TB5-08490

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 : TB5-08490 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 13, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola 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), who is a citizen of Nigeria, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. No new evidence has been submitted in support of his appeal, however, he is requesting if deemed necessary, that the RAD hold an oral hearing pursuant to subsection 110(6) of the IRPA. The Appellant is requesting the RAD to substitute a positive determination, or in the alternative, remit the matter to a newly-constituted panel of the RPD for re-determination. [2] Since the Appellant has not submitted any new evidence in support of his appeal, pursuant to ss. 110(4) of the IRPA, the RAD has no jurisdiction to conduct an oral hearing. DETERMINATION [3] Pursuant to ss. 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Divisions (RAD) refers the matter to the RPD for re-determination by a differently-constituted panel. This appeal is allowed. BACKGROUND [4] The Appellant fears the police, his partner's father who is a XXXX XXXX and his community, due to his sexual orientation, namely, bisexual. Initially, the Appellant had a secret relationship with a man named XXXX, until he completed high school, and XXXX moved away. The Appellant also dated some girls at that time. [5] In 2007, the Appellant went to university where he met XXXX, with whom he had a two year relationship until XXXX changed universities. [6] Following completion of his studies, the Appellant travelled to Accra, Ghana for a few months, returning to Nigeria in December 2013. While in Ghana, however, he met a Nigerian named XXXX XXXX, and they dated secretly. When the Appellant returned to Nigeria, XXXX promised to visit, however, shortly after his return, he met a beautiful woman named XXXX, and although he continued to talk to XXXX, he also dated XXXX. When the Appellant could not find a job in April 2014, he decided to apply for a student visa to Canada. However, his admission letter was delayed from June until September, and meanwhile, XXXX informed the Appellant that she was pregnant. [7] When the Appellant shared his news with XXXX, he became jealous and paid a visit to Nigeria. They spent two weeks together, having intimate relations in a hotel, when two members of the staff discovered them. It was then that the Appellant learned that XXXX father was a XXXX XXXX XXXX. Although Bayo was able to pay off the staff, he was still nervous. Approximately two weeks later, the Appellant's fears became a reality. The Appellant was not at home, however his mother called to say that some policemen had come to the house looking for him, and they had been sent by chief XXXX and that he was wanted for questioning on same sex acts. [8] The Appellant called XXXX and learned that one of the perpetrators to whom XXXX had paid money, had gone to XXXX father to extort more money, and that was how XXXX XXXX learned about the sex in the hotel room. XXXX insisted that the Appellant leave Nigeria immediately because he said his father would make sure that he was arrested. He went into hiding in Akure, and began making arrangements for an agent to assist him. Due to lack of funds, the documents were not released to the Appellant until April 2014. ROLE OF THE RAD [9] Counsel submits that the standard of review which applies to the findings of fact made by an immigration officer is that of reasonableness1 It is further argued that when the RPD misstates the facts or ignores and/or fails to consider relevant evidence, the RAD should follow the reasoning as set out in Baker2 when considering the RPD's decision on findings of fact which are unsupported by the evidence or relevant facts which were ignored.However, the RAD has taken guidance from the Federal Court in Huruglica3 wherein 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 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." SUBMISSIONS BY THE APPELLANT * Did the RPD err in its credibility findings? * Did the RPD adequately assess the documentary evidence? * Did the RPD err in its failure to conduct a section 97 IRPA analysis? How the Appellant obtained the pictures of his former partner's (XXXX XXXX) father, who is also his agent of XXXX [10] The RPD found the Appellant's explanation of how he was able to retrieve the pictures of the XXXX to be lacking in credibility. It reached this conclusion on the RPD's necessity to probe in an attempt to understand the Appellant's explanation that the Appellant had not returned these photographs to XXXX as he was busy working during the two weeks in Nigeria. [11] The Appellant submits that he testified that XXXX accidentally left the photographs with him in Ghana, and when he returned to Lagos, he brought them with him and did not have the opportunity to return them to XXXX. It is argued that the Appellant provided a logical explanation of why XXXX had not picked up the photographs, (as he was busy with work in December), and that while the testimony may have been confusing to understand, it was not contradictory. [12] The RAD concurs that after reviewing the transcript of the proceedings, the testimony in this regard was, indeed, confusing, but on the other hand not contradictory. Having said this, it is the Appellant's identity that is in question in terms of identifying the Appellant as a bi-sexual and therefore the RAD finds that this finding is microscopic and does not go to the central element of the claim. [13] The RPD found inconsistencies between the Appellant's testimony of what his former partner's father's title was when compared with his Basis of Claim (BOC) form narrative, in which he stated that he was XXXX XXXX XXXX. The Appellant used the word "XXXX XXXX" when testifying, and when confronted with this inconsistency, he acknowledged that he was not a XXXX XXXX XXXX, but rather a XXXX XXXX. [14] The Appellant submits that the word "XXXX" was misinterpreted by the RPD, as the Appellant often referred to him as "XXXX XXXX", describing someone of seniority in the community. Counsel further argues that in Question 2b of the BOC form, the Appellant referred to him as a XXXX XXXX and at the hearing a senior XXXX XXXX. It is submitted that the RPD ought to have asked the Appellant the meaning of "XXXX" to quell any ambiguity. Moreover, it is argued that it is trite law that findings that result in a negative decision must be on issues that are germane or crux to the central issue of the claim and not a peripheral issue. [15] The RAD agrees that given the answer to Question 2b of the BOC form, as well as the clarification when confronted with the apparent contradiction, this finding is not sustainable. Whom did the police visit in Nigeria? [16] The RPD noted that the Appellant had provided inconsistent evidence relating to whom the police had visited in Nigeria. According to his BOC form, his mother had been questioned on several occasions, as well as his friends and relatives. When questioned about the police raids, initially the Appellant testified that his mother's home have been raided by the police on seven occasions, as well as surrounding neighbours, however he failed to mention "friends and other relatives". Later when questioned if any other relatives had been questioned, he replied "friends", but failed to mention "other relatives". Upon questioning for the third time, the Appellant testified that his father's younger brother was also questioned by the police about the Appellant's whereabouts. When confronted with the two foregoing omissions, the Appellant replied that it was misinterpretation. Given that the Appellant is highly educated he had testified mid-way through the hearing in English and did not appear to have any difficulty with interpretation, the RPD did not accept the explanation provided by the Appellant. The RPD found that the omitted police visits to his "friend and other relatives" directly relates to his allegations of being sought out as a result of his bisexual orientation. [17] The Appellant submits that he clearly misunderstood the question being posed by the RPD and in the final analysis responded correctly to the question. It is argued that nevertheless, this is a peripheral issue and in this regard the RPD examined this issue through a microscopic lens. [18] The RAD concurs that the RPD's finding is microscopic and not germane to the Appellant's identity as a bisexual. Consequences to the family [19] The RPD noted other credibility concerns regarding the treatment of the Appellant's family members in Nigeria by the authorities. Given that that Appellant's mother's home was allegedly raided on seven occasions, and that the authorities were demanding that the Appellant appear for questioning, the RPD noted in spite the lack of cooperation on the part of the Appellant's mother, there were no consequences to the family. [20] The RPD relied on the documentary evidence4 which indicates that although it is illegal under Nigerian laws, police officials routinely arrest and detain relatives, friends, and family members of wanted suspects in a bid to lure them to surrender for arrests. The RPD therefore drew a negative inference with respect to the family, in particular the Appellant's ability to carry on without facing consequences at the hands of the Nigerian police. [21] The Appellant argues that the RPD was essentially concluding that most or a majority of Nigerian police officers engage in unlawful and illegal activity. It is submitted that the RPD failed to appreciate that the police are not engaging in any sort of unlawful conduct in searching for the Appellant, namely as a consequence of an alleged same-sex act, which is a crime in Nigeria. [22] The RAD appreciates the documentary evidence as cited above. However, having said this, the RAD does not concur that this would necessarily apply to individuals similar to the Appellant. Moreover, the RAD concurs with the Appellant that the RPD made a finding based on the speculation that the majority of Nigerian police officers engage in unlawful and illegal activity. Accordingly, the RAD finds that this conclusion is not sustainable. Same-sex relationship in Canada [23] The Appellant alleges that he began a same-sex relationship with XXXX XXXX in June 2015 and that they are in love. Other than pictures, no letter or affidavit were provided from his partner in support of the Appellant's refugee claim. Moreover, according to the Appellant, his partner is a refugee claimant, yet the Appellant failed to submit an application requesting the RPD to allow him to testify on behalf of the Appellant. His excuse that he was attending an appointment and therefore unable to come to the hearing, was not accepted by the RPD. [24] It is submitted by the Appellant that his current partner had an appointment, which prevented him from attending the hearing to testify on his behalf. More importantly, however, it is submitted that the RPD when it found the lack of an affidavit to be damaging, the RPD did not put this concern to the Appellant. [25] The RAD finds that the RPD did, in fact, ask the Appellant if he had anything else to prove his relationship in Canada. It was not, therefore, necessary for the RPD to be specific in asking why an affidavit had not been submitted. The RAD concurs with the RPD that this relationship has not been established when the Appellant had the opportunity to provide evidence to assist the RPD with this finding. Accordingly, the RAD concurs with the RPD that, on a balance of probabilities, the Appellant is not currently in a same-sex relationship here in Canada. Lack of corroborative evidence [26] The Appellant failed to provide persuasive evidence in support of his most recent same sex relationship with XXXX (other than pictures) which began "some time" in 2013. In spite of having spoken to him on two occasions prior to his travel to Canada, no other evidence was proffered in support of this relationship. The Appellant explained that although he had attempted to call him after his arrival in Canada, his telephone number had changed. The RPD did not accept that he did not have an e-mail account, or at the very least he had made sufficient efforts to reach out to his former partner. The RPD drew a negative inference in this regard, as he is the reason why the Appellant is currently being wanted by the police in Nigeria. Although photographs were provided of both relationships; XXXX and the current one in Canada, the RPD found that the photographs of the Appellant did not offer persuasive evidence to conclude, on a balance of probabilities, that the Appellant is a bisexual. [27] The Appellant submits that he testified that he had attempted on multiple occasions to contact XXXX without success. Moreover, it is submitted that the Appellant did not say that XXXX did not have an e-mail account, but rather that he did not have his e-mail address. [28] The RAD concurs that the RPD erred when it indicated that XXXX had no e-mail account, although a finding of this nature, would be construed as speculative. In fact, after a review of the transcript, the Appellant had, in fact, stated that he did not know his former partner's e-mail address. Accordingly, this finding is not sustainable. 519 and Black CAP [29] The RPD found that given the numerous credibility problems with the Appellant's testimony, coupled with the fact that mere involvement in community-based organizations does not establish one's sexual identity, the RPD questioned the motivation and found that it had been undermined by the Appellant's overall lack of credibility. [30] The Appellant submits that the RPD erred when it gave no weight to the Appellant's attendance at the above organizations. Affidavits [31] The RPD acknowledged that the affidavits prepared by the Appellant's mother and friend support the Appellant's allegations and as such ascribed them some weight, however, they did not sufficiently outweigh the above noted unresolved credibility concerns related to the Appellant's allegations and bisexual identity. [32] The Appellant submits that on the one hand weight is given to support the central allegations of the claim, but then the RPD found that they did not overcome the credibility findings. [33] The RAD finds that given the unsustainable findings above, it is not necessary to comment on the foregoing. Sexual identity as a bisexual [34] The RPD examined the credibility concerns on a cumulative basis and found that, on a balance of probabilities, the Appellant was not a credible witness. This led the RPD to the conclusion that it had insufficient persuasive evidence to establish the Appellant's sexual identity as a bisexual. RAD's FINDINGS [35] As stated above, the RPD came to its conclusion based on cumulative credibility findings. The RAD cannot concur with many of these findings on an individual basis, and therefore, it cannot come to a conclusion based on an accumulation of findings. [36] However, the RAD concurs with the RPD that the identity of the Appellant as a bisexual has not been satisfactorily established, particularly given the sustainable finding with respect to any current same-sex relationship here in Canada. On this point, the RAD concurs with the finding of the RPD. [37] Having said this, however, had the RAD conducted this hearing, it would not have relied on this finding alone to reach the conclusion that identity had not been established. However, the RAD cannot substitute a positive determination due to this finding. It is, therefore, necessary to remit this matter to the RPD to re-examine the central elements of the claim. The outcome could very well be the same, however, given the findings on peripheral matters and errors in fact, a further re-examination is necessary in the circumstances. [38] Pursuant to ss. 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter back to the RPD for re-determination by a differently-constituted panel. [39] This appeal is allowed. (signed) "Roslyn Ahara" Roslyn Ahara October 13, 2015 Date 1 Dunsmuir v. New Brunswick 2008 SCC9 and Dhillon v. M.C.I., 2009 FC 614. 2 Baker v. M.C.I. Action No.A-441-95, 1998, (F.C.A.). 3 Huruglica Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799. 4 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Nigeria, 28 November 2014, item 10.1, Title: Whether the police in Nigeria detain family members or friends of wanted persons and if so, the manner in which these persons are treated; length of time they may be detained; legal recourse available to them. Code: XXXXX. Source: Immigration and Refugee Board of Canada. Date of Document: 15 July 2008. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08490