TB4-05528

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 : TB4-05528 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 18, 2014 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola 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, (the Appellant), claims to be a citizen of Nigeria, and is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find him to be a Convention refugee or a person in need of protection or, in the alternative, refer his claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1) (a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he is at risk of persecution in Nigeria because he is a bisexual. The Appellant alleges he fears his uncle, the community at large and the Nigerian police. The Appellant alleges he was involved in a same sex relationship with a man named XXXX, until their relationship ended with XXXX moving to another state. In 2010, the Appellant met XXXX XXXX XXXX XXXX XXXX and they began a relationship, although XXXX had a girlfriend. [4] In June 2013, he and his male lover were engaged in sexual activity in XXXX home when his girlfriend unexpectedly returned and discovered them. At the request of his partner, the Appellant left the premises. The Appellant was visited a few days later by members of the Nigerian police, who arrested him and transported him to the police station. The Appellant alleges he was beaten and called many names. The next day his uncle attended the police station and, as a result of a conversation, the Appellant agreed to undergo the traditional rituals as requested by his uncle. The Appellant's mother made arrangements with an agent to assist the Appellant in leaving the country. The RAD should point out that at the hearing the Appellant testified that the narrative, he provided which is the above, was completely untrue. The Appellant left Nigeria on XXXX XXXX XXXX 2013, arriving in Canada on the XXXX XXXX XXXX XXXX 2013. The Appellant made an inland claim for protection on September 05, 2013. [5] The Minister of Citizenship and Immigration Canada (CIC) intervened at the RPD hearing and presented evidence by way of documents only. The Appellant's application for refugee protection was heard on December 12, 2013 and January 30, 2014. In a decision of May 26, 2014, the RPD rejected the Appellant's claim finding that the Appellant's allegations are not credible and that, on a balance of probabilities, the Appellant is not gay or bisexual. [6] The Appellant submits that the RPD "erred [in its credibility findings] and further erred by ignoring relevant evidence that directly contradicts the conclusion that the [RPD] made."1 [7] The RAD finds that the Appellant's Memorandum of Law and Argument lacks clarity and organization. Some of the submissions and arguments are decidedly vague, disjointed and convoluted. Fluctuating format changes makes it difficult at times to discern the Appellant's arguments from the case law he provided to support his arguments. Furthermore, although the Appellant has included numerous references to case law, in many cases, the Appellant fails to explain how his arguments are supported by the case law he includes. Nevertheless, the RAD has been able to discern the following issues from the Appellant's pleadings. In particular, the Appellant submits that: (a) The RPD erred in its analysis credibility findings in this case; and, (b) The RPD assess the claim in a manner that was consistent with the documentary evidence provided by the Appellant; and, (c) The panel may have erred in its delay in claiming analysis and conclusion; and, (d) Section 97 of the IRPA may not have been considered in the Board's analysis? ROLE OF THE RAD [8] Counsel has made no submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,2 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. 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." [9] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or other findings where the RPD has a particular advantage in reaching its conclusions. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [10] As provided for in s. 110(3) of IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of IRPA provides that 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 rejection. [11] The Appellant has tendered the following proposed new evidence in support of his appeal: (a) Letter of support from XXXX XXXX XXXX, dated July 03, 2014;3 and, (b) Letter from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX dated June 27th, 2014, together with flyers;4 and, (c) Letter of support from XXXX XXXX dated June 26, 2014;5 and, (d) Letter of support from XXXX XXXX XXXX dated June 24, 2014;6 and, (e) Photographs with people at an event which allegedly is a Gay parade in 2014.7 [12] The RAD finds that, although the letters were produced following the rejection of the claim, they are not significantly different from the evidence that was tendered at the RPD hearing. The RAD notes that these could have been available before the RPD rejection, as the evidence shows that the Appellant was volunteering prior to this. The letters do not provide any new details about the Appellant's risk in Nigeria nor do they provide any additional facts to help establish his sexual orientation. They only indicate that the Appellant was known by another name at the organizations. [13] In considering the statutory provisions in Section 110(4), the RAD considered the following: (a) First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim.8 (b) The RAD will consider not only the date on which the document came into existence but the timing of the event or circumstance which the document seeks to prove.9 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. (c) It is important to note here that Section 110(4) does not contemplate whether the evidence arose after the RPD hearing but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. (d) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and materiality of the document.10 (e) Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in Section 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim,11 or that it proves a fact that was unknown to him at the time of the hearing?12 If so, the RAD will proceed to assess the credibility, relevance, and materiality of the document. (f) Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim and that it was reasonably available at the time of the rejection, it must consider the final part of the Section 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered.13 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [14] In the case at hand, the proposed new evidence fails to meet the requirements of s. 110(4) in that the Appellant was volunteering prior to the rejection of the RPD with these organizations and these would reasonably be available and also he has not provided a reasonable explanation as to why they were not reasonably available. Accordingly, the RAD finds that the proposed new evidence does not meet the test of new evidence and, as such, will not be accepted as new evidence in this appeal. [15] The RAD finds that, even if the evidence has met the test under s. 110(4), the RAD finds that the evidence would not meet the subsequent test under Raza.14 The RAD notes that, in respect to the pictures which allegedly took place after the rejection, the RAD finds that they meet the requirements of section 110 (4). However, they are just pictures of the Appellant at an event, and they don't provide and evidence which would lead the RAD to change the outcome of the claim. Application for an Oral Hearing [16] The Appellant requests an oral hearing before the RAD in regards to the new evidence submitted. [17] The RAD has not admitted any new evidence in this appeal, and, as such, the RAD cannot hold an oral hearing in this appeal pursuant to section 110(6) of IRPA. ANALYSIS OF THE MERITS OF THE APPEAL Credibility [18] The Appellant submits that the RPD, in the Appellant's record, page 10, impugned the credibility of the Appellant because of his inconsistencies in his testimony, specifically, his sexual identity and inconsistencies in his evidence (such as providing viva voce evidence at the hearing that his entire Basis of Claim form (BoC) narrative is untrue,). The Appellant submits he entered Canada on a false passport and false birth certificate, but came forward with his real identity when the Minister intervened in the case. [19] The RAD is not persuaded by the Appellant's argument. The RAD finds that the Appellant has misapprehended the findings of the RPD in this regard. The RAD notes that the record reflects that the RPD's adverse credibility findings were based on the contradiction between his testimony and the documentation he submitted in regards to his identity, which included letters of support from various organizations. The RPD notes that the Appellant testified that he entered Canada on his own passport but, when he went to make a claim, he did not use his own identity. [20] In a review of the audio hearing, the RAD noted that there were further additional contradictions with his BoC narrative concerning why he left Nigeria and in regards to the discovery of his sexual orientation. The RAD notes that the Appellant alleges in his testimony that everything in his original BoC narrative was untrue, that he was originally coming to Canada for a XXXX XXXX, he obtained a VISA to come to Canada and obtained his own passport. However, he states in his BoC that his sexual orientation was discovered while he was in Nigeria and, as a result, he had to hide. When asked by the RPD why he lied, the Appellant testified that he was advised to do so by his friend, and he had no intention to lie. By further testimony provided by the Appellant at the hearing, he admitted orally and in writing that he had engaged in same sex relationships and that the events in his original BoC narrative were false. [21] The RAD finds that there is evidence in the record which supports the RPD's adverse credibility findings in this regard. The RAD finds that the Appellant's testimony was inconsistent with his narrative and that this inconsistency undermines the credibility of his allegations. Further, the RAD finds the entire explanation of the Appellant as to why he lied/mislead the authorities in his claim, to be weak and unrealistic, and further the RAD finds his argument to be un-supportable. Supporting documentation [22] The Appellant submits that, in paragraphs 19-25, the RPD drew adverse credibility findings in regards to his supporting documents based on the fact that it already had found him not to be credible. [23] In reviewing the RPD's reasons, the RAD finds that the RPD does make some clear findings on the evidence that the Appellant presented in regards to associations and organizations in Canada relating to the LGBTI communities. The RPD does provide in its reasons why it placed little to no weight on these documents. The RPD rightly noted that the Appellant did not directly answer the question which was put to him in regards to whether he had to establish his sexual identity to them. The RAD, in assessing the evidence before it in regards to this area of the evidence, clearly noted that there is no evidence before it to establish that any of the organizations or associations require the Appellant to confirm his sexual orientation. [24] The RPD made a clear credibility finding on this evidence, and the RAD, in assessing the evidence before it, arrived at the same conclusion as the RPD did in its finding. [25] The RAD notes that the Appellant's BoC was submitted at the time the Appellant alleged that he had gone into hiding before he left Nigeria. In his narrative, the Appellant alleges that his uncle and the community, along with the Nigerian police, were actively pursuing him. The audio of the hearing reveals that the Appellant, at the hearing, testified that his sexual identity was not exposed in Nigeria and that everything in his BoC narrative was untrue. The Appellant further testified that when he wrote in his BoC narrative that there was no place for him to hide in Nigeria was a lie. The Appellant did not have any problems or trouble in Nigeria. The RAD finds that the evidence undermines the Appellant's allegations that he is bisexual or gay and that he was being persecuted or, for that matter, he would be at risk in Nigeria. [26] The Appellant provided the explanation that it was his long-time friend who counselled him to lie in his BoC and in his claim. The RPD rejected this explanation by the Appellant, and the RAD in reviewed this part of the evidence also arrived at the same conclusion that this explanation is weak and unrealistic. The Appellant testified that he obtained a VISA to come to Canada for a work permit for an event which was taking place on XXXX XXXX, 2013. The Appellant further testified that he obtained a passport under his real name and travelled to Canada. The Appellant testified when asked why he omitted his real identity and invented a story that had happened in Nigeria which had not from his narrative, that he was once again counselled by his friend not to do so. He indicates that it was not his intention to lie or mislead immigration officials. The evidence on the record is clear, that the Appellant filed a refugee claim under another name, and it wasn't until the Minister intervened that he submitted a BoC narrative with a new name. The Appellant argues that this was done under the advice of his long-time friend, however that explanation was not accepted and the RPD further found this undermined his credibility The RAD finds that the Appellant's argument in this regard fails, but it also undermines his credibility. The Appellant was under no danger back in Nigeria, and therefore had no reason to file his claim under a false name, or to compose a narrative which he admitted before the RPD that is completely false. The RAD finds it unrealistic and unconvincing as to his explanation as to why he would file a refugee claim under a different name and a BoC narrative which is completely untrue. Omissions from Affidavit [27] The Appellant tendered affidavits from his mother and his wife after the intervention of the Minister. In assessing the affidavits, the RPD drew an adverse credibility finding because of all the credibility findings. [28] The RAD finds, however, that the RPD does not make any adverse credibility findings based upon omissions from the affidavits. Rather, the RPD drew its adverse credibility finding of this corroborative evidence little weight because of its other findings of credibility. The Appellant's argues that the RPD erred by giving the evidence little weight. The RAD finds that it was open to the RPD to draw an adverse inference in this regard. Accordingly, the Appellant's argument fails. Amended Narrative [29] The Appellant submits that, at paragraph 13 of its reasons, the RPD impugned his credibility in that the RPD was unreasonable in not accepting his explanation for the false original BoC. The RAD finds that a review of the record reveals that the RPD did not make such a finding. Accordingly, the RAD finds that the Appellant's argument in this regard fails. [30] Nonetheless, it was still open to the RPD to assess the weight it would give that evidence. The RAD notes that the Appellant has not provided a satisfactory explanation why this important evidence was not included in his first narrative. As previously noted, it is reasonable to expect that the Appellant would have provided a BoC narrative with truthful information, and not to provide one only after receiving a notice of intervention from the Minister. The Appellant then provided viva voce evidence that the contents of the narrative were all untrue. [31] In addition, the RAD notes that affidavits do not explain away the credibility concerns raised by the Appellant's omissions of true facts in his BoC narrative. The RAD finds that affidavits tendered by the Appellant were part of a construct, manufactured in an effort to undermine the compelling evidence of the Minister. Letters of Support [32] The RPD gave little weight to the Appellant's other personal documents finding that they did not provide persuasive evidence of the Appellant's alleged sexual orientation. The Appellant submits that the document clearly speaks to his sexual orientation and that the RPD ignored the evidence. [33] The RAD finds that the RPD conducted a fulsome analysis of these documents and appropriately found that the RPD could afford them little weight. The RPD notes that none of the documents indicate that the Appellant is bisexual. The RPD further noted that none of the organizations are able to provide reliable evidence of his sexual orientation. The RAD notes that the contents of the documents, which support the allegations of the Appellant, are based upon his account of that alleged persecution and not independent knowledge. The RAD finds that the RPD's finding in this regard was based upon the evidence and was supported by sound reasoning. SECTION 97 ANALYSIS [34] The Appellant further submits that the RPD failed to give full consideration to the objective documentary evidence. The Appellant argues that, even if the RPD was of the opinion that the Appellant was not credible, the RPD failed to consider that the Appellant was still at risk in Nigeria because he was perceived to be bisexual. [35] The RAD is not persuaded by the Appellant's argument in this regard. The Appellant seems to argue that, regardless of the credibility findings of the RPD, the RPD should still find that the Appellant is bisexual. The Appellant further argues that the objective evidence establishes that persons who are perceived to be gay or who are sympathetic to the LGBTQ community are at risk in Nigeria. While it is true that the objective evidence establishes that persons perceived to be gay or are sympathetic to the LGBTQ community in Nigeria are at risk of persecution, the RPD found that the Appellant has failed to provide persuasive evidence that he is gay or bisexual. Furthermore, the RAD finds that the Appellant has not provided persuasive evidence that he would be perceived to be gay or bisexual or a supporter of the LBGTQ community. The RAD has found that the RPD fairly and appropriately assessed the probative value of the evidence. The RAD has also found that the RPD has made credibility findings which undermine the credibility of the Appellant's allegations. SUMMARY AND DETERMINATION [36] The RAD reviewed the evidence on the record and, after assessing all the evidence in its entirety, finds that there is sufficient evidence to find, and for the RPD to have found, that the Appellant does not face a well-founded fear of persecution, or a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture by any authority in Nigeria. CONCLUSION [37] Pursuant to Section 111(1) (a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is therefore dismissed. (signed) 'Luis F. Agostinho' Luis F. Agostinho November 18, 2014 Date 1 Appellant's Record, Memorandum, page 323, paragraphs 7-10 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 Appellant's record, page 290 4 Appellant's record, pages 291-293 5 Appellant's record, page 294 6 Appellant's record, page 295 7 Appellant's record, pages 296-319 (numerous duplicate pages of same photographs) 8 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385, para. 13.3(a). 9 Raza, para. 16. 10 Raza, para. 13.5(b) 11 Raza, para. 13.5(a) 12 Raza, para. 13.3(b) 13 Raza, para. 13.5(a) 14 Raza, para. 13.5(b) --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05528