TB8-27159

RAD File / Dossier de la SAR : TB8-27159 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) Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 6, 2019 Date de la décision Panel M. Oh Tribunal Counsel for the person(s) who is(are) the subject of the appeal Richard Wazana Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX XXXX ("the Appellant"), a citizen of Nigeria, appeals a decision of the Refugee Protection Division ("RPD"), rejecting her claim for refugee protection. The determinative issue in this appeal is whether the RPD erred in its credibility assessment. [2] On appeal to the Refugee Appeal Division ("RAD"), the Appellant has submitted new evidence, but she has not requested an oral hearing. She asks that the RAD set aside the RPD's erroneous findings and requests that the RAD find her to be a Convention refugee or a person in need of protection or, in the alternative, that the matter be referred to the RPD for redetermination before a different panel. DETERMINATION [3] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA"), the appeal is dismissed. After conducting an independent assessment of the evidence, I agree that the Appellant's evidence was not credible and that she has not established her allegations in relation to her sexual orientation or the persecution she alleges occurred in Nigeria. I therefore confirm the RPD's negative determination and find that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [4] The Appellant alleges that she fears persecution in Nigeria on the basis of her sexual orientation, as a bisexual woman. The Appellant describes having been in relationships with both women and men in Nigeria, including with a friend by the name of XXXX. [5] The Appellant's bisexuality was discovered in XXXX 2015, when the Appellant allowed another friend, XXXX, to stay at her home while the Appellant was traveling. It appears that XXXX had an agenda of her own, as she believed that the Appellant was having an affair with a man that XXXX was dating. During XXXX stay at the Appellant's home, XXXX found the Appellant's diary, which described her sexual activities with women. XXXX then spread the news of the Appellant's sexual orientation. [6] The Appellant alleges that XXXX reported her to the police, and that, as a result, the police sought her out and arrested XXXX. XXXX was eventually released after two days, but she refused to communicate with the Appellant and promptly left Nigeria for Turkey. [7] The next month, on XXXX XXXX, 2015, the Appellant was confronted by XXXX and some of her friends. They beat the Appellant, and when others attempted to intervene, XXXX told them that the Appellant was bisexual and that the Appellant had been harassing XXXX for months. The Appellant describes that she was then mobbed, stripped, beaten, and nearly set on fire. When the Appellant saw a nearby police officer and called out for help, he responded that she must have done something to deserve it, and he refused to help. [8] Somehow, the Appellant fled this attack and woke up in a hospital. She escaped from the hospital and went into hiding. The Appellant's sister recommended that she leave the country. The two left Nigeria on XXXX XXXX, 2016 and traveled to Atlanta, where the Appellant remained with a friend for several months. She remained in the United States until XXXX XXXX, 2017, eventually living there without immigration status and working illegally. She attempted to gain permanent resident status in the United States by entering into a marriage of convenience, paying a man $5000 to marry her, which he did in XXXX 2016. This man eventually began to demand more money, and, by XXXX 2017, he and the Appellant no longer had further contact. The Appellant considered seeking an annulment of the marriage, understanding that her actions might constitute a serious crime. [9] By June 2017, the Appellant began to consider leaving the United States for Canada, having heard that Canada was accepting towards refugees. In late October 2017, she walked across the Canadian border at Lacolle, Quebec and initiated a claim for refugee protection. [10] The Appellant's refugee claim was heard by the RPD on September 27, 2018. The RPD rejected the claim, as it found that the Appellant's allegations were not credible. ROLE OF THE REFUGEE APPEAL DIVISION [11] The jurisprudence now establishes that the Refugee Appeal Division is required to undertake an independent assessment of the evidence and reach its own determination. Deference is owed to the RPD only where the RPD held a meaningful advantage in assessing oral evidence.1 [12] In the present case, I see no reason to show deference to any of the RPD's findings. I have applied a correctness standard and arrived at my own independent findings based on the evidence before me. [13] In conducting an independent assessment, I have considered the psychological report from Dr. XXXX,2 and I have also considered and applied the Chairperson's Guideline 9 ("SOGIE Guidelines)3 as well as the Chairperson's Guideline 4 ("Gender Guidelines").4 Admissibility of New Evidence on Appeal [14] The Appellant submitted several new pieces of evidence in her Appellant's Record, including: (a) Original Nigerian XXXX documents, original support letter from Appellant's current girlfriend, and a printout of information regarding the Appellant's university; 5 (b) Snapshots of text messages from the Appellant's current girlfriend and also from XXXX;6 and (c) Photographs of the Appellant and her current girlfriend, as well as text messages, which were previously refused by the RPD, as they were disclosed late.7 [15] The IRPA limits the ability of appellants to present new evidence on appeal to the RAD. Subsection 110(4) of the IRPA states that, on appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the claim's rejection. [16] If the new evidence meets the requirements of subsection 110(4) of the IRPA, the RAD must then consider the criteria as set out by the Federal Court of Appeal in Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 ("Singh"). That is, the RAD must consider factors around the credibility, relevance, and newness of the evidence. 8 [17] I find that the above evidence is not admissible, as the documents do not meet the criteria of subsection 110(4) of the IRPA. (a) Original lawyer documents and support letter from Appellant's girlfriend [18] The Appellant now submits an original letter from her current girlfriend, XXXX, and the original certificates regarding the Appellant's call to the Nigerian XXXX. The issue around these documents is that only photocopies were presented to the RPD, as she had failed to bring originals to the hearing. [19] In regard to the Call to the XXXX certificate, the Appellant even attempted to persuade the RPD that the photocopy of her certificate was, in fact, an original. The RPD was not convinced, and it appears that the Appellant now concedes that what she presented to the RPD was not, in fact, an original certificate. [20] These original documents were available to the Appellant or ought to have been available to her at the time of her hearing at the RPD. The Appellant initiated her refugee claim in Canada in October 2017, and her RPD hearing took place nearly a year later. Rule 42 of the Refugee Protection Division Rules requires that refugee claimants present original documents no later than at the beginning of their hearing. There is no reasonable explanation for the Appellant's failure to produce these original documents at her RPD hearing. The Appellant has not established that this evidence was not reasonably available to her at the time her claim was rejected, nor has she established that she could not have been reasonably expected to have presented this evidence by the time of the rejection of her claim. [21] A printout regarding the Appellant's university was also submitted with the Nigerian Call to the XXXX certificate. The relevance of this document is not addressed in the Appellant's memorandum. It is perhaps being submitted in order to establish that XXXX University is located in Benin City, Nigeria. This is a fact that I fully accept, and in my reading of the RPD's reasons, it is clear that the RPD also understood that this university was located in Benin City. As this printout is neither relevant nor material, it is not admitted. (b) Snapshots of text messages [22] In regard to the text messages found in Exhibits "A" and "B" of the Appellant's affidavit, I find that these too are inadmissible. [23] The messages between the Appellant and her current girlfriend, XXXX, date from between XXXX XXXX, 2018 and XXXX XXXX, 2018. The identity of the individual sending the messages is somewhat unclear, as the printouts merely identify the author as "Assurance". [24] The messages between the Appellant and XXXX are dated between XXXX XXXX, 2017 and XXXX XXXX, 2018. They describe XXXX efforts to send a support letter to the Appellant. [25] All of this evidence pre-dates the rejection of the Appellant's claim by the RPD. The Appellant, however, argues that she could not have anticipated the RPD's various findings, and she could not have been expected to submit this evidence any sooner. [26] I disagree. An appeal at the RAD is not an opportunity for the Appellant to repair a deficient record that was submitted before the RPD.9 The text messages are clearly meant to supplement and strengthen the support letters submitted by the Appellant. This type of evidence was available to the Appellant at the time of the rejection of her claim. [27] If the Appellant wished to provide the RPD with evidence around how she obtained a support letter from XXXX, she ought to have presented that evidence in advance of her hearing, or she should have at least requested additional time to produce such evidence. The record is clear that issues with respect to XXXX letter arose during the RPD hearing. For instance, the RPD confronted the Appellant with the fact that XXXX letter is erroneously dated XXXX XXXX, 2018. The RPD also questioned the Appellant as to whether XXXX, in fact, wrote the letter. The Appellant responded to the RPD, testifying that she has proof that XXXX did send the letter. Given the RPD's skepticism on this issue, it was open to the Appellant to request the opportunity to present further evidence about how the letter was sent, including the text messages that the Appellant only now submits. [28] In regard to XXXX, it clearly would have been important to call her as a witness in the hearing, given that her relationship with the Appellant might have been one of the strongest pieces of evidence to establish the Appellant's bisexuality. Although producing a witness is not a requirement, the onus rests with claimants to establish their allegations on a balance of probabilities. In my view, it was rather inevitable for the RPD to question the Appellant as to why her current girlfriend was not called to testify as a witness when the Appellant's sexual orientation is the basis for her claim. The Appellant was represented by competent counsel, who surely would have seen the importance of calling such a witness. If the Appellant wished to provide documentary evidence to support her explanation for XXXX inability to attend the hearing, she ought to have done so prior to the hearing, for example, through an affidavit from XXXX. It is an issue that should easily have been anticipated. [29] In short, it is not reasonable for the Appellant to only now attempt to provide evidence of these text messages in an effort to supplement her evidence. As this new evidence did not arise after the rejection of the Appellant's claim, as this type of evidence was reasonably available to the Appellant at the time, and as it cannot be said that the Appellant could not reasonably have been expected to present this evidence by the time of the rejection of her claim, the evidence is not admissible under subsection 110(4) of the IRPA. (c) Photographs and text messages refused by the RPD [30] On appeal, the Appellant also attempts to submit photographs and text messages contained in Exhibit "C" of the Appellant's affidavit. The evidence depicts the Appellant with a woman whom she alleges is her current girlfriend, and it also contains text messages allegedly sent between the two. [31] This is not new evidence, as envisaged in subsection 110(4) of the IRPA. Instead, as the Appellant describes, this evidence was refused by the RPD because it was not disclosed on time. The Appellant does not dispute whether the RPD erred in refusing to admit her late evidence. The evidence was undoubtedly in existence before the rejection of the Appellant's claim, and she ought to have submitted that evidence in compliance with the RPD Rules. The Appellant testified that she had been in an intimate relationship with her current girlfriend since XXXX 2018. The text messages date back to XXXX and XXXX 2018. Given that the hearing took place on September 27, 2018, I fail to see why such evidence was not disclosed to the RPD in accordance with the RPD Rules. The RPD did not err in refusing to admit this evidence, and the Appellant points to no error in this respect. This evidence is not admissible on appeal. The Appellant merely attempts to supplement a deficient record that was presented to the RPD. Nurse Practitioner's letter [32] In addition to the above, following the perfection of her appeal, the Appellant has also submitted a letter from a nurse practitioner at the Canadian Centre for Refugee and Immigrant Health Care describing some of the scars that the Appellant claims resulted from a physical attack in Nigeria.10 [33] In regard to the nurse practitioner's letter, I have considered whether the letter is admissible, pursuant to Rule 29 of the Refugee Appeal Division Rules ("RAD Rules"). Rule 29(4) requires the RAD to consider any relevant factors in deciding whether to allow an application for disclosure after the perfection of an appeal, including the document's relevance and probative value, any new evidence the document brings to the appeal, and whether the Appellant, with reasonable effort, could have provided the document with their appeal record. [34] An affidavit from counsel's legal assistant explains that, when the Appellant's appeal record was filed, the Appellant was still waiting for an appointment with a physician to document her injuries. There was no previous evidence that examined the Appellant's physical injuries. [35] However, the letter itself also acknowledges the difficulties in assessing the lasting physical impact of the alleged injuries. The letter's author indicates that there is an obvious pattern of hair loss along the Appellant's anterior scalp line that may have resulted from being forcefully removed. The author also identified multiple faint, small linear scars on the Appellant's upper arms and legs that may correlate with being scratched. [36] I acknowledge that the Appellant could not have provided this evidence with her Appellant's Record and that this type of evidence was not previously submitted or considered. In weighing the various factors, however, I consider that this evidence is not sufficiently probative. It is difficult to determine from the existence of a pattern of hair loss and a number of scars that the Appellant was, in fact, attacked in the manner that she describes in her Basis of Claim (BOC) Form. The scars may have resulted for entirely different reasons, at entirely different points in time. The admission of this evidence would be of very little assistance in establishing the facts alleged by the Appellant regarding the attack she claims to have experienced. Given the report's limited probative value, it will not be admitted under Rule 29 of the RAD Rules. ANALYSIS [37] The primary issue in this appeal is around the RPD's credibility assessment. The Appellant argues that the RPD's various credibility findings were made in error and that the RPD erred in its treatment of the Appellant's corroborative evidence. [38] Although I do not agree with all of the RPD's findings, I too find that there were serious credibility concerns in this case. Those credibility issues, including issues relating to the Appellant's residential and educational history in Nigeria, her misrepresentations to Canadian and U.S. immigration officials, and her failure to claim in the United States, outweigh the corroborating evidence submitted by the Appellant. [39] I therefore confirm the ultimate outcome of the RPD's determination. The Appellant's allegations are not credible. She has failed to establish her allegations, on a balance of probabilities, and she is neither a Convention refugee nor a person in need of protection. a) The RPD's credibility findings [40] The RPD made numerous findings on the Appellant's credibility. Those include: (a) that the Appellant was not credible about her bisexuality because she testified that she discovered her bisexuality when she was 12 or 13 years old; whereas, her narrative states that she had been agonising over her sexuality since the age of 14; (b) that the Appellant provided inconsistent evidence about her residential and educational history, which caused the RPD to doubt the Appellant's allegations about her relationship with XXXX; (c) that the Appellant had entered into long-term relationships with men, despite describing that she cannot trust any man and despite describing that she experienced flashbacks and unpleasant memories of past sexual trauma when with the opposite sex; (d) that the Appellant was not credible in saying that her marriage to a man in the United States was only a marriage for immigration purposes, as there was evidence of a deeper relationship; (e) that the Appellant initially omitted the fact that she was married to a man in the United States; (f) that the Appellant failed to make an asylum claim in the United States despite residing there for 22 months before coming to Canada; (g) due to similarities in a number of support letters, the RPD found that the support letters were written by the same individual; and (h) the RPD found that the Appellant had submitted a fraudulent Call to the XXXX certificate, as the Appellant maintained that the document was an original copy when it was clear to the RPD that it was merely a photocopy. [41] Some of the above findings are stronger and more significant than others. The Appellant does not specifically address each of them. There are a number of findings with which I disagree, and, in particular, around the RPD's finding regarding the Appellant's relationships with men despite her claim that she suffered from flashbacks and that she does not feel safe with men. RPD's finding regarding trauma from childhood sexual abuse [42] One of the findings that is directly challenged by the Appellant is around the RPD's finding regarding the Appellant's trauma from childhood sexual abuse. [43] The discrepancy in the RPD's eyes is as follows: on the one hand, the narrative describes that the Appellant does not feel safe with men; that she suffers from flashbacks and unpleasant memories when with the opposite sex. However, in the same narrative, the Appellant describes that "the sex was great" between her and her previous boyfriend, XXXX. In addition, despite describing her difficulties with the opposite sex, the Appellant was in a relationship with another man, XXXX, for a lengthy period of time. The RPD found that this was not consistent with the actions of an individual who claimed that she could not feel safe with any man and who struggles with flashbacks when with the opposite sex. [44] The Appellant argues that the RPD erred in arriving at this finding, by selectively reading the Appellant's narrative, by ignoring a psychological report that speaks to her diagnosis of chronic complex post-traumatic stress disorder, and by ignoring the SOGIE Guidelines as well as the Gender Guidelines. [45] I agree with the Appellant that the RPD erred in its finding. It is true that the Appellant writes that she has never felt safe with men and that she experiences unpleasant memories and flashbacks. However, I do not take this description to mean that the Appellant would never have attempted to willingly enter into a relationship of intimacy with a man. The narrative merely describes that she has experienced significant challenges in this respect on account of those issues. The narrative also explains that the Appellant could not commit to her relationship with XXXX and that she could not set healthy boundaries in that relationship. She also described that trust was an issue in her relationship with XXXX. In my view, the RPD's finding amounts to a selective reading of the Appellant's evidence. When the Appellant's statements are considered in their full context, I find that there is no valid basis upon which to draw a negative inference. Relationship with XXXX and discrepancies in residential and educational history [46] Despite the above, I agree with a number of the RPD's findings, and, in my view, these findings are determinative of this appeal. [47] One of the most concerning issues identified by the RPD was with respect to the inconsistencies in her residential history, which was relevant to the Appellant's evidence around having maintained a relationship with XXXX over the years, especially as XXXX claimed to have lived in the same building as XXXX at one point in time while they were studying at the University of Benin. This is a rather serious issue, especially given the importance of the relationship between the Appellant and XXXX in this particular claim. [48] The Appellant's Schedule A Form asks her to list all of her addresses for the previous ten years. Although she listed addresses in the United States at which she resided for as little as two months, she listed only a single address in Nigeria. This was an address in Kaduna, where the Appellant indicated she lived between 2007 and January 2016.11 [49] The RPD noted that the Appellant's residential history, her educational history, and work history were all inconsistent, and that this too conflicted with XXXX evidence. [50] The support letter from XXXX indicates that she met the Appellant in 2007 at a birthday party during university, that they quickly became friends, and that they grew so close that XXXX moved into the same building as the Appellant. The letter does not mention the name of the university at which they studied together. The letter goes on to describe that, after the Appellant started at her new school, the two maintained contact for some time. Afterwards, however, there was a period of absence between the two, which ended in 2013 when the Appellant moved to Lagos after graduation.12 [51] A similar version of events is described in the Appellant's Basis of Claim Form. It indicates that the Appellant studied XXXX at the University of Benin in 2006 and that this is where she met XXXX. The narrative states that the Appellant left the university in XXXX 2008 because of an incident when she and XXXX were caught in a moment of intimacy. XXXX support letter also states that the Appellant left the school in 2008. [52] The Appellant's Schedule A Form, however, mentions nothing of the Appellant's studies at the University of Benin. In the personal history section of this form, for the period between XXXX 2007 and XXXX 2014, the Appellant merely wrote that she was a student in Kaduna/Lagos and that the name of her school was "IUO/NLS".13 [53] The RPD confronted the Appellant as to why she had not disclosed her studies at the University of Benin in her Schedule A Form. The Appellant merely explained that it was because she did not finish her studies there. This is not a reasonable explanation, as at the very least, her studies at that university should have been described in the personal history section of her Schedule A Form. I cannot reasonably see why the Appellant's studies at the University of Benin had been excluded from both the educational history and personal history sections of that form. [54] In addition, as the RPD noted, despite supposedly attending the University of Benin from 2006 to 2008, her residential history only lists an address in Kaduna state. When confronted with this information, the Appellant testified that she was staying in Kaduna with her parents while going to Benin City for school. I agree with the RPD that this is difficult to believe, as the two places are 10 hours apart. [55] The RPD also noted that the evidence around the Appellant's educational history is inconsistent, in that the Appellant claimed to have been studying at the University of Benin and the University of XXXX during the same period of time. If the information in the Basis of Claim Form is to be believed, the Appellant attended the University of Benin from 2006 until XXXX 2008. However, the narrative goes on to describe that, in XXXX 2009, an old friend informed the Appellant that XXXX University was still accepting new students. This led the Appellant to apply to study law there, and she was accepted. Despite this, the Appellant's Schedule A Form indicates that she studied XXXX at XXXX University from XXXX 2008 to XXXX 2013.14 This would mean that the Appellant had begun to study at XXXX University before she had even applied there. As the RPD also noted, despite both universities being located in Benin City, the Appellant's residential history indicates that she was living in Kaduna, which is many hours away. [56] If the Appellant had attended the University of Benin for two years, and if she had met XXXX there, sparking a lengthy relationship of intimacy between the two over the years, one would reasonably expect that the Appellant's time at the University of Benin would have been disclosed somewhere in the Appellant's Schedule A Form. It is notable that the Appellant's Schedule A Form was completed prior to the drafting of her allegations in the Basis of Claim Form. It is also notable that the Appellant did not submit any evidence at all regarding her attendance at the University of Benin, nor is it even addressed in any of the various support letters, including the letter from XXXX. [57] The discrepancies around the Appellant's educational and residential history were not specifically addressed by the Appellant in her memorandum. Rather, the Appellant categorically submits that the RPD's credibility findings were all wrong because the RPD failed to consider the Appellant's psychological report before drawing negative credibility inferences. The RPD, however, made reference to the psychological report on a number of occasions. Although it did not refer to the report in each of its various credibility findings, in my view, it was not necessary for the RPD to do so. In any event, the psychological report has been considered again on appeal in assessing the Appellant's credibility. [58] While I have considered the Appellant's psychological report, in my view, it does not adequately account for the discrepancies in the evidence. The concern is not primarily with the quality of the Appellant's testimony in the hearing room. Instead, much of the concern comes from the information provided by the Appellant in her Schedule A Form, which was completed shortly after she entered Canada at Lacolle, Quebec. The Appellant had nearly a year to bring any inaccuracies or clarifications in the forms to the RPD's attention. She signed her Schedule A Form in front of an immigration officer, declaring that it was truthful, complete, and correct. The Appellant also had the benefit of counsel at least by the time she completed her Basis of Claim Form. Where the Appellant has had this amount of time and support to advance her claim, I am not satisfied that the psychological report reasonably accounts for the many discrepancies identified in her residential and educational history. [59] These discrepancies are significant because the Appellant and XXXX supposedly met at the University of Benin during the period of time that is in question, and, according to XXXX letter, they even resided in the same building. The inconsistent timeline even casts doubt on the Appellant's allegation that she was caught in a moment of intimacy with XXXX, given that it is unclear whether the two even attended the same university. In addition, the inconsistencies make it unclear as to whether or when the Appellant left the University of Benin. These issues undermine the Appellant's allegations regarding her relationship with XXXX, as described in her Basis of Claim Form. The RPD did not err in drawing negative inferences from these discrepancies. Omission regarding marriage in United States [60] The RPD also drew a negative inference from the Appellant's failure to disclose her marriage to a man in the United States when she first completed her immigration forms in Canada. [61] Despite having married her husband, XXXX, on XXXX XXXX, 2016 in the United States, the Appellant declared her marital status as single when she completed her Generic Application Form (IMM 0008) in Canada on October 28, 2017.15 [62] It was only after retaining a lawyer, who apparently urged her to disclose this information, that the Appellant finally admitted in her Basis of Claim Form that she was married to XXXX and that she had entered into a marriage for immigration purposes in the United States. The Appellant, however, described in her narrative that she failed to disclose this marriage previously because "it was not a real marriage" and that she was not sure of where to put it in her form. [63] In her RPD hearing, the Appellant explained that, when she came to Canada, she was scared and confused, as she did not want to risk being sent back. The RPD noted that this explanation was different from the one contained in her written narrative. Whereas, her narrative describes that this was simply an innocent omission, as she did not know whether or how to disclose this information; her testimony reveals that the reason for the non-disclosure was that she feared being sent back. [64] The Appellant's testimony deteriorated even further in her hearing when the RPD questioned her about how she could possess a marriage certificate and still not have known whether she was truly married. To this, the Appellant responded that the marriage certificate was the only thing that said that they were married. [65] I too do not accept this explanation. The Appellant, who is apparently a lawyer in Nigeria, ought to have known that she was, in fact, legally married when she entered Canada. Her explanation about her failure to disclose this fact was inconsistent and evolving. Though she finally admits that she did not initially share this information out of fear of being sent back, it is troubling that the Appellant would attempt to mislead Canadian immigration officers. The Appellant signed her Generic Application Form, declaring it to be truthful, complete, and correct when she knew that it was not. The Appellant's willingness to mislead immigration officials is damaging to her credibility. Failure to Claim in the United States [66] Another major credibility concern in this case is around the Appellant's failure to make an asylum claim in the United States. The Appellant explained to the RPD that she believed that a fraudulent marriage was the only option and that she was not aware that people in her situation could apply for asylum. However, the RPD did not accept that the Appellant was unaware of asylum options in the United States, and it drew a negative inference from this. [67] The Appellant does not specifically address this issue on appeal; however, she does dispute the RPD's finding that her marriage in the United States was, in fact, genuine. I agree with the Appellant that the RPD's finding on the genuineness of her marriage is based on a rather selective reading of the evidence. On my own independent assessment, the evidence of the Appellant's marriage to her husband does not establish that it was genuine. The marriage took place within two months of the Appellant's arrival in the United States. The Appellant also admits that she paid the man to marry her. [68] I agree with the Appellant that the evidence weighs in favour of the fact that she entered into a marriage of convenience in the United States. This, however, is a reason to doubt the Appellant's credibility. [69] There are very concerning facts pertaining to the Appellant's time in the United States. She paid $5000 to a man in order for him to marry her; she paid a commission fee to the individuals who introduced her to him; she was soon left without status in the United States; and she was forced to work illegally, pending her scheme to gain permanent residence through fraud. [70] On my own assessment of the evidence, I find that the Appellant's failure to make an asylum claim in the United States is indicative of a lack of credibility in her allegations. I agree with the RPD's reasons for reaching its conclusion. It is not credible that the Appellant, who is a lawyer, spent nearly two years in the United States without being aware of her option to claim asylum. [71] Furthermore, I have considered the Appellant's psychological report in assessing whether it adequately accounts for the Appellant's actions. The report discusses how the Appellant only knew other Nigerians in the United States and that she feared disclosing her circumstances to them. It also provides a detailed explanation of how an individual's survival response can cause them to make decisions on the spur of the moment, without considering long-term consequences. [72] Still, while the Appellant's decision to enter into a fraudulent marriage might be partially explained by the phenomenon that is described in the psychological report, one must consider that the Appellant spent 21 months in the United States in this situation. Moreover, it is important to consider that the Appellant's own explanation is that she was simply unaware of the option to claim asylum in her situation. Under the circumstances, however, I fail to see why, during such a lengthy period of time, the Appellant could not herself have explored possibilities for her to initiate an asylum claim in the United States or to at least seek out legal advice from a non-Nigerian lawyer about other immigration options that might have been legitimately available to her. The Appellant is a lawyer, has a high level of education, and she speaks and reads English fluently. Both the psychological report and the RPD observed that she is an articulate and intelligent woman. As described in her narrative, she clearly had funds available to her when she first arrived in the United States. [73] With such a lengthy period of time spent in the United States, I am unable to accept that the Appellant's fear and lack of knowledge were the reasons why she did not initiate an asylum claim there. In my view, the more likely explanation is that the circumstances that led the Appellant to leave Nigeria were not based on grounds that entitled her to refugee protection. Marriage of convenience for immigration purposes [74] In addition, I find that the Appellant's decision to enter into an immigration marriage in the United States is a further reason to doubt her credibility. [75] Even if one were to accept the psychological report's description as to why the Appellant did what she did in the United States in her psychological state, the fact remains that the Appellant attempted to obtain permanent residence in the United States through fraud. She persisted in attempting to follow through with this scheme for more than a year. Even if such actions were caused by the Appellant's fears, in my view the Appellant's participation in this fraud remains of great concern. To U.S. immigration authorities, she intended to claim that she must remain in the United States because she is in a genuine marital relationship with a U.S. citizen. To Canadian immigration authorities, she claims that she must remain because she is bisexual. Where the Appellant has already engaged in a fraudulent immigration scheme in the United States for one purpose, I do not see why she should be now considered to be a credible witness in her representations before Canadian immigration authorities. Whatever her reasons for leaving Nigeria, she appears to be willing to misrepresent herself in order to remain here. I find that this is a valid basis upon which to doubt the truthfulness of the Appellant's allegations. b) The RPD's treatment of corroborative evidence [76] The Appellant argues that the RPD erred in its treatment of the corroborative evidence. In support of her allegations regarding her sexual orientation and persecution in Nigeria, the Appellant submitted the following: (a) support letter from XXXX XXXX XXXX;16 (b) support letter from XXXX XXXX XXXX XXXX XXXX (c) support letter from XXXX XXXX XXXX;17 (d) support letter from XXXX XXXX XXXX;18 and (e) photographs of the Appellant in various locations.19 [77] The RPD discounted the above four support letters, as well as a letter from the Appellant's father, finding that the five support letters all had a similar style and format. The RPD concluded that the same individual had authored each of the letters and assigned them little weight. Treatment of the Appellant's support letters [78] The Appellant challenges the RPD's treatment of her five support letters. The Appellant submits that the RPD erred in rejecting the evidence due to similarities in the style and format of the letters. [79] There are certainly similarities in the style and format of the letters, as the RPD points out. The letters are addressed to the Immigration and Refugee Board of Canada, with similar format and punctuation. The justification of the margins are similar in some letters, and the subject lines of the letters are also similar. Some of the letters start by introducing the author in a similar fashion. However, the format and style followed in these letters are standard for written correspondence. In my view, the similarities are not so great that they warrant finding that they were all written by the same individual. As the Appellant also points out, refugee claimants are often asked to indicate how support letters should be addressed. It is possible that the Appellant provided some instruction to the authors as to how to address the letters and what subject line to include in the letters. [80] For these reasons, I disagree with the RPD's treatment of this evidence and draw no inference from the similarities noted by the RPD. Letter from Appellant's current girlfriend, XXXX [81] In addition, the Appellant disputes the RPD's specific treatment and assessment of the letter from the Appellant's girlfriend, XXXX. [82] The Appellant failed to provide the RPD with an original copy of XXXX letter. However, a photocopy was provided to the RPD, in which XXXX speaks to her identity, how she met the Appellant through a client, and how their friendship developed by telephone, until they finally met in person in XXXX 2018. The letter goes on to describe how a relationship of intimacy began and developed between the two.20 [83] The RPD questioned why XXXX was not present to testify as a witness at the Appellant's hearing. The Appellant explained that XXXX had tried to get the day off work, but that it was not approved. The RPD noted that there were many credibility concerns with the Appellant's evidence and that without being able to test the credibility of this author's evidence, the RPD found that it could not give much weight to XXXX letter. [84] The Appellant argues that there is no requirement for authors of support letters to testify as oral witnesses and that the RPD erred by citing the various credibility concerns as a reason for discrediting the support letter. In doing so, the Appellant submits that the RPD failed to independently assess the evidence prior to reaching a conclusion on credibility. [85] However, having reviewed the RPD's reasons carefully, I do not share the Appellant's view of the RPD's treatment of this evidence. The reasons do not indicate that the letter has no evidentiary value simply because of other credibility concerns in the case. Although the RPD makes reference to the other credibility issues in the claim, I do not take this to mean that the RPD failed to properly assess the value of this letter. The RPD might have been able to accept the content of XXXX support letter, if the Appellant had otherwise been credible. That was not the case here, and, as such, the RPD was unwilling to simply accept the allegations in the letter. This is part of the RPD's role in weighing the evidence against the probabilities of the case as a whole. The RPD was merely unwilling to assign significant weight to untested evidence, especially where the author of the letter resides in Canada and where no original letter had been presented at the hearing. [86] Apart from the RPD's finding that each of the support letters was drafted by the same individual, I agree with the RPD's treatment of XXXX letter. The central issue in the Appellant's claim was around her sexual orientation. Given the challenges that many people of diverse sexual orientations face in providing credible evidence of their sexuality, it was all the more important for the Appellant to advance strong evidence of a current same-sex relationship in Canada. Still, the Appellant did not submit an application to call XXXX as a witness, nor did she request a change of date for her hearing in order to accommodate XXXX schedule and have her appear as a witness. I share the RPD's view that, without the opportunity to test the credibility of XXXX written evidence, the letter should be assigned little weight. Photographs [87] I have carried out my own independent assessment of the remaining supporting evidence around the Appellant's sexual orientation and her allegations of persecution in Nigeria. [88] In regard to the various photographs submitted, I agree with the RPD that the photographs do not establish the Appellant's sexual orientation or her allegations of persecution. They merely depict the Appellant with other women and men, with nothing to suggest that her relationships with those individuals were necessarily intimate or romantic. There are a number of photographs also showing the Appellant in attendance at a Pride celebration.21 These events are open to and attended by individuals of all sexual orientations, and they do not establish the Appellant's bisexuality. I too assign little weight to this evidence in establishing the Appellant's sexual orientation. Support letters from XXXX, XXXX, and XXXX [89] The remaining support letters come from her long-time lover, XXXX; her sister XXXX; and her friend, XXXX. [90] XXXX letter is significant, as she was supposedly the Appellant's long-time lover, and as the events of XXXX and XXXX 2015 are tied to XXXX as well. She describes how she knows the Appellant and how their relationship developed. XXXX writes about how she was taken away by police in late XXXX 2015 because the Appellant's diary had been handed over to police and that the diary described the Appellant's experiences with XXXX and some other women. A sympathetic officer supposedly allowed XXXX to leave her cell, on condition that she leave the country as soon as possible. XXXX describes that she happened to have a U.K. visa and that she then for some reason traveled to Turkey. The Appellant and XXXX later reconnected after the Appellant fled to the United States.22 [91] The letter from the Appellant's sister, XXXX, describes the events that supposedly took place in XXXX 2015, beginning with a phone call from the Appellant to say that she was coming to Abuja. Upon seeing her in person, XXXX describes that she saw that the Appellant's front hair was gone, as if uprooted, and that she looked as if she had been hit by a bus. The sister still does not understand how the Appellant was able to escape the beating, but is just thankful that she managed to survive. The letter goes on to say that XXXX tried to speak with XXXX, but the threats continued, and XXXX even sent the police over to XXXX home in order to arrest the Appellant. Despite these events, XXXX did not learn of the reason for this persecution against her sister until much later, even after the two left Nigeria and arrived in the United States.23 [92] Finally, the Appellant submitted a letter from XXXX XXXX XXXX, who claims to be the Appellant's best friend. His letter indicates that the Appellant came to his door on XXXX XXXX, 2015, in a terrible state, explaining that she had almost died. Although she would not tell him what had happened, XXXX assisted her in booking a flight to Abuja, and he took her to the airport the next day to catch her flight.24 [93] Each of the above letters was accompanied by a photocopy of the author's identification. [94] Viewing these pieces of evidence in isolation from the other credibility issues, I would place moderate weight on the letters from XXXX and XXXX. The letters are detailed and consistent with the Appellant's story. Original copies were presented to the RPD, along with envelopes to show where they came from. However, the credibility of each of these authors' evidence remains untested, as neither was called as a witness by teleconference. In regard to XXXX letter, I have taken note of the Appellant's submissions that XXXX letter does not actually state that she and the Appellant resided together as a common-law couple, but merely that they lived in the same building during university. Although the RPD drew a negative inference from this, I agree that the letter does not go so far as to say that they were in a common-law relationship. No negative inference has been drawn from this. [95] The letter from XXXX, however, is given little weight. This is the only support letter that appears to have been notarized. However, the Appellant inexplicably failed to present an original copy of this notarized letter to the RPD. Again, like the other authors, XXXX was not available to be cross-examined in regard to her letter. For these reasons, the letter is given little weight. Assessment of Evidence [96] As described above, I do not agree with all of the RPD's findings. However, after conducting an independent assessment of the entirety of the evidence, I too reach the conclusion that the Appellant has failed to credibly establish her allegations, on a balance of probabilities. [97] It is true that there is some consistency in the Appellant's evidence, including in her support letters and in her allegations about the incident with XXXX that she claims took place in Nigeria. I have also assigned moderate weight to some of the letters, when considering them in isolation from the other credibility issues. However, even after considering the positive aspects of the Appellant's evidence, the credibility concerns outlined above still outweigh the corroborative evidence. [98] There remain significant questions around the Appellant's personal history, including where she lived and whether she ever attended the University of Benin. After considering the evidence, I find, on a balance of probabilities, that the Appellant did not attend the University of Benin, nor did she meet XXXX there. This undermines the Appellant's allegations around her relationship with XXXX and the complications that she describes arose from that relationship. [99] In addition, I find that the Appellant's actions in entering into a fraudulent marriage for immigration purposes in the United States, her failure to make an asylum claim in the United States, and the omission of her marriage to Canadian immigration officials are all indicative of a lack of credibility on her part. Had her husband, XXXX, been willing to follow through with their arrangement, I have no doubt that the Appellant would have proceeded to provide fraudulent evidence to U.S. immigration officials in an effort to secure status there. This, in my view, makes the Appellant an untrustworthy individual as far as immigration matters are concerned. It is clear that she would go to great lengths to secure immigration status abroad, including by committing fraud. I find that the Appellant's failure to claim in the United States is also indicative that her decision to leave Nigeria was not precipitated by persecution relating to refugee protection grounds. [100] These credibility issues are sufficient for me to doubt the credibility of the Appellant's allegations, including her sexual orientation, her dispute with XXXX, and the ensuing events. The Appellant argues that the RPD failed to actually address the main incident of persecution in the Appellant's narrative and to specifically make findings on it. Although it is true that the RPD does not make any specific findings on that incident, it is obvious from the RPD's reasons that the RPD did not find the Appellant or her story to be credible. I agree with the RPD in this regard. [101] Even while taking into account the Appellant's psychological evidence, and even after having regard for the Appellant's supporting evidence, I find that the Appellant's evidence is not credible. I find that she has not credibly established that she is genuinely bisexual, nor that she was in any relationships with women in Nigeria, nor that she has been persecuted as a result of any intimate relationships with women in Nigeria. [102] Therefore, although I do not agree with all of the RPD's findings, the above-noted findings, with which I agree, are serious enough to damage the Appellant's overall credibility and her allegations around her sexual orientation and persecution in Nigeria. The corroborative evidence is insufficient to overcome these concerns. DISPOSITION [103] Credibility is a determinative issue. A refugee claimant must establish certain facts in order to demonstrate that they hold a well-founded fear of persecution on a Convention ground as a Convention refugee, or that they are a person in need of protection. CONCLUSION [104] As the Appellant's allegations have not been established, I find that the Appellant is neither a Convention refugee nor a person in need of protection. The RPD's determination is therefore confirmed, and the appeal is dismissed, pursuant to paragraph 111(1)(a) of the IRPA. (signed) "M. Oh" M. Oh February 6, 2019 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Exhibit RPD-1, RPD Record, at pp. 157-162, Exhibit 6. 3 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression: issued by the Chairperson, pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, effective date: May 1, 2017. https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir09.aspx 4 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson, pursuant to Subsection 65(3) of the Immigration Act, IRB, Ottawa, November 13, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in paragraph 159(1)(h) of the Immigration and Refugee Protection Act. https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx 5 Exhibit P-2, Appellant's Record, Exhibits "A" and "D" of the Affidavit of XXXX XXXX XXXX, at pp. 3a-b and 43-48. 6 Exhibit P-2, Appellant's Record, Exhibits "A" and "B" of the Affidavit of XXXX XXXX XXXX, at pp. 3-22. 7 Exhibit P-2, Appellant's Record, Exhibit "C" of the Affidavit of XXXX XXXX XXXX, at pp. 23-42. 8 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, at para 54. 9 Canada (Citizenship and Immigration) v, Singh, 2016 FCA 96, at para 54. 10 Post-perfection application for disclosure of evidence. 11 Exhibit RPD-1, RPD Record, at p. 84, Exhibit 1, Schedule A Form (IMM 5669). 12 Exhibit RPD-1, RPD Record, at pp. 147-148, Exhibit 6. 13 Exhibit RPD-1, RPD Record, at p. 81, Exhibit 1. 14 Exhibit RPD-1, RPD Record, at p. 81, Exhibit 1. 15 Exhibit RPD-1, RPD Record, at p. 72, Exhibit 1, Generic Application Form (IMM 0008). 16 Exhibit RPD-1, RPD Record, at pp. 101-104, Exhibit 5. 17 Exhibit RPD-1, RPD Record, at pp. 147-151, Exhibit 6. 18 Exhibit RPD-1, RPD Record, at pp. 163-166, Exhibit 6. 19 Exhibit RPD-1, RPD Record, at pp. 169-192, Exhibit 6. 20 Exhibit RPD-1, RPD Record, at pp. 101-104, Exhibit 5. 21 Exhibit RPD-1, RPD Record, at pp. 169-192, Exhibit 6. 22 Exhibit RPD-1, RPD Record, at pp. 147-150, Exhibit 6. 23 Exhibit RPD-1, RPD Record, at pp. 144-146 and 193-194, Exhibit 6. 24 Exhibit RPD-1, RPD Record, at pp. 163-166, Exhibit 6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-27159 RAD.25.02 (September 18, 2018) Disponible en français 2 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.25.02 (September 18, 2018) Disponible en français