TB4-07172

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 : TB4-07172 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) Personne(s) en cause (a.k.a. XXXX XXXX XXXX) (a.k.a. XXXX XXXX XXXX XXXX) (a.k.a. XXXX XXXX XXXX XXXX) Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 14, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Richard Odeleye Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor 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 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 an oral hearing. The Appellant is requesting that he be found to be a Convention refugee or, in the alternative, that the matter be referred back to a newly constituted panel of the RPD for re-determination. DETERMINATION [2] This appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. Background [3] The Appellant's claim is based on his sexuality, namely bi-sexual. He realized that he preferred boys to girls by the age of 16, however he did not become involved with a male until the age of 20. [4] The Appellant started his own business, and was doing well when he met XXXX and XXXX. He had secret relationships with both men. During this time, the Appellant's family was putting pressure on him to marry and he met XXXX XXXX, with whom he fell in love. However, he also met XXXX XXXX with whom he shared a same sex relationship once weekly for approximately two years, until their relationship was discovered by his uncle and two cousins. [5] The Appellant was confronted by his relatives, and his uncle ordered his two cousins to beat him. His parents then learned of his sexuality and told the Appellant that his uncle was planning on taking him to the police. The Appellant was unable to reach XXXX and, therefore, he went to his friend's house in Oyo State. He notified XXXX not to return from Ghana and he finally reached XXXX. She informed him that he was the laughing stock of the community and that her father was threatening to kill him. [6] Through his friend, the Appellant was able to arrange his departure from Nigeria with the assistance of an agent. He arrived in Canada on XXXX XXXX, 2013. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL Express statutory conditions: [7] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of her 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. [8] The Appellant has submitted the following "new" evidence in support of his appeal: * Exhibit E an affidavit from his mother dated April 29, 2015, prior to the rejection of the claim; and, * Article with respect to Child Naming in Yoruba Culture [9] The Appellant submits that, since he was unaware that "identity" would be an issue, he has submitted an affidavit from his mother to clarify the issue, as well as documentary evidence with respect to the names given to children at birth and the names indicated on the birth certificate. [10] Since "identity" is always an issue in every claim, the Appellant has failed to demonstrate why this evidence was not available or why he could not have reasonably submitted these documents prior to the rejection of his claim. In light of the foregoing, the RAD finds the proposed "new" evidence is not admitted into evidence in this appeal. [11] The power of the RAD to hold an oral hearing is found in Section 110(6) of IRPA. It states that the RAD may hold a hearing if the evidence that has been admitted in accordance with subsection (3) raises a serious issue of 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. [12] Since the RAD has not accepted any of the evidence, it does not have the jurisdiction to conduct an oral hearing. ROLE OF THE RAD [13] Counsel has made submissions which are in line with the Federal Court decision in Huruglica.1 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." [14] 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 one of two approaches, including the "hybrid appeal" approach described by Justice Phelan in Huruglica 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. The RAD has applied the reasoning as set out in Huruglica. SUBMISSIONS BY COUNSEL: [15] Did the RPD err in its credibility and identity findings largely on suspicion and conjectures and by ignoring evidence and not considering the Psychologist's report, thus denying the Appellant procedural fairness? Identity: [16] The Appellant had submitted a registration of birth, a driver's licence, and a Nigerian voter's card in the name of XXXX XXXX XXXX. He testified that he did not possess a national identity card, and his passport had been retained by an agent who had assisted him in making a 2008 visa application at the US Embassy. The RPD found that the aforementioned documents showed that XXXX XXXX XXXX existed, however they did not establish that they belonged to XXXX XXXX XXXX XXXX, the latter which matched the Appellant's fingerprints. In the absence of his passport, his proper birth certificate or his marriage certificate, the RPD was unable to establish the true identity of the Appellant. [17] The Appellant testified that the agent, who assisted him with his US visa application in 2008, had retained his passport. However, he indicated that he had obtained another passport subsequently, but he could not remember when he had applied for it and he had misplaced it. He had not seen his national identity card since 2008 and had never applied for another, for no reason. [18] The Appellant was asked why the name given in his US and Canadian applications were not the same; the surname in the U.S. application being XXXX and the surname for Canada was XXXX. He acknowledged that the US name was the same as his 2008 passport, however the agent had made a mistake when writing down the name. Moreover, the Appellant testified that he had been given five different names from the date of his birth. [19] The Appellant further testified that he had not provided any identity documents, i.e. birth certificate, his national identity card, his voter's card, or his driver's licence, when applying to the U.S. However, the RPD found that the documentary evidence (National Documentation Package, Nigeria)3 indicates that these identity documents are required when applying for a Nigerian passport, causing the RPD to conclude that the Appellant was never issued a proper passport in 2008, in the absence of essential documentation normally required by any agency authorized to issue passports. [20] The Appellant acknowledged that he had applied to come to Canada in 2011 because of his ability to play the shekere, a Nigerian musical instrument, and that he had applied under the name of XXXX XXXX XXXX, the same name as his new passport and the name he usually uses. However, he did not provide the previous name of XXXX, as he had lost concentration, and he did not have sufficient space to write in all of the names in relation to the form IMM-008 "Generic Application form to Canada". Moreover, the Appellant was unable to explain why his parents had not provided all five of his given names to the birth registration to have them entered on his birth registration. [21] The Appellant submits that he provided a number of identity documents in support of his claim; his original high school certificate, a trade school certificate with photograph, a driver's licence and a voter's card. The originals of all of these documents were in the Appellant's official names and were viewed by the RPD. He alleges, as testified, that as many as 10 names are given at birth, however there is not enough space for all these names on a birth certificate. In totality, the Appellant argues that the RPD placed too much emphasis on the Appellant's travel documents in rejecting his identity and that the RPD gave no probative value to the Appellant's aforementioned original documents. Moreover, it is submitted that the RPD did not consider the Appellant's cultural background and the Psychologist's report, and the comments therein that the Appellant suffered from memory and concentration problems and this was not properly considered by the RPD. RAD FINDINGS WITH RESPECT TO IDENTITY [22] The RAD finds that the importance of an Appellant establishing his identity is highlighted by the specific provisions of the applicable legislation, including s. 106 of IRPA and Rule 11 of the Refugee Protection Rules: Sec 106. The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation. Rule 11. The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them. [23] The Appellant submitted originals of his high school certificate, his trade school certificate, his driver's licence and his Nigerian voter's card. The Appellant, however, did not provide his passport, his proper birth certificate, his marriage certificate, or his National Identity card. He did, however, acknowledge that he had these documents in his possession when he applied for a US visa in 2008. He also acknowledged that he had applied for another passport subsequent to 2008, but he had misplaced it. His excuse for not asking the Nigerian police to look for it was that he was being pursued by the police. [24] There was much discussion surrounding the different names on documents. The Appellant argues that the RPD placed too much weight on certain documents and ignored others. The Appellant further argues that the RPD failed to mention that he applied for a Canadian visa in 2011, using the names contained in all of the official identity documents provided to the RPD at the hearing. On this point, at the very least, the RAD finds that the interchangeability of names, when one is given many names at birth, is not a determinative issue as far as this appeal is concerned. [25] However, the RAD finds the RPD's conclusion, with respect to documents required to apply for a Nigerian passport, to be very telling.4 This documentary evidence indicates the need for a birth certificate, a letter of introduction from the local government, a marriage certificate for married persons, a copy of the national identity card and driver's licence for one's guarantor. With the exception of the Appellant's driver's licence, none of these documents has been proffered into evidence. [26] The RAD further finds that the Appellant failed to provide reasonable explanations for the lack of pertinent documents, or attempts to obtain them, as required by section 106 of IRPA and Rule 11. In totality, the RAD concurs with the RPD that the Appellant has failed to establish his identity. In the absence of a passport, national identity card, any evidence of his common-law partnership, his invitation letter to come to Canada in 2011, or any document bearing his complete name, namely XXXX XXXX XXXX XXXX XXXX, the RAD concurs with the RPD's findings that the Appellant has not established his personal identity. RPD's findings with respect to Appellant's sexual identity: [27] The RPD found the Appellant to be untruthful with respect to his response to item 2(a) of his Basis of Claim form (BOC), wherein he indicates the name of his lover as XXXX XXXX. This name was amended eight days later to read XXXX XXXX. The Appellant was confronted with this discrepancy, and there was a long pause before responding that it must have been a typographical error. When confronted with the fact that this made no sense, given the lack of similarity, the Appellant responded that perhaps he had lost his concentration. He then indicated that, when he signed the BOC, he had not realized the error. Given this discrepancy, the RPD concluded that the Appellant was being untruthful. However, the RPD provided the Appellant with the opportunity to further explain why he had reacted at the first sitting of the hearing (January 13th) as if he had never seen this error, when he had corrected it on November 14th in his amended BOC. In the absence of an explanation, the RPD concluded that the Appellant was not telling the truth about the identity of his male lover, if indeed he had one. [28] The RPD found it difficult to accept the contention of the Appellant that the entire community would have learned of his same sex relations when his family were so ashamed of what he had done. In this regard, the RAD finds that the RPD's conclusion, in this regard, was overzealous and speculative, particularly when the testimony reveals that the Appellant's uncle was prepared to go to the police. [29] However, the RAD concurs with the RPD that the name of the Appellant's lover, is in fact a justifiable credibility finding, particularly since the alleged discovery of this relationship gave rise to the Appellant's departure from Nigeria. Moreover, it is central to the allegations of the Appellant as to the cause and timing of the Appellant's departure. Furthermore, the Appellant, in the RAD's opinion, further exacerbated his untruthfulness, when he stated at the hearing that he was unaware of the error, then acknowledged, when confronted, that this error had been corrected in his amended BOC eight days after signing the original BOC. Psychological Report: [30] The RPD, in its Reasons, comments on Dr. XXXX lack of explanation as to how he may have come to have insight into African culture in general or the culture of Nigeria, in the absence of any special expertise in matters of cultural interpretation. Accordingly, the RPD found that it could not attribute any weight to these generalizations about how bisexuals are treated in Nigeria. However, the RPD acknowledges the diagnosis of major depressive disorder of moderate severity and the recommendation of mental health treatment. Nevertheless, the RPD found that the report was not a cure-all for deficiencies in the Appellant's testimony5 nor did it establish the Appellant's sexual orientation. [31] The Appellant submits that the RPD did not properly consider the contents of the psychological report, wherein it states that he suffers from memory and concentration problems. The Appellant submits that the RPD made comments about African culture referred to by the Psychologist, not his area of expertise, then used this as a basis to cast aspersions on the Psychologist's report. The Appellant takes issue with the statement in the RPD reasons, namely, "Dr. XXXX is not in a position to state categorically that the claimant is gay or bisexual or that his depressive disorder occurred as a result of the claimant's alleged bisexuality or as a result of the threats of persecution related to his alleged sexual orientation". [32] The RAD finds that it was unnecessary for the RPD to comment on Dr. XXXX knowledge of Nigerian culture with respect to sexual orientation. However, we concur with the RPD that the report does not provide probative value with respect to the Appellant's personal identity or his identity as a bisexual. The RAD notes that while the doctor interviewed the Appellant, the doctor's report does not establish satisfactorily or persuasively that the Appellant's experiences are a result of what he is alleging in respect of his refugee claim. Further, the doctor's clinical assessment, based on his professional opinion, is that the Appellant suffers from "post-traumatic stress disorder with dissociative symptoms". [33] This is not persuasive evidence for this panel that the doctor is in any position to state categorically that the Appellant is bi-sexual. [34] As stated in Rokni,6 a psychiatric report submitted as evidence "cannot possibly serve as a cure-all for any and all deficiencies in a claimant's testimony". The court reiterated its position in Danailov,7 with respect to the assessment of a physician's evidence and the question of the assessment of credibility, it was stated "that opinion evidence in only as valid as the truth of the facts on which it is based". The RAD finds that although the Appellant may be suffering from post-traumatic stress disorder, this may or may not be related to the causes described by the claimant in his evidence. Accordingly, the RAD concurs with the RPD that with respect to the Appellant's sexual orientation, little weight can be given to this report. [35] With respect to the "memory and concentration" problems, after listening to the audio recording of the proceedings, the RAD is satisfied that the RPD provided the Appellant with the opportunity to explain any contradictions. In fact, we noted on more than one occasion, when the Appellant hesitated, the RPD repeated or rephrased the question to ensure that the Appellant understood. There were two sittings in total; a total of approximately four hours of testimony, and the RAD found no instances where the Appellant's memory or concentration was apparent, nor did counsel at any time bring this to the attention of the RPD during this testimony. The RAD would have preferred that the RPD had indicated that these possible problems had been considered in its decision, however counsel, towards the end of the hearing, asked the Appellant if his memory problem has had an impact on his testimony. He is uncertain, but acknowledges that he cannot say specifically. The RAD finds that, given the fact that there were two sittings approximately six months apart, if counsel had observed any problems in this regard, he would have raised this issue long before the end of the second sitting. In conclusion, the RAD is satisfied that, although not stated in its Reasons, the RPD was careful when assessing the Appellant's testimony to take into account the Appellant's mental health state in terms of his ability to recall dates and to concentrate. [36] After conducting an independent assessment of the entire record, the RAD determines that the Appellant is not a Convention refugee or a person in need of protection. The RAD concurs with the findings of the RPD with respect to the Appellant's personal identity and we further find that the glaring contradiction with respect to the Appellant's alleged last male partner in Nigeria casts a doubt on the veracity of the Appellant's sexual orientation. [37] Accordingly, this appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. (signed) 'Roslyn Ahara' Roslyn Ahara January 14, 2015 Date 1Huruglica, 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 RPD-1, National Documentation Package, Nigeria 4 RPD-1, National Documentation Package, Nigeria, item 3.2 5 Rokni, Mohamed Mehdi v. M.C.I. (F.C.T.C., no. IMM-6068-93), Muldoon, January 27, 1995 at 10-11. 6 Rokni, Mohamed Mehdi v. M.C.I. (F.C.T.D., no. IMM-6068-93), Muldoon, January 27, 1995, at 10-11. 7 Danailov (Danailoff), Vasco (Vassil) Valdimirov v. M.E.I. (F.C.T.D., no. t-273-93), Reed, October 6, 1993, at 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-07172