TB5-10414

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 : TB5-10414 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 November 25, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Pius Okoronkwo 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), a citizen of Nigeria, is appealing the decision of the Refugee Protection Division denying his claim for refugee protection. No new evidence has been submitted in support of his appeal, nor is the Appellant requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellant is, however, asking the RAD to substitute a positive determination. DETERMINATION [2] This appeal is allowed. Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter back to the Refugee Protection Division for re-determination by a differently-constituted panel. Background [3] The Appellant's claim is based on his sexual orientation, namely homosexual. In senior high school he began to feel attraction towards boys, and as a result he was bullied and felt out of place. [4] In XXXX 2012, he met a senior student named XXXX XXXX, and they began dating secretly until he graduated from their school that same year. The Appellant also dated a classmate in his final year of high school. However, this relationship ended after they left high school in 2013. [5] In XXXX 2013, the Appellant started dating XXXX XXXX and most times they would spend time at XXXX parents' home, as they were frequently at work. However, when the Appellant obtained his student visa, upon learning of this, XXXX became possessive and demanding. He asked that they do a sex video prior to the Appellant's departure and the Appellant agreed to further convince him that he would return to Nigeria after completing his studies. The Appellant was assured that these pictures taken in compromising positions would be kept safe and the Appellant believed him. [6] The Appellant arrived in Canada on XXXX XXXX, 2014 to resume his studies at the XXXX XXXX School. All was well, until XXXX XXXX, 2015, when he received a disturbing call from his father accusing him of sleeping with XXXX. Moreover, he was allegedly told that XXXX and the police had been looking for him and that XXXX was in police custody. Furthermore, the Appellant's father informed him that the police had invited him to the police station and he was shown all the videos. According to the Appellant's father, XXXX had taken his laptop for repairs and the individual responsible for the repairs found the video and photos and alerted the police. [7] On XXXX XXXX, 2015, the Appellant's father demanded that he must return to Nigeria immediately to undergo "cleansing" to "cure" him of the "disease" of homosexuality. The Appellant refused, which caused his father to inform him that he would no longer support his education. [8] On XXXX XXXX, 2015, the Appellant's father sent him a threatening e-mail, demanding his return and indicating that he had been disowned and cut off from any inheritance. On seeing this latest e-mail, the Appellant decided to seek refuge in Canada. ROLE OF the RAD [9] Counsel has made no submissions in this regard. However, a recent Federal Court decision in Huruglica1 has provided the RAD with guidance, which the RAD will follow. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." SUBMISSIONS BY THE APPELLANT * Did the RPD err in its determination that the Appellant's fear of persecution was not well-founded on subjective grounds because of his delay in making the refugee claim? * Did the RPD err in its determination that the Appellant's story was not credible? * Did the RPD err in failing to provide an analysis and reasons for rejecting the Appellant's claim under section 97 of the IRPA? * Did the RPD misapprehend and misconstrue both the law and the facts in this case? Delay in claiming [10] The RPD noted that the Appellant had learned of what had allegedly occurred in Nigeria on XXXX XXXX, 2015, however he waited until May 13, 2015 to file a refugee claim. When confronted with why he had waited for this period of time, initially he stated that he was trying to obtain information from different sources, however, later he admitted he had not in fact done so, until he met a former school mate named XXXX, who assisted him in advancing his claim. [11] While acknowledging that the foregoing issue is not determinative, the RPD found that the lack of an adequate explanation for the delay displayed a lack of subjective fear and materially undermined the Appellant's credibility. [12] The Appellant submits that he knew nothing about refugee claims and his reason for being in Canada was to study. Moreover, he argues that he had begun to consult with his classmates and revealing his problems to them, but it was not until he spoke to a friend in May 2015, that he became aware of the ability to file a refugee claim. The Appellant submits that there was no delay, but even if, which is not conceded, he has provided a reasonable explanation for the delay. [13] The RAD finds that on the one hand the RPD is stating that this finding is not determinative, however, on the other hand the RPD has found that "materially" this has undermined the Appellant's credibility. While not determinative, the RAD finds that this conclusion is not sustainable, as this finding by the RPD is contradictory. Credibility [14] The RPD questioned the fact that the Appellant's father was summoned to the police station to watch a video which his father described as humiliating and disgusting. The RPD noted that the Appellant was unable to explain why the police would effectively rub his father's nose in his son's sexuality. [15] The Appellant submits that the RPD erred when finding his testimony not credible because he could not explain why the police would want to show his father the sex video with XXXX. It is argued that the Appellant testified that when the police saw his picture in the video, they invited him to their station to show him the video to identify his son, who was wanted by the police. Furthermore, the Appellant argues that he is not in a position to know "why the police would effectively rub his father's nose in his son's sexuality by showing him a video of explicit homosexual sex involving his son" and that it is difficult to comprehend how this could be a basis for adverse findings of credibility. [16] The RAD finds, with due respect, that the RPD was engaging in conjecture when making adverse credibility findings with respect to the evidence surrounding the Appellant's father's visit to the police station to view the sex video. The RAD concurs with the Appellant that he would not be in a position to understand why this occurred, however, more importantly, the RAD finds that it makes no sense for the RPD to make an adverse credibility finding in this regard. [17] The Appellant feared a cleansing ritual, and was asked to describe what it was about the ritual that he feared. He replied that a native doctor would pour blood on his face, however, he could not provide any further details. The RPD found that this ritual of cleansing, based on this evidence, would not constitute persecution. [18] It is submitted by the Appellant that the ritual of cleansing is degrading and dehumanizing and a serious violation of his fundamental rights and given this, the RPD erred in minimizing the impact of this ritual process on the Appellant's well being. Moreover, it is argued that when making this finding that the ritual was not tantamount to persecution, was not a basis for impugning the Appellant's credibility as to his identity as a homosexual. [19] The RAD finds that the RPD lost sight of the fact that the "cleansing ritual", would signal to the community that the Appellant was involved in an illegal activity. Moreover, the RPD failed to consider the cumulative effect that this ritual would have on the Appellant, given the culture from which he hails, and therefore, the finding that this is not tantamount to persecution is not a justifiable conclusion. Moreover, the RAD concurs with the Appellant that this finding is not the basis for a conclusion that the Appellant's homosexuality identity is called into question. [20] The Appellant testified that he deleted XXXX name and telephone number from his cell phone on XXXX XXXX or XXXX, after his father had telephoned him. When asked why he would delete this number, when he was already in Canada, he stated that he did not want to have any evidence of having contacted XXXX in case his father should get a hold of his cell phone. The RPD concluded that this did not make any sense, as the Appellant was in Canada, and neither the Nigerian police nor his father were going to find out XXXX phone number by looking at the Appellant's phone. [21] The Appellant submits that he deleted XXXX number from his cell phone out of fear, as he knows the consequences of being gay in Nigeria, and since he was taking lawful measures that would afford him protection, the RPD erred in finding that this could be a basis for an adverse finding of credibility. [22] Upon review of the transcript of the proceedings, the RAD finds that although the Appellant was safe in Canada, it is plausible that he would take any measures possible to remove himself from a situation deemed to be illegal in Nigeria. [23] The RPD further noted that the Appellant had failed to make minimal inquiries as to the whereabouts of XXXX when he learned that knowledge of their relationship had become public, i.e. known to his father and to the police. Given that the Appellant and XXXX had been in an intimate relationship for a period of fifteen months, the RPD found that the Appellant's actions were not consistent with a long-standing and loving relationship. It concluded that this "indifference to the fate of XXXX" undermined the Appellant's credibility with respect to the seriousness of the relationship. The RPD did not accept the explanation provided by the Appellant that he was afraid to call XXXX mother, although he acknowledged he could have done so, but chose not to. Accordingly, the RPD drew an adverse inference as to the Appellant's credibility and found that the Appellant did not have a genuine same-sex relationship with XXXX. [24] The Appellant submits that he testified that he did not call XXXX mother, because he was afraid of the adverse reactions he would receive from her. It is argued that the RPD erred when it then went on to find that this lack of action demonstrated that he was not in a genuine same-sex relationship with XXXX. [25] Upon review of the transcript, the RAD finds that the Appellant had attempted to contact XXXX; however his phone was "dead". Although he thought of telephoning XXXX mother, he was fearful of doing so. The RAD finds that this is a plausible explanation, given the anticipated response from his mother. Accordingly, the RAD finds that to make a quantum leap that this demonstrated that the Appellant was not, in fact, in this relationship with XXXX, in the RAD's opinion, is not justifiable. [26] On July 28th at the second sitting of this claim, the Appellant revealed for the first time that he had two same-sex relationships with individuals named XXXX and XXXX, since he came to Canada in XXXX, 2014. He did not mention these relationships in his Basis of Claim (BOC) form, although they both took place before he completed the BOC form. The RPD did not accept the Appellant's explanation that it never occurred to him to include them and drew a negative inference. When the RPD concluded this, it also considered that the Appellant had not produced letters from either of these individuals to corroborate this new information as the Appellant did not think it was relevant. [27] The Appellant submits that he was told that the important things to include in the BOC form were incidents which occurred in Nigeria, and therefore, it was unreasonable to draw a negative inference as to the credibility of the Appellant based on this omission, considering the explanation provided. [28] Although the RAD agrees that this omission goes to the identity of the Appellant as a homosexual, the RAD finds upon review of the transcript that given the short duration of these relationships, i.e. one week and the importance of what transpired in Nigeria, the RPD was microscopic in its finding in this regard. Documentary evidence [29] The RPD considered a letter from the XXXX XXXX Centre, during the second sitting of the hearing. However, given that this group is not exclusively restricted to LGBT, and the letter does not overtly identify the Appellant as homosexual, the RPD accorded little weight to this letter. [30] Moreover, given the aforementioned credibility findings, the RPD indicated that the evidence of the Appellant's organizational membership could not overcome the credibility findings based on the Appellant's testimony. [31] The Appellant submits that the letter from The XXXX XXXX Centre's stated "this letter is to confirm that XXXX XXXX XXXX is an active member of The XXXX XXXX Centre XXXX XXXX XXXX XXXX Support Group, a peer driven support for LGBT Refugee Claimants only" identifies the Appellant as an active member. Accordingly, it is submitted that the RPD had no basis for attaching little weight to this letter. [32] On the issue of the XXXX XXXX XXXX letter, given that the letter specifically refers to a support group for LGBT members only, the RPD erred in this regard. Having said this, this letter is insufficient evidence to establish the Appellant's identification as a homosexual. However, the RAD also notes that the RPD imported its credibility findings outside of the sur place aspect of the claim, when considering the Appellant's homosexual activities here in Canada. Since the RAD has found these findings for the most part unsustainable, the RAD finds that they cannot be imported into the findings with respect to the activities of the Appellant here in Canada. CONCLUSION [33] After conducting an independent assessment of the entire record, the RAD finds that the RPD's findings for the most part are unsustainable. Much of the conclusions do not relate directly to the Appellant's identity as a homosexual. Accordingly, the RAD is unable to substitute its own decision as there is insufficient evidence upon which to make this finding. [34] Accordingly, pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. (signed) "Roslyn Ahara" Roslyn Ahara November 25, 2015 Date 1Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-10414