TB8-03417

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 / Dossier de la SAR : TB8-03417 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 XXXX Personne(s) en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision October 22, 2018 Date de la décision Panel Paula Thompson Tribunal Counsel for the person(s) who is(are) the subject of the appeal Ochiemuan Okojie 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 XXXX (the Appellant), a citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated December 6, 2017, rejecting her claim for refugee protection. DETERMINATION [2] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). APPEAL SUMMARY [3] The Appellant fears persecution at the hands of the Nigerian police and from her family, particularly her father, due to her sexual orientation. The Appellant claims to be bisexual. The Appellant was a high school student in Ontario from late 2012 until 2014, and returned to Ontario to begin a college education in March 2015. She ceased her studies in January 2016 and claimed refugee status in August 2017. [4] The RPD found the Appellant not to be credible in relation to central aspects of her story. It also placed little to no weight on supporting documentation provided by the Appellant and found that the Appellant's nearly two-and-a-half-year delay in claiming refugee status in Canada undermines her credibility and reveals a lack of subjective fear of persecution. [5] The Appellant argues that the RPD erred in its credibility findings, specifically noting that the RPD engaged in a microscopic examination of the evidence, made implausibility findings that are not supported by the evidence, relied on western standards when assessing the evidence and failed to accept or ignored reasonable explanations provided by the Appellant. [6] The Appellant also argues that the RPD violated procedural fairness by not providing her with an opportunity to respond to RPD concerns relating to her 2014 Canadian visa application. ANALYSIS Is the Appellant's New Evidence Admissible? [7] The Appellant supplied two pieces of two evidence further to section 110(4) of the IRPA: a. Admission and Enrollment letters from XXXX XXXX in Nigeria b. Letter of support from XXXX XXXX [8] The Appellant argues that the new evidence should be accepted because it was not reasonably available to her earlier. She states she could not have received the letter from XXXX sooner because she had lost her friend's contact information. She also maintains that she by chance came across the XXXX XXXX documentation in an old suitcase. [9] The information contained in both documents describes events that pre-date the RPD decision. The Appellant is expected to bring her best case forward at the RPD. I do not find the Appellant's explanation as to why she could not obtain these two documents sufficient. It was open to the Appellant to request documents from the university before the RPD's rejection of her claim. I note that the RPD asked if this was possible at the hearing in late October, six weeks before the RPD finally rejected the claim.1 Also, during testimony she stated that she did not have any documents from the University and did not think she could get them.2 This is inconsistent with her statement regarding the new evidence at the RAD that she had the documents in a suitcase all along. [10] I also find that she could have used alternate means to contact XXXX to secure a letter of support-she described XXXX as her best friend in testimony and I note that XXXX lived in Canada. 3 I find that both documents brought forward as new evidence could have been reasonably available to the Appellant prior to the rejection of her claim in December 2017 and ought to have been presented to the RPD. Further to section 110(4) of the IRPA, I am unable to accept these two documents into evidence in this appeal. Did the RPD err in its Credibility Findings? [11] Having reviewed the evidence, including the transcript of the hearing, and having conducted my independent assessment, I disagree with the Appellant's arguments that the RPD engaged in a microscopic analysis of the evidence, ignored reasonable explanations and incorrectly gave no or little weight to supporting documentation. The RPD's findings related to material aspects of the Appellant's claim, including her relationships with XXXX and XXXX, her attendance at XXXX XXXX and her more than two year delay in claiming refugee status, were well supported by the evidence. I agree with the RPD that the supporting documents provided by the Appellant did little to establish her sexual orientation. With the exception of the findings I consider below, I find the RPD findings are correct, for the same reasons as those provided in the RPD reasons. [12] The RPD found that the Appellant failed to show the emotion one would have expected while she described being discovered in bed with XXXX. The Appellant argues that the RPD used western standards to make this finding, noting that LGBT members in Nigeria are reluctant to show emotion given hostile societal views. I agree with the Appellant, the RPD incorrectly used the Appellant's apparent lack of emotion to impugn the Appellant's credibility in this instance. However, the RPD's other findings related to this incident are correct and this error does not impugn the overall RPD finding regarding the Appellant's relationship with XXXX. [13] The Appellant also argues that the RPD incorrectly took a negative inference from the lack of documentation surrounding the Appellant's relationship with XXXX, arguing that it is difficult to prove one's sexual orientation and that there is rarely documentary evidence given that these relationships must be kept secret in Nigeria. I agree with the Appellant's point and further agree that relatively little weight can be given to the fact that the Appellant did not have any "artifacts" of her relationship with XXXX. However, in combination with the other RPD findings about the Appellant's relationship with XXXX, I find the ultimate finding of the RPD about the relationship remains correct. [14] The RPD observed that the Appellant's father had applied for a Canadian visa for his daughter at the same time the daughter alleges he had told her to forget about her education in Canada and had sent her to a special program aimed at "curing" her bisexuality at XXXX XXXX. The Appellant argues that the RPD violated procedural fairness because the RPD's concerns were not put to the Appellant. I agree. The RPD ought to have raised this concern at the hearing. Even discounting this finding, however, when assessed against the totality of the evidence, the overall negative credibility finding made by the RPD is correct, for the same reasons as provided by the RPD. [15] The Appellant also disagreed with the RPD's findings, allegedly detailed on page 15 of the RPD reasons, in relation to a psychotherapy report. Reviewing the reasons I found that the RPD in fact did not address the psychotherapy report in its reasons at all. This is an error, although different from the error alleged by the Appellant. Having reviewed the report, I note that the psychotherapist, after a one-hour interview with Appellant, noted that the Appellant appeared to suffer from both anxiety and depression. The psychotherapist recommended continued counselling sessions. I have no information before me indicating that additional counselling sessions took place. The psychotherapist's recommendations and findings are based on what the Appellant told the therapist during the one-hour session. I accept that the Appellant may suffer from anxiety and depression, but this does not assist in establishing the core elements of the Appellant's story, given that the therapist merely repeated in her report the story described to her by the Appellant. The report does little to establish the Appellant's bisexuality. Ultimately I find that the psychoanalyst's report is owed little weight. Having reviewed the transcript, I also observe that the member asked questions with tact, sensitivity and care. CONCLUSION [16] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "Paula Thompson" Paula Thompson October 22, 2018 Date 1 RAD-1, Transcript of the RPD hearing, pp. 29-30. 2 Ibid. 3 Ibid., p. 18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-03417 RAD.25.02 (August 08, 2018) Disponible en français 6 RAD.25.02 (August 08, 2018) Disponible en français