TB5-04496

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 : TB5-04496 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 July 2, 2015 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Daniel Etoh 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 the Republic of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has not submitted any new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and either find him to be a Convention refugee or person in need of protection, or refer his claim back to the RPD for redetermination by a differently-constituted panel- giving the RPD directions as it considers appropriate in the facts and circumstance of this case. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Memorandum of Appeal [3] Did the RPD committed reviewable error in its assessment of the Appellant's credibility? [4] Did the RPD err in law in concluding that the Appellant was not a Convention refugee and not a person in need of protection? BACKGROUND [5] The Appellant states that he was born in Nigeria on XXXX XXXX, 1985, the oldest of XXXX children. The Appellant first experienced sexual attraction to people of the same sex when he was in Junior Secondary School. In 2002, during his first term at Senior Secondary School, he met another male, XXXX XXXX, and they became close friends. They began a sexual relationship in XXXX 2002 and made love from time to time, whenever they had the opportunity. After losing contact with his friend in 2004, he gained admission to University in 2007, where he met a young female and they eventually became lovers. In 2009, he ran into his previous male friend, and they resumed their relationship. He simultaneously maintained his relationship with his female lover as well. The Appellant was accepted at XXXX College, Toronto Ontario Canada and made arrangements to travel to Canada on XXXX XXXX, 2015, after the holidays. On XXXX XXXX and XXXX, 2014, two days after purchasing his travel ticket for Canada, he spent time with his female lover. On XXXX XXXX, the Appellant and his male friend were caught kissing by a cousin. After running away, he stayed at a hotel. The Appellant's uncle retrieved his passport and traveling documents and he left Nigeria on XXXX XXXX, 2014. He called his mother on XXXX XXXX, 2005 to inform her of his sexual orientation. The Appellant's mother refused to send him more money to continue his school program in Canada, insisting that he should come back home. [6] The Appellant's application for refugee protection was heard on March 24, 2015. In a decision dated April 8, 2015, the RPD rejected his claim. The panel found that the claimant has not, on a balance of probabilities, established his sexual orientation as a bisexual male who fears persecution in Nigeria. The panel concluded that the Appellant was neither a Convention refugee nor a person in need of protection. ROLE OF THE RAD [7] The Appellant submits that the RAD is to conduct a hybrid appeal, and discusses at length how the RAD must substitute its own judgment wherever it disagrees with the RPD's decision on the facts, whether or not there is a palpable and overriding error, even on issues such as credibility and/or where the RPD enjoys particular advantage in reaching such a conclusion. [8] The RAD finds that the Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. 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 Appellant 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." [9] Accordingly, the RAD will conduct its own assessment 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. MERITS OF THE APPEAL Relationships [10] The RPD found that the key issue in this claim for refugee protection was the Appellant's credibility. The RPD found that the Appellant had not provided credible and trustworthy evidence in establishing his sexual orientation as bisexual. [11] The Appellant stated that after being found in an embrace with Mr. XXXX on XXXX XXXX, 2014, that he has never seen him again. The RPD drew a negative inference from this statement by the Appellant. The RPD found it not reasonable that the Appellant who had an ongoing relationship with a same-sex partner in Nigeria since 2009, and who testified that he loved him, would not have made any effort prior to his leaving Nigeria or upon his arrival in Canada to try and speak to him to see if he was okay. The RPD drew a negative inference as it relates to the credibility of the Appellant's allegations that he was involved in a same-sex relationship in Nigeria. [12] In support of the above finding, the RPD noted that in testimony, he stated that he had not seen his female lover since XXXX XXXX, 2014. In further testimony, he stated that he called her from Canada. The RPD had difficulty accepting that the Appellant would call his girlfriend from Canada after saying he had not spoken to her since before he was caught with a same-sex partner, yet made no efforts to contact Mr. XXXX, the person that he allegedly loved. [13] The Appellant submits that the RPD committed an error in drawing a negative inference from the Appellant's alleged failure to contact Mr. XXXX, his same-sex partner, prior to leaving Nigeria, or upon his arrival in Canada. The Appellant submits, supporting the RPD 's negative inference, was the fact that the Appellant would call his girlfriend from Canada after saying he had not spoken to her since before he was caught with a same-sex partner. [14] The appellant submits that he testified at the hearing that he did call Mr. XXXX, and that the RPD's negative inference on this issue was in error. The RAD finds that the negative inference drawn by the RPD is sound. By itself, it is not determinative in finding the Appellant not credible about his sexual identity. However, given other credibility issues found by the RPD, this issue becomes probative. [15] In examining the transcript of the hearing, the Appellant testified in response to the RPD's question, "So did you call Mr. XXXX after the incident when you were caught? Did you try talking to him? The Appellant responded, "Everybody scared to be dead for his life, so I don't even know where he is for now". In continuing questioning, the RPD asked, So you didn't try to call him?" The appellant responded, "It was on my mind is different." When asked this question by his counsel, the Appellant responded differently to the same questions. The RAD draws a negative inference from this inconsistent testimony. Given the length of the alleged relationship with Mr. XXXX, it is not reasonable or credible that the Appellant would not attempt to make some contact given his professed love of the man. The Appellant's explanation why he had not called him was because his number is not reachable. The RAD finds that the Appellant allegedly contacting his female lover, but not his male lover, exacerbates the issue above, and agrees with the RPD finding on this issue. [16] In addition, upon reviewing the transcript of the hearing, the Appellant stated that the last time he talked to his female lover was when she came to his house on the XXXX or XXXX, of XXXX. In further testimony, the Appellant stated that he called her from Canada. When this inconsistency was pointed out to the Appellant, the Appellant explained that he thought the RPD said on which date. This inconsistency was not mentioned in the RPD finding. The RAD is unable to make a finding on this inconsistency in testimony because the RPD did not comment on the Appellant's explanation of this inconsistency. However, the RAD finds, on a balance of probabilities, that the Appellant has not been credible as a witness. Fleeing Nigeria [17] The RPD found implausible that the Appellant's uncle could walk into the Appellant's family home and remove all of his documentation and some belongings, given that the Appellant's own family was allegedly looking for him. The Appellant also stated that no one questioned the uncle when he performed this act. [18] The RPD drew a negative inference from the fact that he could produce no receipts for the time he allegedly spent in a hotel prior to fleeing Nigeria. The RPD found not reasonable that the Appellant, who allegedly continues to speak to his uncle in Nigeria, and provided other documents for the Appellant from Nigeria, would not have considered asking his uncle to obtain a receipt, or even a letter from the hotel manager, given that the Appellant testified that he knew the hotel manager. [19] The Appellant submits, referring to the transcript of the hearing,2 that his uncle had free access to the house, and sometimes slept there. The Appellant also refers to the uncle's affidavit,3 where information regarding this issue is addressed. The Appellants submit that the RPD's finding on this issue is erroneous given the above information. The Appellant states that his explanation is possible and not far outside the realm of what could reasonably be expected. He also submits that no documentary or other evidence was presented to indicate that the events could not happen as described. [20] The Appellant submits that his testimony4 was reasonable under the circumstances. The Appellant said his mind was not even there to ask. [21] By itself, this RPD finding is not a strong finding of lack of credibility. However, the RPD is entitled to make findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole. Where the RPD finds a lack of credibility based on inferences concerning the plausibility of evidence, there must be a basis in the evidence to support such inferences.5 In this case, there is an evidential foundation for the RPD's findings, the Appellant has not been found credible on a number of issues in this claim. The RAD finds that the RPD's credibility finding on this issue was sound. [22] The RAD finds it not credible that if, as alleged, the Appellant's family were looking for him, he would be able to go in and get out of the house, and gather all of the necessary documents and effects, without being either questioned or noticed. The Appellant was represented by competent counsel at the hearing, and in the Memorandum of Appeal. Given the finding of the RPD regarding documentation from the hotel, the RAD would reasonably expect, given documentation and testimony regarding the relationships, that the Appellant would make efforts to acquire this documentation in order to substantiate this allegation. No such documentation, or any indication of acquiring this documentation, was received by the RAD. The RAD supports the RPD's negative finding on this issue. XXXX college [23] The RPD drew a negative inference in relation to the Appellant's allegations because of his inconsistency in testimony as it related to his potential attendance at XXXX College, in Toronto. When the Appellant requested that his family send the remaining money due for his course in registration at XXXX, he was told to return to Nigeria. The RPD noted that the claimant had not formally withdrawn, stating that he simply stopped going. The RPD noted, in reviewing the email, that the registration process appeared to be Internet-based, as confirmed by Internet hyperlinks and the fact that the Appellant's registration was emailed to him. Given this information, the RPD reasonably expected that the claimant would have had access to his student account and would have been able to offer some documentary evidence as to his current status at XXXX College with regards to whether he was no longer registered or whether a refund had been requested by the Appellant's parents. [24] The Appellant submits that the document, page 101 of the Appellant's record, only refers to registering for an orientation session, not for registration as a student as stated by the RPD. The Appellant submits that the RPD then made the leap to indicate that the Appellant would have access to a student account and would be able to offer some documentary evidence as to his current status at XXXX College, with regards to whether he is no longer registered, or whether a refund has been requested by the Appellant's parents. The Appellant submits this is pure speculation on the RPD's part. [25] In reviewing the transcript of the record,6 the RAD notes that the claimant testified that he was approved to study in Canada before he came to the country, and that $7000 had been paid for his semester. The Appellant, in continuing testimony, stated that this was half of his registration fee, and that he had to pay the full payment before he could start his registration. In such a circumstance, it would be reasonable that the school would have a paper or computer trail of this transaction, and the RPD's questioning and findings regarding the money paid would be quite reasonable. The RAD finds that if the Appellant had paid this money, as testified to at the hearing, a paper trail to verify this transaction would be available from XXXX College. No such documentation was submitted for the hearing, nor was there any indication of such documentation being acquired and submitted for the Memorandum of Appeal. The RPD's finding on this issue is sound. Canadian Contact [26] The Appellant stated that his uncle in Nigeria had put him in touch with a friend, "XXXX" who had assisted him and put him in touch with a lawyer. In reviewing the affidavit of the Appellant's uncle, submitted in documentation, the RPD noted that there is no reference to this man that the claimant referred to in testimony and documentation. Given that the Appellant's uncle appears to know this man as he was the one who put the Appellant in touch with him, and given that the Appellant continues to speak with his uncle since his arrival in Canada, the RPD would reasonably expect the claimant to have asked XXXX for a letter. It would also be reasonable to expect that his uncle would have made reference to XXXX in the affidavit he provided, having assisted his nephew. The RPD drew a negative inference is relates to the credibility of the Appellant's allegations on this issue. [27] The Appellant submits that the board's negative inference on this issue is unfounded, given the totality of the evidence before the board. [28] The RAD finds that the Appellant has not been credible regarding his testimony about his uncle's friend, XXXX. It would be reasonable for documentation to have been presented from this person substantiating the relationship with the Appellant's uncle, and his role in providing support for the Appellant in Canada. No such documentation was presented for the Memorandum of Appeal. The RAD finds the RPD's finding on this issue sound. Documentation [29] The RPD found, on a balance of probabilities, that the photographs given in documentation, did not establish the Appellant's sexual orientation as a bisexual male. The RPD goes on to state that, "To observe the Appellant beside another man or woman does not lead the panel to believe, on a balance of probabilities, that these were people he had been involved in relationships with, given the nature of the photographs and previously cited credibility concerns. The RPD found that the claimant was not involved in a same-sex relationship prior to his arrival in Canada, nor did the RPD believe that the claimant is being sought by his family due to his sexual orientation. [30] The Appellant produced documentation to indicate his involvement at several pro-Lesbian, Gay, Bisexual and Transgender (LGBT) organizations in Toronto. He testified that he had been informed about Access Alliance by his lawyer, who then informed him about other organizations that provided support for the situation that happened to him. The RPD noted that the Appellant was a well-educated and sophisticated man who had access to the Internet in Nigeria. When asked at the hearing as to his knowledge of any LGBT support groups or websites in Nigeria, he testified that he did not know of any nor had he looked into any such organizations in Nigeria. The RPD quoted documentation indicating that these organizations exist. Given the credibility issues described in its decision, as well as no prior attempts on the part of the Appellant to seek out LGBT support groups, services, or websites prior to arrival in Canada, the RPD drew a negative inference as it relates to the Appellant's allegations that he is a bisexual male. The RPD also found that the timing of the Appellant's introduction to these organizations was done for the purpose of bolstering his refugee claim in Canada, and as a result gives little weight to the letters of support. [31] The Appellant submits that the RPD's rejection of the photographs of the Appellant same-sex partner and the woman that he was involved with in a heterosexual relationship was not based on any evidence; it was at best speculative. The Appellant also stated that the RPD's finding of the Appellant's attending LGBT organization simply to bolster his refugee claim is entirely speculative and unsupported by any evidence. [32] A review of the of the transcript of the hearing and the RPD's reasons indicates that the RPD questioned the Appellant on his documents, and put its mind to the documents provided in support of the Appellant's sexual orientation.7 The RPD made clear findings regarding the weight it placed on the documents. As such, the RAD finds that the RPD did not err by not regarding the totality of the evidence before it. [33] The RAD finds that the RPD's finding of not giving any weight to the documents was supportable. The RPD found that the Appellant was not credible, and therefore it placed no weight on documents based on the word of the Appellant. The RAD places no weight on these documents as they were based on the Appellant's own assertions that he was bisexual. The RAD, in assessing the evidence from the documentation before it and the transcript of the hearing, reached the same conclusion as the RPD with regards to the validity of the documentation in establishing the Appellant's alleged bisexual identity. As such, it was reasonably open to the RAD to give the documents provided by the Appellant no weight as the contents of the claims were based on the Appellant's self-reported claim of being bisexual. [34] As outlined above, the RAD concluded that the RPD placed no weight on the Appellant's evidence in support of his claim of being a bisexual man in Toronto, and the RAD finds this determination to be supportable. The Appellant's contact with the 519 Community Centre was made only after a referral by his counsel. As outlined above, the claims in the documents concerning the Appellant's sexual orientation were based on the Appellant's own self-disclosed statements about his sexuality. The Appellant was found not to be credible by the RPD; therefore, the RPD's decision not to place weight on the documents which supported his sexual orientation is supportable. Psychological Report [35] The RPD made reference to the psychological report on the Appellant that was made by Millan and Associates. The RPD found that the report is based on the Appellant's own testimony and evidence as it relates to his sexual orientation, which the RPD did not find credible. The RPD gave the psychological report little weight. [36] In the Memorandum of Appeal, the Appellant makes reference to a conclusion by the psychologist regarding his candid fashion in responding to questions, with no apparent attempt to mislead or to be evasive. [37] The RAD finds that the RPD's comments on the psychological report are sound. The report, and its findings are based primarily on the Appellant's story; a story found by the RAD not to be credible. Conditions for Convention Refugee-Person in need of Protection Status [38] The Appellant submitted that the RPD's conclusion that the Appellant was not a convention refugee or person in need of protection was a result of its erroneous credibility findings. The Appellant then submitted at length, how the basis of sexual orientation can be interpreted by Canadian jurisprudence on Convention Refugee law as a membership in a particular social group. The Appellant submits that there was adequate evidence before the board that the Appellant's life was in danger if he returned to Nigeria because of his sexual orientation [39] Given the totality of the evidence, including the serious concerns with the credibility of the Appellant's allegations, the RAD finds that the RPD's finding that the Appellant was not a bisexual man is supportable. The number of issues of credibility found in this claim support the decision that the Appellant is not bisexual, as alleged. DISPOSITION [40] Having considered all of the evidence, the RAD determines that there is not a serious possibility that the Appellant would be persecuted if he were to return to Nigeria today or that, on a balance of probabilities, he would be personally subjected to a danger of torture or face a risk to life or risk of cruel and unusual treatment or punishment. CONCLUSION [41] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Robert S. Garner" Robert S. Garner July 2, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 P-2, Appellant's Record, p. 55, lines 25-29 3 P-2, Appellant's Record, p. 102. 4 P-2, Appellant's Record, p. 57, lines 5-10 5 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012, 2012 FC 1037 6 P-2, Appellant's Record, p. 53 7 Memorandum of Appeal, RPD's decision, pages 6,7, paragraphs 18 through 20. Record, p. 12, Reasons for Decision paragraphs 13-18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-04496