does not explain the many credibility concerns with the Appellant's testimony, as it provides no assistance about whether he suffers from any sort of psychological issue that would negatively impact his testimony. Furthermore, I note that it does not corroborate his allegations that he is a bisexual, especially considering the information in the report's "personal details and history" is inconsistent with the allegations in his BOC.19 I find that the psychological report warrants little weight and does not establish that the Appellant is a bisexual on a balance of probabilities, as it is self-reported information, it is inconsistent with the information in his BOC, and it does not indicate that the Appellant has any condition that would explain his poor testimony at the RPD hearing. Therefore, I find the RPD did not err. Ignored and/or Failed to Take Relevant Evidence into Consideration The Appellant's Argument [19] The Appellant argues that the RPD wrongly and unduly disregarded the supporting evidence before it. The RPD failed to consider what facts are established by evidence to which some weight can be given. In this case, he submits that although the RPD had negative credibility findings, it failed to consider all the supporting documentary evidence before it, before deciding that the Appellant was not a Convention refugee or person in need of protection.20 Moreover, he submits that the RPD was looking for any reason possible to discredit the Appellant's claim; even though the RPD was not bound to refer to all the documentary evidence before it, where fundamental evidence in support of a claim is not mentioned or considered, when other documentary evidence is selectively relied upon, the RPD erred by ignoring relevant evidence.21 The RAD's Assessment [20] The Appellant's argument is not accepted and I find that the RPD did not err. I do not understand, nor is it explained, where the Appellant alleges this error occurred. Nor does the Appellant identify what supporting evidence the RPD ignored. I find that the Appellant's argument is unresponsive to the facts before it, and therefore irrelevant. [21] The Appellant provided no letters, affidavits or other documentation to support his allegation that he was a bisexual. The RPD cannot ignore what is not there. The extent of the Appellant's supporting documentation included: a psychological report, and two articles about the treatment of sexual minorities in Nigeria. However, he fails to explain how this evidence establishes his sexual orientation on a balance of probabilities. The Appellant cannot just raise an issue or a concern and expect the RAD to find evidence that the fear claimed would likely occur. The RAD has no obligation to do the Appellant's work of looking for such evidence for them.22 For these reasons I dismiss the Appellant's argument and find the RPD did not err. Section 97 Failed to conduct an assessment under section 97 of the IRPA The Appellant's Argument [22] The Appellant submits that the RPD did not conduct an assessment under section 97 of the IRPA. He argues that notwithstanding the RPD concerns about his credibility, there were still grounds to find him as an individual that deserves protection under section 97, especially more so since the Appellant provided fresh evidence relating to his marriage to his same-sex partner in Canada, which contravenes the laws of Nigeria and clearly establishes his sexual orientation.23 The RAD's Assessment [23] I find this argument is wholly without merit. In this case, the RPD did not believe that the Appellant is a bisexual, which was the only ground of persecution claimed by the Appellant. In addition, by finding the Appellant was not credible with respect to his sexual orientation, this differentiates this case from the one cited by the Appellant in his memorandum.24 Considering the RPD found the Appellant does not face more than a mere possibility of persecution on a Convention ground, it stands to reason he has not established on a balance of probabilities that he will personally be subjected to a risk to life or a risk of cruel and unusual treatment or a danger of torture upon return to Nigeria, under section 97 of the IRPA. [24] In addition, the Federal Court has consistently held that a separate section 97 analysis is not required if there is no evidence that could go to establishing the person is in need of protection.25 Again, the Appellant cannot just raise an issue or a concern and expect the RAD to find evidence that the fear claimed would likely occur. In this case, considering the RPD did not believe the Appellant is a bisexual, which was the only ground of persecution claimed by the Appellant, there was no remaining evidence that could go to establish that he was a person in need of protection. Therefore, the RPD did not err. Admissibility of Evidence Submitted on Appeal [25] In support of his appeal, the Appellant proposes three documents as new evidence: 1) Record of Solemnization of Marriage, dated 7 June 2016;26 2) Photographs, undated;27 and, 3) Copy of the Appellant's Spouse's Passport, issued 28 April 2015.28 [26] Subsection 110(4) of the IRPA provides that appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected29 in the circumstances to have presented, at the time of the rejection. It is for the appellants to make full and detailed submissions in their memorandum about how any proposed new evidence meets the requirements of subsection 110(4) and how that evidence relates to the appellants.30 [27] In addition, if the new evidence meets one of the explicit legislative factors in subsection 110(4), then the second step of the analysis is for the RAD to apply the adapted Raza factors endorsed in Singh.31 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 subsection 110(6) and the request for an oral hearing.32 The Appellant's Submissions on the Admissibility of the New Evidence [28] With respect to the new evidence, the Appellant's affidavit simply states, "[s]ince the hearing, I have married my same sex partner, XXXX XXXX XXXX. Our marriage was solemnized on XXXX XXXX, 2016 in the City of Ottawa. I provide herein as Exhibit 'B' copies of my proof of marriage, supporting photographs and proof of my spouse's identity."33 In his submissions, the Appellant only argues that the "fresh evidence meets the requirements of subsection 110(4) of the IRPA and the relevant case law on the provision of fresh evidence at RAD in that this [sic] pieces of evidence were either not available at the time of the hearing or that the appellant could not reasonable [sic] have provided them."34 The RAD's Assessment of the Admissibility of the New Evidence [29] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.35 While I acknowledge that the Record of Solemnization of Marriage post-dates the RPD decision and shows that a marriage occurred between the Appellant and his partner, the circumstance sought to be proved is that he is in a same-sex relationship and that ultimately he is a bisexual as alleged. In order for the evidence of the Appellant's new relationship to be admissible, it would have to have arisen after his claim was rejected at the RPD. However, the Appellant provides no information in this appeal that the relationship itself arose after the rejection of his claim, or that it was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented it, at the time of the rejection. The Appellant provides no statement in this appeal about this relationship, such as when they met, when the relationship began, how long they have been dating, or when they decided to get married. Though the Appellant was married on XXXX XXXX, 2016, he provides no explanation for why evidence of this relationship could not have been provided to the RPD at the time it rendered its decision on May 2, 2016. This is particularly true as the Appellant's affidavit, which is vague about the relationship, refers to the relevant period of time as "[s]ince the hearing", rather than the date of the RPD's decision. [30] Furthermore, Rule 3(3)(g)(iii) of the RAD Rules requires the Appellant to provide full and detailed submissions about how any proposed new evidence meets the requirements of subsection 110(4). The Appellant's general submission that this evidence meets 110(4) does not assist the RAD in assessing whether his new evidence meets the requirements of 110(4). The RAD is obligated to assess the admissibility of each piece of new evidence, but cannot do so if the Appellant does not describe how each document meets the requirements of 110(4) and how it relates to him. It is not for the RAD to do counsel's job for the Appellant, who is represented by counsel. Essentially, the lack of compliance with Rule 3(3)(g)(iii) means I have to make assumptions about which documents he is submitting, how his "new" documents meet the requirements of 110(4), and how it is relevant to the case at hand. However, it is the Appellant's job, through counsel, to explain the relevance of the evidence adduced and how the criteria under subsection 110(4) are met. [31] For the above reasons, I find the Appellant has not established how the new evidence is relevant and relates to him, nor has he established that evidence of this same-sex relationship arose after the rejection of his claim, or that it was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented it, at the time of the rejection. Therefore, the above documents are inadmissible as new evidence. Request for an Oral Hearing [32] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) 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.36 [33] The Appellant provides no submissions under Rule 3(3)(g)(v) on why the RAD should hold a hearing under subsection 110(6). However, since there is no new evidence accepted by the RAD, there can be no oral hearing in accordance to subsection 110(6) of the IRPA. The application for an oral hearing is therefore dismissed. [34] Having found the new evidence is inadmissible in this appeal, I need not consider the fourth issue as submitted by the Appellant. CONCLUSION [35] After conducting its own analysis of the entire record, the RAD finds that the RPD did not err in its credibility findings, or fail to conduct a section 97 assessment. The RPD's credibility findings were core, significant, and sufficient to support its final determination that the Appellant is not a Convention refugee or a person in need of protection. Disposition [36] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "G. Erauw" G. Erauw February 28, 2018 Date 1 Paragraph 111(1)(a), Immigration and Refugee Protection Act, S.C. 2001, c.27. [IRPA]. 2 Exhibit RPD-1, RPD's Record, Appellant's BOC, at pp.12-24; and Exhibit RPD-1, RPD's Record, Audio Recording. 3 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 4 X (Re), 2017 CanLII 33034 (CA IRB). 5 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 85-88, at paras. 15-21. 6 Ibid., at pp. 88-90, at paras. 22-28. 7 Ibid., at pp. 91-93, at paras. 32-33. 8 Ibid., at pp. 90-91, at paras. 29-31. 9 Chairperson's Guideline 9: Proceedings Before the Immigration and Refugee Board of Canada Involving Sexual Orientation and Gender Identity and Expression (SOGIE) (1 May 2017). 10 Ibid., at p. 85, at para. 15. 11 Ibid., at pp. 87-88, at para. 19. 12 Exhibit P-2, Appellant's Record, Appellant's Appeal Affidavit, at p. 14, at para. 6. 13 Exhibit RPD-1, RPD's Record, RPD's Reasons and Decision, at p. 6, at para. 14. 14 Exhibit RPD-1, RPD's Record, Audio Recording, at 1:23:00. 15 Exhibit RPD-1, RPD's Record, Basis of Claim (BOC) Narrative, at pp. 22-23. 16 Exhibit RPD-1, RPD's Record, Audio Recording, at 1:11:45-1:34:00. 17 Exhibit RPD-1, RPD's Record, Audio Recording, at 1:34:00-2:18:15. 18 Exhibit RPD-1, RPD's Record, Audio Recording, at 1:34:00-2:18:15. 19 Exhibit RPD-1, RPD's Record, Psychological Report, at p. 116; and see Exhibit RPD-1, RPD's Record, Audio Recording, at 14:00-29:40. 20 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 88-89, at paras. 22 and 24. 21 Ibid., at p. 90, at paras. 26-27. 22 Huang v. M.C.I. (F.C., no. IMM-2460-17), Phelan, December 1, 2017, 2017 FC 1090, at para. 7. 23 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 91, at para. 32. 24 Ibid. 25 Fang, Suzhen v. M.C.I. (F.C., no. IMM-1163-07), Mandamin, July 10, 2008, 2008 FC 856, paras. 9-13. 26 Exhibit P-2, Appellant's Record, Record of Solemnization of Marriage, at p. 69. 27 Exhibit P-2, Appellant's Record, Photographs, at pp. 70-77. 28 Exhibit P-2, Appellant's Record, Copy of Spouse's Passport, at p. 78. 29 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, para. 51. 30 Subsection 3(3)(g)(iii), Refugee Appeal Division Rules, SOR/2012-257. 31 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 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para. 64. 32 Singh, 2016 FCA 96, at para. 64. 33 Exhibit P-2, Appellant's Record, Appellant's Affidavit, at p. 14, at para. 10. 34 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 91, at para. 30. 35 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, para. 16. 36 Subsection 110(6), Immigration and Refugee Protection Act, S.C. 2001, c.27. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-23126