TB5-09383

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 : TB5-09383 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 29, 2015 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola 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 submitted new evidence in support of his appeal and requests that a hearing be held if the Refugee Appeal Division (RAD) deems it necessary. The Appellant asks the RAD to set aside the determination of the RPD and either find him to be a Convention refugee or refer the matter back to the RPD. DETERMINATION [2] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. Background [3] The Appellant alleged before the RPD that he is bisexual and will be persecuted in Nigeria because of his sexual orientation. [4] The Appellant's application for refugee protection was heard on August 4, 2015. By a decision of August 18, 2015, the RPD rejected the claim. The panel found that the Appellant had not provided documents, photographs, or sufficiently detailed testimony to establish the same-sex relationships he allegedly had in Nigeria, and therefore concluded that he is not bisexual as claimed. [5] The Appellant submits that the RPD erred in its credibility findings. He also asks the RAD to accept new evidence in support of his appeal. ANALYSIS What is the Role of the RAD? [6] 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. [7] The Appellant submits that the RAD should apply a standard of reasonableness here.1 [8] In another decision, this panel considered at some length the legislation and jurisprudence concerning the role of the RAD.2 It assessed the nature of a RAD appeal and addressed the scope and degree of deference to be shown to findings of the RPD. The panel reached the following conclusions, which it finds to also be applicable here, about the approach to be taken in a RAD appeal. The RAD's Approach [9] The RAD will take the following approach in considering an appeal against a decision of the RPD. It will assess all of the evidence, both that in the RPD's record and any admissible new evidence. It will consider questions of law, fact, and mixed law and fact raised by the Appellant and, where applicable, the Respondent. [10] Where the proceeding is a true appeal- that is, where there is no admissible new evidence- the RAD will consider the decision of the RPD, the submissions in respect of that decision, and determine whether the RPD's determination is wrong. As a true appeal is founded on the record, the RAD must conduct an independent assessment of the evidence in that record in order to determine the appeal. [11] Where an appeal includes admissible new evidence that speaks to an error in the RPD's decision, it is a hybrid appeal, where the RAD must consider the RPD's reasons in light of the new evidence, which may establish that the decision of the RPD is wrong.3 [12] Where an appeal presents admissible new evidence which establishes a new, changed, or heightened risk, or otherwise changes the overall nature of the claim, this will result in a limited de novo appeal. In some such cases, the decision of the RPD may be less relevant in light of the new evidence- that is, the new evidence establishes a risk or degree of risk, or other potentially determinative matter not considered by the RPD. Unlike a true de novo proceeding, however, the RAD will not ignore the RPD's record or the findings of the lower tribunal, as these may remain relevant to the appeal. [13] The RAD will recognize and respect findings which the RPD was in an advantageous position to make, which will normally include credibility findings and other findings of fact. Where such deference is to be shown, the RAD will not intervene unless the RPD's reasoning process is not comprehensible or the outcome of that process is not based on and supported by the evidence. [14] Where the RPD's determination is entirely based on findings which warrant deference- such as an overall lack of credibility, based on oral testimony- the RAD will, having conducted its own assessment of the evidence, consider whether the RPD's reasoning process is comprehensible and whether the determination is based on and supported by the evidence. [15] On matters where the RPD has no advantage, the RAD will show no deference and will apply a standard of correctness, engaging in its own analysis of the evidence and reaching its own conclusion to determine if the RPD was wrong. Where the RAD finds that its conclusion does not agree with that of the RPD, the RAD will substitute its own finding and determination or, if it is unable to substitute, will refer the matter back to the RPD for redetermination. The RPD's Findings [16] The Appellant argues that the RPD erred in finding that he was lacking in credibility. The RAD agrees that the RPD made a number of significant errors. [17] Evidence about Mr. XXXX: The Appellant testified that his first same-sex relationship was with a teacher when he attended XXXX Secondary/Commercial School. He knew the teacher only as Mr. XXXX. The RPD made a negative credibility finding because the Appellant did not provide school documents, "...could not provide the full name of his alleged teacher Mr. XXXX or his teacher's identity", and did not provide "...photographs of his class or his alleged teacher...."4 The RPD concluded that the Appellant did not attend the school, did not have a relationship with the teacher, and fabricated the story to bolster his refugee claim. [18] According to the Appellant's testimony, he attended the school between the ages of 11 and 13; as he was born in 1975, he would have been at the school between 1986 and 1988. He wrote in his Basis of Claim form that he was a child at the time and was shocked and scared. In short, the Appellant alleged that, while a minor, he was sexually abused by a person in a position of authority. In this context, it is hard to understand why the RPD expected the Appellant to provide the teacher's full name or his "identity", and even harder to comprehend why the RPD thought the Appellant would be in possession of photographs of someone who abused him approximately thirty years ago. The RPD's finding here was wrong. [19] Evidence about XXXX: The Appellant alleged that he was in a relationship with a man named XXXX; they lived together in the Appellant's apartment. The RPD found that the Appellant was not able to provide XXXX full name at the hearing, and noted that a rental receipt did not indicate that XXXX was living in the apartment. The RPD wrote, "It is expected of the claimant, who was living with an individual, to know his full name."5 The panel concluded: With the absence of documentary evidence and not being able to provide XXXX full name, the claimant has not established persuasively that a man called XXXX lived with him and hence he has not established that XXXX was his bisexual partner. As a result, the panel is not persuaded to believe that the claimant had a bisexual partner called XXXX XXXX The panel finds that the claimant has fabricated his story that he had a bisexual partner called XXXX to bolster his refugee claim.6 [20] The rather significant problem with this analysis is that the Appellant did provide XXXX full name, both in his Basis of Claim narrative7 and in his oral testimony.8 There is no indication whatsoever that the Appellant had difficulty providing XXXX last name. The RPD's finding here was made without regard for the evidence and is in error. [21] Evidence about Mr. XXXX: The Appellant claimed that he had a relationship with XXXX XXXX, a businessman from the United Kingdom. The RPD found that this story was fabricated because the Appellant did not provide any identity documents for Mr. XXXX XXXX nor any "...documentary evidence about his business dealings with XXXX XXXX"9 [22] Again, the RPD's findings are problematic. The Appellant clearly testified that he had no business dealings with MrXXXX XXXX,10 so it was an error for the RPD to expect documents relating to business dealings. [23] Departure from Nigeria: The RPD made the rather cryptic statement that "Since the panel disbelieves that the Nigerian police were looking for him, he was able to leave from Abuja airport without being caught by the police."11 While the RAD does not understand this finding, it may be that the RPD was suggesting that the Appellant would not have been allowed to leave the country if the police were looking for him. If this was the finding, it would be an error, as the RPD did not cite any objective evidence to establish that the Nigerian police would have been able to communicate with border officials in the very brief time between the alleged police raid and the Appellant's departure. [24] Other corroborating evidence: The RPD gave little weight to the Appellant's corroborating documents, finding that letters from the 519 Community Centre and from Black CAP cannot establish that he is bisexual.12 While this was not an error, the RPD did err by failing to assess a letter from the Metropolitan Community Church, which seeks to corroborate his claim to be bisexual. While the RPD was not required to accept this letter as proof of the Appellant's sexual orientation, it was obligated to address this evidence. [25] The RPD's rejection of the Appellant's refugee claim was almost entirely based on its credibility findings with respect to evidence about his three same-sex relationships in Nigeria. Each of these findings was in error, and the RPD's decision therefore cannot stand. [26] The Appellant was entitled to the presumption of truthfulness before the RPD. While the RPD found that presumption was rebutted by various deficiencies in the evidence, the RAD has concluded that those findings were wrong. The presumption of the Appellant's truthfulness therefore stands. The RAD finds that the Appellant has established with credible evidence that he is bisexual and is at risk from family members and police as a result of his sexual orientation. [27] Objective evidence indicates that homosexuality is a criminal offence in Nigeria and that sexual minorities are arrested and sometimes publicly whipped; a vast majority of citizens feel that homosexually is morally unacceptable.13 The state is unable or unwilling to provide protection,14 and internal flight alternatives are not viable because sexual minorities must hide their sexual orientation in order to remain safe.15 [28] The Appellant has a well-founded fear of persecution due to his sexual orientation. He cannot expect adequate state protection and cannot avail himself of a viable internal flight alternative. He is therefore in need of Canada's protection, and the RAD finds him to be a Convention refugee. New Evidence and Oral Hearing [29] The Appellant asks the RAD to accept new evidence in support of his appeal, including an affidavit from his current same-sex partner in Canada, who has also been found to be a Convention refugee. As the RAD has been able to determine this appeal without the new evidence, it is not necessary to consider whether that evidence is admissible here. [30] The Appellant asks that an oral hearing be held if the RAD finds it necessary to do so. It does not. CONCLUSION [31] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act, the Refugee Appeal Division sets aside the determination of the Refugee Protection Division and substitutes its determination that the Appellant is a Convention refugee. This appeal is allowed. (signed) "Edward Bosveld" Edward Bosveld October 29, 2015 Date 1 Exhibit P-2, Appellant's Record, Memorandum, pp. 119-120, paras. 9-12. 2 X (Re), 2015 CanLII 19235 (CA IRB). 3 Reference to this type of evidence is made in Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para. 55. 4 Exhibit RPD-1, RPD's Record, Reasons and Decision, pp. 6-7, paras. 14-18. 5 Exhibit RPD-1, RPD's Record, Reasons and Decision, p. 8, para. 26. 6 Exhibit RPD-1, RPD's Record, Reasons and Decision, p. 8, para. 27. 7 Exhibit RPD-1, RPD's Record, p. 17, Basis of Claim Narrative: "Then in January 2013 I met XXXXXX." 8 Exhibit P-2, Appellant's Record, Transcript, p. 78. 9 Exhibit RPD-1, RPD's Record, Reasons and Decision, p.7, para. 20. 10 Exhibit P-2, Appellant's Record, Transcript, pp. 72-73. 11 Exhibit RPD-1, RPD's Record, Reasons and Decision, p. 9, para. 29. 12 Exhibit RPD-1, RPD's Record, Reasons and Decision, p. 9, para. 30. 13 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Nigeria, 17 July 2015, items 6.1 and 6.6. 14 Ibid, item 6.1, section 3. 15 Ibid, section 5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-09383