TB5-06707

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 : TB5-06707 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 September 28, 2015 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ochiemuan Okojie 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), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his claim. He has however, requested an oral hearing. The Appellant further requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and substitute a decision that he is a Convention refugee or a person in need of protection. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. Background [3] The Appellant alleges he is a homosexual male. He was aware of his attraction to boys at an early age and had a secret relationship with another male student when he was in secondary school. [4] The Appellant further alleges that he left Nigeria for the United States in September 2014 after his father received threats that he and also the Appellant would be kidnapped for having criticized the ruling party. The Appellant intended to remain in the United States for a few months using his visitor's visa which was valid until March 17, 2014. [5] The Appellant alleges as well that he was caught with a male lover by his uncle's son on XXXX XXXX, 2015, and travelled to Canada to claim protection. He entered Canada on April 19, 2015, and made an inland claim around April 24, 2015. He fears his uncle in the United States, his father's threats in Nigeria, the police in Nigeria, and the threats of having to undergo cleansing in Nigeria. The Issues [6] The panel indicates the determinative issues in this case are the Appellant's credibility, his subjective fear and his identity as a bisexual male. [7] The Appellant submits the panel committed errors and misconstrued the evidence before it regarding the Appellant's failure to make a claim in the United States, his failure to leave the United States when his visa expired, his sexual orientation and his documentary evidence. The Role of the RAD [8] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [9] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [10] In this regard, the Court in Huruglica considered the appropriate relationship between the RAD and the RPD.1 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal." It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [11] The Court determined that, in conducting its assessment, the RAD 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. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error." [12] The RAD will review all of the evidence in the RPD record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Application for an oral hearing [13] The Appellant asks that an oral hearing be held pursuant to subsection 110(6) of the IRPA. Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. According to subsection 110(6), the RAD may hold a hearing if in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant that is central to the RPD's decision, and if accepted, would justify allowing or rejecting the refugee protection claim. The RAD notes that no new evidence in support of this claim has been submitted by the Appellant. Therefore the request for an oral hearing is dismissed. Credibility Subjective fear: failure to claim in the United States [14] The panel noted the Appellant studied in India from 2010 to 2014, was denied a visa to Australia in 2011 and was denied a visa to Canada in 2013. As a result of alleged threats against his father he came to the United States to stay with relatives until after the February 2015 elections were over. He arrived in the United States on September 18, 2014 and testified he was planning to return to Nigeria in March 2015, as his visitor's visa expired on March 17, 2015. He alleged he was discovered having sex with a same-sex lover on XXXX XXXX, 2015, and his uncle was informed and told the Appellant's parents. [15] The Appellant testified he decided to leave Nigeria when his father was threatened by political opponents. He was asked why he did not claim protection in the United States and he responded he was not there to make a claim but only to visit relatives. The Appellant was asked if he left Nigeria because of threats and he said "yes." He was further asked if he looked into opportunities to be safe and he said "no." The panel indicated it did not believe this explanation to be reasonable in light of the Appellant's testimony he left Nigeria due to threats he received. The panel found that the Appellant's credibility is affected by his failure to make a claim for protection in the United States. [16] The Appellant testified he decided to come to Canada after the incident with a male lover had been discovered by a family member in the United States. The Appellant was asked what his intention was as he was running out of status in the United States, and as in April his status had expired. The Appellant responded he was not getting threats from family members and everything started when his uncle discovered his same-sex relationship. The panel noted he had indicated in his Basis of Claim Form (BOC)2 that it was his cousin who made the discovery. [17] The Appellant was asked why he did not return to Nigeria in March when his visa expired and he responded he was making preparations to return before the incident. The panel noted the Appellant was already out of status in the United States when the incident took place and drew a negative inference due to the Appellant's inability to explain why he did not leave when his status expired. [18] The Appellant was asked when he learned that it was illegal to be in a same-sex relationship in Nigeria. He responded it was not accepted and that if the police find out they send you to jail. The Appellant was further asked when he learned that it was dangerous to be with a man in Nigeria and he responded when he was around the age of 18. [19] The Appellant was asked why he did not try to stay in the United States, knowing this fact. He responded he was at risk that too many family members were in the United States, if they knew he was gay, it would spread everywhere. The panel drew a negative inference based on the Appellant's failure to make a claim for protection in the United States as a bisexual man who knew he could be jailed for that fact if he returned to Nigeria. The panel noted the Appellant was a resident in the United States for seven months. [20] The panel noted the Appellant is fluent in English and that he studied at the university level and found it not credible that he would not have sought information on the possibility of making a claim in the United States. In addition the panel did not find it reasonable that he Appellant would flee to Canada in order to escape relatives. The panel found if the Appellant truly had a subjective fear of persecution, he would have sought information and asked for protection in the United States. The panel further found the Appellant's behaviour undermines his credibility. [21] The Appellant submits that the panel erred and misconstrued the evidence before it when it concluded the Appellant failed to make a claim in the United States. The Appellant further submits he came to the United States to visit and stay with relatives because of threats to his safety in Nigeria, and he planned to return after the election, initially slated for March 2015 but postponed to April 11, 2015. [22] The Appellant further submits he did not delay in making a claim and he did not fail to make a claim in the United States because when he entered the United States in September 2014, he did not fear any risk emanating from his sexual orientation as it was not exposed. [23] The Appellant submits as well that the panel misassessed and misconstrued the evidence when it impugned his subjective fear and erred when it wrongly concluded that he delayed seven months in the United States before making his claim. The Appellant submits when he entered the United States he did not have a fear based on his sexual orientation, which was not exposed until XXXX XXXX, 2015, when he was caught with his partner. [24] The Appellant also submits that he did not delay in making a claim after his sexual orientation was exposed on XXXX XXXX, 2015, and he feared persecution if he returned to Nigeria or remained in the United States with his uncles. As a result he fled to Canada and made his claim. [25] The Appellant submits the panel erred when it concluded he was not able to explain why he did not leave the United States when his visa expired in March 2015. The Appellant notes he indicated in his BOC and testified that he was already planning to return to Nigeria after the elections slated for April 11, 2015. The Appellant submits his explanation for not leaving in March 2015 was reasonable. [26] The Appellant submits the panel erred when it impugned his subjective fear for not making a claim when he arrived in the United States based on the threats from party members. The Appellant submits there was no basis for making a claim because the plan was for him to return to Nigeria after the elections, and if his father did not believe the threats would go away after the elections, his father would have fled Nigeria. [27] The RAD has reviewed and assessed all of the evidence concerning the Appellant's stay in the United States, his alleged identity as a homosexual and his failure to make a claim for protection in that country as a result of the risk of persecution for homosexuals in Nigeria. [28] The RAD notes that the Appellant was resident in the United States for approximately 7 months. The RAD further notes the Appellant's visa expired on March 17, 2015, but the Appellant remained in the United States for a month beyond that date. [29] The RAD further notes the Appellant explained that the election date in Nigeria had been postponed to April 11, and that is why he overstayed his United States residence. The RAD further notes in regard to this explanation that the Appellant did not provide any evidence that anything has happened to his father or any other member of his family beyond the threats made seven months earlier. [30] The RAD further notes that the Appellant testified he was aware of the problems for homosexuals in Nigeria and the risk of arrest before he left that country and when he arrived in the United States. The RAD further notes the Appellant testified he was involved in a homosexual relationship in the United States. [31] The RAD finds it strains credulity that a well-educated, English speaking person would not have investigated the possibility of refugee protection in the United States during a 7 month residency in that country. While the Appellant might not have been identified as yet as a homosexual, he was aware of his jeopardy in Nigeria if he returned and continued to engage in homosexual relationships. [32] The RAD notes that the Appellant testified his problems began on XXXX XXXX, 2014, when his cousin discovered him with another man. The RAD further notes that this discovery allegedly took place after the Appellant was a resident in the United States for approximately 7 months, just as he was planning to return to Nigeria and when his legal residence in the United States had expired 17 days before. [33] The RAD finds this to be an extraordinary coincidence that raises a serious doubt as to its credibility. [34] The RAD agrees with the panel, on the basis of its review of all of the evidence in the RPD record, that if the Appellant truly had a subjective fear of persecution in Nigeria, he would have sought information regarding a claim for protection at some time during his 7 month residence in the United States and he would have made a claim in that country. Sexual orientation [35] The panel noted the Appellant testified he is bisexual and alleged in his BOC that he "does not like girls."3 He was asked to explain this contradiction and he testified that when he was in an affair with a boy he enjoyed it more compared to relations with a woman. The panel does not find this explanation reasonable as it does not address his statement that he did not like girls. The panel drew a negative inference as to the Appellant's credibility with regard to his sexual orientation based on this discrepancy. [36] The Appellant submits that the panel erred in its assessment of evidence regarding his sexual orientation. The Appellant further submits he considers himself bisexual because in the past he had affairs with both male and female partners but that he did not like girls as much as men. The Appellant submits as well that the panel engaged in a microscopic reading of the evidence. [37] The RAD has reviewed the evidence concerning the Appellant's testimony that he is bisexual. The RAD finds that merely because he said he did not like girls is insufficient evidence on which to base a finding regarding the Appellant's sexual orientation. Documentary evidence [38] The panel noted the Appellant submitted letters4 from various LGBTQ organizations in the Toronto area which indicate his involvement with them beginning in late June 2015. The panel further noted two photographs5 of the Appellant with his alleged partner in the United States. The panel found the pictures do not confirm the Appellant's sexual orientation but merely show the two men next to one another. The panel indicated it believed the evidence was prepared to support the claim, given the serious credibility concerns on relevant and central issues noted above. [39] The panel noted as well the Appellant submitted an affidavit from a friend.6 The panel gave it little weight as the Appellant lacks credibility for the reasons noted above. The panel also notes that the objective evidence on file indicates that counterfeit documents are easily available in Nigeria. [40] The Appellant submits the panel erred in its assessment of his documentary evidence. The Appellant argues the affidavit from his friend and the pictures with his partner in the United States are relevant evidence that corroborates his claim that he was in a same sex relationship and that he fears persecution from it. The Appellant notes that Federal Court case law has acknowledged proving sexual orientation is difficult as behaviours are inherently private. The Appellant submits that the panel erred in rejecting this evidence without a reasonable explanation. [41] The RAD has reviewed the documentary evidence as to the Appellant's sexual orientation. The RAD agrees with the panel that the pictures of the Appellant with his alleged partner do not confirm that he is homosexual. The RAD finds the letters from LGBTQ organizations do not themselves confirm that the Appellant is a homosexual. Anyone can join these organizations. In regard to the affidavit from a friend in Nigeria, the RAD notes this friend indicated he was unaware the Appellant was gay when he left Nigeria. The RAD finds whatever information this friend has regarding the Appellant's homosexuality is second hand knowledge and therefore not probative as evidence. The Panel's Conclusion [42] The panel found, on a balance of probabilities, and based on the credibility concerns noted above that the Appellant is not bisexual and that he has not been in relationships with men and that he would not be at risk if he returned to Nigeria. The panel found the Appellant has failed to establish that there is a serious possibility of persecution on a Convention ground if he were to return to Nigeria. The panel further found that that the above-mentioned findings apply as well to section 97 of the IRPA and that, on a balance of probabilities, he would not be personally subjected to a risk to his life or a risk of cruel and unusual treatment or punishment or a risk of torture if he were to return to Nigeria. [43] The RAD concurs with the panel's finding on the basis of its analysis of the Appellant's actions in the United States. The RAD acknowledges that it is difficult to make a judgement about a person's sexual orientation. However, the RAD finds that the totality of evidence available in the RPD record indicates that the Appellant's actions did not reflect the subjective fear that would have been anticipated from someone who was a homosexual and who was aware of the risk of persecution if he were to return to Nigeria. Disposition [44] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Milton Israel" Milton Israel September 28, 2015 Date 1Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Exhibit RPD-1, RPD's Record, at pp. 15-33. 3 Exhibit RPD-1, RPD's Record, at p. 14. 4 Exhibit RPD-1, RPD's Record,, at pp. 158, 162. 5 Exhibit RPD-1, RPD's Record, at pp. 32-33. 6 Exhibit RPD-1, RPD's Record, at pp. 30-31. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-06707