TC0-05154

RAD File / Dossier de la SAR : TC0-05154 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 17, 2021 Date de la décision Panel E. Bobkin Tribunal Counsel for the person who is the subject of the appeal Ochiemuan Okojie 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] I dismiss the appeal of XXXX XXXX XXXX XXXX (Appellant), a citizen of Nigeria. [2] The Appellant alleges that he is bisexual. He alleges that he confessed his sexual orientation to his mother who revealed this to the community who abused the Appellant and his partner. The Appellant alleges that, after this, he went to hide with a priest for about a year before going to Italy in 2002. He alleges that he had a same-sex relationship with a Nigerian man in Italy but ultimately fled to the United States in 2011 after his girlfriend spread rumours about his sexual orientation. The Appellant married twice in the United States and was sponsored for permanent residency by his second wife. The sponsorship was denied because the relationship was found to be non-genuine in XXXX 2019. The Appellant then came to Canada and claimed refugee protection. [3] The Refugee Protection Division (RPD) found that the Appellant lacked credibility and rejected the claim. The RPD found that the Appellant had not established his sexual orientation because his evidence about his past same-sex relationships lacked credibility, because the Appellant had been found to provide false information in immigration proceedings in the United States, and because the Appellant had not disclosed eight previous visits to Canada. The RPD found that the corroborating documents do not outweigh the credibility issues. [4] The Appellant argues that the RPD erred. He argues that the RPD incorrectly assessed the evidence of his memory problems and failed to apply the SOGIE Guideline.1 He argues that the RPD incorrectly assessed the evidence of his same-sex partner and improperly assessed the affidavit from a former partner. The Appellant argues that the RPD improperly relied on the evidence of the Appellant's time in the United States and failed to give proper weight to the documentary evidence. [5] I find that the RPD correctly identified credibility as the determinative issue and correctly found the Appellant lacked credibility. I agree that the Appellant has not established his sexual orientation, on a balance of probabilities. DECISION [6] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE The evidence presented by the Appellant is accepted [7] According to the law,2 I can only accept evidence that: (i) arose after the RPD's decision; or (ii) was not reasonably available at the time of the decision; or (iii) that the Appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [8] 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.3 The Appellant submitted two medical reports, one from his nurse practitioner and one from a social worker. I find them admissible. [9] The first letter is from a social worker.4 It is dated XXXX XXXX XXXX 2020 and states that the writer started seeing the Appellant on XXXX XXXX XXXX 2020 and discusses the Appellant's current mental health. Therefore, I find the letter post-dates the rejection of the RPD claim (January 21, 2020). This also makes the letter new. Given the letter is from a third-party professional, I find the letter credible. It discusses the Appellant's mental health, and therefore I find it relevant. I therefore admit the letter. [10] The second letter is from a nurse practitioner.5 The letter is dated XXXX XXXX XXXX 2020 which is after the rejection of the claim by the RPD. However, it is not clear when the events in the letter took place. For example, the writer states that she is clarifying some things from the previous letter which was before the RPD including adding that the Appellant has reported memory issues. In my view, this is an attempt to correct a deficiency in the RPD record, and it is not clear why this was not presented in the letter before the RPD. [11] However, some of the letter seems more recent, including the statement that "[a]s I have continued to work with XXXX XXXX XXXX, it has become clear that he is also exhibits components consistent with XXXX XXXX XXXX XXXX."6 Although it is not clear when this observation occurred, given the timing of the letter, I am prepared to accept that this post-dates the rejection of the claim and accept that it is new, as mental health can change over time. Therefore, I accept that the letter meets the requirements of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) by post-dating the rejection of the claim, and for this reason, I find it is new. I find it credible because it is from a third-party professional. I find it relevant because it discusses the Appellant's mental health. I therefore admit the letter. THE ROLE OF THE REFUGEE APPEAL DIVISION [12] My role is to look at all of the evidence and decide if the RPD made the correct decision.7 There is an exception to this, where the Refugee Appeal Division (RAD) defers to the RPD if the RPD had a meaningful advantage in assessing the credibility of oral evidence. I do not find this case falls into the exception. Therefore, I will be looking at whether the RPD's decision was correct. ANALYSIS [13] For the following reasons, I find that the RPD correctly concluded that the Appellant had not established that he is bisexual, on a balance of probabilities, based upon credibility issues with his evidence. The evidence about the Appellant's same-sex relationships lacked credibility [14] The Appellant alleged two significant same-sex relationships: one with a man named XXXX in Nigeria, and one with a man named XXXX in Italy. The RPD concluded that these relationships lacked credibility.8 For the following reasons, I agree with the RPD. The evidence about XXXX lacks credibility [15] The RPD found that the evidence about XXXX lacked credibility because the Appellant could not consistently state when he and XXXX were in a relationship and because the Appellant gave vague testimony about XXXX. The Appellant argues that the RPD erred because his testimony was not vague and because the RPD incorrectly assessed his memory issues. I am not persuaded by this argument. [16] First, I note that the Appellant has misconstrued the RPD's decision. The Appellant argues that the RPD erred by improperly finding that the Appellant's testimony about XXXX was vague when he provided direct evidence regarding XXXX.9 In fact, the RPD did not specifically find this. The RPD found that the Appellant gave vague testimony about his first partner, XXXX.10 The RPD correctly assessed the testimony about XXXX. I reviewed the recording, and I agree with the RPD. The Appellant was asked about his first partner and replied that he was intelligent and smart, and he enjoyed kissing and having intercourse with XXXX.11 When given an opportunity to provide further detail, he said XXXX was romantic, and when asked what that meant, he stated that he kissed with passion and that the Appellant liked intercourse with him.12 [17] I agree with the RPD that this testimony is vague, particularly in the context of the relationship, which the RPD considered. The RPD found that, given the Appellant said he and XXXX were good friends before they were partners and that they spent every day together and knew each other's families, the RPD expected the Appellant could give more detail. I agree with this, particularly given that the Appellant at one point stated that the relationship was ongoing for potentially nine years.13 [18] This leads to the second concern with the evidence about XXXX, which is that the Appellant could not consistently state when the relationship occurred. As noted by the RPD, the Appellant said that the relationship was in secondary school but could not explain when, stating that this occurred at various times between 1993 and 2001. The RPD found it lacked credibility that the Appellant could not remember when he started dating XXXX given that the relationship allegedly caused the Appellant to have to flee Nigeria for Italy. I agree with this finding. [19] The Appellant has not specifically challenged this finding but, rather, argues generally that the RPD failed to properly consider his memory issues and the SOGIE Guideline in making these findings. I will address that argument below, but suffice it to say, I do not find it persuasive. I agree with the RPD that the evidence about the relationship with XXXX lacks credibility. The evidence about XXXX lacks credibility [20] The RPD found that the evidence about XXXX lacked credibility because the Appellant could not consistently state when he was in a relationship with XXXX and because the evidence was inconsistent about the rumours related to the relationship. The RPD also found that the affidavit from XXXX lacked credibility because it was inconsistent with the allegations and implausible that he would swear such an affidavit. [21] As above, the Appellant has not challenged the inconsistency regarding the timeline of the relationship directly but, rather, makes arguments about the Appellant's memory and SOGIE Guideline, which I will address below. He does state that the RPD erred in finding the testimony about XXXX vague.14 In my view, as addressed above, the vagueness finding related to the testimony about XXXX. I acknowledge that the RPD generally stated that the testimony was "vague, evolving, and contains numerous inconsistencies", but I do not find the vagueness refers to the relationship with XXXX. In the alternative, I find that, even without relying on vagueness as a reason to discount the testimony about XXXX, the RPD's reasons on this issue are correct. [22] Further, I find the RPD correctly concluded that the Appellant was inconsistent about the timing of this relationship. Reviewing the record, I agree with the RPD that the Appellant's testimony changed, and at various points, he stated the relationship lasted from 2002 to 2010, 2002 to 2005, 2002 to 2008 and maybe 2009. I agree that this is inconsistent, and it was not incorrect to expect the Appellant to remember at least the years when the relationship started and ended. [23] Additionally, the RPD found that the Appellant was inconsistent about the ending of the relationship between him and XXXX. The Appellant testified that his girlfriend spread rumours about him having HIV because she suspected he was cheating on her with a man. The RPD asked the Appellant if the rumours were only about him or also about XXXX, and the Appellant testified "just me."15 The RPD found this inconsistent with XXXX affidavit which stated that the girlfriend spread news of "our sexuality" and that they were both humiliated and mocked.16 The RPD also found it inconsistent that the affidavit stated that XXXX was humiliated with his wife and child, but the Appellant had stated that he moved away before he was married or had a child. [24] The Appellant has not challenged these specific findings but, rather, argues that the RPD was wrong to discount the affidavit because of the prevalence of fraudulent documents and also because the RPD found it was implausible that XXXX would swear an affidavit exposing his sexual orientation in Nigeria.17 I do not find this persuasive. [25] First, these arguments ignore the other reasons that the RPD gave for discounting the evidence about XXXX and the affidavit: specifically, the inconsistencies described above. Therefore, the RPD did not rely only on the prevalence of fraudulent documents to discount the affidavit. Relying on the prevalence of fraudulent documents as one of several reasons to discount the affidavit is correct. I agree that this is an appropriate consideration. [26] Second, regarding the plausibility of the allegation that XXXX would swear an affidavit exposing his sexual orientation, the Appellant argues that he explained that XXXX only agreed to help after the Appellant pleaded with him and that he went to a private lawyer to do this, and this is consistent with the National Documentation Package (NDP) evidence which shows that such affidavits can be obtained in these circumstances because confidentiality is agreed.18 While the documentary evidence states that such affidavits can be obtained, it also states that it would be very unusual for a lawyer or barrister to notarize such a statement because it could expose that person to risk and because it could be dangerous to the person swearing the affidavit.19 In this context, I find the RPD correctly considered the evidence. The RPD did not find obtaining such an affidavit impossible but, rather, that obtaining such an affidavit would expose XXXX to risks. This factor, along with the other issues discussed above, led to the conclusion that the affidavit was not genuine. I see no error in this. [27] The Appellant also argues that the RPD erred by making itself an expert in analysing relationships, which the Court has held the Board is not.20 I do not find this error was committed. The RPD examined the evidence and found inconsistencies, which, as discussed above, I agree with. For these reasons, I agree with the RPD that the credibility issues with regard to the Appellant's alleged relationship with XXXX undermine the allegation that he is bisexual. The evidence of memory issues and the SOGIE Guideline do not cure the credibility concerns [28] The Appellant argues that the RPD improperly assessed the Appellant's memory issues and that the Appellant said he had a hard time remembering things from a long time ago and did not say that he wore glasses.21 He also submits new evidence that he continues to receive mental health treatment.22 The Appellant argues that the RPD also failed to apply the SOGIE Guideline which highlights the challenges that individuals may have difficulty testifying about their sexual orientation and that there may be gaps in memory.23 I find that the evidence about memory issues and the SOGIE Guideline do not cure the credibility concerns above. [29] I agree with the Appellant that he did not testify that he wore glasses and that this related to memory problems. However, this is not the extent of the RPD's assessment of the memory issues. The RPD also considered that the Appellant testified that he had problems remembering things, and the RPD considered the mental health evidence. The RPD correctly considered that the evidence before the Panel made no mention of memory issues. The RPD considered that the information the Appellant could not relate consistently was significant and broad, as opposed to minute details, and therefore it found, based upon all of the testimony about memory problems, that it did not remedy the inconsistency. I find that the misstatement does not render this incorrect. The RPD appropriately considered the evidence of memory issues on the record. [30] There is now further evidence which addresses memory. However, I do not find this alters the conclusion. First, both the nurse practitioner and the social worker report only that the Appellant has reported memory problems.24 Neither reports having done any XXXX testing and diagnosing of the Appellant with any XXXX issues. The nurse practitioner notes that the Appellant is now diagnosed with XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX which can include efforts to avoid distressing memories but does not state that the Appellant is dealing with this issue. Moreover, I find that the RPD was very sensitive to this type of issue and did not ask the Appellant to discuss alleged instances which were distressing (such as the allegation that he was beaten with his first partner) but, rather, the RPD asked for broad information about people the Appellant knew, and when he was in particular locations such as high school, and the Appellant could not recall this consistently. I see no error in the RPD's approach, and I do not find the mental health evidence resolves this issue. [31] With regard to the SOGIE Guideline, I agree that the Guideline states that many people with diverse SOGIE are reluctant to discuss their SOGIE and have difficulty doing so. However, reviewing the record, I find the RPD was sensitive to this. As discussed, the RPD avoided asking about difficult topics. The RPD also repeated questions multiple times in multiple ways, and at times, the RPD asked the Appellant's Counsel to assist in questioning to make sure the Appellant understood. The RPD also summarized testimony to the Appellant to ensure the Panel understood the Appellant's evidence. I find that the RPD appropriately responded to the difficulty testifying about sexual orientation and followed the Guideline's instruction that questioning be done in a "sensitive and non-confrontational manner".25 Beyond this, the Guideline notes that cases involving diverse SOGIE are not different from other cases and that Board members can draw negative inferences from credibility concerns such as "material inconsistencies or contradictions in the evidence that have no reasonable explanations."26 This is what the RPD did here. [32] For these reasons, I find that the RPD did not improperly assess the evidence about the Appellant's memory and that neither the evidence on memory nor the SOGIE Guideline cure the credibility concerns. Conclusion on the Appellant's same-sex relationships [33] For the foregoing reasons, I find that the RPD correctly considered the evidence of the Appellant's same-sex relationships and that these relationships are not credible, on a balance of probabilities. I agree with the RPD that the lack of credibility of these relationships undermines the allegation that the Appellant is bisexual. The RPD appropriately considered omissions of the Appellant's previous travels to Canada [34] The RPD considered the fact that the Appellant had omitted from his Basis of Claim form (BOC) that he previously traveled to Canada on eight occasions while living in the United States and found that, because the Appellant alleged the purpose of these trips was to freely express his sexual orientation, they were relevant to the claim, and therefore their omission undermined his credibility.27 [35] The Appellant argues these visits are irrelevant because the Appellant had status in the United States, and they had nothing to do with his refugee claim or his fear in Nigeria.28 I disagree. The RPD considered the fact that the Appellant was in status in the United States and did not make a finding that the Appellant's credibility was undermined based upon his failure to claim in Canada. Rather, the finding was based upon the relevance of these trips to the Appellant's sexual orientation. The Appellant's evidence was that he learned about the XXXX XXXX XXXX (XXXX) and attended services there and that he was researching places he could live free from persecution, and this is why he came to Canada eight times. I agree with the RPD that this is relevant and significant to the Appellant's claim that he is bisexual, and therefore the omission is relevant. I agree that this undermines his credibility, particularly the credibility of his sexual orientation, which is the core of the claim. Conclusion regarding the Appellant's sexual orientation [36] Based upon all of the above concerns, I find the RPD correctly concluded that the Appellant has not established that he is bisexual, on a balance of probabilities. THE DOCUMENTARY EVIDENCE [37] The RPD concluded that, pursuant to the Sheikh and Huang cases, given the negative credibility findings about the Appellant and his evidence, which are central and go to the core of the claim, the remainder of the documentary evidence were given little weight.29 [38] The Appellant argues that the RPD erred in this finding. The Appellant submits that, given the errors in the credibility findings, it was wrong to reject the documentary evidence.30 Given that I do not agree with the Appellant that the RPD erred in assessing the evidence of his sexual orientation, I reject this argument. [39] I agree with the RPD that this was an appropriate case in which to discount the documentary evidence based upon the credibility findings. Additionally, given the Appellant argues more weight should be given to his corroborating documents, I have independently assessed them and find additional reasons to conclude it is correct to give no weight to these documents. First, the RPD correctly found inconsistencies in a central document, XXXX affidavit, and it correctly found the document fraudulent, as discussed above. Additionally, many of the documents contain information told by the Appellant to other people, and they therefore lack credibility because the Appellant has been found lacking credibility. For example, the letter from the XXXX is based upon the Appellant's own self-identification as a bisexual man.31 Other documents do not say how the writers know what they write, only that they are "aware" of the allegations therein.32 [40] Further, some of the documents are inconsistent with the Appellant's allegations, including the letter from the XXXX, which states that the Appellant has attended since XXXX XXXX, 2019, when the Appellant stated he attended previously before he moved to Canada and the letter from the Appellant's brother which states that the Appellant was caught in a same-sex act.33 The RPD raised both these issues with the Appellant. He testified that his brother was mistaken and that he really only "breezed through" the XXXX before officially joining when he moved to Canada. I reject these explanations. The Appellant was only speculating about his brother's affidavit, and with regard to the XXXX letter, it does not state that the Appellant joined in XXXX 2019 but, rather, that he has attended since then. In my view, the Appellant's testimony that he "breezed through" or had been to the XXXX prior to XXXX 2019 ought to have been in the letter, and it is therefore inconsistent. In any event, the letter is based upon the Appellant's own statements to the XXXX (for example that he is in Canada seeking support for his claim to remain here due to his sexual orientation and that he has told the XXXX about his problems). Given the credibility concerns with the Appellant's testimony, I do not find this to be a reliable document. [41] I find I can make these determinations without notice to the Appellant because he has argued that the RPD erred by failing to give due weight to his documents and therefore asked the RAD to consider them on appeal. Additionally, these deficiencies are on the face of his own documents, and he is expected to know their contents. [42] Finally, with regard to the Appellant's mother's affidavit, I find further reason to doubt the credibility of this letter because, like XXXX letter, it is a letter notarized in Nigeria exposing the Appellant's sexual orientation which, documentary evidence suggests, is unlikely.34 [43] Each of these reasons individually would not lead me to discount the documentary evidence, but when I consider this, in conjunction with the negative credibility findings confirmed above, I find they are further grounds to give no weight to the corroborating documents. [44] For all these reasons, I agree with the RPD that the corroborating documents do not overcome the credibility issues. The Appellant's US immigration documents [45] The RPD also considered the Appellant's failed sponsorship application in the United States and the findings made by the US government that the Appellant was in a non-genuine relationship and submitted fraudulent documents, and it found that this undermined the Appellant's credibility. The Appellant argues this is irrelevant. I am not addressing this issue, as it is not determinative. In my view, the above findings are determinative of the Appellant's credibility, and, even if I found this finding in error, I would still find the RPD's decision was correct. CONCLUSION [46] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Erin Bobkin E. Bobkin March 17, 2021 Date 1 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression: issued by the Chairperson, pursuant to paragraph 159(1)(h) of the IRPA, effective date: May 1, 2017. 2 Subsection 110(4) of the IRPA. 3 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96; Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FC 385. 4 Exhibit P-2, Appellant's Record, at pp. 102-104. 5 Exhibit P-2, Appellant's Record, at p. 101. 6 Exhibit P-2, Appellant's Record, at p. 101. 7 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 8 Exhibit RPD-1, RPD Record, at pp. 5-8. 9 Exhibit P-2, Appellant's Record, Memorandum, at para. 8. 10 Exhibit RPD-1, RPD Record, at p. 6. 11 Audio Recording of the RPD Hearing, at 00:58:00. 12 Audio Recording of the RPD Hearing, from 00:58:00 to 00:59:22. 13 Audio Recording of the RPD Hearing, from 00:30:00 to 00:40:00. 14 Exhibit P-2, Appellant's Record, Memorandum, at para. 8. 15 Audio Recording of the RPD Hearing, at 01:15:00. 16 Exhibit RPD-1, RPD Record, at p. 51. 17 Exhibit P-2, Appellant's Record, at pp. 109-110. 18 Exhibit P-2, Appellant's Record, at p. 109. 19 NDP for Nigeria (November 30, 2020), item 6.6, Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) NGA105653.E, "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)", November 18, 2016, at pp. 2-3; and item 6.10, IRB, (RIR) NGA105379.E, "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; ...", January 7, 2016. 20 Exhibit P-2, Appellant's Record, Memorandum, at para. 8. 21 Exhibit P-2, Appellant's Record, at pp. 106-107. 22 Exhibit P-2, Appellant's Record, at pp. 111-112. 23 Exhibit P-2, Appellant's Record, at pp. 106-107. 24 Exhibit P-2, Appellant's Record, at pp. 101, 103. 25 SOGIE Guideline, section 7.3.1. 26 SOGIE Guideline, section 7.4.1. 27 Exhibit RPD-1, RPD Record, at p. 9. 28 Exhibit P-2, Appellant's Record, at pp. 110-111. 29 Exhibit RPD-1, RPD Record, at p. 9. 30 Exhibit P-2, Appellant's Record, at p. 111. 31 Exhibit RPD-1, RPD Record, at p. 139. 32 Exhibit RPD-1, RPD Record, at pp. 153, 143. 33 Exhibit RPD-1, RPD Record, at pp. 148, 177. 34 Supra, footnote 19, NDP for Nigeria (November 30, 2020), item 6.6, at pp. 2-3; and item 6.10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-05154 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