TB5-02606

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 : TB5-02606 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 June 17, 2015 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Peter Lulic 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 her claim for refugee protection. She has not submitted new evidence and requests an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to grant the appeal. DETERMINATION [2] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that, upon return to Nigeria, she will be harmed by members of her community and arrested by police because she was falsely accused of being bisexual. [4] The Appellant's application for refugee protection was heard on April 2, 2014 and June 26, 2014. By a decision of December 8, 2014, the RPD rejected the claim. The RPD found that the Appellant was not a credible or reliable witness and her allegations were not credible. The RPD also found that the Appellant has a suitable and viable internal flight alternative (IFA) in Abuja. The Appellant submits that the RPD committed reviewable errors that raise a serious issue in this matter. She argues that the RPD's findings on credibility, IFA and state protection are not reasonable and should be set aside. ANALYSIS Role of the RAD [5] What is the role of the RAD in considering an appeal against a decision of the RPD? The Appellant submits that the appropriate standard of review for most decisions involving an exercise of discretion for questions of mixed fact and law is reasonableness. She also submits that the appropriate standard of review for questions of law and questions of natural justice is correctness. [6] The RAD notes in Huruglica the Court considered the appropriate relationship between the RAD and the RPD.1 It found that the RAD had erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.2 [7] Justice Phelan stated the following in Huruglica: 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.3 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."4 [8] Considering the Court's decision in Huruglica, the RAD will review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, recognizing and respecting the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD will substitute its own determination. Application for an Oral Hearing [9] The Appellant asks that an oral hearing be held, pursuant to Section 110(6) of the IRPA.5 [10] Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [11] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [12] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [13] In this appeal the Appellant has not submitted any new evidence. As such, the RAD must proceed without a hearing and the Appellant's request for an oral hearing is denied. The RPD's Findings Lack of details and documents corroborating uncle's influence [14] The Appellant alleges that the uncle who sexually abused her and who falsely accused her of being bisexual was a powerful man. When questioned about his power and influence at her hearing before the RPD the Appellant indicated that he had sold vehicles to government officials and police officers. She also indicated that he had attended parties with prominent persons in attendance. The Appellant was unable to provide the names of the influential persons her uncle sold vehicles to or the dates he sold the vehicles to them. The RPD drew a negative inference from the Appellant's inability to provide evidence of her uncle's power and influence especially considering that her husband and parents in Nigeria could have assisted her in obtaining corroborating documents. [15] The Appellant submits that the RPD erred when it required corroborating evidence of her uncle's influence in Nigeria. She argues that the RPD did not know if such documents exist yet and made a negative determination against her for not producing such documents. [16] The RAD has reviewed the evidence surrounding the alleged power and influence of the Appellant's uncle. It notes that the Appellant was asked by the RPD if her uncle was a powerful man. The Appellant indicated that he was a powerful man with influence and explained her reason for believing this. She explained that he sold vehicles to government officials and police officers and attended parties with prominent persons in attendance. The RPD noted that the Appellant was unable to provide the names of the influential persons her uncle sold vehicles to or the dates he sold the vehicles to them. Although the Appellant was asked by the RPD if she had anything to show how powerful her uncle was, the RPD failed to establish that such evidence existed or was likely to exist. The RPD asked the Appellant if she had a news article about her uncle or if her uncle was mentioned in a magazine and the Appellant indicated that she did not have anything beyond the testimony she gave regarding her uncle. [17] While a negative inference may be drawn from a refugee claimant's lack of effort in acquiring evidence to corroborate central elements of their claim, in this case, the RPD failed to establish what evidence was likely to exist regarding the power and influence of the Appellant's uncle and failed to question the Appellant as to the efforts she made to obtain such evidence. As such, the RAD does not concur with the RPD drawing a negative inference from the Appellant's inability to provide evidence of her uncle's power and influence. Lack of information regarding a possible arrest warrant [18] The RPD drew a negative inference from the Appellant not inquiring about a possible arrest warrant when she spoke with her parents and her husband. It led the RPD to believe that the Appellant's allegation that police said she would be arrested as soon as she enters Nigeria was an embellishment made by the Appellant in order to not be able to relocate. [19] The Appellant submits that she produced an affidavit from her mother attesting to the fact that police were looking for her under an arrest warrant. She argues that the RPD cannot ignore the affidavit due to her not speaking to her parents about the warrant. The Appellant submits that even if she did not speak to her parents about the warrant that does not mean it does not exist. [20] The RAD notes that when asked by the RPD if there was a warrant for her, the Appellant said that she did not understand the meaning of the word "warrant". When explained by the RPD that a warrant is a document that gives police the authority to question and arrest someone, the Appellant said that she was not there when police went to her home and she did not know if there was a warrant or not. The RAD notes that the affidavit of the Appellant's mother makes no mention of a warrant. It indicates that on XXXX XXXX, 2014, some members of the Nigerian police went to her house to ask of her daughter because someone had reported her as being homosexual.6 The RAD does not concur with the RPD drawing a negative inference from the Appellant not inquiring about an arrest warrant since the Appellant had not indicated that a warrant had been issued and it was not established that a warrant had been issued for her arrest. Affidavit of Funmilayo Ajala [21] The Appellant alleges that she had not told anyone about the sexual abuse she suffered at the hands of her uncle, however, when her friend, XXXX XXXX, called her in Canada she revealed everything that had happened. The Appellant indicated that she did this because people had been talking about her same-sex relationships in Nigeria. The RPD found the Appellant's explanation unreasonable considering that the Appellant had said she had not told anyone prior to telling her friend because she found the matter embarrassing. The RPD opined that the Appellant's explanation for revealing the information to her friend did not have the ring of truth and gave minimal weight to the friend's affidavit. [22] The Appellant submits that the RPD's explanation for rejecting her testimony and her friend's affidavit is unreasonable. [23] In the RPD's opinion, it did not sound truthful that the Appellant would disclose the sexual abuse she suffered to her friend in 2014 when she had kept it secret for more than ten years. The RPD did not find it reasonable that the Appellant would tell her friend about the abuse after allegations of her sexual orientation were revealed. The RAD does not have the same opinion as the RPD with respect to the Appellant revealing the sexual abuse she suffered to her friend in 2014. The RAD finds it entirely plausible that a victim of sexual abuse would not disclose it for many years or until that person felt comfortable to do so and thus does not agree with the RPD's assignment of little weight to the friend's affidavit. What the uncle said at the family meeting regarding other same-sex relationships [24] The Appellant indicated at her hearing that, at the January 2, 2014 family meeting, her uncle told everyone that she had been involved in a same-sex relationship with the house girl. However, the Appellant later indicated that her uncle also mentioned at the meeting that there were several other girls the Appellant would invite over under the pretext that they were friends. The RPD drew a negative inference at what appeared to be an example of the Appellant embellishing the evidence. [25] The Appellant submits that the RPD completely ignored and does not address what her uncle said about her sexual relationship with the housemaid due to her not mentioning relationships with other girls. She argues that the RPD cannot reject one aspect of the testimony due to not accepting another aspect of the testimony. [26] The RAD notes the following questions and responses from the Appellant's hearing before the RPD. RPD: What exactly did your uncle say about you being involved in same sex relationships? Appellant: He said that he found me and his house girl and he tried to warn both of us but we didn't listen and because of that he had to relieve the house girl of her duties. RPD: And this was at the house meeting? Appellant: Yes but I tried to tell them what the truth was but they told me my uncle wouldn't lie. RPD: Did he say anything else about you having same-sex relationships besides with the house girl? Appellant: He also mentioned that he had seen me with several other girls I invited home under the pretext that we were friends. RPD: Be very careful because I asked you before what exactly did he say about you being involved in same sex relationships and you mentioned he said you were involved with the house girl and he had to relieve her of her duties. When I asked you, why didn't you say he mentioned you involved with other girls? Appellant: I was pausing like your instructions. [27] The RAD notes that although the Appellant initially did not indicate that her uncle mentioned her other same-sex relationships at the family meeting, when asked if he said anything else about having had same-sex relationships besides with the house girl, the Appellant indicated that he had. The RAD does not concur with the RPD drawing a negative inference from the Appellant not indicating, when initially asked, all the same-sex relationships her uncle had accused her of having. She responded to the other questions by the RPD in the same line of questioning and she immediately responded when asked if her uncle said anything else about her having had same-sex relationships with others besides the house girl. Why the uncle was not asked why he had not reported the Appellant's same-sex relationships earlier [28] At the hearing before the RPD the Appellant was asked if, at the family meeting, anyone asked her uncle why he had not reported her same-sex relationships years earlier and why she did not ask the question. She indicated that no one asked the question and she denied her uncle's accusations but was told to keep quiet. The RPD noted that the Appellant had not answered its question about the family meeting and drew a negative inference from the Appellant evading the question. It noted serious doubts as to whether the meeting occurred or was a further embellishment by the Appellant. [29] The Appellant submits that the RPD speculates as to why no one at the family meeting questioned the uncle for not disclosing the sexual orientation issue years earlier. She argues that the RPD should address the family meeting in terms of the facts as she stated them and not focus or speculate as to why no one may have asked the uncle why he did not disclose her sexual orientation earlier than he did. [30] The RAD notes the following questions and responses from the Appellant's hearing before the RPD. RPD: Didn't anyone ask him why he didn't tell anyone before since it had been years, especially since it had been so taboo in your family? Didn't anyone ask him why, if so taboo, why he didn't tell the family before? Appellant: I don't know what was going on at the meeting, why someone didn't ask but nobody mentioned it. RPD: Why didn't you mention it? Appellant: I said to them that all my uncle said was not true, there was no air of truth to it, but was told to shut up. [31] It is unclear to the RAD what question the Appellant is said to have evaded. If the RPD is referring to the Appellant not initially indicating that her uncle accused her of having same-sex relationships with anyone other than the house girl, based on the analysis above, the RAD finds that the Appellant had not evaded the question. If the RPD is referring to another question it asked, the RAD was unable to identify it. As such the RAD does not concur with the RPD drawing a negative inference from the Appellant evading a question about the family meeting. Inconsistencies and discrepancies in Immigration documents [32] The RPD noted inconsistencies in the Appellant's evidence regarding her location of work and residence from August 2006 to July 2007. The Appellant indicated in her refugee claim forms that she resided in Lagos from 2001 to 2013 whereas her visa application notes indicate that she lived and worked in Ilorin from August 2006 to July 2007. The RPD noted that the relevance of this evidence is that it went to the determination and rebuttal of the proposed IFA. [33] The Appellant submits that the RPD stated that the information in the Immigration documents about where she lived and worked was relevant to an IFA but stopped short of stating how it related to an IFA. She further submits that the RPD ought to be clear about credibility and IFA issues and clearly state how the issues raised relate to an IFA. [34] The RAD notes the inconsistencies in the Appellant's evidence regarding her place of residence and work from August 2006 to July 2007. The RPD noted that the relevance of this evidence is that it went to the determination and rebuttal of the proposed IFA, however fails to indicate how it was relevant. The RPD fails to make a credibility finding on the inconsistencies and fails to incorporate the information in its IFA analysis. As such, the RAD does not agree with the RPD noting that the evidence is related to the determination and rebuttal of the proposed IFA. Omission from Immigration documents [35] The RPD noted an inconsistency in the Appellant's evidence regarding her level of education. Her visa application notes indicate that the Appellant was studying in an MBA program at XXXX XXXX XXXX XXXX XXXX from 2008 to 2011, however, in the Appellant's refugee application forms there is no mention of these studies. The Appellant explained at her hearing that she had the MBA qualifications but had not received her certificate. The RPD found that the Appellant had attempted to downplay her educational credentials in order to affect her profile in the determination of a possible IFA. [36] The Appellant notes that the RPD believed she wanted to make herself appear less educated so that an IFA would be less attainable. She submits that the RPD's reasoning is speculative and unreasonable. She argues that her BA is a high level of education and it makes no logical sense that she would hide her MBA. She further submits that the RPD used speculation to make a further negative credibility determination against her. [37] The RAD notes that the Appellant indicated to Canadian immigration officials that she had been studying in an MBA program at the XXXX XXXX XXXX XXXX XXXX, Nigeria from October 2008 to November 2011.7 However, there is no indication in her Schedule A Background/Declaration that she attended university or any type of school during this period.8 The Appellant indicates in her Schedule A Background/Declaration that she was working for the Wema Bank during this same period. When asked about the inconsistency at her hearing before the RPD, the Appellant indicated she did not indicate her MBA studies in her Schedule A Background/Declaration, because, although she had completed her studies, she had not been issued the certificate. [38] The RAD rejects the Appellant's explanation for the omission. Instructions for completing the Schedule A Background/Declaration are clear in asking applicants to indicate the number of years of school they successfully completed for each of the levels of education. The Appellant failed to note the number of years that she was allegedly in an MBA program. Instructions for completing the Schedule A Background/Declaration are also clear in asking applicants to give full details of all the secondary and post-secondary education (including university, college and apprenticeship training) they have had. The Appellant failed to note having attended XXXX XXXX XXXX XXXX XXXX, Nigeria from XXXX 2008 to XXXX 2011. Even if the Appellant had not received her certificate for her MBA, it would be reasonable to expect her to indicate her MBA studies in her Schedule A Background/Declaration. Her failure to do so, without a reasonable explanation, undermines her credibility. [39] The RPD finding that the Appellant had attempted to downplay her educational credentials in order to affect her profile in the determination of a possible IFA is not supported by the evidence and is highly speculative. Credibility summary [40] The RPD's conclusion that the Appellant was not a credible or reliable witness and that her allegations were not credible was based on findings regarding anomalies in her evidence. For reasons set out above, the RAD concludes that these findings were in error. The RPD's global credibility finding therefore cannot stand. IFA [41] The RPD indicates in the reasons for its decision that notwithstanding its credibility findings it analyzed the evidence regarding a possible IFA for the Appellant. It concluded that the Appellant had a suitable and viable IFA in Abuja. [42] The Appellant submits that the RPD failed to properly address the issue of state protection and police effectiveness in Nigeria with respect to IFA. She further submits that the RPD failed to address her specific circumstances such as her gender, her age and the allegations of her sexual orientation. She submits that the RPD contradicted its position that it did not believe that there was an arrest warrant for her and makes an argument that the police are inept and not capable of doing their job to find her, therefore she would be safe in an IFA from the police and her uncle. [43] The RAD notes that the RPD utilized parts of its credibility analysis and findings in its analysis of IFA. The RPD's findings with respect to the power and influence of the Appellant's uncle and the interest of police to arrest the Appellant are incorporated in its IFA analysis. The RPD indicates in the reasons for its decision that the Appellant provided no evidence that her uncle is a man of considerable wealth and connections. The RPD indicates that it could find no persuasive evidence that the Appellant's uncle has connections to police in Lagos or elsewhere in Nigeria. The RPD writes, "Given that the claimant has no criminal record nor is there any credible evidence that she is currently being sought in Nigeria, I find on a balance of probabilities, the police force in Lagos is not conducting a national search for the claimant in other Nigerian states on behalf of her uncle." [44] Since the RPD erred in its credibility findings and these findings were incorporated in its IFA analysis, its IFA finding cannot stand. This is especially relevant with respect to the Appellant's allegations regarding the accusation of being bisexual and the interest of police to arrest her because of the accusation regarding her sexual orientation. Disposition [45] The RPD erred in its credibility findings and in its IFA analysis. The RPD's decision to reject the Appellant's refugee claim therefore cannot stand. [46] Although the RAD does not concur with many of the RPD's credibility findings, other evidentiary inconsistencies remain, such as the Appellant's contradictory evidence regarding her place of residence, her place of employment, and her university studies for various periods of time. While the RPD made an error in its IFA analysis, this does not in itself mean that a viable IFA is not available to the Appellant. Further, although the RPD identified state protection as an issue at the outset of the hearing, the Appellant was only questioned on this subject briefly, and the RPD did not fully analyse the issue in its reasons. For these reasons, this matter requires a de novo hearing before the RPD. The RAD is not in a position to hold a hearing since no new evidence was submitted or accepted on appeal. CONCLUSION [47] Pursuant to Section 111(1)(c) of IRPA, the Refugee Appeal Division refers the matter to the Refugee Protection Division for redetermination by a differently-constituted panel. This appeal is allowed. (signed) "M. Pettinella" M. Pettinella June 17, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Huruglica, para. 45. 3 Huruglica, para 54. 4 Huruglica, para 55. 5 Appellant's Record, Exhibit P-2, at p. 20. 6 RPD's Record, Exhibit 8, at p. 245. 7 RPD's Record, Exhibit RPD-1, at p. 85. 8 RPD's Record, Exhibit RPD-1, at p. 44. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-02606