TB6-05418

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 : TB6-05418 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 28, 2016 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Adrienne C. Smith 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, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside the decision of the RPD and refer the matter back to a different member of the RPD for re-determination. In the alternative, the Appellant requested an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA) to determine his credibility based upon new evidence submitted in support of his appeal. DETERMINATION [2] This appeal is allowed. Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently constituted panel. Background [3] The Appellant alleges the following. [4] He is bisexual. When he was XXXX years of age, the Appellant had his first sexual experience with a male, his friend XXXX, whom he had known since primary school. Their relationship lasted until the Appellant was XXXX years of age. At that time XXXX moved to the city of Jos. The Appellant and XXXX lost all contact. [5] In 1990 the Appellant had a short-lived homosexual relationship with a boy call XXXX. Shortly after this relationship came to an end, the Appellant met his present wife, XXXX. XXXX came to learn of the relationship that the Appellant had had with XXXX. She indicated to the Appellant that she would help him. They married in 1993. The marriage produced three daughters and one son. [6] In the year 2000 the Appellant joined XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX). As a member he travelled to various countries to watch soccer matches. In 2002, on one such trip, the Appellant met XXXX XXXX, another member of the XXXX. The two men became sexually involved and were able to continue their intimate relationship when they travelled with the club. In 2010 the relationship came to an end when XXXX learned he was HIV positive. [7] In 2013 the Appellant began a same-sex relationship with a man named XXXX while on a XXXX trip to Ghana. XXXX began to draw back from the relationship in 2015. [8] The Appellant arrived in Canada on XXXX XXXX, 2015 to attend the XXXX XXXX XXXX XXXX tournament. After the tournament the Appellant decided to remain in Canada for two months to sightsee. On XXXX XXXX, 2015, shortly before he was to return to Nigeria, the Appellant received an e-mail from his wife. She informed him that the police attended his home with two men, named XXXX and XXXX, who were "caught in the act". One of the two men identified the Appellant to the police as one of his partners. The Appellant did not know how to respond to his wife because she was very upset. The Appellant telephoned his mother who informed him that he had brought shame on the family. When the Appellant telephoned his father, his father told him he was dead to him. [9] The Appellant made a claim for refugee protection on August 17, 2015. [10] The Appellant had refugee determination hearings on November 4, 2015 and March 11, 2016. In a written decision issued on March 22, 2016, the RPD rejected the claim. The RPD member found that the Appellant was not a credible witness and had not established his sexual identity as a bisexual man. [11] Appeal pleadings were received on May 6, 2016. In his appeal, the Appellant argues that the RPD member erred in its assessment of his sexual orientation and the RPD member erred in making credibility findings not relevant to his sexual orientation. ANALYSIS Admissibility of New Evidence Presented on Appeal [12] As provided for in s. 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may 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. [13] The Appellant states in his Memorandum that he submits the following new evidence: i. A copy of a letter, dated April 27, 2016, from XXXX XXXX, the Appellant's solicitor in Nigeria.1 ii. Correspondence between the Appellant and his wife and a copy of his wife's identification.2 iii. An Invitation to the Police, dated March 15, 2016.3 iv. A letter from the Appellant's brother, dated April 20, 2016.4 v. A letter from Black C.A.P., dated April 26, 2016.5 vi. A letter from XXXX XXXX XXXX, dated April 30, 2016.6 vii. A letter from XXXX XXXX, dated, May 2, 2016.7 viii. A letter from XXXX XXXX XXXX, undated.8 ix. A letter from XXXX XXXX, dated April 25, 2016.9 x. Documents and photographs as evidence of his daughter's death.10 [14] The Appellant submits that the proposed new evidence meets the test of s.110(4) of the IRPA because the documents could not reasonably been expected in the circumstances to have been presented at the time of the rejection because it was not known on what basis the RPD would make its determination. [15] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4). In assessing whether the proposed new evidence meets the statutory provisions of s. 110(4), the RAD considered the following: (a) First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred, or a circumstance that arose after the rejection of the refugee claim.11 i. The RAD will consider not only the date on which the document came into existence, but the timing of the event or circumstance which the document seeks to prove.12 ii. It is important to note here that s. 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. iii. If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and the materiality of the document. 13 (b) Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in s. 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim,14 or that it proves a fact that was unknown to the Appellant at the time of the hearing? 15If so, the RAD will proceed to assess the newness, credibility and relevance of the evidence. (c) Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection, it must consider the final part of the s. 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered.16 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the newness, credibility and relevance of the evidence. A letter from the Appellant's solicitor in Nigeria, dated April 27, 2016 [16] The Appellant argues that he contacted his lawyer in Nigeria to help verify the documents provided at his hearing before the RPD; these were documents originating in Nigeria. The Appellant submits that his lawyer is not a notary and, thus, took the original documents to a notary to verify. The Appellant argues that the notary stamped the documents with the notary's contact information and his lawyer verified that he saw the original documents. The Appellant argues further that he received the Nigerian solicitor's letter on April 29, 2016 via e-mail and that he enclosed a proof of e-mail receipt in his appeal. [17] The RAD is not persuaded by the Appellant's arguments. There has been no persuasive evidence presented to show that this evidence did not exist at the time of the RPD proceedings. The RAD notes that, according to the recording of the hearing, when the first hearing came to a close the RPD indicated that submissions from counsel were not necessary and that the RPD's decision would be sent by mail. However, according to the recording of the hearing, a second hearing commenced on March 11, 2016; the RPD indicated at the outset of that hearing that at issue was the veracity of documents provided by the Appellant through his Nigerian solicitor. The Appellant provided no explanation as to why this evidence was not made available before the rejection of his claim. This document, thus, does not meet the requirements of subsection 110(4). Correspondence between the Appellant and his wife and his wife's identity document [18] Regarding the correspondence between the Appellant and his wife and a copy of his wife's identity, offered as new evidence, the Appellant argues that he was asked at his first hearing on November 4, 2015 for evidence that the police had left a note at his home in Nigeria. He argues further that he testified at the hearing that he had asked his wife for a copy of the document but had not yet received it. He also argues that since that time he has had no further correspondence with his wife. [19] The RAD does not accept the e-mail for the following reasons. The e-mail was apparently sent from the Appellant on XXXX XXXX, 2015 to his wife, XXXX. The Appellant, in his appeal, provides no explanation as to why this evidence was not reasonably available for presentation to the RPD before it rejected the claim or for that matter for his first hearing on November 4, 2015. The RAD also does not accept the copy of the identity document of the Appellant's wife. The Appellant provided no information regarding when this document was first made available to him. In any case, the identity of the Appellant's wife was not in dispute at his hearings before the RPD and the identity document is not capable of proving the current state of affairs in the country of feared persecution, or an event that occurred, or a circumstance that arose before or after the rejection of the refugee claim. The letter from the Appellant's brother [20] The Appellant argues that on XXXX XXXX, 2016 he received a letter, dated XXXX XXXX, 2016,17 from his brother via e-mail. The Appellant argues that he could not provide information from his brother for his hearing before the RPD because he could not get in touch with his brother. [21] The RAD is not persuaded by the Appellant's argument in this regard. Information contained in the brother's affidavit does not support the Appellant's argument. The brother affirms that the Appellant's daughter died on XXXX XXXX, 2015 and, "with the approval of Mr. XXXX XXXX [the Appellant]", he went to the burial of the Appellant's daughter on XXXX XXXX XXXX 2015. The RAD reasonably infers that the Appellant was in contact with his brother on or before XXXX XXXX, 2015. The Appellant provided no explanation as to why his brother could not have provided much of the information contained in the affidavit prior to the first hearing date of November 4, 2015. The affiant states that he has his business office in Abuja and the Appellant "did not stop calling and messaging [him] on the phone". For his second hearing before the RPD the Appellant provided documentary evidence in the form of three e-mails he sent to his brother.18 In addition, according to the recording of the hearing, the Appellant testified that the Nigerian police are looking for him and, when asked, he testified that he has been receiving information from his brother, the only family member with whom he has contact. The Appellant testified that in order to obtain his brother's assistance he forced his brother to come from northern Nigeria where he works. He testified that it was his brother who brought documents to his Nigerian solicitor. The Appellant testified at another point in the hearing that he had asked his brother to obtain the police note that was delivered in August 2015. The RAD, thus, finds that there is no evidence that the Appellant's brother was unavailable to him before the RPD rendered its decision. [22] The letter from the Appellant's brother is not admissible under Section 110(4). However, the RAD simply notes that if it were to admit the letter, it would raise further credibility concerns. Invitation to the police [23] The Appellant also argues that his brother obtained the Invitation to the Police, dated XXXX XXXX, 2016,19 and sent it via e-mail. The RAD understands that that Appellant means that the document from the police was sent in the brother's e-mail dated XXXX XXXX, 2016; the e-mail referred to in the previous paragraph. Given that the RAD has not accepted the Appellant's explanation for the delay in evidence from his brother, the RAD does not accept this document. The RAD notes that the Invitation to the Police is dated prior to the rendering of the RPD's written decision. [24] Even if the RAD were to accept the Invitation to the Police into evidence it would assign no weight for the following reasons. * The Appellant did not provide the original document and provided no explanation for not doing so. * The Appellant states in his affidavit that proof of receipt via e-mail is included in his appeal. The pages in the appeal are numbered consecutively. The proof of e-mail was not included with the letter from the brother or the police document. * The upper right side of the document invitation indicates that the document is from the "State Intelligent Bureau". However, the stamp at the foot of the document reads "State Intelligence Bureau". [25] The Invitation to the Police is not admissible under Section 110(4). However, the RAD notes that if it were to admit the document, it would raise further credibility concerns. Letter from Black Coalition for Aids Prevention (Black C.A.P.) [26] The Appellant pleads that this new letter from Black C.A.P. confirms that he has been attending the organization before and after his hearings. He argues that he continues to attend Black C.A.P. because he now feels more comfortable with his sexual orientation. [27] The RAD does not accept the Appellant's arguments. The Appellant provided no reasonable explanation as to why Mr. XXXX, the letter's author, could not have given the above mentioned information to the RPD prior to its rejection. Thus, the letter does not meet the requirements of Section 110(4). The letter from XXXX XXXX XXXX, dated April 30, 2016 [28] The Appellant argues that the letter from Mr. XXXX confirms that they are still in a relationship. He argues further that Mr. XXXX accompanied him to his hearing before the RPD and that Mr. XXXX provided the RPD with a copy of his status as a Convention refugee based upon his sexual orientation. The Appellant argues that he and Mr. XXXX will move in together at the end of May. [29] The RAD does not accept the Appellant's arguments for the following reasons. The Appellant provided no reasonable explanation as to why Mr. XXXX could not have given the above mentioned information to the RPD prior to its rejection. Thus, the letter does not meet the requirements of Section 110(4). The letter from XXXX XXXX, dated May 2, 2016 [30] The Appellant argues that XXXX XXXX, who also provided a letter for his hearing before the RPD, is gay and was accepted as a Convention refugee based on his sexual orientation. [31] The RAD does not accept the Appellant's arguments. The Appellant provided no reasonable explanation as to why Mr. XXXX could not have given the above mentioned information to the RPD prior to its rejection. Thus, the letter does not meet the requirements of Section 110(4). The letter from XXXX XXXX [32] The Appellant submits that he received the letter from his friend, Mr. XXXX, via e-mail on XXXX XXXX, 2016. He argues that the letter confirms that he shared his sexual orientation and his fears of returning to Nigeria with Mr. XXXX. [33] The RAD rejects this letter for the following reasons. The Appellant's claim was rejected on March 22, 2016. The evidence from Mr. XXXX did not arise after the rejection of the Appellant's refugee claim. According to the address on the letter, Mr. XXXX lives in Toronto. The Appellant has not established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim or that it proves a fact that was unknown to the Appellant at the time of the hearing. The RAD finds that the Appellant could reasonably have been expected in the circumstances to present the evidence prior to the rejection of his refugee claim. Thus, the letter does not meet the requirements of Section 110(4). The letter from XXXX XXXX, dated April 25, 2016 [34] The Appellant argues that the RPD had concerns about his truthfulness with regards to his relationship with Mr. XXXX because of the contradictory information he provided during the hearing, in particular where Mr. XXXX lived and worked. The Appellant argues further that the letter from Mr. XXXX explains Mr. XXXX work and travel situation. [35] The RAD does not accept the Appellant's argument. There has been no persuasive evidence presented to show that this evidence did not exist at the time of the RPD proceedings. The RAD notes that according to the recording of the first hearing, held on November 4, 2015, the RPD indicated its concern regarding discrepancies between the Appellant's testimony and evidence contained in documents provided by Mr. XXXX. Thus, the Appellant has failed to explain why the evidence from Mr. XXXX, dated April 25, 2015, could not have been made available to the RPD before the second hearing on March 11, 2016 or before the rejection of the claim on March 22, 2016. [36] The RAD will not admit the document since it does not meet the requirements of subsection 110(4). Documents and photographs of death of the Appellant's daughter XXXX [37] The Appellant pleads that he included evidence of the death of his daughter because the RPD found in its decision that the Appellant's testimony regarding his daughter's death negatively reflected on his credibility as a witness. [38] The RPD is not persuaded by the Appellant's argument. These documents are not subject to the requirements of s. 110(4) as they were before the RPD and they are now part of the RPD record that is presently in front of the RAD. These documents will be assessed in the analysis below. The RAD does not accept the remainder of the documents for the following reasons. According to recording of hearing the Appellant testified that his daughter died XXXX XXXX, 2015; at another point in the hearing he testified that she died on XXXX XXXX. 2015. There has been no persuasive evidence presented to show that this evidence did not exist at the time of the RPD proceedings. Indeed, the Appellant provided evidence of his daughter's death for his second hearing. The Appellant provided no explanation as to why this evidence was not made available before the rejection of his claim. These document, thus, do not meet the requirements of subsection 110(4). Letter of Attestation, dated April 25, 2016, from XXXX XXXX XXXX [39] The RAD notes that the letter from the Appellant's Nigerian solicitor, discussed above, refers to three new documents he provided with his letter. Two of the three letters have been discussed above. However, the Appellant in his appeal, made no mention of a notarized letter, dated XXXX XXXX, 2016, from XXXX XXXX XXXX. The letter provides information regarding XXXX XXXX, a person discussed previously. [40] The RAD rejects this letter for the following reasons. The Appellant provided no reasonable explanation as to why this evidence was not made available before the rejection of his claim. This document, thus, does not meet the requirements of subsection 110(4). ROLE OF THE RAD [41] As the Appellant states in his appeal, the recent Federal Court of Appeal decision, in Huruglica,20 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: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. Did the RPD err in its assessment of the Appellant's sexual orientation? [42] The RAD will first consider the Appellant's arguments in this regard. [43] The Appellant pleads that the RPD did not properly assess his sexual orientation. The Appellant argues that the only concerns raised by the RPD about the credibility of his sexual orientation are as follows: (1) the timing that he joined an LGBT organization in Toronto (2) a two month delay in claiming refugee protection (3) a lack of evidence from his same-sex partner. The Appellant argues further that the RPD did not raise any concerns with his oral testimony about his sexual orientation, including his description about this personal coming to terms with his orientation or the details about his past and current same-sex relationships. [44] Although the RPD also based its credibility findings on various documents provided by the Appellant and on the absence of certain documents, the RAD finds the Appellant's argument has merit. The oral testimony of the Appellant The Appellant's sexuality [45] According to the recording of the hearing, the Appellant was asked to provide information about his first homosexual experience. He testified that his first sexual experience was with a friend. When the RPD asked the Appellant to identify the friend, the Appellant named XXXX XXXX and described him as his light complexioned school mate. The Appellant provided testimony about their friendship since primary school and about how their two families became friends. The RAD finds that this information is consistent with information contained within the Appellant's Basis of Claim (BOC) form narrative.21 In its reasons the RPD found that the Appellant provided inconsistent testimony regarding XXXX XXXX place of work and details of his family members. The RPD found various documents provided by the Appellant as evidence to be untrustworthy based partly on the inconsistent testimony the Appellant gave concerning XXXX. Having listened to the recording of the hearing, the RAD agrees with the RPD, that is, that the Appellant provided inconsistent testimony regarding XXXX XXXX employment and his family members [46] The Appellant provided testimony to the RPD regarding an alleged eight year homosexual relationship with a man named XXXX XXXX. The RAD finds that there were no obvious contradictions between this testimony and information the Appellant provided in his BOC form narrative. [47] According to the recording of the hearing, the RPD referred the Appellant to an e-mail provided as evidence. The e-mail mentions two men, one named XXXX. The Appellant testified that a few hours after he read the e-mail he thought that maybe they were the two guys brought by the police to his house. When the RPD asked the Appellant to identify the two men mentioned in the e-mail, he testified that one man, XXXX, was his partner and that he did not know the other man named XXXX. The RAD notes that the Appellant provides information in his BOC form narrative about a relationship with a man named XXXX. [48] During the hearing the Appellant was asked if his mother was aware of his sexual orientation. The Appellant responded in the affirmative and then provided testimony about how his mother became aware of his sexuality and her attitude towards it. The RAD finds that this testimony is consistent with information the Appellant provided in his BOC form narrative. The Appellant's membership in LGBT organizations in Toronto [49] In its decision the RPD noted that the Appellant did not avail himself of joining any of the LGBT organizations from which he received support letters as evidence until a few weeks before his refugee claim. The RPD drew a negative inference when it found that the Appellant did not provide a reasonable explanation for his delay in seeking out organizations for sexual minorities. [50] The Appellant pleads that the RPD misrepresented the facts. He argues that the support letters from LGBT organizations consistently refer to him joining in XXXX 2015, more than six weeks before his first hearing and at the time of the RPD's decision he had been a member of these organizations for six months. The Appellant referred to the jurisprudence where the Federal Court has held that involvement in the LGBT community in Toronto should not be used as a basis for finding that a claimant's sexual orientation is not genuine. The Appellant argued further that the RPD, while acknowledging that the organizations are reputable, established organizations for sexual minorities, raised no concerns with the content of the letters from the various LGBT organizations. The Appellant argues that the RPD's finding about his involvement in the LGBT community was an implausibility finding that should afford no deference by the RAD. [51] The RAD agrees, in part, with the Appellant. According to the documentary evidence provided by the Appellant, he joined the various organizations shortly after he made his claim for protection. The Appellant testified that he did not join until he received the news from Nigeria that he was wanted by the police. He testified further that it was at that point that he felt the need for support. While the RAD appreciates that the RPD might question the motives of the Appellant for joining these organizations when he did, the RAD finds the Appellant provided a reasonable explanation. The Federal Court has found that when making an assessment involving implausibility, reference must also be made to relevant evidence and explanations offered by the claimant which could potentially refute the conclusion of an adverse finding on plausibility.22 However, the RAD finds that the RPD did, in its decision, refer to the content of the support letters from the various organizations. The RPD accepted information in the support letters concerning the Appellant's involvement in the various organizations and gave the letters due weight in this regard. However, the RPD noted that any information concerning the Appellant's sexual orientation found in the various letters was provided by the Appellant himself and then the RPD referred to the serious concerns with respect to the Appellant's credibility already found in the decision. The RPD did not assign weight to these documents with respect to information regarding the Appellant's sexuality. The RAD will not assign weight to the documents provided by the various LGBT communities because of serious credibility concerns that were not addressed by the RPD. The RAD outlines these concerns below. The RAD wishes to simply note that the letters simply attest to the Appellant's attendance at various organizations and that these various organizations are not restricted to sexual minorities. The Appellant's same-sex partner in Toronto [52] The RPD noted that the Appellant's same-sex partner, XXXX XXXX, accompanied the Appellant to the hearing to provide support but a witness application had not been submitted and, therefore, Mr. XXXX XXXX was not called as a witness. The RPD awarded no evidentiary weight to the letter of support from Mr. XXXX because it made no reference to the Appellant's sexual orientation and it was unsworn and untested. [53] The Appellant pleads that the RPD erred in its assessment of the evidence from his same-sex partner named XXXX. The Appellant argues that XXXX was introduced to the RPD at the beginning of the hearing and his identity documents were provided at that time. The Appellant argues further that XXXX is a Nigerian citizen who was accepted as a Convention refugee on the basis of his sexual orientation. The Appellant pleads that the RPD mistakenly identified Mr. XXXX as his same-sex partner and mistakenly referred to the contents of a support letter from Mr. XXXX who is his friend. The Appellant argues that showing he had a same-sex partner was significant evidence about his own sexual orientation. [54] The RAD agrees with the Appellant. The RPD mistakenly confused Mr. XXXX with a man who attended the hearing. A letter from Mr. XXXX provided as evidence for the RPD hearing indicates that he is a friend of the Appellant.23 According to the recording of the hearing XXXX XXXX[phonetic] was introduced at the beginning of the hearing by the Appellant's counsel as the Appellant's partner. He was then instructed to wait outside the hearing room. There is no indication in the recording of the hearing that Mr. XXXX provided any identity documents or any evidence of his status in Canada. The RAD notes that in the documentary evidence provided by the Appellant, there is a letter of support from XXXX XXXX, who states that his is the boyfriend of the Appellant and they are bisexuals.24 Although not accepted as new evidence, the RAD notes that a support letter from XXXX XXXX XXXX XXXXwas accompanied by an identity document with the name XXXX XXXX XXXX.25 [55] Because of serious credibility concerns not addressed by the RPD, the RAD will leave the assigning of weight of the document from XXXX XXXX to a differently constituted panel who may wish to inquire as to why XXXX XXXX did not appear as a witness for the Appellant. The RAD outlines its concerns below. Delay in Claim [56] In its decision the RPD noted that the Appellant arrived in Canada in June and waited until August to make a claim. The RPD stated that the Appellant was well aware of the persecution and risk to the lives of sexual minorities in Nigeria. The RPD found that the Appellant's actions in not seeking protection earlier undermined his credibility and his allegations that he is bisexual and faces a risk of harm in Nigeria. [57] The Appellant argues that the RPD failed to consider that he had been spent over three decades hiding his sexual orientation to avoid persecution and it was only when the Nigerian police came to investigate his sexual orientation in August 2015 that he decided to make a claim for protection. The Appellant argues further that he should not be faulted for his delay in claiming in light of his testimony that his intentions to remain in Canada changed after he was sought by the Nigerian police. The Appellant refers to the jurisprudence in this regard. The Federal Court found that where an LGBT claimant does not file a refugee claim at the first available opportunity, then a reasonable explanation can include the fact the reason for not filing was that the claimant had not yet been under direct attack.26 [58] The RAD concurs with the RPD. [59] The RAD finds that the case at hand distinguishes itself from Nezhalskyi, referred to by the Appellant. In that case, the Honourable Mr. Justice Fothergill found that the Board did not provide a reasonable explanation for rejecting the claimant's reasons for not making a claim in the United States. The Federal Court noted that the claimant was young, twenty years old, at the time he did not make a claim. The RAD finds, in this case, that the RPD provided a reasonable explanation for rejecting the Appellant's reasons for not claiming earlier. The RPD found that the Appellant was well aware of the persecution and risk to life that sexual minorities face in Nigeria. The Appellant was well aware of the serious possibility of harm he faced in Nigeria. The RPD found that despite having to hide his sexuality for most of his life due to fear of harm the Appellant did not make any attempts to seize the opportunity for protection. The RPD noted the Appellant's fluency in English, his professional background and his extensive travel history. The RAD notes that the Appellant was one month short of his fifty second birthday when he arrived in Canada. The RAD finds that the Appellant, according to his own evidence, was well aware of the serious harm inflicted on sexual minorities in Nigeria. According to his own evidence, he found it necessary to hide his sexual identity throughout his life. The Appellant argues in his appeal that he hid his sexual orientation in Nigeria to avoid persecution. The Appellant is a mature man who is capable of making inquiries regarding the availability of protection in Canada. [60] The Federal Court has established that a delay in making a refugee claim is a relevant consideration that the Board may take into account in assessing both an Applicant's credibility and his subjective fear.27 Did the RPD err in making credibility findings not relevant to the Appellant's sexual orientation? [61] The Appellant argues that the RPD doubted his credibility based mainly on his supporting documents or a failure to produce supporting documents. The Appellant referred to jurisprudence to support his argument. The Appellant also referred to the presumption of truthfulness that is the hallmark of the refugee process. Failure to produce a police report [62] The RPD found that there was no evidence before it that the Appellant made reasonable efforts to obtain the police note. The RPD indicated in its decision that the importance of the police note could not be understated. The RPD drew a negative inference with respect to the Appellant's credibility and found that his allegation that a police note was issued against him to be not credible. [63] The Appellant argues that he testified that he provided proof at his hearing of his requests to family members in Nigeria to send him the police report including an e-mail to his wife. He argues further that the RPD ought to have questioned him directly on this incident to determine whether the incident was credible. The Appellant pleads that the RPD instead focused on his failure to produce the police note. [64] The RAD concurs with the RPD for the following reasons. [65] The Appellant alleges that it was a note delivered by the police to his home that led him to make a claim for refugee protection. As stated earlier, when the Appellant explained during his testimony why he did not make a claim earlier, he testified that it was not until the police note was delivered that he sought advice on what to do and then made his claim. The RAD, therefore, finds that the existence of the police note is critical to the Appellant's claim. [66] The RAD finds that corroborative evidence of the police note can be reasonably expected in this case. As the RPD stated in its reasons, the Appellant made no effort to ask his solicitor in Nigeria to make any queries about the police note. The RPD found that it was reasonable that the Nigerian solicitor would be familiar with the legal system and knowledgeable about how to connect with appropriate persons to obtain such a police document. [67] The RAD has considered the copy of the e-mail sent by the Appellant to his wife28 and what appears to be a text message the Appellant sent to his brother.29 The RAD gives no weight to either document for the following reasons. It is not possible to establish the provenance of either message. The year is not included with the date of the e-mail message. The date of the text message is February 14, 2016. The RAD notes that the RPD also found in its reasons that the Appellant did not provide a reasonable explanation as to why he did not provide the text message, along with a number of other documents, until the day before the second hearing. The death of the Appellant's daughter [68] The RPD found that during the hearing the Appellant shifted his testimony regarding the alleged recent death of his daughter, XXXX. The RPD found that the Appellant's testimony regarding how he received the news of the death of his daughter was provided in an evasive and inconsistent manner. The RPD found that the Appellant provided no reasonable explanation for the inconsistencies and drew a negative inference with regards to the overall credibility of the Appellant. [69] The Appellant argues that the RPD had concerns because he was unable to clearly identify the cause of his daughter's death which occurred shortly before his first hearing. The Appellant pleads that his daughter's death is irrelevant to the assessment of his sexual identity. [70] Having read the transcript of the recording of the hearing, the RAD agrees with the RPD's findings in this regard. The Appellant's story appeared to evolve as he testified. The testimony was both evasive and contradictory. For example, the Appellant testified that "they" called him from the hospital to tell him his daughter died. When asked to identify "they", the Appellant avoided providing an answer. At one point the Appellant testified that when he learned his daughter died he called his brother to ask him to go and support his wife. Shortly after this testimony, the Appellant testified that his brother was at the hospital when his daughter died and he spoke to his brother then. The RAD notes that the Appellant more than once testified that his wife indicated to him that the death of his daughter was brought about because his sexual identity had been exposed in Nigeria. The Appellant testified that his wife blamed him for his daughter's death. The RAD finds that the Appellant embellished his claim with this particular testimony. E-mails from the Appellant's wife regarding the police [71] In its reasons the RPD gave no weight to two e-mails from the Appellant's wife. The RPD based its findings on the inability to verify the identity of the author of the e-mails and the serious credibility concerns related to the Appellant's allegations and documents. [72] The Appellant argues that the authorship of the e-mails is not relevant to the RPD's assessment about his personal testimony about his sexual orientation. [73] The RAD does not agree with the Appellant. The e-mails allegedly were sent to the Appellant because his homosexual partner in Nigeria had advised the Nigerian police that the Appellant was his partner. The RAD finds that the e-mails are a critical aspect of his claim. Documents from the Appellant's Nigerian solicitor [74] The RPD found the documents disclosed by the Appellant's Nigerian solicitor, letters of support from his mother and two former homosexual partners, to be unreliable and untrustworthy. The RPD based its find on a number of issues including the inconsistency between the solicitor's name and that of the notary, names on the stamps found on the letters not matching those found on the Nigerian solicitor's letter, inconsistency with the content of the evidence contained in a letter from XXXX, one of the Appellant's former lovers, when compared to the Appellant's testimony, and the rampant prevalence of fraudulent documents in Nigeria. The RPD assigned the documents no evidentiary weight. [75] The Appellant argues that it was an error for the RPD to find documents not genuine based on the prevalence of fraudulent documents in Nigeria. The Appellant also argues that the RPD's finding that the notary's address sounds "made up" was not based on evidence. The Appellant submits that new evidence, a letter from XXXX, confirms the Appellant's testimony about XXXX work and family. [76] The RAD agrees with the RPD for the following reasons. [77] The RPD did not base its findings solely on information regarding the prevalence of fraudulent documents in Nigeria. [78] Although, the RAD finds the RPD's choice of words, that is that an address looks "made up", to be unfortunate, the RAD finds that the RPD provided detailed reasons as to why the documents, on the face of it, were unreliable. Psychological Report30 [79] The RPD gave the psychological report no weight. The RAD agrees with the assignment of no weight in regards to this report. [80] However, the RAD wishes to note that the report is not a psychological report, as referred to by the RPD, but rather a report prepared by Ms. XXXX XXXX, a Registered Psychotherapist, B.A. [81] While Ms. XXXX is not a medical doctor, psychiatrist, or psychologist, she appears to communicate a diagnosis: "...it is my clinical impression that Mr. XXXX is exhibiting symptoms consistent with generalized anxiety and major depressive disorder."31 [82] Section 27 of the Regulated Health Professionals Act, S.O. 1991, Chapter 18 describes the communication of a diagnosis as a "controlled act," not to be performed unless the communicator is so authorized by a health profession Act, or unless the action has been delegated by a person who is so authorized. It does not appear that Ms. XXXX meets either qualification. The controlled act of diagnosis, at S.27(2)(1), is ...communicating to the individual or his personal representative a diagnosis identifying a disease or disorder as the cause of symptoms of the individual in circumstances in which it is reasonably foreseeable that the individual or his personal representative will rely on the diagnosis. [83] Ms. XXXX letter clearly sets out to communicate a diagnosis, to be relied upon in the proceedings before the RPD. The RAD notes that contravention of the Regulated Health Professionals Act by a psychotherapist is considered professional misconduct.32 This assessment deserves little weight, as its author is neither a doctor nor a psychologist and therefore not qualified to make or communicate a diagnosis.33 The RAD's concerns [84] The RAD finds that the RPD's credibility findings which it has sustained are insufficient to impeach the Appellant's testimony that he is bisexual and at risk in Nigeria. The RAD finds that the RPD erred in failing to consider all the important evidence in this matter. The RAD outlines below various omission and contradictions that were not put to the Appellant by the RPD. [85] The RAD has reviewed the evidence in the BOC form narrative,34 the e-mails from the Appellant's wife35 and the Appellant's testimony regarding the information provided to the Appellant through the e-mails. The RAD finds there are serious contradictions that were not put to the Appellant during his hearing before the RPD. Examples follow. [86] According to the BOC form narrative, the Appellant alleges that his wife sent him an e-mail on August 14, 2015 and informed him that the police had come to his home with two men, XXXX and another named XXXX, who were "caught in the act".36 The Appellant alleges that he was also informed that one of the men identified him as his partner to the police. However, the first e-mail in evidence, dated XXXX XXXX, states that "two guys and a police man just visited the house and there is a police note for you".37 The second e-mail, also dated XXXX XXXX, states "XXXX and XXXX should mean something".38 Neither e-mail states that XXXX and XXXX were "caught in the act", nor that XXXX identified the Appellant as his partner to the police. The Appellant was not questioned by the RPD about the contradictions between information in the BOC form narrative allegations and information contained in the two e-mails. [87] According to the recording of the hearing, the Appellant was asked to explain what the e-mail from his wife said. The Appellant testified that on the XXXX XXXX XXXX XXXX, the RAD presumes], the police came with two guys looking for him. The Appellant testified further that when his wife informed the police that he had travelled, the police gave his wife a letter of invitation stating that he should report to the police. The Appellant then testified that the police informed his wife that the two men were caught having sex somewhere and one of these two men mentioned the Appellant's name. When asked by the RPD to identify which man mentioned his name, the Appellant testified that it had been XXXX. The RAD finds that neither the Appellant's BOC Form narrative nor the two e-mails allegedly from the Appellant's wife state that his wife informed the police he had travelled or that the police informed the Appellant's wife that the two men were caught having sex or that XXXX provided the Appellant's name to the police. These serious discrepancies were not put to the Appellant during his hearing before the RPD. The RAD notes that according to the recording of the hearing, the Appellant testified that his wife did not answer the telephone and he lost contact with her after he received the two e-mails. [88] As stated in the previous paragraph, the Appellant testified that his wife did not answer the telephone and he lost contact with her after he received the e-mails. However, later in the hearing the Appellant testified that he spoke to his wife by telephone and he told his wife that information provided by the police was not true. This contradiction was not put to the Appellant. [89] The Appellant told the RPD that, although the intimate relationship with XXXX XXXX came to an end, they continued to see each other when XXXX would return home from working further north. The Appellant testified further that he recently contacted XXXX through his Nigerian lawyer because XXXX knew his lawyer and was a longtime friend. The Appellant also testified that when he lived in Nigeria he used to talk to XXXX on the telephone and at one point he told XXXX about his same-sex partner, XXXX. The Appellant then changed his earlier testimony and stated that he contacted XXXX directly from Canada and asked him to go to his Nigerian lawyer to provide evidence to be used at his hearing before the RPD. The contradiction between how the Appellant contacted XXXX XXXX from Canada was not put to the Appellant. The RAD notes a significant contradiction between the Appellant's testimony about his continued contact with XXXX and information he provided in his BOC form narrative. In his BOC form narrative the Appellant alleges that "after graduation from the secondary school, XXXX went to Jos to join his brother and from then all contact was lost."[RAD's emphasis]39 This serious contradiction was not put to the Appellant during the hearing. [90] As indicated earlier in this decision, the Appellant provided testimony about XXXX XXXX XXXX XXXX work and family. The Appellant was not questioned as to how he had up-to-date information regarding XXXX XXXX given that in his BOC form narrative he alleges that he and XXXX lost all contact when the Appellant was twenty years old, more than thirty years ago. The RPD made no specific finding regarding the alleged relationship between the Appellant and XXXX XXXX. [91] The RAD notes that in his BOC form narrative, the Appellant alleges that his first same-sex partner was his friend called XXXX. The RPD did not ask the Appellant why, in his narrative, the full name of his first same-sex partner was not provided. According to the Appellant's BOC form narrative, he knew XXXX since they were XXXX years old and they were together most of the time throughout their school years; their sexual activities began when he was XXXX years of age and the intimate relationship continued until he was XXXX years of age. The RAD finds this alleged first homosexual relationship to have been very significant and, therefore, questions the lack of the surname of the Appellant's first homosexual partner in the BOC form narrative. [92] The RAD notes that the Appellant provides information in his BOC form narrative about a relationship with a man named XXXX. However, the RPD did not question the Appellant about this alleged homosexual relationship. [93] As indicated above, the Appellant testified that when he learned his daughter died he called his brother to ask him to go and support his wife. Shortly after this testimony, the Appellant testified that his brother was at the hospital when his daughter died and he spoke to his brother then. This discrepancy was not put to the Appellant. [94] The RAD notes that the Appellant testified that some in the XXXX XXXX XXXX XXXX including him, felt free to engage in homosexual activities when they travelled outside of Nigeria. The RPD did not question the Appellant about the possible risk of other Nigerian men in the XXXX XXXX becoming aware of his homosexual behavior and reporting him to the Nigerian authorities. [95] The RAD also notes that the Appellant alleges that he began to be involved in homosexual relationships when he was XXXX years old, more than thirty five years ago, and his sexual identity was not discovered until three days before he was to return to Nigeria after an extended holiday in Canada. The Appellant was not questioned by the RPD about, what the RAD finds to be the coincidence of the timing of the alleged discovery of his sexuality. . DISPOSITION AND REMEDY [96] The RAD has not admitted the documents submitted as new evidence because they do not meet the requirements of subsection 110(4). [97] The RAD finds that there is no basis to hold an oral hearing under the provisions of subsection 110(6) since there are no new documents admitted in evidence. [98] Section 111(1) of the IRPA allows the RAD to: (a) confirm the determination of the RPD; (b) set aside a decision of the RPD and substitute a determination that, in its opinion, should have been made; or (c) refer the matter back to the RPD, giving the directions to the RPD that it considers appropriate. [99] The RAD can make the referral described in 111(1)(c) only if it was of the opinion that the decision of the RPD was wrong in law, in fact, or in mixed law and fact, and if the RAD cannot make a decision to confirm or substitute the RPD's decision without hearing evidence that was presented to the RPD.40 [100] The RAD finds, as outlined above, that there remain significant credibility concerns which were not addressed by the RPD. The RAD cannot make a decision in this matter without hearing evidence that was presented to the RPD. The claim will, therefore, be returned to the RPD for re-determination. CONCLUSION [101] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act, the Refugee Appeal Division refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. This appeal is allowed. (signed) "Lesley Mason" Lesley Mason June 28, 2016 Date 1 Exhibit P-2, Appellant's Record, pages 155-156. 2 Ibid., pages 159-160. 3 Ibid., page 162. 4 Ibid., page 164-165. 5 Ibid., pages 167-169. 6 Ibid., pages 173-176. 7 Ibid., pages 178-179. 8 Ibid., pages 181-182. 9 Ibid., pages page 184. 10 Ibid., pages 186-199. 11 Raza, para. 13.3(a). 12 Raza, para. 16. 13 Raza, para. 13.5(b). 14 Raza, para. 13.5(a). 15 Raza, para. 13.3(b). 16 Raza, para. 13.5(a). 17 Exhibit P-2, page 164-165. 18 Exhibit RPD-1, RPD Record, pages 252-253. 19 Ibid., page 162. 20 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 21 Exhibit RPD-1, RPD Record, pages 28-32 22 Xu, Zhe Ru v. M.E.I. (F.C.A., no. A-666-90), Mahoney, Stone, Robertson, September 8, 1992; Bains v. Canada (Minister of Employment and Immigration) (1993) 20 IMM. L.R. (2d) 296 (F.C.T.D.). 23 Exhibit RPD-1, RPD Record, pages 175-177. 24 Ibid., page 161. 25 Exhibit P-2, pages 173-176. 26 Nezhalskyi v. Canada (Citizenship and Immigration), 2015 FC 299. 27 Ortiz Garzon v. Canada (Minister of Citizenship and Immigration), 2011 FC 299 at para 30 and Goltsberg v. Canada (Minister of Citizenship and Immigration), 2010 FC 886 at para 28. 28 Exhibit RPD-1, RPD Record, page 173. 29 Ibid., page 252. 30 Ibid., pages 185-187. 31 Ibid. 32 Ontario Regulation 317/12, under the Psychotherapy Act, 2007, S.O. 2007, c. 10, sched. R. The RAD has previously commented on psychotherapist reports such as this one in X (Re), 2014 CanLII 96038 (CA IRB), X (Re), 2013 CanLII 99308 (CA IRB), and X (Re), 2014 CanLII 95954 (CA IRB). 33 See Boros v. Canada (Minister of Citizenship and Immigration), 2002 FCT 661, para. 13. Boros, Andras Erno v. M.C.I. (F.C.T.D., no. IMM-3915-00), Lemieux, June 12, 2002. 34 Ibid. 35 Ibid., pages 138-138. 36 Ibid. 37 Ibid., page 138. 38 Ibid., page 139. 39 Ibid., page 29. 40 Immigration and Refugee Protection Act, S.C. 2001, c.27, s. 111(2). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-05418