TB4-02325

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 : TB4-02325 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal 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 October 29, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Cari Gombinsky 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 Bobette Jones-Keita Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, a citizen of Nigeria, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal and he is requesting an oral hearing. The Appellant is asking that the Refugee Appeal Division (RAD) accept his claim for protection. DETERMINATION [2] Pursuant to ss. 111(1)(a) of IRPA, the Refugee Appeal Division (RAD) confirms the determination of the RPD and dismisses the appeal. Background: [3] The Appellant's claim is based on his sexual orientation, namely, bi-sexual. His first relationship with a male was for a period of three years, between 1990 and 1993. Due to pressure from his family, the Appellant began dating women and bore two sons. In 2001, he began dating a male, however his uncle discovered the relationship and threatened to kill him if he didn't stop seeing him. Two days later, the Appellant's uncle demanded that he leave Nigeria, failing which his secret would be exposed. His uncle assisted him in obtaining travel documents to travel to the United States (U.S.) [4] The Appellant remained in the U.S. without status for four years. However, in XXXX 2005, he returned home upon learning the news that his uncle had died in a car accident. The Appellant settled down and he dated a woman for a period of almost three years, when she ended the relationship because the Appellant did not want to enter into a marriage. He then entered into a relationship with a male from 2011 until 2012. However, in August 2012, their relationship was exposed. His partner's uncle discovered them and the following day he came looking for the Appellant. For the next few weeks, the Appellant lived in hiding until he was able to find an agent to assist him in leaving Nigeria for Canada. [5] The Appellant alleges that since he knew nothing about the Immigration process in Canada, he assumed Canada was like the U.S. with no chance of help. He began dating a girl, who promised to sponsor him. However, on XXXX XXXX, 2012, she discovered that the Appellant had cheated on her with a male. The building security observed them arguing and the Appellant was arrested and charged with assault, for which he was given one year probation and a conditional discharge. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL EXPRESS STATUTORY CONDITIONS [6] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [7] If the statutory requirements have been met, the panel must then consider the factors in Raza,1 in which the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA, Section 110(4), it is based on the very similar wording of Section 113(a) for the PRRA (Pre-Removal Risk Assessment). The Court held that new evidence should be considered for its newness, credibility, relevance, and materiality, in addition to any express statutory provisions. NEWNESS [8] Is the evidence new in the sense that it is capable of: * Proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or, * Proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or, * Contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. CREDIBILITY [9] Evidence that passes the test in Section 110(4) must be assessed for credibility. The RAD must determine whether the evidence is credible, considering its source and the circumstances in which it came into existence. RELEVANCE [10] The RAD must consider whether the evidence is relevant to the appeal. Is it capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. MATERIALITY [11] Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been available to the RPD? If not, the evidence need not be considered. [12] The following evidence was submitted by the Appellant to the RAD and must meet the test described above in order to be admissible: * A Statutory Declaration from XXXX XXXX, dated May 07, 2014, in which he corroborates that he was dating the Appellant while the Appellant was in a relationship with a female, causing the argument which lead to the Appellant's arrest. * A Sworn Affidavit dated April 28, 2014 submitted by Ms. XXXX XXXX, sister of Appellant's previous partner XXXX XXXX. NOTICE OF INTERVENTION BY THE MINISTER: [13] The Minister submits that the Appellant's evidence does not meet the requirements for new evidence as set out in subsection 110(4) of IRPA. The Minister submits that the new evidence does not satisfy the requirement of the Raza factors. [14] The Minister further notes that the Statutory Declaration from XXXX XXXX states that he met the Appellant in 2012 and they separated in 2012. Accordingly, the Minister submits that this declaration could reasonably have been available at the time of the hearing and, therefore, is not new evidence. Moreover, in the absence of the months or details surrounding their frequency of communication, the Minister argues that the declaration does not provide any relevant or material information to overcome the credibility deficiencies in the Appellant's claim. [15] The Minister further submits that the affidavit from XXXX XXXX, with respect to her brother XXXX XXXX does not satisfy the Raza factors of newness and the express statutory conditions. REPLY FROM THE APPELLANT [16] With respect to the affidavit from XXXX XXXX, the Appellant alleges that he had lost contact with his former partner and, notwithstanding efforts, he was unable to locate him. [17] He alleges that XXXX XXXX was actually in Toronto on XXXX XXXX, 2014 and he contacted the Appellant. He had not maintained contact as he bore some responsibility for the physical disagreement between the Appellant and his partner, XXXX. Accordingly, this Affidavit was not reasonably available prior to the rejection of the claim. RAD'S CONCLUSION [18] The RAD finds that the Sworn Affidavit submitted by Ms. XXXX XXXX, sister of the Appellant's previous partner, XXXX XXXX, could reasonably have been available prior to the rejection of the claim, as this would have corroborated the relationship between the Appellant and his previous partner. Moreover, the Appellant has not provided an explanation as to why it was not available. Accordingly, this document does not meet the statutory requirement and is therefore not admitted. [19] With respect to the statutory declaration from XXXX XXXX, the RAD finds that it meets the statutory requirement. However, it does not meet the factors as set out in Raza. Firstly, this affidavit provides little detail of the relationship, i.e. frequency or definitive times that they began a relationship and when they severed that relationship or the cause of the separation. The RAD finds that, in the absence of the foregoing details, this document cannot be accorded any weight. Moreover, the RAD finds that it does not meet the Raza factors of "materiality" Since the RPD did not believe that the Appellant was bisexual, this declaration is not capable of changing the outcome and does not provide information to overcome the credibility deficiencies in the Appellant's claim. The RPD had listened to testimony that this "relationship" had caused the break-up with his girlfriend, which then lead to the assault charge against the Appellant. [20] Since the RAD finds that the evidence does not constitute "new" evidence pursuant to ss. 110(4) of IRPA, an oral hearing, pursuant to subsection 110(6) of IRPA, is denied. ROLE OF THE RAD [21] A recent Federal Court decision in Huruglica2 has provided the RAD with guidance, which the RAD will follow. 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." COUNSEL'S SUBMISSIONS [22] Did the RPD err in its credibility findings? The Appellant submits that the RPD erred in its credibility findings with respect to his testimony and the lack of corroborative evidence. [23] Although the Appellant has made submissions on only a portion of the credibility findings, the RAD has considered the Reasons of the RPD in their entirety3 and our analysis follows. Failure to seek protection in the U.S. and Delay in claiming in Canada: [24] The RPD canvassed the fact that the Appellant had fled to the U.S. in 2001, however he did not seek protection during the four-year period in which he took up residency without status. The RPD found the Appellant's testimony as to why he had not sought protection at that time to be contradictory. On the one hand, the Appellant initially stated that he did not understand that he could seek refugee protection in the U.S., however, later, he stated that he had been told that this would be a waste of time. This was followed by testimony with respect to his American same-sex partner, according to the Appellant, not knowing what was going through his mind when the Appellant sought his advice in this regard. [25] The RPD canvassed the fact that the Appellant had arrived in Canada in XXXX 2012 but had not sought protection until XXXX 2013. The RPD did not accept the Appellant's explanations that he was unaware of the ability to seek protection in Canada. In reaching its conclusion, the RPD considered the fact that the Appellant was internet savvy, and could therefore have researched LGBT resources as well as Government of Canada resources, having worked on the internet in his sales and research position in Nigeria from 2005-2012. [26] The Appellant made no submissions surrounding the issue of delay in claiming, however the RAD has examined this issue to determine if the RPD erred in this regard. [27] The RAD finds that this aspect of the Appellant's conduct is inconsistent with a person living in fear of persecution in their country. It is to be expected that genuine Convention refugees would seek protection as soon as is practical, once out of reach of their oppressors. The RAD is mindful, then, that one of the significant factors which speaks to subjective fear and credibility is the element of delay. Delay, in and of itself, is not normally a factor in refugee determination.4 However, it can be relevant and a potentially important consideration, where the Appellant has delayed in making a claim upon their arrival to Canada and failed to offer a reasonable explanation for the delay. In certain circumstances, however, delay can be a determinative and decisive factor.5 In the case at hand, given the lack of reasonable explanation for the delay, coupled with the sojourn in the U.S. for a period of four years without status, the RAD draws an adverse inference and finds, as a result of that delay, that the Appellant's credibility has been seriously undermined. Testimony of XXXX XXXX: [28] The RPD found that the witness' testimony contradicted the earlier testimony with respect to when the Appellant knew that he could or would be making a claim for refugee protection. Moreover, her testimony revealed on December 2012, that she had made it known to the Appellant that she would no longer be sponsoring him. [29] The Appellant was provided an opportunity to explain the discrepancy between Abiola's testimony and his testimony but he was at a loss to explain why the witness stated the foregoing. [30] In light of the foregoing, the RAD finds that the RPD's findings, with respect to "failure to claim in the U.S." and "delay in claiming" in Canada, are absent of any error, and further the RAD finds that the foregoing undermines the Appellant's credibility. Relationship with XXXX XXXX in the U.S. [31] The RPD found the testimony surrounding this alleged relationship to be vague and lacking in detail. Its finding was based on his name not being mentioned in his BOC, and the fact that the Appellant stated that he did not think he needed to include his name, even though he had named other alleged male partners. [32] The Appellant made no submissions with respect to the above. [33] After listening to the audio recording of the proceedings, the RAD is satisfied that this relationship was thoroughly canvassed by the RPD. The RAD concurs with the RPD that a three-year relationship is significant and, therefore, the omission in the BOC is noteworthy in the absence of a reasonable explanation. Given the fact that the Appellant provided names of other relationships, the RAD concurs with the RPD that this omission goes to the credibility of this relationship. Moreover, the lack of detail surrounding this relationship lead to the RPD's credibility finding, which the RAD finds is absent of any error. Lack of Corroborative Evidence: [34] The RPD found that, with respect to the affidavits, given the typographical errors and type-overs, these documents could not be considered to be commissioned affidavits. [35] The Appellant made no submissions in this regard. [36] The RAD concurs with the RPD that documents with these errors cannot be considered as official documents to corroborate the Appellant's claim or to establish his sexual orientation. [37] With respect to the photographs, the RPD acknowledged that these photos were of the Appellant and another male. However, it also found that they did not assist in establishing the Appellant's credibility in terms of his sexual orientation. [38] The Appellant submits that he provided a reasonable explanation for the lack of corroborative material. He cites the RPD's reasons (paragraph 15) wherein it states "With respect to the photographs, they are merely, in this case, photographs of you with another man. They do not, in this case, particularly given my concerns, help me to establish your credibility in terms of your sexual orientation." [39] The Appellant submits that because the photos do not really show him and his lover in extravagant sexual poses does not really imply that they could not really have a sexual relationship.6 [40] The RAD concurs with the RPD that in terms of identification as a bisexual, these photos do not establish this identity. Psychological Report: [41] The RPD gave little weight to the above report for the following reasons. It had observed the Appellant's ability to provide detailed responses over a course of three separate hearing dates and over almost five hours of testimony and found no significant difficulties in testifying. Secondly, the RPD found that this report did not assist it in terms of assessing credibility of the Appellant. [42] The Appellant submits that the RPD did not take into consideration the contents of the above report, when it accorded it no weight. [43] The RAD finds that the RPD accorded little weight, not no weight. However, having said this, the RAD finds the following. [44] The RAD notes that the RPD carefully considered this report and made a finding with respect to credibility of the Appellant's sexual orientation and, in this regard, could not accord it much weight. The RAD concurs with the RPD, after considering lengthy testimony, along with general findings of lack of credibility, the RPD's conclusions with respect to the weight accorded to this document were absent of any error. This finding is in keeping with the position of the Federal Court in Danailov.7 Letters from Black Cap and Unity Mosque [45] The RPD accorded little weight to the above, given that they were not determinative of the Appellant's motivation for attending these organizations. More importantly, the RPD noted that these activities occurred more than one year after the Appellant's arrival in Canada and coincided with the timing of his claim for refugee protection. [46] Counsel submits in general that the RPD ignored relevant corroborative evidence. [47] The RAD finds that, in terms of establishing the Appellant's identity, the RPD's assessment of the foregoing documents was absent of any error and defers to its findings. It was open to the RPD to draw a negative inference from the timing of the attendance at the organizations. CONCLUSION [48] The RAD finds that, after conducting an independent assessment of the entire record, the evidence, and the RPD reasons, it concurs with the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [49] Accordingly, this appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. (signed) 'Roslyn Ahara' Roslyn Ahara October 29, 2014 Date 1Raza, Syed Masood v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R.; Raza, Syed Masood v. M.C.I. (F.C., no. IMM-7269-05), Mosley, November 16, 2006, 2006 FC 1385; Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385 2Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 3 Ibid., footnote 2 4 Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.). 5 Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003, 2003 FC 1324; Ghasemian, Marjan v. M.C.I. (F.C., no. IMM-5462-02), Gauthier, October 30, 2003, 2003 FC 1266; Bhandal, Surjit Kaur v. M.C.I. (F.C., no. IMM-4277-05), Teitelbaum, April 3, 2006, 2006 FC 426. 6 Ndjavera v Canada (Minister of Citizenship and Immigration), 2013 FC 452 (CanLII), 2013 FC 452,(para 6) 7 Danailov (Danailoff), Vasco (Vassil) Valdimirov v. M.E.I. (F.C.T.D., no. T-273-93), Reed, October 6, 1993 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-02325