TB6-08110

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 : TB6-08110 TB6-08111 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX XXXX) XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 27, 2016 Date de la décision Panel G. Erauw Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A 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 XXXX XXXX (the principal Appellant), and her minor child, XXXX XXXX XXXX XXXX XXXX (the minor Appellant) are citizens of Nigeria and are appealing a decision of the Refugee Protection Division (RPD) denying their claim for refugee protection. The principal Appellant continues to be the designated representative (DR) for the minor Appellant for the purposes of this appeal.1 [2] The Appellants are requesting that the Refugee Appeal Division (RAD) allow the appeal, but have not specified the desired disposition.2 The Appellants have requested to submit new evidence and have requested an oral hearing. DETERMINATION OF THE APPEAL [3] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA).3 Background [4] The Appellants arrived in Canada on XXXX XXXX, 2015 on a temporary resident visa (TRV) and submitted a claim for refugee status on November 23, 2015. The principal Appellant alleges that she is a lesbian, and if she returns to Nigeria, her husband, his family, the community and government authorities will harm her because of her sexual orientation. [5] The Appellants had a refugee determination hearing on March 7, 2016. In a written decision issued on June 3, 2016, the RPD rejected the claim. The RPD panel found the principal Appellant lacking in credibility, and it found that, on a balance of probabilities, the Appellants did not provide sufficient credible and trustworthy evidence in support of their allegations. Therefore, the RPD concluded that the Appellants do not have a well-founded fear of persecution on a Convention ground, or that they would personally be subjected to a risk to life or a risk of cruel and unusual treatment or a danger of torture upon return to Nigeria. [6] The Appellants argue that the RPD erred by conducting an unfair hearing and misapprehending the evidence. ROLE OF THE RAD [7] The recent Federal Court of Appeal decision, in Huruglica,4 provides the RAD with guidance in relation to the appropriate standard that the RAD must apply in reviewing decisions of a first-level administrative tribunal. The Federal Court of Appeal states: [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.5 [8] There are, however, cases where the RPD may enjoy a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because such findings require an assessment of the credibility or weight to be given to oral evidence heard by the RPD.6 Although the RAD should sometimes exercise a degree of restraint before substituting its own determination in such cases, the issue of whether the circumstances warrant restraint, should be addressed on a case-by-case basis. The amount of deference given to the RPD's findings on credibility of oral evidence will depend on the advantage the RAD finds that the RPD has in a particular case.7 Having done this, the RAD will provide a final determination, by either confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. Admissibility of Evidence Submitted on Appeal [9] Subsection 110(4) of the IRPA provides that the Appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected8 in the circumstances to have presented, at the time of the rejection. It is for the Appellants to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of subsection 110(4) and how that evidence relates to the Appellants.9 Application of Subsection 110(4) [10] In Singh,10 the Federal Court of Appeal dealt with the interpretation of subsection 110(4) of the IRPA and stated that, in order to determine the admissibility of evidence, the RAD must comply with the explicit legislative factors of subsection 110(4).11 [11] Subsection 110(4) establishes a disjunctive test.12 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claims. If it was not reasonably available at that time, it meets the requirements of subsection 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellants could reasonably have been expected, in their circumstances, to have presented the evidence to the RPD prior to the rejection of their claims. If they could not have been expected to do so, the evidence meets the requirements of the section. [12] If the evidence did not arise after the rejection of the claims, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claims, the evidence does not meet the test in subsection 110(4). The RAD does not have discretion to admit such evidence.13 [13] As the RAD understands it, subsection 110(4) provides the Appellants with an opportunity to present evidence that could not have been submitted to the RPD - either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellant could not have been expected to present it to the RPD. Modified Raza Factors [14] If the new evidence meets one of the explicit legislative factors in subsection 110(4), then the second step of the analysis is for the RAD to apply the adapted Raza factors endorsed in Singh.14 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. The RAD is not to consider the fourth Raza factor of materiality to the admission of new evidence, which is a consideration for subsection 110(6) and the request for an oral hearing.15 [15] In support of their appeals, the Appellants propose one document as new evidence: (a) "Certificate of Decree Absolute", from the High Court of Justice, Delta State of Nigeria, Agbor Judicial Division, dated XXXX XXXX, 2016.16 Assessing the New Evidence - 110(4) [16] The Appellants do not make any submissions on how the new evidence meets the legislative requirements of subsection 110(4).17 Nonetheless, the RAD finds that the new evidence meets the legislative requirements under 110(4). The "Certificate of Decree Absolute" refers to an order made on XXXX XXXX XXXX 2016. The Assistant Chief Registrar signed the document certifying to the decree on XXXX XXXX, 2016. Considering both of the dates on the document post-date the rejection of the Appellants' refugee claims, which was June 3, 2016, the RAD finds that the document is admissible pursuant to 110(4), since it arose after the rejection of the refugee claims. Assessing the New Evidence - Modified Raza Factors [17] The "Certificate of Decree Absolute" is relevant and new. The document, combined with information in the National Documentation Package (NDP) for Nigeria, suggests that the divorce between the principal Appellant and her estranged husband is now final.18 The document provides new information, since at the time of the Appellants' hearing at the RPD, the divorce was in progress and not yet final. In addition, the document is relevant since the principal Appellant alleges that her ex-husband filed for divorce because he caught her in bed with her same-sex partner on XXXX XXXX, 2015. However, the RAD does not find the "Certificate of Decree Absolute" credible. The RAD notes that there are irregularities on the face of the document. In particular, there is inconsistent capitalization in the document. For example, the word "Respondent" is capitalized, but "petitioner" is not. The month of absolution, "XXXX", is capitalized, but the month of the marriage is not. In addition, the word "dissolution" in the "Decree Nisi of dissolution of Marriage" is not capitalized. Only a portion of the city of marriage is capitalized, where in other court documents it is capitalized.19 The date of the certification is incorrectly dated "XXXX XXXX 2016-XXXX XXXX XXXX". To the RAD, these irregularities appear to be inconsistent with what one would expect from a High Court of Justice Registrar responsible for issuing certified documents. The RAD also notes that the name of the document is not entirely consistent with the documentary evidence. Specifically, the NDP states "[t]he documents that evidence the dissolution of the marriage and order the final divorce or divorce absolute are a "Decree Absolute", or a "Certificate of Decree Nisi Having Become Absolute" or "Enrolment of Order", also called "Enrolment Order". Based on these issues, the RAD does not find the "Certificate of Decree Absolute" credible. Therefore, the modified Raza factors are not satisfied, and the document is inadmissible. [18] The RAD notes that even if the RAD accepted the "Certificate of Decree Absolute" as credible and admitted it as new evidence, the RAD would give it little weight. The document simply indicates that the principal Appellant's divorce is final. It does not establish that the alleged facts underlying the grounds for divorce are true, mainly, that the principal Appellant is a lesbian. Request for an Oral Hearing [19] The Appellants do not specifically request an oral hearing based on this new evidence, but "if it is required", the principal Appellant would like it to be in English.20 The Appellants make no further submissions on why the RAD should hold a hearing under subsection 110(6) of IRPA.21 [20] The RAD may hold a hearing if, in its opinion, there is documentary evidence that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.22 [21] Having found the new evidence inadmissible, the RAD has no basis upon which to hold an oral hearing. However, this evidence, even if it was accepted, would not permit the RAD to accept or reject the claim and, therefore, does not meet paragraph 110(6)(c) of IRPA. The document, if accepted as credible, would simply indicate that the principal Appellant's divorce is final. It does not establish that the alleged facts underlying the grounds for divorce are true, mainly, that the principal Appellant is a lesbian. Therefore, the RAD must proceed without an oral hearing. ISSUES IN APPEAL [22] The Appellants argue the following issues, which the RAD has combined and reworded for its analysis. The Appellants argue that the RPD erred by: (a) Conducting an unfair hearing; (b) Misapprehending and failing to consider the evidence; and, (c) Not indicating the standard of proof used. ANALYSIS Fairness of the Hearing [23] Throughout their memorandum, the Appellants argue numerous points with respect to the fairness of the RPD hearing. The RAD summarizes these allegations below: (a) The RPD conducted the hearing on the basis of moral and ethical judgment about the principal Appellant's behaviour.23 (b) The RPD embarrassed the Appellant and her same-sex partner about whether having an extra-marital affair was a good thing.24 (c) The RPD started the hearing by being unfair in condemning the loving relationship between the claimant and her partner, which destroyed the spirit of a fair hearing.25 (d) The RPD was highly opinionated and made moral judgments at the beginning of the hearing.26 (e) All of the RPD's questions were based on ethical judgments, making the Appellant ashamed of herself in the hearing.27 (f) The RPD was not neutral.28 Reasonable Apprehension of Bias [24] The Appellants essentially argue that the RPD was biased against them. Such an accusation against the RPD is a serious allegation, as it challenges the integrity of the member and the tribunal itself. Allegations of bias should not be made lightly, and must be supported by material evidence.29 Furthermore, the Appellant has an obligation to raise the issue of bias at the first opportunity, and failing to do so constitutes a waiver of bias.30 [25] The Appellants make their allegations of bias in their submissions, and they provide no accompanying evidence specifying the RPD's inappropriate comments and questioning. In particular, they do not pinpoint any examples on the audio recording of the hearing demonstrating their allegations. With respect to raising the issue of bias at the earliest opportunity, the RAD notes that the Appellants did not make an application alleging bias at their RPD hearing,31 and they did not mention any of their fairness concerns in their written submissions and the evidence they submitted to the RPD after their hearing.32 [26] While the Appellants fail to have met the above requirements in alleging bias, the RAD is mindful that the Appellants are self-represented and may not have been aware of their obligations with respect to allegations of bias. Therefore, the RAD reviewed the whole record, including the audio recording of the hearing, in view of the Appellants' broad range of fairness concerns. After reviewing the record and listening to the RPD hearing, the RAD cannot conclude that a reasonable person would find that the RPD was biased.33 There is no evidence that the RPD condemned the principal Appellant's actions, made moral and ethical judgments about her behaviour, was insensitive, or otherwise unfair in the conduct of the hearing. [27] Specifically, the RAD observes the RPD's tone on the audio recording was professional throughout. At no point did the RAD hear the member raise her voice, sound indignant, sarcastic, negative or disrespectful to the Appellants. The RAD did not hear anywhere on the audio recording the member condemn the Appellants' behaviour, either with respect to having an extra-marital affair or in regards to having a same-sex relationship, nor do the RPD's Reasons illustrate that the member made its decision based on a moral evaluation of the principal Appellant's actions. The member also did not express an opinion during the hearing to demonstrate that she prejudged the claim. In the RAD's view, the member's questioning was appropriate. While the member may have asked questions that the Appellants found uncomfortable, the RPD has an obligation to ask questions across a range of issues in order to understand the principal Appellant's situation and the central elements of her claim. In listening to the audio recording, the RAD paid special attention to the RPD's questions in regards to the extra-marital affair. Under the circumstances, it was not an error for the RPD to ask such questions. The RPD asked such questions in order to understand the context, especially the principal Appellant and her girlfriend's state of mind at the time of a critical event in the Appellants' story. The questions were important in order for the RPD to assess the Appellants' credibility. They were not vigorous, nor did they demean the Appellants. The RAD is of the opinion that the RPD's questions were not based on stereotypes and showed enough sensitivity for the principal Appellant to feel comfortable expressing herself. A review of the audio recording does not demonstrate any apparent reluctance or nervousness on the part of the principal Appellant to discuss her alleged sexuality and her extra-marital affair. [28] The RAD further observed that the RPD was especially mindful of the Appellants' lack of counsel. At the beginning of the hearing, the member summarized her pre-hearing conference with the Appellant, whereby the member stated that she offered the Appellants an adjournment in order to seek counsel and/or to have time to review the NDP. However, the Appellants stated that they wished to proceed with the hearing. In addition, at the beginning of the hearing, the member stated that she would give the Appellants three weeks to provide any additional evidence and provide written submissions in support of their claim.34 [29] Based on the above, the RAD does not find anything to support the Appellant's broad and serious allegations with respect to the unfairness of the RPD hearing or that the member based her decision on moral or ethical judgements. Therefore, due to a lack of evidentiary basis for their allegations, the RAD rejects the Appellants' arguments that the RPD exhibited an apprehension of bias and breached natural justice. Misapprehending or Failing to Consider the Evidence and Credibility [30] The Appellants refer to a litany of "evidence" that the RPD either ignored or misapprehended.35 The Appellants' argument is difficult to follow, since they do not articulate how failing to consider or misapprehend this "evidence" constitutes an error. Contrary to the Refugee Appeal Division Rules, they also do not provide full and detailed submissions regarding where the errors are located in the RPD's decision or during the course of the RPD hearing.36 [31] The Appellants submit that the RPD failed to consider or misapprehended the following evidence with respect to its key findings on credibility, the documents and the principal Appellant's sexual orientation. The RAD summarizes, rephrases and lists the alleged errors for ease of reference. (a) The RPD failed to consider the "Personal Information Form" (PIF) and failed to consider two main ways of testing the principal Appellant's oral testimony, her demeanour and the way she answered the questions.37 More specifically, the principal Appellant states that the RPD did not consider her general demeanour while testifying under medical condition, including "her facial expression, tone of voice, physical movements, general integrity, her intelligence, power of recollection under fear of returning to Nigeria for prosecution."38 (b) The principal Appellant's oral testimony was collaborated with documentary evidence and the RPD did not see any genuine case from Nigeria because all documents, newspapers, and pictures from homosexuals are fraudulent.39 The RPD also did not verify the ex-husband's affidavit or the court petition of the divorce to be false.40 (c) The RPD did not consider that the accusation made against the principal Appellant is a criminal offence punishable in Nigeria for a term of fourteen years.41 Furthermore, the RPD did not consider that every part of Nigeria hates homosexuals and bisexuals, and the killing of members of these groups is acceptable.42 In addition, the RPD failed to accept the fact that the principal Appellant was afraid of returning to Nigeria because of her fear of same sex involvement and infidelity.43 (d) The RPD did not consider the evidence of the principal Appellant's same-sex partner, XXXX XXXX, who stated they were in love and "it happened."44 The RPD also did not comment on the evidence submitted by the Appellant that provides the reason for divorce by the ex-husband was her same-sex relationship and infidelity.45 (e) The RPD did not consider that in Nigeria it is normal to proceed with a divorce by providing an affidavit to support the reason for the divorce,46 and it did not consider that where the reason for the divorce is criminal, it must be reported to the police.47 [32] First, with respect to the Appellants' argument on demeanour, the RAD does not agree that the RPD erred. The RAD notes that demeanour may be a relevant factor in assessing credibility, but it is not a decisive factor. Furthermore, courts tend to diminish the role of demeanour in the final assessment of credibility because the conclusions drawn from demeanour are less reliable and cultural factors can influence behaviour.48 The fact that the principal Appellant alleges she was under stress at the hearing because of an uncertain medical diagnosis, is not supported by any evidence, including a psychological report, explaining that it affected her ability to testify.49 With respect to the Appellants' argument that the RPD did not consider the PIF, the RAD is unclear whether the Appellants are aware that the Basis of Claim (BOC) form replaced the PIF in 2012, and perhaps this is the source of the confusion. The RAD notes that the RPD's decision clearly refers several times to the Appellants' BOC in its decision, which indicates that the RPD did consider it and its contents.50 The audio recording of the hearing also demonstrates that the RPD considered the BOC based on the questions it asked the principal Appellant during the hearing. The RPD could not have asked such questions without having read the BOC and considered its contents. [33] Second, in regards to the Appellants' argument that the documentary evidence corroborates the oral testimony, the Appellants do not clearly identify the documentary evidence and oral testimony they are relying on to demonstrate this error. Furthermore, the Appellants' submission that the RPD "did not see any genuine case from Nigeria because all documents, newspapers, and pictures from homosexuals are fake", is not sustainable after considering the RPD decision and the audio recording of the hearing. In the RAD's view, as illustrated when assessing the unfairness of the hearing above, there is nothing in the decision or the audio recording demonstrating that the RPD was biased and was unable to identify a genuine case, nor did the RPD say or infer that all documents from homosexuals are fraudulent. The RPD provided clear reasons for giving the Appellants' documents little weight and in taking issue with the Appellants' credibility. This includes the ex-husband's affidavit and petition for divorce. The Appellants did not challenge the RPD's reasoning on this issue. After reviewing the decision, the RAD believes the RPD provided sufficient reasons for finding the documents lacking in credibility and giving them little weight. Specifically, the RPD found the documents problematic because the principal Appellant provided inconsistent testimony on how and when she obtained the documents. In addition, the Appellants' own submissions to the RPD stated that the documents might be "faked". This combined with the documentary evidence in the NDP that suggests fraudulent documents are readily available in Nigeria (even in non-homosexual refugee claims), was enough for the RPD to doubt the credibility of the Appellants' documents.51 [34] In the RAD's own assessment of the whole record, the RPD did not err because the Appellant's explanation, contradictions and timeline for receiving divorce documents from Nigeria cast serious doubts on the credibility of her documents. The RPD asked the Appellant whether her husband's lawyer sent her the documents by email and she testified that they were couriered towards the end of November to XXXX address. At her hearing, the RPD asked if the first time she received the husband's affidavit and the police extract was through the courier, and the Appellant indicated it was. The Appellant then provided the envelope to the RPD member.52 Later, the RPD again asked whether the lawyer sent all the documents she has from Nigeria, to which she responded "yes". The RPD noted that the Appellant attached an affidavit from her husband and the police document to her BOC, and asked how she got those, to which the Appellant said "he sent it and I printed it." The RPD confirmed with the Appellant that he [the husband] sent her documents. The RPD asked for the email, but the Appellant did not have it, and she stated she could print the email and provide it to the RPD with her written submissions.53 The RAD finds the Appellant's testimony about how she received the husband's affidavit and the police extract to be contradictory. The Appellant's testimony is made more confusing when the Appellant's affidavit for post-hearing evidence states, "the police abstract and affidavit forwarded to my email box was deleted with anger and without knowing the consequences,"54 which was not mentioned at the hearing. [35] In regards to the envelope that the Appellant states that the documents from Nigeria were couriered in, the RPD observed that the envelope was dated as shipped from Nigeria on November 27, 2015. However, the Appellant provided these documents with her BOC, which she submitted on November 23, 2015. The RAD doubts the provenance of these documents since the Appellant included them as evidence with her BOC, before she allegedly received them. This leads the RAD to find the documents lacking in credibility. [36] Third, the RAD also disagrees with the Appellants' submission that the RPD erred by not considering that the principal Appellant could face a 14-year prison term for homosexuality, that there is nowhere in Nigeria to escape persecution, and that the RPD did not consider the Appellant feared returning to Nigeria because of her same-sex involvement and infidelity. Part of the Appellants' argument suggests that the RPD does not understand the Nigerian country condition or the contents of the NDP, which contains information about the treatment of homosexuals in Nigeria. Since the RPD entered the NDP into evidence55 and refers to it in its decision,56 the RAD is inclined to believe that the RPD was aware of the issues facing homosexuals in Nigeria. Furthermore, because the RPD found the principal Appellant not credible, the fact that the RPD did not refer to the length of prison term in Nigeria for homosexuality and the lack of an internal flight alternative is irrelevant and was not an error. Credibility is a determinative issue in refugee claims and having found the Appellants not credible, it was not an error for the RPD not to refer to this information. In addition, the RPD's finding that the Appellants were not credible illustrates that it considered the Appellants' fear of returning to Nigeria because of the principal Appellant's same-sex involvement. The RPD simply found that the Appellants were not at risk if returned to Nigeria because it did not believe the principal Appellant's story that she is a lesbian. That is the impact of the RPD's negative credibility finding. The RPD also provided reasons for finding the Appellants lacking in credibility. They include finding the principal Appellant's story and sequence of events implausible, her testimony to be vague, as well as her evidence being inconsistent and there being a lack of credible and trustworthy evidence.57 [37] Fourth, the RAD also disagrees with the Appellants' argument that the RPD erred by failing to consider the evidence of the principal Appellant's same-sex partner, who stated on record they were in love and "it happened", and that the RPD erred by not commenting on the ex-husband's reasons for divorce. The RAD observes that the RPD addressed its concerns with the credibility of the principal Appellant's same-sex relationship in its decision. This included the lack of documentation in support of their pre-existing relationship before the principal Appellant arrived in Canada, the lack of social media documentation to show their pre-existing relationship, and that XXXX address is the same as the husband's friend who provided the invitation for the Appellants' visa application, a person the Appellants have never met. In addition, the RPD's failure to consider the ex-husband's reasons for divorce, are not an error for the reasons described in paragraph 34 and 35 above. Furthermore, in rejecting this argument, the RAD notes that it is not an error for the RPD not to refer to every piece of evidence.58 [38] After reviewing the whole record, including the audio recording of the hearing, the RAD finds the Appellant lacking in credibility with respect to her allegation that she is a lesbian. The RAD finds the Appellant's testimony about her relationship with XXXX to be vague, implausible, contradictory, and lacking credible and trustworthy evidence. In particular, the RAD notes that the Appellant states that she realized she was homosexual when she felt "comfortable" meeting XXXX.59 The Appellant goes on to state she realized she was more comfortable with being a homosexual when she met XXXX because "what I felt for her was really different you know". The Appellant goes on to say that when she met her she found they "shared deep feelings, we found out that we had so many things in common." The RAD finds the Appellant's description of how she realized she was homosexual and how her relationship with XXXX started to be lacking detail and is inconsistent with information in her BOC. The Appellant states in her BOC and testified at her hearing that she had a homosexual relationship with her first partner XXXX in secondary school in 1996 and when she was in university in 2004 and again in 2009, before losing contact with her. The Appellant also states in her BOC that she had other homosexual relationships before leaving secondary school.60 Considering the Appellant refers to having numerous "homosexual relationships" before meeting XXXX, the RAD finds it implausible that she simply realized she was a lesbian once she felt "comfortable" with her current partner despite calling XXXX her former "homosexual lover". The RAD also finds it implausible that the Appellant has no evidence of XXXX, including photos, letters or communications considering the number of years they were considered lovers. This undermines the Appellant's claims of being a lesbian and in a homosexual relationship with XXXX. [39] The RAD also has difficulty believing that the Appellant and XXXX are in a genuine relationship. The RAD notes that the Appellant and her partner gave inconsistent evidence about when they first kissed. The Appellant stated that it happened on XXXX XXXX, 2015, the day they arrived in Canada and after dinner at XXXX home. The Appellant testified that her, her husband and son went for dinner at XXXX, and after dinner, her husband and son went to the nearby park because they wanted to get out and move around. The Appellant stayed behind, she and XXXX cuddled on the couch, and then they kissed.61 However, XXXX testimony is that they first kissed on XXXX XXXX, 2015, after her and the Appellant went shopping. After they went shopping, XXXX states they went to her place and got comfortable and then kissed. XXXX states that the Appellant's husband and son were back at the hotel.62 The RAD finds that given the event was only four months before the hearing, the RAD would expect that both the Appellant and XXXX would be able to recall consistently their first kiss, especially considering the circumstances in which their relationship began. [40] The Appellant states that she and XXXX met in 2013 at a wedding in Nigeria. However, she states they were introduced to each other on Facebook through a friend when the Appellant was in Nigeria and XXXX was in Canada. The Appellant testified that they communicated everyday by phone or "What's App", but the Appellant stated they did not really chat on Facebook.63 When the RPD asked if XXXX has any copies of Facebook messages, she stated she did not bring any with her and that some of them may have been deleted. The RPD asked if she had any, and whether she could provide them to the RPD with the Appellant's submissions. The RAD notes that there is no evidence of communication between the Appellant and XXXX in the record, and finds it implausible that no such evidence of their relationship since 2013 exists. While the Appellant indicated at the hearing and in her affidavit for her submissions to the RPD that she deleted and closed down her Facebook because of the incident of same-sex with XXXX, there is no indication that XXXX Facebook account is closed. Yet there are no messages from XXXX to evidence the development of their relationship. Based on the above, the RAD finds the Appellant's allegations that she is a lesbian lacking credibility and that she has not provided credible or trustworthy evidence to establish she is lesbian. [41] Fifth, the RAD does not accept the Appellants' submission that the RPD erred by not considering that it is normal for a Nigerian divorce to proceed by providing an affidavit with reasons for the divorce, and that the RPD erred by not considering that Nigerian police must be informed when the reason for the divorce is criminal. [42] After reviewing the whole record, including the audio recording of the hearing and the NDP, the RAD finds that there is no evidence in the record to support the Appellant's argument. Instead, it appears that the Appellants are providing this evidence by way of their submissions and not through an affidavit in their appeal. The only information in the NDP about an affidavit in relation to divorce proceedings is that it can confirm a non-judicial dissolution of marriage, which is not the case here.64 In this case, the affidavit of the ex-husband is in support of a petition for divorce. The Appellants appear to argue that the RPD erred because it did not make a finding that was not supported by the evidence. [43] The RAD finds the RPD did not err by not considering this information, since the evidence the Appellant relies on, her own submissions, was not before the RPD. The RAD is not convinced that when a criminal activity is the reason for divorce it needs to be reported to police. The RAD has reviewed the record and the NDP for Nigeria and finds that there is no evidence to support that this is the way divorces proceed in Nigeria. The divorce petition submitted by the Appellant also does not refer to this procedural requirement. The Appellants provide no supporting documentary evidence in their appeal, such as Nigerian legislation or news articles on this matter, to support their allegation about what is the "normal" manner in which Nigerian divorces proceed. Therefore, the RAD finds that the provision of the police extract to support the divorce proceedings, and the fact that the husband obtained it only days after returning to Nigeria, further undermines the factual basis for the Appellant's divorce and her allegation that she is a lesbian. Standard of Proof [44] The Appellants also argue that the standard of proof used by the RPD in rejecting the case "is unknown."65 The Appellant goes on to state "[e]ven the court has stated that the determination of whether a claimant has established a well founded fear of persecution is a question of mixed fact and law and the court has called for a careful analysis of claimant evidence."66 [45] In the RAD's view, the RPD's decision is very clear. The RPD did not find the principal Appellant to be credible on a balance of probabilities.67 With respect to the totality of the evidence, the RPD found there is no serious possibility of persecution in Nigeria under section 96 of IRPA. In addition, the RPD found, on a balance of probabilities, the Appellants would be not be subjected personally to danger of torture or face a risk to life or a risk of cruel and unusual treatment or punishment in Nigeria under section 97 of IRPA.68 This is the appropriate standard of proof, and therefore, the RPD did not err. CONCLUSION [46] After conducting its own analysis of the entire record, the RAD is not convinced that the RPD erred in its decision. With respect to the Appellants' argument that the RPD was unfair in its conduct of the hearing, the RAD finds this is without foundation. Furthermore, the Appellants failed to raise this issue at the earliest opportunity before the RPD, which is also fatal to their allegation. In addition, the Appellants base their argument that the RPD ignored and misapprehended the evidence, in part, on evidence that is not in the record, or that the RPD actually did consider. Where the RPD did not consider such evidence, the RAD finds it was irrelevant, since it did not undermine the determinative issue in the case, which was credibility. Finally, the RAD finds that the RPD used the correct standard of proof and the RPD's reasons clearly state and apply that standard. [47] After reviewing the whole record, including the audio recording of the hearing, the RAD finds that the RPD's key credibility findings are correct and justified. Credibility was the determinative issue and the RPD did not err in its findings. The RAD also finds on a balance of probabilities that the Appellants are not credible. [48] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. The appeals are dismissed. (signed) "G. Erauw" G. Erauw September 27, 2016 Date 1 Refugee Appeal Division Rules, SOR/2012-256 at rule 23(1). 2 Refugee Appeal Division Rules, SOR/2012-256 at rule 3(3)(g)(iv). 3 S.C. 2001, c.27 at s. 111(1)(a), [IRPA]. 4 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 5 Huruglica, 2016 FCA 93, para. 103. 6 Huruglica, 2016 FCA 93, para. 70. 7 Huruglica, 2016 FCA 93, paras. 70 and 74. 8 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para 51. 9 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 10 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 11 Ibid., paras. 34-35. 12 Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, July 22, 2015, 2015 FC 895, para. 19. 13 Deri, Samuel v. M.C.I. (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 55; Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 63. 14 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in Singh, 2016 FCA 96, para. 64. 15 Singh, 2016 FCA 96, para. 64. 16 Exhibit P-2, Appellant's Record, "New Evidence", p. 46. 17 Refugee Appeal Division Rules, SOR/2012-256 at rule 3(3)(g)(iii); see Exhibit P-2, Appellant's Record, "Statement on 110(4) & 110(6)" (unnumbered); and Exhibit P-2, Appellant's Record, "Appellant's Memorandum", pp. 46 and 52. 18 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Nigeria (November 30, 2015), item 5.5, at pp. 5-6. 19 Exhibit RPD-1, RPD's Record, Exhibit 7, "Petition for Decree of Dissolution", p. 172. 20 Exhibit P-2, Appellant's Record, "Statement on 110(4) & 110(6)", (unnumbered). 21 Refugee Appeal Division Rules, SOR/2012-256 at rule 3(3)(g)(v). 22 IRPA, at s. 110(6). 23 Exhibit P-2, Appellant's Record, Memorandum of Argument, at p. 47. 24 Ibid. 25 Exhibit P-2, Appellant's Record, Memorandum of Argument, at pp. 47, 48 and 50. For example, the Appellant states that the RPD had a preconceived notion of how a woman can fall in love and have an intimate relationship with a beloved one. 26 Exhibit P-2, Appellant's Record, Memorandum of Argument, at p. 47. 27 Ibid. 28 Exhibit P-2, Appellant's Record, Memorandum of Argument, at pp. 47-48. 29 Arthur v. Canada (Attorney General), 2001 FCA 223, para. 8. 30 Jackson v. Canada (Minister of Citizenship and Immigration), 2002 FCT 89 at paras. 37-40. 31 Exhibit RPD-1, RPD's Record, "Audio Recording" 32 Exhibit RPD-1, RPD's Record, Exhibit 8, "Post-hearing Evidence", pp. 202-212. 33 In Canada, the test for determining reasonable apprehension of bias is "what would an informed person, viewing the matter realistically and practically - having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly." See, Committee for Justice and Liberty et al v. National Energy Board et al., [1978] S.C.R. 369 at p. 394. 34 Exhibit RPD-1, RPD's Record, "Audio Recording", starting at 02:30. 35 Exhibit P-2, Appellant's Record, Memorandum of Argument, at pp. 48-51. 36 Refugee Appeal Division Rules, SOR/2012-256 at rule 3(3)(g)(ii). 37 Exhibit P-2, Appellant's Record, Memorandum of Argument, at p. 49. 38 Ibid. 39 Exhibit P-2, Appellant's Record, Memorandum of Argument, at p. 48. 40 Ibid. 41 Ibid. 42 Ibid. 43 Exhibit P-2, Appellant's Record, Memorandum of Argument, at p. 49. 44 Exhibit P-2, Appellant's Record, Memorandum of Argument, at p. 51. 45 Exhibit P-2, Appellant's Record, Memorandum of Argument, at p. 49. 46 Exhibit P-2, Appellant's Record, Memorandum of Argument, at p. 48. 47 Ibid. 48 Immigration and Refugee Board of Canada, Assessment of Credibility in Claims for Refugee Protection, (31 January 2004) citing Plumb v. W.C. MacDonald Regd.; Latimer v. Foster Tobacco Co., [1926] 1 D.L.R. 899 (Ont. C.A.) (reversed on other grounds sub nom. W.C. MacDonald Regd. v. Latimer; Jasperson v. Plumb, [1928] 3 D.L.R. 870 (P.C.)), at 918-19. 49 Garay Moscol, Elsa Teresa v. M.C.I. (F.C., no. IMM-4188-07), Martineau, May 26, 2008; 2008 FC 657. A review of the record also shows that the issue of whether her potential cancer diagnosis influenced her ability to testify was not raised by the principal Appellant at the RPD hearing, or by providing an affidavit in her appeal. The Appellant only raises this in her submissions as evidence. 50 Exhibit RPD-1, RPD's Record, Reasons and Decision, at paras. 3, 8, 11, 14-16. 51 Exhibit RPD-1, RPD's Record, Reasons and Decision, at paras. 12-13. 52 Exhibit RPD-1, RPD's Record, "Audio Recording", at approx. 49:00-55:00. 53 Exhibit RPD-1, RPD's Record, "Audio Recording", at approx. 1:00-1:10. 54 Exhibit RPD-1, RPD's Record, "Post-Hearing Evidence", at p. 204. 55 Exhibit RPD-1, RPD's Record, Exhibit 4, NDP for Nigeria, 30 November 2015. 56 Exhibit RPD-1, RPD's Record, RPD's Decision and Reasons, at para. 13. 57 Exhibit RPD-1, RPD's Record, RPD's Decision and Reasons, at para. 18. 58 Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 (QL), 1998 CanLII 8667 at para. 16. 59 Exhibit RPD-1, RPD's Record, "Audio Recording", at approx. 35:00-41:00. 60 Exhibit RPD-1, RPD's Record, Appellant's BOC, at 22. 61 Exhibit RPD-1, RPD's Record, "Audio Recording", at approx.. 41:00-44:00. 62 Exhibit RPD-1, RPD's Record, "Audio Recording", at approx. 1:10-1:17. 63 Exhibit RPD-1, RPD's Record, "Audio Recording", at approx. 30:00-35:00 64 Exhibit RPD-1, RPD's Record, NDP for Nigeria (November 30, 2015), item 5.5, at pp. 6-7. 65 Exhibit P-2, Appellant's Record, Memorandum of Argument, at p. 51. 66 Exhibit P-2, Appellant's Record, Memorandum of Argument, at pp. 51-52. 67 Exhibit RPD-1, RPD's Record, Reasons and Decision, at paras. 8 and 18. 68 Exhibit RPD-1, RPD's Record, Reasons and Decision, at para. 19. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-08110 TB6-08111