TB4-04698

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 : TB4-04698 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 September 24, 2014 Date de la décision Panel Roslyn Ahara 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 XXXX, a citizen of Nigeria, is appealing his decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has not submitted new evidence in support of his appeal. He is requesting that the Refugee Appeal Division (RAD) find him to be a Convention refugee or, in the alternative, that the matter be referred back to a newly-constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to subsection (111(1)(a), the Refugee Appeal Division confirms the determination of the RPD and dismisses the appeal. Background: [3] The Appellant is from XXXX XXXX XXXX XXXX XXXX State, Nigeria. His claim is based on his bisexuality. Given the attitudes in Nigeria, the Appellant does not believe that he can obtain any state protection anywhere in Nigeria. [4] The Appellant had his first same sex relationship at the age of 19 in his first year of University. During his second year, he and XXXX developed a sexual relationship, which lasted two years. Afraid of being caught, the Appellant began focusing on school and dating women. [5] In early 2009, when the Appellant began XXXX XXXX XXXX XXXX XXXX, he had a brief affair for a few months with a XXXX XXXX. However, XXXX returned to South Africa and that ended the relationship. [6] By this time, the Appellant's parents began to question him about getting married. In early 2013, he started working at the XXXX, where he met XXXX XXXX. They dated for a few months before it ended because he was too demanding and possessive. When the Appellant broke up with XXXX, he called him daily for weeks asking him to reconsider. All this stress added to the constant harassment at home to find a wife, causing the Appellant to think of a vacation. He applied for a visa to visit Canada in XXXX 2013, which was granted the following month. He left Nigeria on XXXX XXXX, 2013. [7] On XXXX XXXX, 2014, the Appellant called his father to make arrangements for him to pick him up at the airport as he was to return home in a few days. His father told him very angrily that the police had arrested his friend XXXX for being a homosexual and that XXXX had given them the Appellant's name. He also discovered through his father that his neighbours and uncles had heard the news. Although he pleaded with his father to forgive him, he was told not to return or he would rot in a Nigerian jail or be killed. [8] The Appellant was aware that he had to extend his visa; he met with a lawyer who informed him of the refugee process. Meanwhile, the Appellant learned from his father that the police had returned on XXXX XXXX, 2014, promising to leave no stone unturned until he was found and brought to justice. ROLE OF RAD [9] Counsel has made submissions on the standard of review, however a recent Federal Court decision in Huruglica1 has provided the RAD with guidance in relation to the appropriate role of the RAD with respect to the decisions of a first level administrative tribunal. The Federal Court found that the RAD had erred in applying a traditional standard of review analysis and in reviewing the RPD decision on the standard of reasonableness. 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 [10] Counsel submits that the RPD erred in its credibility findings by basing them largely on peripheral matters, thereby not assessing the well-foundedness of the claim. [11] He asks the following: * Did the RPD err through an incorrect assessment of the evidence before it? * Did the RPD err by ignoring and misconstruing relevant evidence that directly contradicts the conclusion that the RPD reached? * Did the RPD err by impugning the credibility of the Appellant based on peripheral issues? * Did the RPD err by failing to conduct a thorough s. 97 IRPA analysis? DETERMINATIVE ISSUE [12] The determinative issue is credibility with respect to the Appellant's identity as a bisexual. Psychotherapist Appointment (day of partner's hearing) [13] The RPD questioned the Appellant as to why he had not attended his partner's refugee hearing on March 7, 2014. Initially, he stated that he had been ill, however he was unable to corroborate this by way of medical evidence. However, at the second sitting, the RPD noted that the Psychotherapist's report indicates his attendance on that day. His explanation that, when he made this appointment, he was not ill, was not accepted by the RPD. [14] The Appellant argues that had he testified at his partner's refugee hearing, it would have negatively impacted, given his illness. Moreover, the Appellant submits that the Psychotherapist stressed the importance of his appointment. [15] The RAD concurs with the RPD that the contradictory statement made initially by the Appellant undermines his credibility. He was not forthcoming and it was only when confronted by the RPD, with respect to the contents of the Psychotherapist's report, that it became known that the Appellant had attended a session for the purposes of this report. Psychotherapist's Report [16] The RPD disbelieved that there would have been no discussion with the Psychotherapist concerning his partnership with Mr. XXXX. [17] The Appellant argues that this would have been a relationship in its "honeymoon'" period, and, therefore, this was reasonable. Moreover, he submits that he simply answered questions and did not provide more information as, in the past, he has had to keep his authentic self hidden for decades. [18] The RAD finds the absence of this information in the report is a material aspect of the claim. By the Appellant's own acknowledgment he is now living in freedom, where he is able to frequent anywhere and express his feelings without fear. In speaking to the therapist, it would be reasonable to expect him to divulge his current relationship and the openness with which he testified he can now live. The RAD concurs that the absence of this information is material to the claim. [19] The RAD further finds that the report contradicts the Appellant's testimony with respect to his illness and his statement that the therapist indicated that he was not focused. The report indicates that the Appellant co-operated fully, had direct eye contact and responded directly to the questions. In the absence of a reasonable explanation from the Appellant, the RAD finds that the author of a professional report should be relied upon, casting doubts on the veracity of the Appellant's illness which, in turn, undermines the Appellant's credibility. Appellant's Visa Application for Tourism [20] The Appellant arrived in Canada on XXXX XXXX, 2013 allegedly for vacation. However, after two days in a hotel, he ended up in a basement unit of a stranger until XXXX 2014. He went to malls, including XXXX XXXX XXXX, and, apart from this, he provided very little evidence of a purported vacation. The RPD found his testimony surrounding his time spent in Canada to be unfocused, vague and implausible that he would travel alone in the middle of winter simply to do some shopping, visit malls and live in the basement rental unit of a stranger. [21] The Appellant argues that his finances were depleted, hindering his ability to spend on tourism. The RAD concurs with the RPD that, in the absence of any detailed plans, the so-called "tourism" goals were not credible. The RAD finds that if the Appellant were truly intending to spend time in Canada on vacation, he would have had specific plans and the financial resources to fund those plans. After listening to the audio recording, the RAD finds that it revealed very vague plans and the only specific place he visited was XXXX XXXX XXXX. Relationship with his first male partner: [22] The RPD found the testimony surrounding the Appellant's relationship with Folami to be vague and lacking in details. After listening to the audio recording of the proceedings, the RAD finds that it would have been reasonable for the Appellant to provide more details surrounding this relationship. Given that this relationship was his alleged first male intimacy, and it lasted two years, the RAD agrees with the RPD that this undermines the credibility with respect to his sexual orientation. Corroborative documents: [23] The Appellant submits that the RPD ignored the corroborative documents, including the affidavits, letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX and the XXXX XXXX XXXX XXXX XXXX, which spoke to the sexual orientation of the Appellant. [24] With respect to the Affidavits, the Appellant submits that the RPD did not turn its mind to the substance of these affidavits, but rather to the quality and the prevalence of fraud in Nigeria. [25] The affidavits, as acknowledged by the Appellant, were submitted by the courts in Nigeria. The RPD gave them little weight due to the typographical errors, the white-outs and typed over discernible characters, acknowledged by the Appellant. The Appellant was unable to explain these irregularities. However, after the mid-morning break, he provided a full explanation of how he had been to court and was aware of the process in which errors are corrected in this manner. This begged the question as to why the Appellant had not explained this in the first instance, causing the RPD to find this sudden insight lacking in credibility. After listening to the audio recording, the RAD concurs with this finding as the Appellant was unable to provide any explanation whatsoever for the irregularities. The RAD also took note that the RPD was mindful of different standards being applied in other countries. [26] With respect to the letters, the RAD finds that they confirm the Appellant's participation in their respective organizations. However, they do not add or detract from the Appellant's identity as a bisexual, in that they provide no proof of his sexual orientation. We also concur with the RPD that, given the repeated testimony from the Appellant that he was an introvert and, therefore, did not frequent public places on a regular basis, the RAD questions the motivation of the Appellant in this regard. [27] With respect to the video, which the Appellant submits presents a future risk as it appears on YouTube, the RAD concurs with the RPD that, in the absence of identification of the Appellant or its country of origin, this video does not present a future risk to the Appellant. Moreover, although the Appellant argues that credibility findings such as this are peripheral to the claim, the RAD does not concur. Appellant's Partner's Testimony: [28] The sole error on the part of the RPD was failing to mention the testimony of the Appellant's alleged male partner in its reasons. However, the RAD has considered this testimony and finds that, although this testimony was uncontradicted, the witness simply repeated portions of the Appellant's testimony provided three weeks earlier. The RAD finds that the testimony of the witness does not overcome the cumulative credibility findings of the RPD. Based on the totality of the evidence, the RAD does not believe that the Appellant was in a genuine relationship with Mr. XXXX or that he is, in fact, a b-sexual who had reason to fear returning to Nigeria due to his sexual orientation. Section 97 findings: [29] The Appellant submits that the RPD did not make a finding on section 97 of the IRPA. However, the RAD finds that this was not necessary in light of the fact that the credibility findings, that lead to the conclusion that the Appellant fears based on his sexual orientation, were not well-founded. The RPD ultimately found that the Appellant was not bisexual and therefore these findings extend to s. 97 of IRPA and would result in a negative determination under both grounds of s. 96 and 97 of IRPA. Credibility Findings: [30] After examining the entire record and listening to a very thorough line of questioning by the RPD, the following credibility findings lead to the RPD's conclusion that the Appellant's fears due to his sexual orientation were without merit. The RAD finds that the RPD's credibility findings were not made in isolation, but rather they were based on the lengthy questioning of the Appellant and the contents of the record and this lead to negative credibility findings with respect to the material aspects of the claim. [31] The testimony surrounding an alleged two-year intimate relationship (his first) was lacking in detail, thus not providing sufficient persuasive evidence. [32] The purpose of the Appellant's trip to Canada, i.e. as a tourist, was not credible. [33] The reason for not attending the Appellant's partner's refugee hearing was contradictory. [34] The Psychotherapist's report, authored by a professional individual, contradicts testimony of the Appellant with respect to his illness and his ability to focus on issues. [35] Although not stated in the RPD Reasons, after listening to the audio recording of the proceedings, the RAD found the Appellant's response with respect to his relationships with women to be lacking in credibility. Initially, he stated that such relationships provided "protection" or a cover-up. Later, however, he stated that he enjoyed the company of females, casting doubt on the veracity of his bisexuality. [36] Counsel for the Appellant submits that the RPD made findings on peripheral issues and not the central issues of the claim. With all due respect, the RAD disagrees. The foregoing credibility concerns, in the RAD's opinion, are material to the credibility of the Appellant and his reasons for initiating a refugee claim. [37] The burden of proof is on the Appellant to provide sufficient persuasive evidence, in this case, to lead the Board to conclude that his fears of returning to Nigeria are as a result of his sexual orientation. After examining the entire record, the Appellant has failed to provide such evidence, and the RAD concurs that he has not established his identity; namely, as a bisexual. The RAD also notes that the Appellant is a well-educated individual, who was able to provide sophisticated responses to questions posed by the RPD. [38] The sole error on the part of the RPD was failing to mention the testimony of the Appellant's alleged male partner in its reasons. However, the RAD finds that, although this testimony was uncontradicted, this evidence does not overcome the cumulative credibility findings of the RPD. Based on the totality of the evidence, the RAD does not believe that the Appellant was in a genuine relationship with Mr. XXXX or that he is, in fact, a bisexual who had reason to fear returning to Nigeria due to his sexual orientation. [39] Having conducted an independent assessment of all of the record, the evidence, and the RPD reasons, the RAD concurs with the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [40] For the foregoing reasons, 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 September 24, 2014 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-04698