TB5-13639

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 : TB5-13639 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 March 30, 2016 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Joo Eun Kim Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), who is a citizen of Nigeria, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal and he is requesting that the Refugee Appeal Division (RAD) substitute a positive determination or in the alternative conduct an oral hearing pursuant to subsection 110(4) and subsection 110(6) of the Immigration and Refugee Protection Act (IRPA). In the alternative, the Appellant is requesting that the matter be referred back to a newly-constituted panel of the RPD for re-determination. DETERMINATION; [2] Pursuant to subsections 111(1)(c) and 111(2) of the IRPA, the RAD refers this matter to the RPD for re-determination by a differently-constituted panel. This appeal is allowed. Background: [3] The Appellant's claim is based on his sexual orientation, namely, bi-sexual. He first realized that he was fond of boys during secondary school. In 1999, during his studies at the XXXX school, he met a male partner named XXXX XXXX XXXX with whom he had a bisexual relationship secretly until he graduated in 2003. However, in XXXX 2006, after being pressured by his family, he married his younger sister's friend, and they had three children. [4] A few years later, the Appellant met his partner, XXXX XXXX with whom he began a secret love affair. On XXXX XXXX, 2015, the Appellant alleges that when he was having sex with XXXX in his apartment while his wife and children were attending a wedding in Benin City, his neighbour barged into his home and observed the Appellant engaging in intimate relations. The neighbour raised an alarm and other neighbours came to his apartment and began beating him and his partner. However, they managed to escape but the neighbours took the Appellant to the Chief Priest who ordered cleansing. Later with the help of his pastor and his sister, the Appellant was able to escape from the custody of the Chief Priest. He was taken into hiding by his pastor who helped him flee from Nigeria. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL EXPRESS STATUTORY CONDITIONS [5] Subsection 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [6] The following new evidence was submitted prior to the perfection of the appeal: a) Notice of Petition dated XXXX XXXX, 2016 and Petition for Decree of Dissolution of Appellant's Marriage, dated XXXX XXXX, 2015. b) Wedding invitation for XXXX XXXX and XXXX XXXX. c) National ID card of XXXX XXXX XXXX. d) Certificate of Marriage of Appellant dated XXXX XXXX, 2006. e) Letter from Legal Aid Ontario dated January 26, 2016. f) Wedding photographs. g) ID card of Appellant's wife. [7] With respect to the letter from Legal Aid Ontario, the RAD accepts this letter which corroborates the Appellant's testimony regarding his delay in claiming. We accept this as, although this letter was available during the hearing, counsel did not submit it nor did he send it to the RPD within the requested time of one week. The RAD finds that this is not the fault of the Appellant himself, but rather his counsel. [8] The RAD also admits the evidence with respect to the Appellant's wife having attended a wedding with her children the day of the alleged incident surrounding the intimate relations between the Appellant and his partner XXXX. We concur with the Appellant that the fact that his wife was attending a wedding at the time of the alleged incident, would not reasonably have been expected to be an issue, and therefore, we find that the credibility concerns expressed by the RPD in this regard are unsustainable, as this is peripheral to the central issue to the claim. In other words, where the Appellant was located at the time of the incident is irrelevant to whether or not the Appellant is bi-sexual. [9] The RAD admits the remainder of the documents, however finds that they do not provide any probative value. The dissolution of the Appellant's marriage is not in dispute, therefore the documents in this regard do not assist in establishing the Appellant's relationships with males. The RAD finds that although the ID card of XXXX responds to the RPD's statement that it did not even know of the existence of this individual, it does not provide any new evidence with respect to whether or not the Appellant had a relationship with him. ORAL HEARING: [10] The RAD finds that the foregoing evidence does not meet the criteria pursuant to subsection 110(6) of the IRPA. Hearing (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. ROLE OF RAD: [11] Counsel has made submissions in line with the recent Federal Court decision in Huruglica1 which the RAD will follow. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". SUBMISSIONS BY THE APPELLANT: [12] Did the RPD err in making negative subjective fear findings? [13] Did the RPD err in making implausibility findings? [14] Did the RPD err by disbelieving the Appellant's account of May 16, 2015 on the basis that he failed to submit evidence on a peripheral detail? Lack of subjective fear: [15] The RPD found that the Appellant lacked subjective fear because he did not seek refugee protection while he was in Canada in XXXX 2014. [16] It is submitted by the Appellant that the incident which led to his departure had not occurred at that time. [17] The RAD concurs with the Appellant that although he may have been bi-sexual at the time, it was the incident which occurred in 2015 which allegedly led to his departure. [18] The RPD further found that the Appellant lacked subjective fear because there was a two month delay in making his claim. [19] It is submitted by the Appellant that he testified that he was seeking a change of solicitor and he was awaiting a reply from Legal Aid. [20] The RAD finds that a 2 month delay is not significant and there was no reason to doubt the explanation provided by the Appellant. However, the "new" evidence addresses this issue and therefore, the RAD finds that the RPD's conclusion that the Appellant lacked subjective fear is unsustainable. Exit from Nigeria: [21] The RPD found that it was implausible that the Appellant was able to leave the Nigerian airport if he was wanted by the authorities. Moreover, the RPD found the fact that the Appellant's family members had not been targeted as an indicator that he was not wanted by anyone. [22] Firstly, it is submitted that although the Appellant's neighbours and members of the community were aware of what had occurred, at the time of his departure, there was no evidence that the police were in pursuit. Moreover, it is argued that the documentary evidence2 indicates that incidents of family members being targeted are not frequent. [23] The RAD concurs with the Appellant that not only is there no evidence that the police were in pursuit of the Appellant when he departed Nigeria, but there is no reference to any documentary evidence with respect to the Appellant's ability to leave Nigeria using his own passport. We further concur with the Appellant, on a balance of probabilities, that notwithstanding the Appellant's alleged bi-sexuality, his family would not in turn be targeted. Failure to provide corroborative evidence that is peripheral to the claim: [24] The RPD found, in the absence of corroborative evidence that the Appellant's wife was attending a wedding with their children, a lack of credibility with respect to the central aspect of this claim, namely, that the Appellant was caught in a compromising position with his male partner. [25] The Appellant submits that to expect corroborative evidence which is peripheral and then to come to a conclusion on the central aspect of the claim, is simply erroneous. It is submitted that the RPD ignored corroborative evidence which was integral to the claim, namely, the Affidavit of Pastor XXXX XXXX XXXX and the letter from the Appellant's sister, indicating that he and his partner were violently attacked when caught having sex, and that his community had locked him up for the ceremony of cleansing the land and rituals. [26] The RAD finds that the Appellant could not have been expected to provide this peripheral evidence pertaining to where his wife was at the time of the alleged incident. He has, in fact, provided this information for the purpose of this appeal, however, it should have no bearing on the final outcome of this claim. It was therefore incumbent upon the RPD to provide a reason for not accepting the corroborative evidence which did speak to the central allegations of the claim. [27] The issue to be determined is whether or not the Appellant is bi-sexual, and as a result, his fears of returning to Nigeria are well-founded. [28] The RAD finds that the RPD's credibility findings are insufficient to support its decision. On the other hand, the RAD finds that it cannot substitute its own finding, as there is insufficient evidence on the record to do so. [29] The RAD finds that the RPD failed to explore the nature or the genesis of the relationship with his partner, with whom he was caught in a compromising position, after being in a relationship for several years. [30] Pursuant to subsections 111(1)(c) and 111(2) of the IRPA, the RAD refers this matter to the RPD for re-determination by a differently-constituted panel. This appeal is allowed. (signed) "Roslyn Ahara" Roslyn Ahara 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 National Documentation Package (NDP) for Nigeria (November 30, 2015), item 10.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :