TB8-10742

RAD File / Dossier de la SAR : TB8-10742 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 August 28, 2020 Date de la décision Panel Ron Stratigopoulos Tribunal Counsel for the person who is the subject of the appeal Kaisree Singh Chatarpaul Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (The Appellant) is citizen of Nigeria. She is appealing a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. No new evidence was presented, and no oral hearing was conducted. DECISION [2] 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. The determinative issue in this appeal is credibility. BACKGROUND [3] The Appellant alleges a fear of being beaten, tortured, humiliated, arrested by the police and detained, and jailed. The basis for this fear is her alleged status as a bisexual woman. The Appellant alleges that from a young age, she was aware that she was attracted to both men and women. The Appellant began a romantic relationship with a female (XXXX) in high school. Ultimately in 1999, the relationship came to an end when the appellant met, and went on to marry her husband, and father of her two children. Years later, when XXXX was going through marital troubles of her own, she reconnected with the Appellant. The relationship between the Appellant and XXXX rekindled. The Appellant visited XXXX at her home on XXXX XXXX, 2016, just prior to the Appellant coming to Canada for a vacation with her husband. The Appellant and XXXX were discovered kissing by XXXX young son. XXXX tried to downplay what her son had witnessed by telling him that the two were just friends, and therefore when the Appellant left XXXX home she thought everything was okay. On XXXX XXXX, 2016, the Appellant and her husband came to Canada on vacation. On XXXX XXXX, 2016, the Appellant received a call from her cousin advising her that XXXX had been arrested. XXXX son had told his father what he had seen, and XXXX ex-husband then called the police. The police also visited the Appellant's home and advised her neighbour that upon her return to Nigeria, the Appellant would be arrested and charged with homosexuality. The Appellant then proceeded to make a refugee claim in Canada. ANALYSIS [4] My role is to look at all the evidence and decide if the RPD made the correct decision.1 [5] The RPD had concerns with respect to discrepancies between the handwritten narrative and the typed narrative that the Appellant presented as evidence. The RPD also had concerns with respect to supporting documents that the Appellant presented. Finally, the RPD had concerns regarding the similarities amongst the Appellant's claim and the narrative of four other female Nigerian refugee claimants, all filed within three months of each other and all represented by the Appellant's counsel. Inconsistent narratives impugn the Appellant's credibility [6] The RPD found that the discrepancies between the two narratives submitted by the Appellant raised credibility concerns. The first narrative, which accompanied her Basis of Claim form, was typed and dated November 3rd, 2016. It was received by the RPD on November 25th, 2016. The second narrative, handwritten also dated November 3rd, 2016, was received by the RPD on August 21st, 2017. The narratives differed regarding how the Appellant was told she had been 'outed', the reaction and concern of the Appellant's husband, and detail surrounding being caught while intimate with XXXX. [7] The Appellant argues that the RPD erred in its assessment of credibility based on the alleged discrepancies. The Appellant further argues it is not implausible that the lawyer who prepared the typed narrative would insert certain language to succinctly capture the statement given the informal structure and prose of the applicant's original handwritten statement. [8] I have reviewed the two narratives. The typed narrative is 15 paragraphs long. It is almost a word for word copy of the handwritten narrative prepared by the Appellant. Both narratives are dated November 3rd, 2016, and both are signed by the Appellant. The only discrepancies are those that have been observed by the RPD. With respect to the events of XXXX XXXX, 2016, the typed narrative states "her son XXXX who is 8 years old did not go to school because he wasn't feeling well and was sleeping in his room when I arrived." The handwritten narrative simply states, "we started kissing when the son saw us, he was shocked and ran back to his room." The Appellant testified: I got in were that the, I saw her son wasn't feeling that well, and he didn't go to school, so we were sitting, we were watching movies, and the son was in his room. So we were watching the movie that's how we got carried away and we started kissing, the son came out, we didn't notice he was sick watching us for I think for a long time, so he saw what we were doing.2 [9] The Appellant provided three slightly different versions of what occurred on XXXX XXXX, 2016. In one version the son was asleep when she arrived. In another she said that she saw that the son was not well and was in his room. The third version makes no mention of the son's health, simply that he saw the Appellant kissing his mother. I find that it is not reasonable that the Appellant would provide three different descriptions of the seminal event that triggered her fear of return to Nigeria. These may appear to be subtle discrepancies, but, when viewed as a whole in conjunction with other credibility concerns that I will address below, they lead me to believe, on a balance of probabilities, that the events of XXXX XXXX did not occur. [10] There is also a significant discrepancy in the narratives about the reaction of the Appellant's husband. The handwritten narrative simply states, "my husband was really mad when the news reached him."3 The typed narrative includes significantly more information with respect to the husband. It states that he is wanted for questioning for harboring a homosexual, and his fear that he believed his enemies in the force would use this against him even if he manages to avoid being arrested or prosecuted for harboring the Appellant. Further, the husband believes that he cannot return to Nigeria and function properly as a police officer. The Appellant signed and dated both versions, declaring them both to be true and correct. [11] When the Appellant was asked about her husband's reaction to learning about Pat's arrest, the Appellant testified that "the day the incident occurred my cousin called and he founded about it, he moved out of the apartment away, so I didn't see him, or heard anything about him or from him."4 This occurred on XXXX XXXX, 2016. The Appellant testified that she did not know what her husband was doing after he left the house.5 About two weeks later the Appellant provided the typed narrative, which included significant detail regarding her husband's reaction. The amended narrative received 9 months later was void of this detail. When asked about these discrepancies, the Appellant testified that the further information in the typed narrative was provided to her by her lawyer who had spoken to her husband. The Appellant argues that no negative inference should be drawn from oral communications or points that were subsequently clarified by counsel and included in the typed narrative. [12] I find that the RPD was correct in determining that the credibility of the Appellant is impugned by her declaring two discrepant narratives to be true. Neither of the narratives mention that the husband had left the Appellant and apparently their relationship had ended. This is a significant detail to omit, especially in her typed narrative which, by her own argument, is meant to provide clarity. Further, the Appellant is swearing to information provided to her by her lawyer as if it were information that she had been told personally. This is problematic as it rebuts the presumption of truth. The neighbour's Affidavit is not credible [13] The RPD drew a negative credibility inference with respect to an inconsistency as to whether the Appellant has a sibling. The Appellant's Basis of Claim (BOC) list no sibling. The affidavit of the Appellant's neighbor in Nigeria cites the Appellant as having a brother. The typed narrative also mentions that the Appellant had a brother, Abraham. The Appellant argues that the RPD: Failed to consider and appreciate the dynamics of rural communal living in developing nations where mortality rates are high and children who are not biologically linked, develop kinship and bonds with others that last into adulthood. [14] I have reviewed the affidavit6 of XXXX XXXX, the neighbour of the Appellant. In no uncertain terms it states that XXXX told both the cousin (XXXX) and the brother (XXXX) of the Appellant that the police had come looking for her at her home. The typed narrative presented by the Appellant, states at paragraph 13 "The neighbour had called my cousin and told my brother everything and that the police said that upon my arrival I would be arrested;" The handwritten narrative makes no mention of a brother. The Appellant argues that a negative inference should not be drawn from oral communications that were subsequently clarified by counsel and included in the typed narrative. However, the following exchange clearly demonstrates that the Appellant was aware of the contents of the typed narrative: COUNSEL: And take you back to when you were preparing your basis of claim and your narrative, you already testified that you handwrote your narrative and it was typed in the lawyer's office is that correct? CLAIMANT: Yeah. COUNSEL: Okay with any other help that was rendered to you at the lawyer's office while you are preparing your Basis of Claim and your narrative? CLAIMANT: Yeah, my lawyer helped me a little by corrected me himself and the PA as well did. COUNSEL: And what as well? CLAIMANT: And the PA as well, assist. COUNSEL: Assist. CLAIMANT: Assistant helped me as well. COUNSEL: Did your lawyer inform you why he needed to, have to corrections done? CLAIMANT: Yeah, he said I needed to break it down properly and explain how everything happened totally then has to correct something in there. COUNSEL: After everything was done did you review the Basis of Claim and the narrative? CLAIMANT: Yes, I did. COUNSEL: Did everything in that did you reflect your story as you told your lawyer? CLAIMANT: Yes. [15] Her testimony was ambiguous. First, she testified that Abraham was her "blood brother."7 The RPD sought clarification from the Appellant who then testified that she did not have a brother and that XXXX was her houseboy and that "I always call him like my brother."8 I do not find it reasonable that the typed narrative would use the term 'brother' if, as the Appellant argues, the purpose of it was to clarify oral communications between the Appellant and her counsel. Further, I do not find it credible that the Appellant would describe the houseboy as a brother. Therefore, I find that the RPD was correct in making a negative credibility inference regarding whether the Appellant has a sibling. [16] The Appellant also generally argues that the RPD failed to adequately consider and weigh her supporting documentation, including the affidavit provided in support of her claim. Having reviewed the affidavit, I further note that the same affidavit states that the police had visited XXXX four times, seeking the Appellant, most recently on XXXX XXXX, 2016. The affidavit, however, was sworn on November 28th, 2016. I find that this discrepancy further impugns the credibility of the affidavit. As such, I find that the affidavit is not credible and that the police did not visit the Appellants home on XXXX XXXX, 2016 looking for her and her husband. Report of Psychodynamic Consultant [17] The RPD gave little weight to the psychological report of the consultant given that it was based on information provided by the Appellant and the RPD had credibility concerns regarding the claimant's allegations. [18] The Appellant argues that this was an error given that the evaluator was an objective, independent professional, not influenced or impacted by the outcome of the evaluation. [19] I have reviewed the report9. It was based on an interview with the Appellant that lasted about 60 minutes. The report includes a section titled 'History Relevant to Assessment' which is simply a regurgitation of the Appellant's narrative. The courts have determined that if the underlying facts are disbelieved, a report of XXXX XXXX XXXX XXXX XXXX based on those facts may be discounted.10 It is not even clear to me that the evaluator has the necessary qualifications to diagnose XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX. Further, even if I accept the diagnosis in the report, it does not establish the veracity of the Appellant's allegations. I agree with the RPD's determination that the report be afforded little weight. Similar narratives of 4 other claimants all with same counsel [20] The RPD drew a negative inference regarding the credibility of the Appellant's allegations because of evidence tendered by the Minister. That evidence included the narratives of 4 other female Nigerian refugee claimants, all filed within 3 months of the Appellant's claim, all with a narrative very similar to that of the Appellant, and all represented by the same counsel as the Appellant. [21] The Appellant argues that in light of the fact that an average of 3300 Nigerian refugee claimants entered Canada annually between 2006 and 2015 it would be reasonable 'that 5 females from Nigeria would be in such a similar position in such a short time frame all travelling to Canada claiming refugee protection because of their sexual orientation'. This was the only argument that the Appellant made in her memorandum addressing the similar narratives. [22] I have reviewed the narratives of the other claimants. The narratives all had a striking resemblance. The pattern is so similar that it belies being accounted for by mere coincidence and simply being a statistical probability. These narratives mostly followed the same script: * Became aware of their bisexuality in their early teenage years * Became romantically involved with a woman who had to leave to another part of Nigeria * Were married to a man after being pressured by their family * Had the previous partner return to their life when her own marriage failed and moved back to the area of the claimant and rekindled the relationship * Went to spend some time with the same sex partner and assumed that they had privacy * The privacy was shattered when the young child of the partner witnessed the Appellant kissing his/her mother, the mother then placated the child before the claimant left * Whilst in Canada the claimant is informed that the child had revealed what was witnessed to the father who reports the matter to the police [23] The Appellant understood that the similar narratives were an issue in advance of the hearing. The Minister disclosed the other narratives on February 7th, 2017, more than 10 months prior to the hearing. The Appellant had ample opportunity to prepare to be able to respond to concerns regarding the narratives. Incredibly, when asked by the Minister at the hearing, if she had gone through the other narratives the Appellant replied "I can't remember, I don't think."11 The Minister asked if she had looked at any of the other narratives and she stated "I didn't go through it."12 The Appellant was not questioned by her counsel regarding the similar narratives. I find that it is not reasonable that the Appellant did not even take the time to review the similar narratives. She may well have had no explanation for the similarities, but she did not even read the other narratives to understand why the Minister had intervened. [24] I would also note that the RPD made other negative inferences regarding the claimant's credibility and was not doing so only because the narratives were similar. I find that the RPD was correct in its determination that a negative inference regarding the credibility of the Appellant's allegations was drawn because of the similar narratives that were in evidence. The similarities amongst the 5 narratives bring into question the integrity of the narrative provided by the Appellant. The reply to Minister before the RPD and the explanation provided in her memorandum do not establish, on a balance of probabilities, that the Appellant wrote her narrative and that it is a true reflection of her experience. [25] The Appellant has not credibly established, on a balance of probabilities, that she is a bisexual woman. I conclude that she would not face a serious possibility of persecution or face a risk to her life or cruel and unusual treatment or punishment, nor a danger of torture if she were to return to Nigeria. [26] 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) Ron Stratigopoulos Ron Stratigopoulos August 28, 2020 Date 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Transcript of [December 13, 2017] RPD Hearing, at p. 18. 3 Transcript of [December 13, 2017] RPD Hearing, at p. 133. 4 Transcript of [December 13, 2017] RPD Hearing, at p. 20. 5 Transcript of [December 13, 2017] RPD Hearing, at p. 30. 6 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 97. 7 Transcript of [December 13, 2017] RPD Hearing, at p. 45. 8 Transcript of [December 13, 2017] RPD Hearing, at p. 46. 9 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 114. 10 Danailov (Danailoff), Vasco (Vassil) Vladimirov v. M.E.I. (F.C.T.D., no. T-273-93). 11 Transcript of [December 13, 2017] RPD Hearing, at p. 23. 12 Transcript of [December 13, 2017] RPD Hearing, at p. 23. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-10742 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