TB5-07406

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 : TB5-07406 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 21, 2015 Date de la décision Panel Ken Atkinson Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mercy Dadepo 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 ("Appellant"), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant is submitting new evidence and she is requesting an oral hearing. She requests that the appeal be allowed and the decision of the RPD be set aside and the Refugee Appeal Division ("RAD") find the Appellant to be a Convention refugee or a person in need of protection or alternatively, that the matter be returned to the RPD for re-determination. DETERMINATION OF THE APPEAL [2] The appeal is allowed. Pursuant to ss. 111(1)(b) of the Immigration and Refugee Act ("IRPA"), the RAD sets aside the determination of the RPD and substitutes a determination that the Appellant is a Convention refugee. BACKGROUND [3] The Appellant states that she is bisexual. She says that she was in a sexual relationship with a woman by the name of XXXX in Nigeria. Sometime in XXXX 2013, the Appellant's XXXX discovered the relationship and began to extort the Appellant. The Appellant decided to escape her XXXX extortion and she used a travel agent to make arrangements for her to obtain a study visa for Canada. She arrived in Canada on January 11, 2014. When the Appellant's XXXX learned that she had left the country she exposed the relationship to the Appellant's mother. The Appellant then made a claim for refugee protection on March 11, 2013. ROLE OF THE RAD [4] The Huruglica1 decision of the Federal Court provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD, to decisions of the first level administrative tribunal. Justice Phelan states in paragraph 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". [5] Accordingly, the RAD will review all aspects of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [6] The RPD determined that the Appellant was not a Convention refugee or a person in need of protection for the following reasons: (a) The Appellant was not a credible witness; (b) She did not establish her sexual identity as bisexual. Submissions [7] The Appellant submits that the RPD erred in finding the Appellant not credible because of inconsistent testimony as to the length of her relationship with XXXX and her inability to provide any record or trace of their 13 year relationship. [8] The Appellant further submits that the RPD acknowledged that she had a good knowledge of her relationship with her partner and further acknowledged the single picture of the Appellant and her partner kissing. The Appellant submits that the RPD's decision was unreasonable after it acknowledged the above. The picture of the Appellant kissing her girlfriend had been taken while she was still in Nigeria. The Appellant argues that she does not have a lot of documentation supporting her relationship with XXXX since a same sex relationship is illegal in Nigeria and members of the LGBT community do things in secret. It is unreasonable to demand that she document her relationship in a country such as Nigeria. [9] The RPD did not enter in evidence an e-mail that the Appellant had produced showing a discussion between her and a friend concerning XXXX. [10] The RPD reviewed messages on the Appellant's cell phone between the Appellant and XXXX XXXX. The Appellant testified that she might start a relationship with this individual but it was not certain. The Appellant submits that when the RPD reviewed the Appellant's cell phone text messages it felt like a violation of privacy, yet the RPD only focused on that part of the messages where the Appellant was trying to remind XXXX about her narrative since XXXX wanted to attend the hearing. The Appellant states that she never indicated at the hearing that XXXX was going to testify on her behalf. It was unreasonable for the RPD to see the text other than what it was meant to be, a refreshing of the Appellant's circumstances. [11] The Appellant submits that it was unreasonable for the RPD to find that the delay in claiming by the Appellant affected her credibility. She explained to the RPD that when she came to Canada she did not know about the ability to make a refugee claim. She only thought she was okay since she was already in Canada. The Appellant submits that she made her claim as soon as she became aware of the refugee protection process in Canada and her ability to make a claim. [12] The Appellant submits that the RPD made an error in its credibility findings about the Appellant becoming members of LGBT community programs after she made a refugee claim. Many of the programs provided by the 519 community and the Black coalition for Aids Prevention ("Black Cap") are for refugee claimants. The Appellant was encouraged to join these organizations after she made her refugee claim. [13] The RPD erred in dismissing the documentary evidence including letters and photographs provided by the Appellant. Since a same-sex relationship in Nigeria is illegal, the RPD should recognize that it would be difficult for the Appellant to provide corroborative evidence of her activities in Nigeria. Documents not accepted as evidence by the RPD [14] The Appellant tendered the following as new evidence: (a) An e-mail from the Appellant to XXXX XXXX dated XXXX XXXX, 2015; (b) An e-mail form XXXX XXXX to the Appellant dated XXXX XXXX, 2015; (c) An e-mail entitled "Witness Document" from XXXX XXXX to the Appellant dated XXXX XXXX, 2015 ; [15] These documents are not new evidence. The RPD dealt with these documents at the hearing and explained in its decision that at the midpoint of the hearing, counsel indicated she had a record of recent e-mail exchange dated XXXX 2015, between the Appellant and another friend inquiring about XXXX, which was not filed within the 10 day disclosure rule of the RPD. The RPD stated that it did not enter these documents into evidence as no application was made during the hearing to have them accepted as evidence and it was also refused as they were directed to a third-party a few weeks before the hearing, despite the Appellant having been in Canada since January 2014. Rule 3(3)(c) of the RAD provides that the Appellant's record must contain any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the Appellant wants to rely on the documents in the appeal. [16] The RAD will therefore, consider these documents in the appeal. Analysis [17] The RPD found that the Appellant's evidence as it relates to her personal identity as a bisexual was neither trustworthy nor credible. In support of this finding, the RPD found that there was an inconsistency in the Appellant's evidence. The Appellant testified at the RPD hearing that she met her former Nigerian partner, XXXX, at the age of 11 and they began the relationship two years later which lasted for 13 years until the Appellant was 26 years of age. The RPD pointed out that her Basis of Claim form ("BOC") suggested they were in a relationship for eight years. The Appellant responded that it was a typographical error. She was aware of that error and had discussed her BOC with her counsel but she did not provide an amendment to the BOC prior to being confronted with this inconsistency as she did not want to create any discrepancies. The RPD did not accept this explanation as she had been asked at the beginning of the hearing whether her BOC was complete, true and correct and she replied in the affirmative. The RPD stated that if she was aware that there was a typographical error she would have provided this clarification at the beginning of the hearing when she was asked if the information contained in the BOC was complete, true and correct. The RAD agrees that this is a significant inconsistency in determining the Appellant's credibility. [18] The RPD acknowledged that the Appellant was able to provide some details about her relationship with XXXX, such as where she lived, which university she attended, what she loved most about her and how they spent their holidays together. The RPD questioned her credibility because of her inability to provide any record or trace of their 13 year relationship. She only provided a single picture of them posing together dated XXXX, 2014. The Appellant testified that when XXXX moved to Ghana she changed her cellular number and blocked the Appellant as a friend on her Facebook account. The RPD found that it was not reasonable or probable that the Appellant and her 13 year-long partner would not exchange their email accounts or that there would not be a record of the existence of their relationship other than just one picture. This is a plausibility finding. The Federal Court has stated that plausibility findings should be made only in the clearest of cases, such as where the facts are so far outside the realm of what could reasonably be expected that it could not happen as described, or where there is documentary evidence or other evidence which demonstrates that events could not have happened as described.2 The RAD gives no weight to this finding since there is no persuasive evidence that these matters are not so far outside the realm of what could reasonably be expected. [19] The RPD stated that on the date of the RPD hearing the Appellant was accompanied by a friend, XXXX XXXX, who was a successful refugee claimant. Ms. XXXX also provided an email in support of the claim confirming her sexual orientation, her feelings towards the Appellant and a same-sex encounter in XXXX 2014.3 MsXXXX XXXX was not called as a witness for the Appellant and there was no application made by counsel to call her as a witness as required by Rule 44 of the RPD Rules. The RPD found that it was unable to verify the authorship of the email or to ask questions about her knowledge of or relationship with the Appellant. When the RPD asked the Appellant if she had a record of any conversation between herself and Ms. XXXX, she replied that she had a record of text messages between them on her cellphone. The RPD Member asked the Appellant if she could view the conversation on her cell phone and the Appellant consented. [20] The RAD noted this particular part of the hearing. When the Appellant replied that she had a record of conversations between herself and Ms. XXXX on her cell phone, the Member asked "Can I see it." The Appellant replied "Of course." The Member looked through the text conversation and then suggested that there should be a break and asked the Appellant if it was all right if she took the phone and went through the messages. The Appellant responded "Okay." The recording of the hearing did not stop at that point and it appeared there was no break. While the Member reviewed the messages, the Appellant said "So if you don't understand anything there, we use pigeon English" The Member then asked the Appellant if Ms. XXXX knew anything about her in Nigeria. The Appellant replied that Ms. XXXX was from Gambia and she told her about things that happened in Nigeria. The Member then read from the phone, a text written by the Appellant to Ms. XXXX on XXXX XXXX, 2015 at XXXX XXXX XXXX AM. This was the day before the RPD hearing; the Member stated that the conversation read as follows: My story be say my XXXX catch me dey want mk love to my gf She cm dey blackmail and threatened to expose, na wetin mk me use school as excuse tk commot naija My shoe sizes 10 and I don't have a favorite colour or food Talk your won jor [21] When the RPD asked the Appellant about the context of the last conversation, she replied that she was reminding Ms. XXXX about the details of her story in case she was called to testify. When she was asked why she provided information about her shoe size, favorite colour and food she explained that in Nigerian culture, such information is usually not shared. She provided this information to her in case she was required to testify as some of her friends in the past were required to provide testimony for an unrelated refugee claim. [22] The RPD did not accept the explanation. The RPD commented that this did not appear to be a genuine exchange between two friends who are already familiar with each other's pasts for the purpose of providing clarification or further details. Rather, it appeared to be providing instructions, or perhaps rehearsal of what to say if asked questions about the Appellant at her refugee hearing. In reviewing the conversations the RPD noted there was no record or trace of Ms. XXXX pursuing the claimant or of them having a past. The RPD found that is more probable than not that these exchanges are made to provide rehearsed answers versus the true account. The RPD drew a negative inference with respect to the Appellant's allegations that she had a same-sex relationship with Ms. XXXX or that she is a genuine friend who was pursuing the Appellant in hopes of having a relationship. [23] The Appellant consented to the RPD Member looking at the text messages on her phone and counsel made no objection. The Member read into the record the message sent by the appellant to Miss XXXX on the day before the hearing. The message does raise concerns as to the credibility of the Appellant's narrative since she has to set it out for Ms. XXXX and she also gives details about her shoe size and favorite color food. The latter details are questions that could be asked to determine if there was a relationship between the two individuals. However, the RPD stated that it had reviewed the past conversations on the cell phone between the Appellant and Ms. XXXX from XXXX 2015 until XXXX 2015, and stated that there was no record or trace of Ms. XXXX pursuing the Appellant or of them having a past. On the basis of this past record, the RPD found that the exchanges were meant to provide rehearsed answers versus the true account. These past conversations were not entered into the record and so the RAD cannot assess the entire context of the texts. [24] The Appellant did not make a refugee claim until March 2014. The Appellant testified that she did not do any research but rather found out about the refugee protection system in Canada through a friend. The RPD stated that she is a sophisticated woman who has 17 years of education with previous self-employment experience. She was able to apply for a student visa and defer her school acceptance to XXXX College which is indicative of her resourcefulness and her ability to be skillful. It was reasonable to expect her need for protection to be equally, if not more important than pursuing her Canadian studies. Her failure to seek protection at the first available opportunity without reasonable explanation was inconsistent with her alleged fear. The RPD acknowledged that delay in claiming or failure to claim at the first available opportunity is not usually a sufficient reason to reject a refugee claim but taken together with other credibility concerns it was another factor that impugned the appellant's credibility. [25] The RPD also questioned her joining various LGBT organizations after making her refugee claim on March 4, 2014. All these purported memberships in various gay or activities in Canada was generated following the initiation of her claim two months after her arrival in Canada. The RPD noted that a person's sexual orientation is a core aspect of their sense of self. The RPD stated that it was believed that her affiliation a membership in various LG BT organizations was done to bolster her claim. The RPD stated that it was its belief that the Appellant did not engage in any bisexual activities in Canada and had only attempted to create this persona to advance a refugee claim. The RPD drew a negative inference with regard to her overall credibility and found that her involvement with various LGBT communities was done to bolster her refugee claim. [26] The RPD did not accept the photographs tendered as they did not overcome the credibility concerns with respect to the Appellant's sexual orientation. The RPD determined that considering all the credibility findings cumulatively it found that on a balance of probabilities, the Appellant was not a credible witness. The RPD found that there was insufficient persuasive evidence before it in respect to the claimant's sexual orientation and concluded that the claimant had not established her sexual identity as a bisexual. [27] I have reviewed the emails that were not accepted by the RPD in evidence. These emails are between the Appellant and a woman by the name of XXXX XXXX. The emails preceding the email entitled "Witness Document" appear to be in a conversational tone and the Appellant asks XXXX to send a written note confirming that she is aware of the Appellant's sexual orientation as a lesbian and that she was also aware of her relationship with XXXX. The witness document states that the Appellant is a bisexual woman like her. It also details how they met and her knowledge of the Appellant's relationship with XXXX. It also states that she is aware of the problems that the Appellant had with her XXXX because she heard it through the "grapevine." [28] There are credibility concerns with the Appellant's story as pointed out by the RPD. There is an inconsistency as to the length of the relationship with XXXX. The email between the Appellant and Ms. XXXX the day before the RPD hearing is suspicious. However, the delay in claiming is not determinative. The lack of corroborative evidence of the relationship with XXXX is a plausibility finding. The delay in joining LGBT groups after making a refugee claim is related to a stereotype as to how a person should act because of their sexual orientation. The emails from XXXX provide evidence of the relationship with XXXX and the Appellant's sexual orientation. There is an abundance of documentary evidence showing that a bisexual person in Nigeria will be persecuted. In considering all the evidence in this matter, the RAD finds that there is a serious possibility that the Appellant will be persecuted if she returns to Nigeria. DISPOSITION [29] The appeal is allowed. Pursuant to ss. 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes a determination, that in its opinion, should have been made, namely, that the Appellant is a Convention refugee. (signed) "Ken Atkinson" Ken Atkinson October 21, 2015 Date 1 Huruglica, Bajar v. M.C.I., (F.C no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Xu,Jinhuan v. M.C.I. (F.C., IMM-2318-06, March 9, 2007) Phelan, 2007 FC 274. 3 Exhibit RPD-1, RPD's Record, at p. 205. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-07406