TB4-05525

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 : TB4-05525 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 XXXX XXXX XXXXXXXX XXXX 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 October 7, 2014 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola Barrister & Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX, a citizen of Nigeria, appeals 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 ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant alleged before the RPD that he is at risk of persecution in Nigeria because he is a bisexual. The Appellant was married in 2011 to his wife, and shortly thereafter they gave birth to their child. Following the pregnancy, his relationship with his wife soured. In XXXX 2013, he began a sexual relationship with a male friend. His relationship with his wife continued to deteriorate prompting him to suggest to her that they divorce. She became angry at his suggestion and threatened him that her high-ranking police officer uncles would make his life "hell" if he did not remain in the marriage. He reluctantly remained in the marriage. [4] In XXXX 2013, he and his male lover were engaged in sexual activity in his home when his wife unexpectedly returned and discovered them. His wife threatened to report his behaviour to his family and her uncles in the police and demanded that he pay a weekly payment in exchange for her silence. The Appellant was forced to borrow the money to make the weekly payments. After the Appellant's wife continued to increase the payments, the Appellant decided to leave Nigeria. After arriving in Canada, the Appellant learned from his family that his wife had told everyone that he was gay including her uncle in the police and that the police were looking for him at the homes of friends and family in Nigeria. [5] The Minister of Citizenship and Immigration Canada (CIC) intervened at the RPD hearing and presented evidence. The Appellant's application for refugee protection was heard on May 6, 2014. In a decision of May 23, 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] by applying an incorrect test 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 adverse credibility findings. (b) The RPD failed to consider the personal and documentary evidence concerning the risk faced by the Appellant due to sexual orientation or the perception that he is bisexual. ROLE OF THE RAD [8] Counsel has made 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 is need of protection. Deference will be afforded to the credibility findings of the RPD or to 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. 1. Letter of support from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX dated XXXX XXXX, 2014; and 2. Letter from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX dated XXXX XXXX, 2014 together with photographs of the Appellant. [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 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. [13] In considering the statutory provisions in Section 110(4), the RAD considered the following. [14] 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.3 [15] 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.4 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. [16] 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. [17] 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.5 [18] 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,6 or that it proves a fact that was unknown to him at the time of the hearing?7 If so, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [19] 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.8 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. [20] In the case at hand, the proposed new evidence fails to meet the requirements of s. 110(4) in that the evidence is not 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.9 Accordingly, the RAD finds that the proposed new evidence not meet the test of new evidence and, as such, will not be accepted as new evidence in this appeal. [21] 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.10 [22] After review, the RAD finds that the document tendered as proposed evidence in this appeal is not material. It is the view of the RAD that materiality is the measure of the estimated effect that the presence or absence of an item of information may have on the accuracy or validity of a statement. That evidence has to have a certain threshold effect to be material, namely, that the evidence is capable of showing that the decision or reasons of the RPD are in error, or might the evidence affect the appropriate disposition of the appeal. [23] The RAD notes that the Appellant has not provided a persuasive argument to demonstrate how this document is capable of showing that the decision or reasons of the RPD are in error or how the evidence might affect the appropriate disposition of the appeal. [24] The RAD finds that this document is not material in that it is incapable of showing that the decision or reasons of the RPD are in error and, as such, rejects it as new evidence. [25] The RAD has not admitted new evidence in this appeal, and, as such, the RAD cannot hold an oral hearing in this appeal. ANALYSIS OF THE MERITS OF THE APPEAL Credibility [26] The Appellant submits that the RPD, in paragraphs 7, 8 and 9 of its reasons, impugned the credibility of the Appellant because he embellished his testimony, specifically, that he had not stated in his Basis of Claim (BoC) narrative that he was unable to pay his wife's weekly demand of money. The Appellant argues that he did not embellish his testimony but was merely providing additional details to facts already contained in his BoC narrative. [27] 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 not based on a perceived embellishment, but rather based on the contradiction between his testimony and the BoC narrative on the terms of the extortion. The RPD notes that the Appellant testified that he made monthly payments; however, his BoC narrative described weekly payments. The RPD rejected the Appellant's explanation that his BoC narrative referred to his wife's demands and not his actually payments because the Appellant failed to indicate in his BoC narrative that he was unable to keep up with the payments. [28] A review of the transcript provided by the Appellant reveals additional contradictions with his BoC narrative concerning the terms of the extortion. The RAD notes that the Appellant alleges in his testimony that he made the first payment using his own salary. However, he states in his transcript that his male lover gave him the money to pay his wife. He also states explicitly in his BoC that he made the payments the first month after getting the money from his lover. The Appellant never states in his narrative that he was unable to make the payments and that this was the reason his wife raised the extortion demands. The explanation he provided in his BoC was that his wife increased the amount of the extortion after they got into a fight after the first month. He provided no explanation for the subsequent increase in demands. [29] 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. Facebook Postings [30] The Appellant submits that the RPD's adverse credibility findings concerning the messages he posted on his Facebook page and his reference of being married are without merit. The Appellant argues that he provided reasonable explanations which the RPD ought to have accepted. Love Messages to his Wife [31] The Appellant submits that, in paragraphs 10, 11 and 12, the RPD drew adverse credibility findings based on the fact that he sent love messages to his wife through his Facebook page and that he referenced his status as being married. The Appellant argues that the RPD failed to explain in its reasons why he should not have referenced himself as married in his Facebook status given that he was still married to his wife at that time. The Appellant also argues that he provided the reasonable explanation that he was trying to win his wife's affection back through his Facebook page after she failed to respond to his email. [32] In reviewing the RPD's reasons, the RAD finds that the RPD does not make any clear findings on the evidence that the Appellant sent love messages to his wife. The RPD does later in its reasons reject the Appellant's explanation for having sent love messages to his wife and provided reasons for doing so. The RPD rightly noted that the Appellant's Facebook page did not reflect the alleged hostility between his wife and family in Nigeria. [33] Although, the RPD failed to make a clear credibility finding on this evidence, the RAD finds that it can. The RAD notes that the Minister of Citizenship and Immigration Canada intervened in the RPD hearing and cited several entries on the Appellant's Facebook page which were posted while the Appellant has been in Canada including: (a) His status as being married to his wife; (b) Being interested in Women; (c) Ongoing posting of photographs and romantic messages to his wife including the responses of his wife and other "friends"; and (d) Two questions posted on XXXX XXXX and XXXX XXXX requesting information on the situation for Gays, Lesbians and Bisexuals in Nigeria indicating that he needed help in completing a fact-finding project. The Appellant's sister-in-law and others responded to his post. The evidence was fully canvassed in the hearing, and the Appellant was asked for and provided an explanation. Furthermore, the Appellant's counsel had the opportunity to provide submissions on that evidence at the RPD hearing. The RAD finds that the evidence tendered by the Minister is compelling and convincing. [34] The evidence reveals that the Appellant and his wife were engaged in ongoing communication via Facebook and that that communication illustrates that they were in an uninterrupted romantic relationship at the time the Appellant alleges he was embroiled in a bitter dispute with his wife. The RAD also notes that there is an absence of any indication that the relationship had been at one time hostile despite the Appellant's allegations that his wife had extorted him and exposed his sexual orientation to everyone he knew and the police. [35] The RAD notes that the Appellant's BoC was submitted at the time the Appellant was communicating with his wife through Facebook. In his narrative, the Appellant alleges that his wife had exposed him to everyone and that the Nigerian police were actively pursuing him. The Appellant's Facebook page reveals that, at the time he was submitting his BoC, he was posting photographs of his wife and that she was making comments on those photographs that did not reflect that she bore any ill will towards him. It is reasonable to expect that the Appellant would have indicated in his BoC narrative that her attitude towards him was softening or that the Appellant's Facebook page would have reflected the hostility in his relationship with his wife. The RAD finds that the evidence undermines the Appellant's allegations that he is bisexual or gay and that his wife was extorting him in exchange for her silence. [36] Although the Appellant submits that the RPD did not put these concerns to him, the record reflects that this issue was fully canvassed in the hearing by the Minister's representative and that the Appellant offered an explanation. The RAD finds that the Appellant's argument in this regard fails. Facebook Communication with His Sister-in-Law [37] The Appellant also submits that the RPD's adverse credibility finding based on the Appellant's Facebook communications with his sister-in-law was unfair. The Appellant argues that his explanation that he was trying to stay on the good side of his wife and her family, despite his sexual orientation, was reasonable and that the RPD ought to have accepted his explanation. [38] The RAD is not persuaded by the Appellant's argument. A review of the transcript reveals that the Appellant did not provide the explanation indicated in his pleadings. Rather, the Appellant's explanation was that "[he] did not have the right to stop her from believing what she believed in...so I just had to support her in what she thinks she was doing right."11 The RAD finds that the RPD provided sound reasons to reject the Appellant's explanation. The RAD notes that the RPD found that the Appellant was already in Canada when he received and responded to the anti-gay posting of his sister-in-law. The Appellant has stated in his testimony that he felt safe to express his views of being in favour of being gay and bisexual in Canada. His reluctance to respond to the anti-gay declarations of his sister-in-law from the safety of Canada does not make sense. The RAD agrees with the RPD's adverse credibility findings in this regard and finds that the credibility of the Appellant's allegations of persecution are undermined. Absence of Reference to the Appellant's Alleged Sexual Orientation on Facebook Page [39] The RPD drew an adverse credibility finding based on the absence of any reference to the Appellant's alleged sexual orientation on his Facebook page. The Appellant submits that the RPD erred in impugning his credibility because he was unable to speak to issues he knew nothing about, specifically, why his "friends" on Facebook had not posted negative comments. The Appellant argues he could not be expected to know why they chose not to make negative comments. [40] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the Appellant did provide the explanation that his "friends" did not post negative comments on his page because they did not want to associate themselves with LGBTQ persons because they would come under the scrutiny of the police in Nigeria. The RPD rejected this explanation and provided sound reasoning for doing so. The panel saw that explanation as absurd. Nigerian society and the Nigerian government are both seen in the documentary evidence as rabidly anti-gay. It is difficult to conceive that anyone who posted a bombastic declamation against homosexuality, thus agreeing with official government policy towards gays, would attract the suspicion of the government or the police of Nigeria. According to this logic, one who agrees with government policy on homosexuality is going to be investigated. This made no sense, and the claimant's credibility was severely undermined.12 [41] The RAD also notes that the Appellant's explanation is further undermined by the evidence contained in his Facebook page. The record reflects that the Appellant was engaging his "friends" on Facebook in an attempt to gain information about the situation of the LGBTQ community in Nigeria and that he received responses in that regard from his "friends". It is important to note that the Appellant sought the input of his "friends" on Facebook which included his wife and his wife's family, on the situation of gay, bisexual and lesbian persons in Nigeria. A review of the text of the interaction between the Appellant and his Facebook "friends" reveals that his allegations that his wife exposed his sexual orientation to everyone he knew is called into question. The RAD finds that the posts of the Appellant in which he indicated that he was conducting a fact-finding project on the situation of gays in Nigeria and that "we were asked to get public opinion",13 and his "friends" responses to his inquiry indicate that his Facebook friends "were unaware of his alleged sexual orientation" contrary to what he has alleged. The RAD finds that the absence of any indication of the Appellant's sexual orientation or comments from his wife's family denouncing his sexual orientation undermines the credibility of his allegations. [42] The Appellant further submitted that these findings have no relevance to his sexual orientation. The RAD disagrees with the Appellant in this regard. The RAD finds that these findings are directly on point to the Appellant's alleged sexual orientation. He alleges that everyone he knows in Nigeria has been made aware of his sexual orientation and that he is being perused by the police because his wife informed them of his orientation. These allegations are the centrepiece of his allegations of persecution. The RAD finds that the findings of the RPD undermine the Appellant's allegations in this regard. Accordingly, the RAD finds that the Appellant's argument fails. Omissions from Affidavit [43] 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 based on the discrepancy between the Appellant's testimony and the affidavit of his mother. The Appellant submits that the affidavits are third-party documents and that he should not suffer punishment for any errors or omissions made by a third party. The Appellant argues that his credibility should only be challenged on what the affidavits do say and not what they do not say. [44] 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 based on the Appellant's failure to include important allegations of persecution in his narratives and testimony. The RPD noted that the Appellant's mother's affidavit contained allegations that her home and the homes of his siblings had been searched by the police. The RPD drew an adverse credibility finding based on the absence of any mention of these searches in either his testimony, his narrative and/or his amended narrative. [45] The actions of the police in Nigeria and, in particular, their pursuit of the Appellant is critical to the Appellant's allegations of persecution. It is reasonable to expect that the Appellant would have included this information in his narratives. 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 [46] The Appellant submits that, at paragraph 18 of its reasons, the RPD impugned his credibility for amending his narrative after receiving the intervention notice of the Minister. 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. The RPD Failed to Fully Consider the Appellant's Personal and Documentary Evidence Affidavits from the Appellant's Wife and Mother [47] The RPD assessed the affidavits of the Appellant's mother and wife and found that it could not afford any weight to these documents. The Appellant seems to submit that the RPD's analysis was not done in good faith but does not explain why. Nonetheless, the RAD has reviewed the RPD's analysis in this regard. The RPD gave the affidavits no weight citing the circumstances of the timing and production of the affidavits and serious omissions from the affidavits. The RAD finds that the RPD's findings in this regard are problematic. [48] The RPD seems to suggest that, by virtue of the fact that the affidavits were received after the intervention of the Minister and the fact that they serve to undermine the Minister's evidence, they cannot be relied upon. In this regard, the RPD's analysis is misguided. It is completely understandable that the Appellant would tender evidence in response to the intervention and evidence of the Minister. The timing of the Appellant's submission therefore cannot be held against him. [49] 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 any 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 indicated in his BoC narrative that his wife's attitude towards him was softening and that they were trying to restore their marriage, or that the Appellant's Facebook page would have reflected the hostility in his relationship with his wife given that, at the time he submitted his first narrative, he alleges they were embroiled in a bitter dispute over his sexual orientation. [50] In addition, the RAD notes that affidavits do not explain away the credibility concerns raised by the Appellant's communications with his other "friends" on his Facebook page. 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. [51] The RAD finds that, with these findings together with the RPD's findings with regard to the deficiencies it noted in the affidavits, it was open to the RPD to place little weight on these affidavits. [52] The Appellant further submits that the RPD erred when it used part of the contents of the supporting affidavits to undermine the credibility of the Appellant. The Appellant argues that this amounts to "reprobating and approbating at the same time". The Appellant argues that the law does not allow the RPD to reject a document or "place no weight" on a document and then subsequently use a portion of that document to impugn the credibility of the Appellant. The Appellant relies on the Federal Court decision, in Tekie,14 to support his argument. The RAD finds that the circumstances in that case are distinguishable from the circumstances in this case. In the case at hand, the RPD used the inconsistencies between the documents and the Appellant's testimony to assess the credibility of the allegations of the Appellant. The RPD notes that the sworn statements are in conflict with one another. The RAD finds that, accordingly, it was open to the RPD to prefer one over the other or to find that neither can be relied upon. The RAD finds that the Appellant's argument fails in this regard. DVD and Letters of Support [53] 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. [54] 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. The RPD's Credibility Findings were Microscopic in Nature [55] The Appellant submits that the RPD failed to focus on the primary issue, specifically, the sexual orientation of the Appellant and his risk of persecution. The Appellant argues that the RPD "fixated extensively on marginal and or tangential issues15" which have little bearing on the claim. In his pleadings, the Appellant identifies the following findings of the RPD as "marginal or tangential issues." (a) The RPD's finding in relation to the Appellant's love messages to his wife on his Facebook account; (b) The RPD's findings in relation to the Appellant's testimony concerning the terms of extortion. [56] The RAD is not persuaded by the Appellant's argument in this regard. The Appellant argues that little turns on the credibility findings of the RPD; however, the Appellant fails to explain how the evidence in the record supports this argument. The RAD agrees that the central issue is the sexual orientation of the Appellant and his risk of persecution. However, it was necessary for the RPD to assess the credibility of that central allegation. The Appellant has provided evidence of his sexual orientation, and this required the RPD to assess the credibility of that evidence. [57] The RAD notes that the Appellant's true relationship with his wife and the nature of the alleged extortion are key to the credibility of his allegations that she was extorting him due to her discovery of his bisexual orientation. The RAD finds that the findings of the RPD are relevant to the primary issue of the Appellant's sexual orientation and his risk of persecution. Accordingly, the Appellant's argument fails. SECTION 97 ANALYSIS [58] 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. [59] 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 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 [60] The RAD reviewed the evidence on the record and finds there is sufficient evidence to find 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. [61] Accordingly, the Appellant's appeal fails. (signed) "L. Favreau" L. Favreau October 7, 2014 Date 1 Exhibit P-2, Appellant's Record, Memorandum, p. 109, para.2. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 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). 4 Raza, para. 16. 5 Raza, para. 13.5(b) 6 Raza, para. 13.5(a) 7 Raza, para. 13.3(b) 8 Raza, para. 13.5(a) 9 Raza, para. 13.3(a). 10 Raza, para. 13.5(b) 11 Exhibit P-2, Appellant's Record, transcript, p. 58, para 5. 12 Exhibit P-2, Appellant's Record, RPD's Reasons p. 8, para. 14. 13 Exhibit RPD-1, Minister's Exhibits, p. 134. 14 Tekie, Estifanos Hagos v. M.C.I. (F.C. no., IMM-2093-04), Phelan, January 12, 2005; 2005 FC 27. 15 Exhibit P-2, Appellant's Record, Memorandum of Argument, p. 113, para. 15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05525