TB9-01368

RAD File / Dossier de la SAR : TB9-01368 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 19, 2020 Date de la décision Panel Maureen Carter-Whitney Tribunal Counsel for the person who is the subject of the appeal Kingsley I. Jesuorobo 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] XXXX XXXX XXXX XXXX (Appellant), a citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated December 27, 2018, rejecting his claim for refugee protection. He argues that the RPD erred in assessing his claim and asks the Refugee Appeal Division (RAD) to allow his appeal and determine that he is a Convention refugee. DECISION [2] The appeal is allowed pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA). I substitute my own decision that the Appellant is a Convention refugee. BACKGROUND AND PROCEDURAL MATTERS [3] The Appellant alleges that he fears persecution in Nigeria because he is bisexual.1 [4] The RPD found that the Appellant was not credible on the basis of: a material inconsistency in his evidence; a material omission in his Basis of Claim (BOC) documents; confusing, evolving and vague testimony; and insufficient remaining evidence to overcome cumulative credibility concerns. [5] On appeal, the Appellant argues that the RPD engaged in microscopic combing of the Appellant's testimony and used unreasonable standards to reach its negative credibility conclusions. The Appellant submits that the RPD erred by: finding an inconsistency where the Appellant elaborated at the hearing on details in the BOC; failing to engage with restrictive instructions on the BOC form; failing to support the conclusion that the Appellant's testimony was vague or confusing; failing to assess all of the evidence due to erroneous credibility findings; and dealing unreasonably with the Appellant's psychological evidence. Notice regarding any document or written submissions in light of the COVID-19 pandemic [6] In June 2020, the RAD provided Counsel with a notice related to the COVID-19 pandemic. This notice advised Counsel that he had 30 days from the date of receiving this notice to submit any document or written submission in support of the appeal. He was also advised that any document or written submissions in support of the appeal would be accepted without an application and that the other requirements of Rule 29 and 110(4) continued to apply. [7] Counsel requested an extension of an additional three weeks to provide these submissions, and the RAD granted the request. On August 7, 2020, Counsel provided submissions and sought to introduce new evidence, and requested an additional three months to allow the Appellant to obtain hospital records. Given the outcome of this matter, it is not necessary for me to make a determination on this request. ROLE OF THE RAD [8] My role is to look at all the evidence and decide if the RPD made the correct decision.2 I have carried out my own independent analysis of the evidence to determine whether the RPD erred. NEW EVIDENCE AND ORAL HEARING I admit the new evidence submitted [9] On August 7, 2020, the Appellant tendered the following new evidence in support of his submissions responding to the RAD's June 2020 notice: a declaration by the Appellant, dated August 7, 2020; a print-out of the XXXX XXXX XXXX Release of Information Contacts web page; a clinical report from XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX, dated XXXX XXXX XXXX 2020; and an email from XXXX XXXX XXXX to the Appellant advising of payment processing options, dated XXXX XXXX, 2020.3 [10] In deciding whether to admit new evidence after the perfection of an appeal, Rule 29(4) of the RAD Rules requires me to consider any relevant factors, including: the document's relevance and probative value; any new evidence the document brings to the appeal; and whether the Appellant, with reasonable effort, could have provided the document with his appeal record.4 Having considered Rule 29(4), I find that the proposed new evidence is relevant and probative regarding the Appellant's psychological condition, brings new information to the appeal, and could not have been provided with the appeal record because it arose after the perfection of the appeal. [11] I must now determine whether the evidence meets one or more of the requirements in s. 110(4) of the IRPA,5 and if so, I must decide if the evidence is new, credible, and relevant, as set out in Singh, before I can accept it as new evidence.6 Under s. 110(4) of the IRPA, the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available at the time of the rejection, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. The Appellant's RPD hearing took place on October 12, 2018 and his claim was rejected in a decision dated December 27, 2018. The evidence arose after the rejection of the Appellant's claim and, therefore, I find that it satisfies the test in s. 110(4). I further find that the evidence meets the Singh factors because it comes from credible sources, it is relevant (as addressed above in my discussion of Rule 29(4)), and it is new in that it is capable of proving facts about the Appellant's psychological condition that were unknown to him at the time of the RPD hearing. Therefore, I admit the new evidence. An oral hearing is not required [12] The Appellant has not requested an oral hearing. However, having admitted new evidence, I have assessed whether an oral hearing is required. I find that it is not necessary to hold a hearing because the new evidence does not raise a serious issue with respect to the Appellant's credibility, and so the conditions of s. 110(6) of the IRPA are not met.7 ANALYSIS [13] For the following reasons, I find that the RPD erred in finding that the Appellant was not credible. [14] In my independent assessment of the Appellant's credibility, I have kept in mind that sworn evidence is presumed to be true unless there is a valid reason to doubt its truthfulness,8 although this presumption is rebuttable where the evidence is inconsistent with the sworn testimony and an accumulation of contradictions, inconsistencies and omissions regarding crucial elements of a refugee claim can support a negative conclusion about an applicant's credibility.9 I have also considered the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guideline).10 The Appellant's lack of disclosure of other same-sex relationships was not a material omission [15] The RPD found it unreasonable that the Appellant would not include mention of his first serious same-sex relationship in his BOC documents, particularly given that he mentioned other relationships with men in Canada. The RPD made a negative inference concerning the Appellant's credibility based on this omission. [16] The Appellant argues that he did not include details about these relationships because he focused on the relationship that was revealed to his parents because this caused his problems, and that he only made passing reference to certain other past relationships. The Appellant further argues that the RPD was not entitled to draw a negative inference due to the omission of minor or elaborative details. [17] In his BOC documents, the Appellant wrote about his relationship with XXXX and how the disclosure of that same-sex relationship prompted him to make a refugee claim.11 The Appellant also referred in his BOC narrative to two men he met in Canada who were interested in him but with whom he did not pursue relationships.12 At the RPD hearing, he stated that he had been involved in two other serious relationships with men in addition to four to five other brief encounters.13 In addition to the relationship with XXXX in Nigeria, the Appellant testified about his same-sex partners in junior high school,14 his first serious relationship with XXXX in Ghana,15 an encounter with another man in Ghana,16 and his XXXX-month relationship with XXXX in Nigeria.17 [18] The RPD confronted the Appellant about why he had not mentioned all of these relationships in his BOC documents. He responded that he thought he was supposed to explain the reason for his claim, which was because XXXX disclosed the relationship,18 and he mentioned the men he knew in Canada because he saw that these men were able to freely express their sexual orientation.19 [19] While a refugee claimant need not include minor or elaborative details in their BOC, they are required to set out the significant details about what led them to seek refugee protection.20 However, the SOGIE Guideline recognizes that while omissions from testimony of significant events or details relating to the life of an individual with diverse SOGIE may support a negative credibility assessment if there is no reasonable explanation for the omission, decision-makers should examine whether there are cultural, psychological or other barriers that may reasonably explain the omission.21 [20] A recent Federal Court decision recognized that the omission of some of their past sexual partners from a BOC may not be a reasonable basis to bring a SOGIE claimant's credibility into question.22 The Federal Court had previously held that the mere omission of information about the identities of same-sex partners was not a reasonable basis to bring a claimant's credibility into question.23 In this case, I accept the Appellant's explanation that he believed he should focus his BOC evidence on the same-sex relationship that resulted in his parents becoming aware of his sexual orientation. While he did not include reference to all his other previous same-sex relationships in his BOC, he testified about those relationships in a direct manner at the RPD hearing. Therefore, I find, on a balance of probabilities, that the fact that the Appellant did not mention each one of his past sexual relationships in his BOC was not a material omission, and this has no impact on my assessment of his credibility. I have considered the SOGIE Guideline in analyzing the Appellant's inconsistent evidence regarding how his parents found out about his sexual orientation [21] The RPD made a negative inference concerning the Appellant's credibility based on an inconsistency between his oral evidence and his BOC documents regarding how his parents found out about his sexual orientation. [22] The Appellant submits that both his former partner and their mutual friends informed his father of his sexual orientation, and that he merely elaborated on his BOC narrative in his testimony at the hearing. [23] In his BOC narrative, the Appellant wrote that his former same-sex partner, XXXX disclosed their relationship to mutual friends, who then told his parents.24 At the RPD hearing, the Appellant testified that XXXX went directly to the Appellant's father to tell him about his same-sex relationship with the Appellant.25 When asked to explain this inconsistency, the Appellant responded that several people had discussions with his father about the relationship.26 In response to the RPD's further questioning about why he did not indicate in his narrative that XXXX spoke directly to his father, the Appellant stated that he had "already written that part," and his main point was that his father was upset about the same-sex relationship.27 [24] I find that the Appellant's submission that he was simply elaborating on his BOC narrative does not clarify the inconsistency between his two accounts. However, I note the guidance in the SOGIE Guidelines to examine whether there are cultural, psychological or other barriers that may reasonably explain the inconsistency.28 The Appellant has provided hospital records and psychological reports indicating a history of mental health issues, dating back to XXXX 2017, requiring treatment for XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in XXXX 2019.29 I find, on a balance of probabilities, that the Appellant's mental health challenges contributed to the inconsistency in his accounts and to his inability to explain the inconsistency. I further find this inconsistency to be microscopic and not material to his claim. I accept the Appellant's testimony about why he was not able to provide text messages [25] The RPD made a negative finding as to the Appellant's credibility because it found that the Appellant's testimony about why he was no longer able to access text messages, which he described as relating to same-sex relationships, was confusing, evolving and vague. [26] The Appellant submits that the RPD failed to support its conclusion that the Appellant's testimony was confusing, evolving, and vague. [27] When the Appellant testified at the hearing that he had communicated with XXXX through text messages and phone calls, the RPD asked the Appellant if he could provide the text messages between him and XXXX during their relationship. The Appellant stated that he no longer had access to those messages because the phone he used at the time had been damaged when he slept on it.30 Later in the hearing, the Appellant referred to text messages he exchanged with acquaintances in Nigeria after XXXX revealed their relationship,31 and the RPD asked if those could be provided. The Appellant responded that he did not have the messages anymore because he deleted WhatsApp after his phone was damaged, and WhatsApp had been connected to a Nigerian phone number on a sim card that he no longer possessed because it was in excess luggage that he could not pay for and threw in the airport trash bin before his flight to Toronto.32 [28] Having listened to the audio recording of the RPD proceeding, I disagree with the RPD's assessment that the Appellant's testimony about the text messages evolved. The Appellant provided specific responses about the reasons why the two different sets of text messages were not available. I find his explanations to be plausible, and while his way of expressing himself may have been somewhat confusing and vague, it is my independent assessment that his testimony was not shifting or evolving on these points. I further find, having considered the SOGIE Guideline,33 that it is more likely than not that any confusion or vagueness in the Appellant's testimony on the text messages is the result of cultural or psychological barriers in expressing himself at the hearing. The Appellant's remaining evidence is credible [29] The RPD considered the other documents provided by the Appellant and found that they were insufficient to overcome the RPD's cumulative credibility concerns and insufficient to establish that the Appellant is bisexual. The RPD also found that the medical documentation provided after the hearing was not sufficient to address its credibility concerns. [30] The Appellant argues that the RPD erred because its assessment of the evidence overall was negatively coloured by its previous erroneous credibility findings. [31] Having assessed all the Appellant's evidence, I find nothing to rebut the presumption that the Appellant's sworn evidence is presumed to be true. I find that the Appellant's evidence is credible overall. I find that the Appellant is a Convention refugee [32] I find that the Appellant has established, on a balance of probabilities, that he is bisexual. I further find that the objective country condition evidence establishes that there is no state protection or internal flight alternatives for the Appellant in Nigeria because same-sex activity is illegal, and members of the LGBTQ+ community are ostracized by Nigerian society and face a serious possibility of persecution by the police and the general public. The persecution of LGBTQ+ persons in Nigeria may include harassment, violence, discrimination, imprisonment, and the death penalty, based on sexual orientation.34 [33] Therefore, I find that the Appellant has established a serious possibility of persecution if he returns to Nigeria, due to his bisexuality. CONCLUSION [34] The appeal is allowed pursuant to section 111(1)(b) of the IRPA. I substitute my own decision that the Appellant is a Convention refugee. (signed) Maureen Carter-Whitney Maureen Carter-Whitney August 19, 2020 Date 1 Exhibit RPD-1, RPD Record, Exhibit 2, Basis of Claim (BOC) form and narrative, pgs. 10-22. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Exhibit P-3, Response to RAD Notice, August 7, 2020, pgs. 3-15. 4 RAD Rule 29(4), Refugee Appeal Division Rules (SOR/2012-257). 5 Subsection 110(4) of the IRPA. 6 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza, 2007 FCA 385. 7 Subsection 110(6), IRPA. 8 Maldonado v. Canada (MEI), [1980] 2 FC 302 (CA) at 305. 9 Lawani v. Canada (Citizenship and Immigration), 2018 FC 924 (CanLII) at paras. 21-22. 10 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, effective May 1, 2017, under the authority found in section 159(1)(h) of the IRPA. 11 Exhibit RPD-1, RPD Record, Exhibit 2, BOC form and narrative, pg. 12, q. 2(b), pg. 20, para. 8 and pg. 21, paras. 15-16. 12 Exhibit RPD-1, RPD Record, Exhibit 2, BOC narrative, pg. 20, para. 9. 13 RPD audio recording of the hearing, October 12, 2018, at 22:14 and 1:31:30. 14 RPD audio recording of the hearing, October 12, 2018, at 22:00, 27:54 and 1:31:30. 15 RPD audio recording of the hearing, October 12, 2018, at 22:40. 16 RPD audio recording of the hearing, October 12, 2018, at 1:32:23. 17 RPD audio recording of the hearing, October 12, 2018, at 34:40. 18 RPD audio recording of the hearing, October 12, 2018, at 30:32. 19 RPD audio recording of the hearing, October 12, 2018, at 31:35. 20 Akhigbe v. Canada (Minister of Citizenship & Immigration), 2002 FCT 249 at para. 15. 21 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, effective May 1, 2017, under the authority found in section 159(1)(h) of the IRPA, s. 7.7.1. 22 McKenzie v. Canada (Citizenship and Immigration), 2019 FC 555 (CanLII). 23 Strugar v. Canada (Citizenship and Immigration), 2013 FC 880. 24 Exhibit RPD-1, RPD Record, Exhibit 2, BOC narrative, pg. 21, para. 15. 25 RPD audio recording of the hearing, October 12, 2018, at 1:08:18 and 1:37:53. 26 RPD audio recording of the hearing, October 12, 2018, at 1:39:20. 27 RPD audio recording of the hearing, October 12, 2018, at 1:39:51. 28 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, effective May 1, 2017, under the authority found in section 159(1)(h) of the IRPA, s. 7.4.1. 29 Exhibit RPD-1, RPD Record, Exhibit 7; Exhibit P-3, Response to RAD Notice, August 7, 2020, pgs. 3-15. 30 RPD audio recording of the hearing, October 12, 2018, at 40:38. 31 RPD audio recording of the hearing, October 12, 2018, at 1:08:57. 32 RPD audio recording of the hearing, October 12, 2018, at 1:11:20. 33 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, effective May 1, 2017, under the authority found in section 159(1)(h) of the IRPA, s. 7.6.1. 34 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package, Nigeria, 10 July 2018, items 6.1, 6.2, 6.4, 6.5, 6.7 and 6.13. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-01368 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