TB6-08523

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 : TB6-08523 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 Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 11, 2016 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Bolanle Olusina Ogunleye Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX 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 and substitute the negative determination with a positive determination or in the alternative, that the matter be referred back to a different member of the RPD for re-determination. The Appellant submits no new evidence in support of his appeal nor does he request an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [2] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection. The RAD dismisses the appeal. Background [3] The Appellant alleges that he is bisexual. He became aware of his sexuality when he was a teenager in Nigeria but did not act upon his feelings. [4] The Appellant obtained a student visa in 2012 and arrived in Canada on XXXX XXXX, 2012 to begin studies at the University of XXXX XXXX XXXX XXXX XXXX XXXX XXXX in XXXX. [5] In XXXX 2013, the Appellant met XXXX XXXX (Mr. XXXX) and began a homosexual relationship with Mr. XXXX. The relationship came to an end in XXXX 2015. [6] In XXXX 2015, the Appellant learned that his mother was aware that he had had a relationship with another man. He learned that his friend XXXX had informed his mother of the Appellant's relationship with Mr. XXXX and she had informed the Appellant's mother. [7] The Appellant then relocated to Toronto where a friend referred him to a lawyer. [8] The Appellant made a sur place claim for refugee protection on January 26, 2016. [9] The Appellant had refugee determination hearings on March 29, 2016 and May 12, 2016. In an oral decision issued on May 12, 2016 the RPD rejected the claim. The RPD member found that the Appellant was not a credible witness and had not established his sexual orientation as a bisexual. [10] Appeal pleadings were received on July 25, 2016. In his appeal, the Appellant argues that the RPD erred in its credibility findings. ROLE OF THE RAD [11] The RAD finds that the recent Federal Court of Appeal 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. [12] The RAD concludes from its statutory analysis that, with respect to findings of fact (and mixed fact and law), the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD's decision, the RAD is to carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. ANALYSIS OF THE EVIDENCE [13] The RAD will focus on whether the RPD erred in its credibility findings. The Appellant's homosexual relationship with XXXX XXXX [14] The RPD drew a negative inference with respect to the Appellant's credibility as a witness as a result of, what the RPD referred to in its decision as the "most significant inconsistency" in the Appellant's evidence regarding his relationship with Mr. XXXX. The RPD noted in its reasons that the Appellant had initially testified that he met Mr. XXXX in XXXX 2013 which was consistent with information provided in his Basis of Claim (BOC) form but then changed his testimony later in the first hearing and testified that he met Mr. XXXX in XXXX 2012. The RPD stated in its reasons that at the second hearing the Appellant reversed his testimony and stated that he met Mr. XXXX in XXXX 2013. The RPD found that the Appellant's explanation for his first change in testimony, that he had made a mistake, was not reasonable. The RPD found the Appellant's explanation for his second change in testimony, that he had been nervous in the first hearing, was also not reasonable. [15] The Appellant submits that his explanation at the second hearing, that he had been nervous during the first hearing, is a plausible reason for the changes in his testimony. The Appellant made no submissions on his explanation provided during the first hearing for his change in testimony. [16] The RAD is not persuaded by the Appellant's submission in this regard. The RAD's reasons are as follows. [17] The RAD finds that the recording of the first hearing of two and a half hours reveals that it was not simply a misstatement of a date but that the Appellant could not keep his story straight. The Appellant testified that when he completed one year of study at XXXX, he moved from XXXX in XXXX 2013 in order to commence studies at XXXX XXXX in XXXX. The Appellant later testified that he met Mr. XXXX in XXXX 2013. This is consistent with information provided in the Appellant's BOC form.2 The Appellant provided further testimony about travelling to Toronto on his XXXX XXXX and first encountering Mr. XXXX at a bar. The Appellant then testified that he visited him at the home where Mr. XXXX lived with his uncle, XXXX XXXX, before he, the Appellant, returned to XXXX. The RPD twice asked the Appellant to confirm that he returned to XXXX after having met Mr. XXXX in XXXX 2013. The Appellant twice responded in the affirmative. The RPD then reminded the Appellant that he had testified that he moved to XXXX in XXXX 2013. The Appellant responded by testifying that he had met Mr. XXXX in XXXX 2012 and he recalled that particular date because it was shortly after he moved to Canada. When the RPD referred the Appellant to his BOC form which stated that he met Mr. XXXX in XXXX 2013, the Appellant testified that he meant to write 2012 in his BOC but had made a mistake. For the following reasons the RAD finds the Appellant's explanation to be unsatisfactory. The Appellant's explanation does not explain the change in his testimony regarding the date when his relationship with Mr. XXXX began. The Appellant alleges that his homosexual relationship is the first and only relationship he has had. The Appellant alleges that the relationship lasted until XXXX 2015. The RAD, thus, infers the relationship with Mr. XXXX to be a significant relationship in the Appellant's life. The RAD also notes that the homosexual relationship with Mr. XXXX is central to his claim. The Appellant provided no medical evidence that he has any memory problems which might interfere with his ability to recall significant dates. He provided his testimony during the hearings in the English language. The Appellant is a reasonably well-educated young man. In his BOC form, he states that English is the language that he speaks.3 The RAD, therefore, reasonably believes that the Appellant is capable of completing the BOC form, which he signed as "complete, true, and correct" correctly. The RAD notes that the Appellant had the assistance of counsel when he completed his BOC form.4 [18] As a result of the Appellant's testimony during the first hearing with respect to when he met Mr. XXXX, the RAD finds the Appellant's credibility seriously undermined. [19] According to the recording of the second hearing, when counsel for the Appellant asked the Appellant when he first met Mr. XXXX, the Appellant testified that it was in XXXX 2013. Upon being asked, the Appellant testified that had travelled from XXXX to Toronto during his XXXX XXXX at that time. When the Appellant was reminded that at the first hearing he had testified that he met Mr. XXXX in XXXX 2012, the Appellant testified that he had been nervous at his first hearing and said things that were not right and that did not make sense. [20] For the following reasons, the RAD finds the Appellant's explanation unsatisfactory. According to the recording of the first hearing, after the Appellant changed his testimony about the date of meeting Mr. XXXX from XXXX 2013 to XXXX 2012, the Appellant was insistent that XXXX 2012 was the correct date. As indicated above, he provided explanations as to why he had made the error of XXXX 2013. While nervousness might account for providing an incorrect date, the Appellant provided more that the date of XXXX 2012 at the first hearing. He testified that he recalled the date of XXXX 2012 because it was shortly after he arrived in Canada. He testified that he returned to XXXX after he met Mr. XXXX in 2012 and he twice confirmed this testimony. The Appellant, as indicated above, testified that the date of XXXX 2013 in his BOC form had been an error on his part. [21] An important indicator of credibility is whether a witness can consistently tell his particular story.5 As a result of the Appellant's testimony during the second hearing with respect to when he met Mr. XXXX, the RAD finds the Appellant's credibility further undermined. [22] The RPD found the Appellant's credibility undermined as a result of having provided no details in his BOC form of his homosexual relationship with Mr. XXXX. [23] The Appellant provided no submissions on this particular finding. [24] The RAD has listened of the recording of the Appellant's hearings before the RPD. The RAD will not interfere with the RPD's findings where the conclusions result from the RPD's distinct advantages of hearing and observing the Appellant during the hearing. The Appellant's documentary evidence Letter from XXXX XXXX6 [25] The RPD found that the information provided in the letter from Mr. XXXX, the uncle of the Appellant's former homosexual partner, Mr. XXXX, contradicted the Appellant's testimony regarding his relationship with Mr. XXXX. The RPD did not find the Appellant's explanation for the discrepancies to be satisfactory. The RPD did not assign weight to the letter. [26] The Appellant avers in his appeal that the RPD erred in its assessment of the letter from Mr. XXXX. The Appellant submits that the letter corroborated his same-sex relationship with Mr. XXXX. [27] For the following reasons, the RAD assigns no evidentiary weight to the letter from Mr. XXXX. [28] Mr. XXXX states that the Appellant and his nephew, XXXX XXXX, had a "strong relationship going on for almost two years before their break-up while XXXX (the Appellant) was living closer. As the RPD noted in its reasons, this information makes no sense because the Appellant testified that he lived in XXXX (closer to Toronto) for less than one year. In addition, whether the alleged relationship between the Appellant and Mr. XXXX began in XXXX 2012 or XXXX 2013, the Appellant testified that the relationship came to an end in XXXX 2015. In either case the relationship lasted over two years, not the "almost two-years" stated by Mr. XXXX. According to the recording of the hearing, when the Appellant was asked to explain the discrepancies, he testified that Mr. XXXX meant that he, the Appellant, and Mr. XXXX dated when the Appellant lived closer to Toronto and that Mr. XXXX did not keep track of when they dated. For the following reasons, the RAD does not find the Appellant's explanation satisfactory. According to the Appellant's testimony, he met Mr. XXXX when he first began dating Mr. XXXX. He also testified that Mr. XXXX lived with uncle, Mr. XXXX, all the time he and Mr. XXXX were involved in their relationship. He further testified that he and Mr. XXXX visited one another in Toronto, at the home of Mr. XXXX, and XXXX. The RAD, therefore, does not find it reasonable that Mr. XXXX was unaware of the duration of the relationship. In any event, the information provided by Mr. XXXX does not support the Appellant's allegations. [29] According to the recording of the hearing, the Appellant testified that Mr. XXXX lived with his uncle, Mr. XXXX, at XXXX XXXX XXXX XXXX XXXX Street, near XXXX Street and XXXX Street. The Appellant also testified that when he moved to Toronto in 2015, he resided with a friend, XXXX, at XXXX XXXX XXXX XXXXStreet, Toronto. When the RPD pointed out to the Appellant that the address on Mr. XXXX driver's licence, offered with the letter as evidence of identification, was also XXXX XXXX XXXX XXXXStreet, Toronto, the Appellant testified that he did not know that was the case and that maybe Mr. XXXX used that address. The RAD finds this explanation unsatisfactory. The RAD finds that the questionable coincidence of these addresses further supports the assignment of no evidentiary weight to the letter of Mr. XXXX. Letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX7 [30] The Appellant provided a letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in support of his claim. [31] The Appellant submits that the RPD erred by failing to mention or evaluate this letter, which corroborates his sexual orientation, in its decision. [32] The RAD agrees that the RPD did not mention the letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in its decision. The RAD has, therefore, done its own examination of the document. For the following reasons the RAD assigns no evidentiary weight to the letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX [33] The letter from XXXX XXXX XXXX XXXX, XXXX XXXX XXXX at XXXX XXXXfor XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX dated March 17, 2016, indicates that the Appellant officially registered with the organization on February 15, 2016. Mr. XXXX states that the Appellant attended two monthly meetings of the Foreign Integration support group. Mr. XXXX states that the Appellant has been attending bi-weekly gay youth social support group meetings since January 28, 2016. Mr. XXXX states that the Appellant comes by his office to obtain support and assistance for his refugee claim. Mr. XXXX states that there is nothing to indicate to him from his experience working with the Appellant that he is not being authentic about his sexuality or his fears of returning to Nigeria. Mr. XXXX also states that he thinks sending the Appellant back home would seriously put his safety and possibly his life at risk. The RAD finds that Mr. XXXX provides no indication as to how he assessed the Appellant's sexuality in the few months the Appellant has been attending XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX activities and visiting their office. The RAD reasonably assumes that the opinions of Mr. XXXX are based on self-reported information provided to him by the Appellant. Given that the Appellant lacks credibility on several pivotal elements of his claim, the RAD is unable to conclude that Mr. XXXX opinions hold much weight. In any case, it is for the RPD and the RAD to decide upon the credibility of the Appellant and the risk he faces if he were to return to Nigeria. Delay in Claim [34] After a review of the complete record, including a recording of the two hearings, the RAD finds there was evidence before the RPD of the existence of the issue of delay in claim. [35] The issue of delay in claim was canvassed during the RPD hearings and counsel for the Appellant had the opportunity at the hearing to provide oral submissions on the issue. The RPD made no finding on the issue of delay in claim in its written decision. The RAD provided the Appellant the opportunity to provide written submissions on this issue, which he has done.8 For the reasons that follow, the RAD finds that the Appellant's delay in claim seriously compromises his credibility. [36] The Appellant arrived in Canada on XXXX XXXX, 2012 with a valid student visa. According to his testimony, he lost his legal status in XXXX 2014 after he could no longer pay his student fees at XXXX XXXX. As stated above, the Appellant made a sur place claim for refugee protection on January 26, 2016. [37] According to the recording of the hearing, the Appellant was questioned about his delay in making a claim for refugee protection after he was no longer in status in Canada. The Appellant testified that his plan was to earn money to pay for his school fees which would allow him to obtain a student visa. The Appellant was asked about what inquiries he had made into regularizing his status in Canada. He testified that he had been advised by a lawyer in XXXX that he could apply for refugee protection and that the lawyer would charge $6,000. He testified that this amount of money was the same as his school fees and he decided instead to earn the money to pay his tuition to obtain a student visa. When asked what other research he had done, such an internet research on the government website, the Appellant testified that he did not do any such research because he was trying to earn money to pay his school tuition. Upon being asked, the Appellant testified that he obtained work, such as XXXX XXXX, by advertising on Kijiji (free on-line classified advertising). [38] In oral submissions at the end of the hearing, counsel for the Appellant submitted that the Appellant did not make a claim for protection earlier because he hoped to renew his student visa by earning money to pay his school fees. [39] In his written submissions, the Appellant submits that the RAD must take his age into consideration. 9 He was nineteen years of age at the time his student visa was no longer valid and fourteen months later, when he made his claim for protection, he was twenty years of age. The Appellant submits that the RAD must also take into account that he took prompt action in filing his claim once he was referred to a lawyer in Toronto. [40] For the following reasons, the RAD accepts none of these explanations or submissions. [41] By XXXX 2014, the Appellant was out of status and risked being deported. According to his oral testimony, he indicated he was aware of the legal penalty for homosexual behaviour in Nigeria. He testified that his family was against homosexual behaviour as was the Nigerian society in general. The RAD believes that the Appellant, at nineteen years of age, was quite capable of making inquiries about regularizing his status. He testified that while he was in Nigeria he used the internet to research educational institutions in Canada. He applied for and was accepted into a programme at XXXX in XXXX, Ontario while he resided in Nigeria. The Appellant applied for and received a Canadian study visa while he was in Nigeria.10 The RAD, thus, infers that the Appellant had prior experience in making inquiries and dealing with Canadian educational institutions and the Canadian government. The Appellant testified that when he decided to leave XXXX, he completed research on many educational institutions throughout the country and researched job opportunities before deciding to apply to XXXX XXXX. The Appellant testified that he entered a computer programming programme of study at XXXX XXXX. The RAD finds that the Appellant was quite capable of navigating post-secondary educational institutions in Canada partially through making his own investigations. [42] While the Appellant may have taken prompt action once he arrived in Toronto in late 2015, this does not provide a satisfactory explanation as to why the Appellant did not take action to make a claim well before at least fourteen months had elapsed. During these fourteen months, he was out of status and, as he argued in his written submissions, it provided impossible to save enough money to pay his tuition. [43] It is trite law that a delay in submitting a refugee protection claim, while not decisive, remains a relevant element that the tribunal may take into account in assessing both the statements and the actions and deeds of an Appellant.11 The Board may also consider a claimant's conduct when assessing credibility, and such conduct may, in itself, be sufficient to dismiss a refugee claim.12 The RAD refers to further jurisprudence upon which it depends. [44] In the case of Assadi, the Court held: Failure to immediately seek protection can impugn the claimant's credibility, including his or her testimony about events in his country of origin.13 [45] The Appellant's action in delaying making a claim is not that of a person who fears for his safety in Nigeria. The RAD, thus, finds the Appellant's credibility seriously diminished. Summary [46] Based on a review of the totality of the evidence, the Appellant has not provided sufficient credible or trustworthy evidence in support of his claim. The RAD, therefore, finds that the Appellant is neither homosexual nor bisexual. DISPOSITION [47] Based on the analysis above, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection, as per section 111(1)(a) of the IRPA. [48] The appeal is dismissed. (signed) "Lesley Mason" Lesley Mason October 11, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit RPD-1, RPD's Record, pp. 13-23. 3 Exhibit RPD-1, RPD's Record, p. 14, BOC form, question 1(g). 4 Ibid., p. 22, question 9(a). 5 Dan-Ash, Taysir v. M.E.I. (F.C.A., no. A-655-86), Marceau, Hugessen, Lacombe, June 21, 1988. Reported: Dan-Ash v. Canada (Minister of Employment and Immigration) (1988), 93 N.R. 33 (F.C.A.). 6 Exhibit RPD-1, RPD's Record, pp. 121-123 7 Exhibit RPD-1, RPD's Record, pp. 140-142 8 Exhibit P-3, Submissions on the issue of "Delay in Claim" of September 27, 2016. 9 Ibid., para. 7. 10 Exhibit RPD-1. RPD's Record, pp. 46-66. 11 Huerta, Martha Laura Sanchez v. M.E.I. (F.C.A., no. A-448-91), Hugessen, Desjardins, Létourneau, March 17, 1993. Reported: Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.), [1993] F.C.J. No. 271. 12 El Balazi, Hanane v. M.C.I. (F.C., no. IMM-2880-05), Pinard, January 25, 2006, 2006 FC 38, at para. 6. 13 Assadi, Nasser-Eddin v. M.C.I. (F.C.T.D., no. IMM-2683-96), Teitelbaum, March 25, 1997. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-08523