TB5-06465

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 : TB5-06465 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 Date(s) of Hearing February 18, 2016 March 3, 2016 Date(s) de l'audience Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 30, 2016 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Solomon Orjiwuru 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] The Appellant, XXXX XXXX XXXX, is a citizen of Nigeria, and appeals a decision of the Refugee Protection Division (RPD) dated June 10, 2015, rejecting his claim for refugee protection. The Appellant is submitting new evidence and is requesting a hearing. The Appellant is requesting that the RAD set aside the decision of the RPD and refer the matter back to the RPD or that the Refugee Appeal Division (RAD) substitutes a determination that the Appellant is a Convention refugee or a person in need of protection. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant is not a convention refugee nor a person in need of protection. Background [3] The Appellant fears returning to Nigeria due to his alleged sexual orientation. The Appellant arrived in Canada On XXXX XXXX, 2012 on a valid student visa and enrolled at XXXX College. The student visa was extended in XXXX of 2014. [4] In XXXX of 2014 the Appellant's mother contacted him informing him that the police in Nigeria had arrested a former teacher of the Appellant, a BrotherXXXX XXXX, for sexually molesting a small boy. The Appellant's mother also informed the Appellant that pictures of Brother XXXX and nude boys, including the Appellant, had been found by the police in Brother XXXX residence. The Appellant now alleges that because of the photographs, his family and the community in Nigeria now believe that he is gay. [5] The Appellant also produced documentary evidence to the RPD indicating that he has joined LGBT groups in Toronto. According to the evidence, the Appellant joined these groups in XXXX of 2015, three years after arriving in Canada. ROLE OF THE RAD [6] The RAD finds that the recent Federal Court decision, in Huruglica,1 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. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [7] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [8] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. NEW EVIDENCE [9] In his submissions, the Appellant introduced new evidence in the form of a letter from XXXX XXXX XXXX XXXX XXXX XXXX,3 and 10 photographs of the Appellant participating at the 2015 Toronto Pride Parade4. The Appellant relied on section 110(4) of the Act to introduce this new evidence. [10] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in section 110(4) which states: On appeal, 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. [11] As with respect to the first test, the date of the letter from the XXXX XXXX XXXX XXXX XXXX XXXX is dated XXXX XXXX, 2015 which is after the rendering of the RPD decision. The Appellant had already submitted a letter to the RPD from the same organization which was dated XXXX XXXX, 2015. The RAD notes that the two letters are very similar in content and the letter submitted as new evidence offers little new evidence other than the fact that the Appellant has been a member since XXXX 2014. However, that information was reasonably available to the Appellant, especially since he had already submitted a letter from the same organization which could have included that information. The RAD therefore does not accept this new evidence. [12] With respect to the 10 photographs, there is no evidence as to the date when these photographs were taken. There is no date stamp on the copies of the photographs nor is there any indication in the photographs themselves showing that the Appellant was actually participating at the 2015 Toronto Gay Pride Parade. Since the RAD cannot establish when these photographs were actually taken, the RAD does not accept the photographs as new evidence. [13] One of the reasons the RPD rejected the Appellant's refugee claim was that: "No documents were produced from either the school or from the Roman Catholic Church about the alleged incident."5 In order to remedy this lack of documentary evidence, after perfecting his Appeal, the Appellant submitted new evidence pursuant to rule 29.6 This new evidence was in the form of a letter from XXXX XXXX XXXX Catholic Church in Nigeria and from XXXXChild Nursery and Primary School, also in Nigeria. The Appellant alleges that, after the RPD hearing, his mother attended at both his former school, and at the Catholic parish where Brother XXXX had allegedly served, and was able to obtain letters from each of the institution. [14] The RAD held two hearings in order to determine the authenticity of these two documents: on February 18, 2016 and March 3, 2016. The Appellant did not require the services of an interpreter at these hearings. Letter from the School [15] The Appellant testified that his mother went to the school to ask for a letter on his behalf. His mother had then brought the letter to a friend of the Appellant who had mailed it to the Appellant in Canada. [16] The RAD pointed out to the Appellant that the letter of the school's letter has a telephone number beginning with the international code of 011. The RAD asked the Appellant why the letter head would have the international code prefixed to the school's telephone number and he replied that it was how he had received the letter. [17] The RAD rejects this explanation. The international telephone code 011 is utilized when an international telephone number is being called from North America. There is no explanation as to why a letter head from a Nigerian institution would have the international code 011, which is used solely from North America, prefixed to its telephone number. Counsel submits that he has seen other documents from Nigeria with this international code although he did not provide any such evidence. Letter heads are not printed for specific purposes: letter heads used solely within Nigeria and letter heads which are sent out to North America. It is reasonable to expect that letter heads would be standardized. [18] The RAD also pointed out to the Appellant that the school emblem on the letter head seemed to have been photocopied whereas the information with respect to the name, address, and telephone number of the school was printed. The Appellant once again replied that it was how he had received the letter. [19] The RAD rejects this explanation. It is reasonable to expect that when a logo forms part of the letter head and that it would be printed in the same manner as the rest of the information on the letter head. In this case, the school logo seems to have been photocopied rather than printed. [20] Although these concerns by themselves do not establish that the letter is not authentic, the RAD has other credibility issues with respect to the letter. The Appellant stated that his mother called him while she was at the school and that the Appellant spoke with the Principal of the school. The Appellant stated that the principal remembered him from his student days. His counsel asked the Appellant the name of the person with whom he had spoken and he replied that he did not remember. [21] The RAD asked the Appellant if he had actually spoken with the principal of the school and he replied that he had and he had asked him for the letter. The Appellant once again confirmed to the RAD that the principal had remembered him and had called him by name. Then the RAD pointed out to the Appellant that when he had been asked by his counsel if he knew the name of the principal he had replied that he did not know and yet now he testified that the principal had called him by name because he remembered him from his student days. The Appellant provided no reply. [22] The RAD does not accept the evidence that the Appellant cannot recall the name of the principal. He testified that he actually spoke with the principal when his mother was present in the principal's office in order to ask him for the letter. Furthermore, the Appellant testified that the principal had called him by name because he had remembered the Appellant from his school days. It is reasonable to expect that the Appellant would have remembered the name of the person with whom he spoke in order to ask for the letter. [23] The RAD asked the Appellant if the principal had actually signed the letter and he replied that he had. The RAD then pointed out to the Appellant that the letter was actually signed by the head [24] master and he replied that when he was using the term principal he was referring to the term familiar to Canadians and that in Nigeria he was actually known as head master. [25] The RAD rejects this explanation. During his testimony the Appellant always referred to the author of the school letter as the principal of the school. At no time during his testimony did the Appellant indicate that he was using the term principal because he was aware that the term is more familiar to Canadians than head master. The RAD also notes that during his oral submissions after the hearing, the Appellant's counsel referred to the author of the letter as the principal. [26] Given all of the above credibility concerns, the RAD concludes that the letter was submitted in order to bolster the Appellant's refugee claim and is not authentic. Letter from the Catholic Church [27] With respect to the letter from XXXX XXXX XXXX church, the Appellant once again submitted an original copy. The letter was signed by a FrXXXX XXXX in his capacity as pastor of the church. The letter head indicates that XXXX XXXX XXXX church is located within the Catholic Diocese of XXXX in Nigeria. Since the Appellant's evidence, namely the letter from the church, indicates that XXXX XXXX XXXX church is located in the Diocese of XXXX, the RAD Googled the Diocese of XXXX. The web page for the diocese has a link for the parishes and the priests who work in the parishes. The RAD noted that Fr. XXXX was not listed as one of the priests working in XXXX XXXX XXXX Church. [28] Prior to the second hearing, the RAD disclosed the information it had researched to the Appellant's counsel by providing the link to the Diocesan website and pointing out that Fr. XXXX name did not appear in the list of priests working at XXXX XXXX XXXX parish. At the second hearing the Appellant's counsel had printed out the pages from the website of the Diocese of XXXX listing of the parishes and the names of the priests who work in those parishes. [29] The Appellant was asked by his counsel as to why Fr. XXXX name does not appear on the Diocesan website as being one of the priests working at XXXX XXXX XXXX Parish. The Appellant replied that Nigeria does not have good IT people and maybe the website is out of date. [30] The RAD rejects this explanation. This is a speculative response and the Appellant provided no reasonable proof that the website is out of date and has not been updated. The RAD notes that the Appellant testified during his RPD hearing that, in XXXX of 2014, his mother had spoken with Fr. XXXX at XXXX XXXX XXXX church, with respect to the charges against BrotherXXXX XXXX. From the Appellant's own testimony, it seems that Fr. XXXX has been at XXXX XXXX XXXX church at least since XXXX 2014. The letter submitted by the Appellant from Fr. XXXX is signed XXXX XXXX, 2016. And yet he is not listed on the official Diocesan website as being one of the priests working at XXXX XXXX XXXX church. In fact, the RAD notes that Fr. XXXX is not listed anywhere in the Diocesan website as a priest of the Diocese of XXXX. [31] Given this credibility concern, the RAD finds that the letter from XXXX XXXX XXXX Catholic Church was written in order to bolster the Appellant's refugee claim and is not authentic. ANALYSIS OF THE MERITS OF THE APPEAL [32] The RPD found the determinative issues in this claim to be credibility. The RPD concluded that the Appellant was not a credible witness and that he had failed to establish that he is a convention refugee or a person in need of protection. [33] The Appellant challenges the credibility findings of the RPD and the RAD will analyze the credibility of the Appellant. [34] There are two credibility issues which the RAD needs to concern itself with: the alleged abuse the Appellant suffered at the hands of the BrotherXXXX XXXX, and whether the Appellant is now living a gay life in Canada. [35] In order to corroborate the allegation that the Appellant had been sexually abused by Brother XXXX, the Appellant submitted the letter from his school and the letter from the Catholic Parish of XXXX XXXX XXXX. The RAD has concluded that the letter from the Appellant's school is not authentic and that it was submitted in order to bolster his refugee claim. [36] The Appellant has alleged that the Catholic Church is investigating the activities of Brother XXXX. A letter from the Catholic Church in Nigeria, especially one from the very parish where the alleged abuse took place, would corroborate the Appellant's allegation. However, the RAD has also concluded that this letter is not authentic and that it was filed in order to bolster the refugee claim of the Appellant. [37] Based on the credibility findings with respect to the letter from the Appellant's school and the letter from the Catholic church of XXXX XXXX XXXX in Nigeria, the RAD concludes that the Appellant was not sexually abused by BrotherXXXX XXXX in Nigeria. [38] The Appellant submitted affidavits from his mother and his uncle in support of his allegation that he was abused by Brother XXXX, and that nude photos of the Appellant had been discovered by the police. Since the RAD has found that the Appellant was not abused by Brother XXXX, and since both the Appellant's mother and uncle produced evidence from Nigeria, the RAD also concludes that these affidavits are not credible. The Appellant also submitted a police report from Nigeria and argues that the police report is genuine.7 The RAD has credibility concerns with respect to this document. The Appellant stated that his mother and uncle attended at the police station in order to obtain information on Brother XXXX case. And yet they were shown alleged pictures of BrotherXXXX XXXX and nude boys. If the Appellant's mother and uncle had attended at the police station simply to inquire about an investigation concerning Brother XXXX, it seems reasonable that the police would have either confirmed or denied that investigation without identifying any evidence to the Appellant's mother and uncle. There was no need for the police to have the Appellant's mother and uncle identify the Appellant in one of the pictures because the Appellant was not being investigated. Furthermore, as with the above affidavits, given the fact that the RAD has concluded that the Appellant was not sexually abused by Brother XXXX, it also concludes that this document was submitted in order to bolster the Appellant's refugee claim. [39] In arriving at this credibility conclusion with respect to the documents submitted by the Appellant from Nigeria, the RAD relies on the Federal Court which has stated that: "Where a witness before the CRDD is found to have severely damaged his own credibility in a specific instance, such as supplying a false document to the CRDD, that can reflect on other findings regarding his credibility.8" [40] The second issue for the RAD to consider is whether the Appellant has demonstrated that he is living a gay lifestyle and therefore cannot return to Nigeria. In support of this allegation, the Appellant submitted new evidence in the form of photographs and a letter of support from the XXXX XXXX XXXX XXXX XXXX XXXX. As discussed above, the RAD has not accepted this new evidence. [41] At the RPD, the Appellant had submitted a tax receipt showing that the Appellant had made a contribution to XXXX XXXX XXXX XXXX XXXX XXXX on XXXX XXXX, 2013, a letter from the same organization dated XXXX XXXX, 2015 and a letter from the XXXX XXXX Church dated XXXX XXXX, 2015. With respect to the contribution made to the XXXX XXXX XXXX XXXX XXXX XXXX, the RAD notes that one does not have to be a gay person to contribute to that organization. The letter from the XXXXChurch indicates that the Appellant has been attending the church since XXXX XXXX, 2015, three weeks prior to his refugee hearing. The letter of support from XXXX XXXX XXXX indicates that he is an active member but does not provide conclusive evidence that he is gay. [42] Given these credibility concerns, the RAD gives little evidentiary weight to these support documents. DETERMINATION [43] Given the credibility concerns outlined above, the RAD agrees with the finding of the RPD that the Appellant has not established that, if he were to return to Nigeria, he would suffer persecution or be at risk for his life. CONCLUSION [44] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant is not a convention refugee nor a person in need of protection. [45] The Appeal is dismissed. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino March 30, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Exhibit P-2, Appellant's Record, at p. 92. 4 Exhibit P-2, Appellant's Record, at pp. 93-102. 5 Exhibit P-2, Appellant's Record, at p. 7, para. 18. 6 Exhibit P-3, Application Under RAD Rules 37 & 29. 7 Exhibit P-2, Appellant's Record, pg. 105, para. 9. 8 Osayande, Maxwell v. M.C.I. (F.C.T.D., no. IMM-3780-01), Kelen, April 3, 2002, at parag. 21. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-06465