VB9-06459

RAD File / Dossier de la SAR : VB9-06459 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision August 26, 2020 Date de la décision Panel Kim Polowek Tribunal Counsel for the person who is the subject of the appeal Tessa M. Cran Barrister and Solicitor Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal. XXXX XXXX (Appellant) is a citizen of Nigeria. His claim for refugee protection was denied by the Refugee Protection Division (RPD) on October 23, 2019 on the basis of credibility. The Appellant fears persecution and harm in Nigeria arising from his sexual orientation as a bisexual. [2] The Minster intervened at the RPD on the basis of credibility and program integrity. [3] On appeal, it is argued that the RPD erred in its credibility analysis, failed to give appropriate weight to the Appellant's documentary evidence, and failed to apply the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guideline).1 [4] I find that the determinative issue in this case is credibility. I agree with the RPD that the Appellant's allegations are not credible and he will not be subject to a serious possibility of persecution or probability of harm upon his return to Nigeria. DECISION [5] I dismiss this appeal. The RPD was correct in finding that the Appellant is neither a Convention2 refugee nor a person in need of protection. NEW EVIDENCE [6] I have rejected the new evidence presented by the Appellant. [7] The Appellant submitted a statutory declaration from his mother, XXXX XXXX XXXX,3 with a date of what appears to be XXXX XXXX, 2019. [8] According to the law,4 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [9] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.5 [10] I have reviewed the statutory declaration from the Appellant's mother and I decline to accept it. There is nothing within this statutory declaration in terms of new information which arose after the Appellant's RPD hearing and furthermore, I find that the Appellant provided a letter from his mother at his RPD hearing with contents of similar nature.6 The key differences between the letter provided by the mother at the RPD hearing and the one which has been submitted as new evidence all relate to credibility findings at the RPD. There is no explanation provided to me as to why the Appellant could not have provided a letter from his mother with these same contents to the RPD. I find that this information is not new, was reasonably available to the Appellant to provide to the RPD and I reject it. The purpose of section 110(4) of the Immigration and Refugee Protection Act (IRPA)7 is to allow an Appellant to provide the Refugee Appeal Division (RAD) with information that arose after the decision date, or was not reasonably available or that the Appellant could not reasonably have been expected in the circumstances to have presented. Section 110(4) is not to be used to complete a deficient record submitted before the RPD.8 ANALYSIS [11] My role is to look at all the evidence and decide if the RPD made the correct decision.9 The RPD found that the Appellant was not credible given numerous material contradictions and omissions between the Appellant's Basis of Claim (BOC) form, his initial refugee referral documents, his oral evidence and the filed corroborative evidence. For reasons which I will outline below, I agree with the RPD that the Appellant was not credible. The RPD did not violate SOGIE Guidelines [12] The Appellant submits that the RPD erred when it failed to apply the SOGIE Guideline, erred by not mentioning the SOGIE Guideline in the decision, was not sensitive to the complex and nuanced nature of this claim and arrived at negative credibility findings simply because the Appellant does not conform to the RPD member's picture of a bisexual man. [13] First, I do not see it as a fatal error that the RPD did not specifically mention the SOGIE Guideline in the final decision. The RPD Member was clearly mindful of the relevance of the SOGIE Guideline and mentioned specifically at the outset of the hearing that the SOGIE Guideline would be followed in the hearing and would be a consideration in their final decision. [14] More importantly, having listened to the entire hearing and reviewed the written transcript in the Appellant's Record, I do not agree that the RPD Member violated the SOGIE Guideline. I find that the RPD Member's questioning was appropriate and omissions and inconsistencies in the evidence were confronted respectfully. Overall, I find that that the RPD Member appropriately confronted and questioned the Appellant in a manner which was necessary to solicit information and generally avoided common errors that the SOGIE Guideline seeks to forestall. [15] The Appellant has argued that the RPD erred in its credibility findings by failing to be sensitive to SOGIE issues and its application of the SOGIE Guideline and substituted her own beliefs as what the Appellant should have or would have done as a bisexual man. [16] In the credibility assessment which I have detailed below, I am mindful of the SOGIE Guideline that it is difficult to testify about one's sexual orientation and that some may be reluctant or hesitant to do so, and the decision-maker should be alert to cultural, psychological or other barriers that may explain the manner of their testimony.10 I have also considered that even where there are significant gaps in the credibility of a refugee Claimant, which I find to be the case here, this does not necessarily warrant the conclusion that they have lied about their sexual orientation.11 I have also considered the SOGIE Needs Assessment report which was completed by the Centre for Newcomers.12 However, I have considered such factors and find they do not sufficiently explain the numerous material contradictions and omissions between the Appellant's BOC form and his initial refugee referral documents, his oral evidence and corroborative evidence. I observe that the Appellant is competent in the English language and there is no evidence before me, such as medical or psychological evidence, that could further explain the credibility concerns observed which I find undermine the overall credibility of his allegations and fear of forward-looking risk. The RPD did not err in its assessment of the Appellant's credibility [17] I have listened to the hearing and reviewed the evidence and find that the RPD did not err in its assessment of the Appellant's credibility. The RPD was correct to find that the Appellant's allegations were not credible, and that he was not a credible witness overall given material omissions and contradictions between the Appellant's testimony and his other evidence. [18] Furthermore, the corroborating documents do not sufficiently assist the Appellant in supporting the central elements of his claim or overcoming the credibility concerns arising from the oral testimony. The following will review these credibility concerns in more detail and the arguments submitted for this appeal. The Appellant's Sexual Relationship and Sexual Identity in Nigeria - Relationship with a Man Named XXXX Not Credibly Established [19] The Appellant states that he is bisexual, was involved in a relationship with a man named XXXX in Nigeria and experienced two occasions in Nigeria when persons saw them together. The first occasion was on his birthday and the second occasion was a week later when they were walking down the street together. [20] The RPD compared XXXX letter to the Appellant's evidence and found six credibility concerns.13 As a result, the RPD drew a negative inference about the Appellant's credibility and the credibility of his bisexuality in Nigeria. [21] On appeal, it is submitted that the RPD's credibility findings related to the Appellant's relationship with XXXX in Nigeria are in error, as there was documentary evidence before her in the form of letters from XXXX and his mother to corroborate it. It is also argued that the RPD erred by impugning the Appellant's credibility because XXXX did not write about the incidents which occurred in Nigeria. It is submitted that as XXXXstill resides in Nigeria, he could have personal reasons as to why he did not want to write a detailed letter about a homosexual relationship that he previously had. [22] I have independently reviewed the credibility findings outlined in paragraph [1] through [6] of the RPD's decision as it relates to the Appellant's stated relationship with a man named XXXX in Nigeria and find no error in their analysis of the evidence. Further, I do not agree with the Appellant that there was credible corroborate documentary evidence of the Appellant's bisexuality in Nigeria, namely the letters from XXXX and the Appellant's mother. The RPD gave no weight to the letter from XXXX or the Appellant's mother because there were material contractions and omissions with the Appellant's evidence. I see no error in this approach. I would also add an additional concern with this documentary evidence which is the fact that the letter from the mother14 and XXXX15 were submitted with no identity documentation. When asked at the hearing why there were no identity documents with the letters, the Appellant replied, "I didn't know, if I had known I would asked them to."16 Further, there is an additional credibility concern arising from the Nigerian documentary evidence and that relates to the Nigerian police report. The Appellant submitted a Nigerian police report which contradicted his oral evidence. The police report indicates that the Appellant went to police twice17 but it was in the Appellant's testimony that he only went once.18 On appeal, the credibility finding relating to the police report is not rebutted. [23] The Appellant's submits that XXXX XXXXbecause he resides in Nigeria, may have had personal reasons as to why he did not want to write a detailed letter about a homosexual relationship. I do not find this to a persuasive or adequate explanation for why the stories between the Appellant and XXXX differ on so many key elements, as I note that XXXX letter is two and a half pages in length,19 and I find it to be quite detailed about XXXX past sexual experiences. I also disagree with the Appellant that these are minor differences or that these differences are microscopic in nature. These differences which I find to be related to key elements of the Appellant's claim are outlined in detail in the RPD decision at paragraph [1] through [6], and as I find this analysis to be correct, I will not repeat it in my decision. The credibility problem, which I find to be an important one, is that the story outlined by the Appellant in his BOC form is not the same story described by XXXX and I find that there is no adequate explanation to account for this. The RPD asked the Appellant repeatedly why there were differences between XXXX letter and his account and his only explanation was that he did not know.20 [24] The Appellant also takes issue with the RPD finding credibility concerns with the letter written by the Appellant's mother and the fact that the mother fails to mention the connection between the Appellant's brother's death and the Appellant's sexuality. It is argued that it is simply unreasonable for the RPD Member to have speculated that because the Applicant's mother did not specifically mention the reason for her son's death, the Applicant's testimony and BOC narrative were not credible. The lack of weight given to his mother's letter is therefore erroneous as the RPD Member based her conclusion on her own subjective views of what a letter should say. [25] In response to the Appellant's concerns with the weight of the letter from the mother, I first find that the RPD was not only concerned about the fact that the letter made no mention of her son's death being connected to her son's bisexuality, but also found two material contradictions between the mother's letter and the Appellant's evidence. The first contradiction was that the mother's letter indicated that the Appellant and XXXXwere caught together at work,21which is an event not described in the Appellant's BOC form. A further difference is the mother stating in her letter that when they were caught in the car it caused "every person to come and look at them inside the motor."22 When confronted with these differences, the Appellant's response was that someone else had told his mother this and she was just writing what she knows.23 I agree with the RPD that the mother's letter has key differences which are not adequately explained by the Appellant and as such, is a document which is of no weight in corroborating key elements of the Appellant's claim. [26] Turning to the RPD's treatment of the omission in the mother's letter regarding the circumstances of her son's death, which the Appellant states in his BOC form was due to his brother trying to defend him from people calling him the shame of the community, I agree with the RPD that this is a material omission in the mother's letter. When confronted with the omission, the Appellant stated that he could not explain it.24 While I agree that evidence must be assessed for what it does say, in these circumstances, I do not consider the RPD noting the omission of the reason for the brother's death to be a fatal error. Importantly, the omission in the mother's letter is not the sole reason for impugning the Appellant's credibility and giving no weight to the letter. As noted, there were other material contradictions between the mother's letter and other evidence. As such, I find that the RPD's treatment of the letter from the Appellant's mother to be correct overall. Centre for Newcomers Report [27] The RPD drew a negative inference to what he disclosed to his counsellor, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXat the Centre for Newcomers in Calgary. In this regard, the RPD Member found XXXX XXXX XXXXreport was incomplete given that the Appellant failed to disclose details relevant to his life, sexuality and relationships, including such matters as the length of time he had been involved with his wife, the fact that they had married and that she was three months pregnant. The RPD also found that XXXX XXXX XXXX statements materially contradicted the Appellant's testimonial evidence. For example, the RPD observed that XXXX XXXX XXXXreport states that the Appellant told him in session that he has "met men through social media" and "one man with whom he had developed some affection",25 yet the Appellant testified that there was only one man who he had ever communicated with on a social media in Canada. The RPD ultimately found that XXXX XXXX XXXXreport and testimony undermined the Appellant's claim and sur place considerations relating to what had happened since leaving Nigeria. [28] On appeal, it is submitted that the RPD erred in its treatment of this report because the Appellant comes from a homophobic country and is trying to work through his bisexuality with his counsellor and would thus reasonably focus on the aspect which deals with his attraction to men. Further, it is submitted that the RPD Member's finding that the inconsistencies between the Appellant's account of the incidents that occurred and XXXX letter made him not credible, and is nothing more than a microscopic examination of details that do not go to the main crux of the Applicant's claim. Finally, it is argued that the RPD Member's findings in this case are clearly unreasonable and inconsistent with the SOGIE Guideline, which states that "decision-makers also need to be careful that the inconsistencies are not based on stereotypes or inappropriate assumptions."26 It is argued that it makes sense that the Appellant would not disclose his marriage to a woman when he is a bisexual male who has fled Nigeria. [29] I am not persuaded that the RPD erred in its treatment of the Newcomers report. What is not disputed is the fact that the Appellant was not fully disclosive with XXXX XXXX XXXX about all his relationships. For example, it is not disputed on appeal that the Appellant failed to disclose to XXXX XXXX XXXX the seriousness of his relationship with his now wife, the fact that he had in fact married her and that his wife was three months pregnant. Given that the Appellant is alleging a bisexual sexual orientation, both male and female relationships are relevant. Further, I do not see an error on the part of the RPD being concerned about the credibility of the Newcomers report given the Appellant's lack of disclosive-ness when other findings regarding the Appellant's failure to share information about his relationships are taken into consideration. As noted by the RPD, the Appellant failed to disclose in his refugee documentation that he was a married man in the United States and came to Canada married. When asked by the RPD why he stated he was single and did not list his wife in his BOC form, the Appellant explained that the reason why was because he was going through a divorce so thought it was not necessary for him to put down that information.27 I agree with the RPD that this explanation is inadequate to account for the omissions of details regarding his married life in the United States. When added with other omissions related to relationships,28 such as the Appellant's failure to disclose a failed spousal sponsorship in the United States until revealed by the Minister, I find that it was correct for the RPD to cast doubt on the Appellant's credibility as it relates to his relationships. I agree with the RPD that all relationships of the Appellant are material to a bisexual orientation claim and the noted omissions of the Appellant regarding his relationships correctly impugn his overall credibility. Thus, I do not agree with the Appellant that omissions related to his relationships, such as his Canadian marriage and pregnancy, a five year marriage in the United States, or a failed spousal sponsorship are adequately explained. [30] Further, I agree with the RPD that there are material contradictions between the report of XXXX XXXX XXXX and the Appellant's testimony relating to his relationships with men which are not reasonably explained. I disagree with the Appellant that the RPD was microscopic in noting these concerns, particularly given the Appellant's selective and lack of disclosure to XXXX XXXX XXXX as noted above. In XXXX XXXX XXXXreport he indicates as follows: "...he has met men through social media. This includes one man with whom he has developed some affection."29 XXXX XXXX XXXXreport also stated "he has described several relationships with both men and women."30 This evidence was contradicted with the Appellant who testified that he had no relationships with men in either South Africa or the United States, and since being in Canada, testified that there was only ever one man he had communicated with, namely a man named XXXX XXXXand this took place on a social media dating app called Plenty of Fish. The Appellant was asked by the RPD why XXXX XXXX XXXX would say he had met more than one man online and he stated he did not know. The RPD asked the Appellant why he did not submit the online conversation between him and XXXX as evidence and the Appellant stated that he did not do so because the relationship did not go beyond text messaging and it did not feel like a relationship. [31] I have considered carefully the Appellant's argument that the acts and behaviours which establish someone's sexuality are inherently private and the fact that the Appellant fled Nigeria, a country where homosexuality is illegal, reasonably explained why the Appellant may have been vague and secretive when divulging personal details of his life. In the circumstances of this case, however, this does not adequately explain the numerous material omissions and contradictions observed by the RPD and some of which I have outlined above. I find that these are not insignificant or microscopic in nature. In this case there are also credibility concerns which arise from issues unrelated to SOGIE, such as the Appellant's failure to disclose a failed spousal sponsorship in the United States or his marital status. There are also additional credibility findings of the RPD which are not disputed on appeal such as the Appellant's submission of a police document, which contradicted his evidence. The police report indicates that the Appellant went there twice31 but it was in the Appellant's testimony that he only went once.32 [32] The Appellant has the burden of proof to establish that it is more likely than not that the facts in his narrative occurred. As part of this evaluation, the credibility of the evidence is in issue. Thus, I find that the Appellant is not credible in fearing persecution or harm due to his bisexuality and that the determinative elements of his claim have not been established, on a balance of probabilities. His supporting documents are insufficient to overcome the credibility concerns. CONCLUSION [33] Having considered the totality of the evidence and based on the foregoing, I find that the Appellant is generally not credible. I determine that the Appellant has not satisfied his burden of establishing that he is a Convention refugee or a person in need of protection, pursuant to section 96 and subsection 97(1) of the IRPA,33 as he does not face a serious possibility of persecution, and because his removal to Nigeria would not subject him personally, on a balance of probabilities, to a risk to his life, or a risk of cruel and unusual treatment or punishment, or to a danger of torture. [34] I dismiss the Appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the IRPA.34 The claim for protection therefore fails. (signed) Kim Polowek Kim Polowek August 26, 2020 Date 1 Immigration and Refugee Board of Canada, Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Effective date: May 1, 2017. 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 3 Exhibit P-2, Appellant's Record, at p. 53. 4 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 110(4).. 5 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230; Canada (Citizenship and Immigration) v. Raza, 2007 FCA 385. 6 Exhibit RPD-1, RPD Record, at p. 134. 7 IRPA, section 110(4). 8 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230. 9 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 10 Supra, at endnote 1, at item 3.3: Understanding the challenges faced by individuals with diverse SOGIE in establishing their SOGIE, and item 7.6: Vagueness. 11 Kandel v. Canada (Citizenship and Immigration), 2014 FC 659, at para. 29. 12 Exhibit RPD-1, RPD Record, at p. 126-129. 13 Exhibit RPD-1, RPD Record, RPD decision, at para. 1-6. 14 Exhibit RPD-1, RPD Record, at p. 134. 15 Exhibit RPD-1, RPD Record, at p. 137. 16 Exhibit P-2, Appellant's Record, RPD Transcript, at p. 16. 17 Exhibit RPD-1, RPD Record, at p. 130. 18 Exhibit P-2, Appellant's Record, RPD Transcript, at p. 19. 19 Exhibit RPD-1, RPD Record, at p. 137. 20 Exhibit P-2, Appellant's Record, RPD Transcript, at p. 17. 21 Exhibit RPD-1, RPD Record, at p. 134. 22 Ibid. 23 Exhibit P-2, Appellant's Record, RPD Transcript, at p. 18. 24 Ibid. 25 Exhibit RPD-1, RPD Record, at p. 129. 26 Supra, at endnote 1, at item 7.4: Inconsistencies. 27 Exhibit P-2, Appellant's Record, RPD Transcript at p. 28. 28 Exhibit RPD-1, RPD Record, Minister's evidence, at p. 100. 29 Exhibit RPD-1, RPD Record, at p. 129. 30 Exhibit RPD-1, RPD Record, at p. 127. 31 Exhibit RPD-1, RPD Record, at p. 130. 32 Exhibit P-2, Appellant's Record, RPD Transcript, at p. 19. 33 IRPA, section 96 and section 97(1). 34 IRPA, section 111(1)(a). --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-06459 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français