TB5-01217

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 : TB5-01217 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal 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 June 10, 2015 Date de la décision Panel Leonard Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Nicholas Owodunni Barrister and 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 (Appellant), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the Refugee Protection Division (RPD) and substitute a decision with its own determination that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD for re-determination. 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 fears returning to Nigeria for fear of persecution by reason of his bi-sexual orientation. He is married and has two children in Nigeria but alleges that while he was in Canada on a work permit his sexual orientation was discovered in Nigeria. [4] The Minister intervened in writing before the RPD and provided submission on credibility. The Appellant's refugee claim was heard on January 7, 2015. In a decision dated January 7, 2015, the RPD rejected the claim, finding that the Appellant was not a credible witness and that he had not established his identity as a bi-sexual. [5] The Appellant submits that the RPD erred in its credibility findings and failed to complete an assessment of all the evidence rendering its decision without regard to the testimony and corroborative evidence he tendered in support of his claim. ROLE OF THE RAD [6] 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,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. 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". [7] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau in Alyafi (Alyafi, Aghiad v. M.C.I. (F.C. No. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952) has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [8] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. 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 [9] As provided for in s. 110(3) of the 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 the 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. [10] The Appellant has provided a statement indicating that he intends to rely on new evidence referred to in Section 110(4) IRPA. However, the Appellant has not indicated what the new evidence is or how that evidence meets the test of new evidence as defined by 110(4) IRPA. Although the Appellant has provided an index to the Appellant Record there is no mention of new evidence. Furthermore, there is no mention of "new evidence" in the Memorandum of Argument. The RAD's own review and assessment of the evidence in the record has not resulted in that "new evidence" being identified. The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4) to determine whether the proposed new evidence meets the statutory provisions of s. 110(4). In the absence of the identification of that evidence and the lack of argument to support its admission as evidence, the RAD is unable to conduct an admissibility analysis. Accordingly, no new evidence has been admitted in this appeal. ANALYSIS OF THE MERITS OF THE APPEAL Appellant's Canadian Same-Sex Partner [11] The RPD drew an adverse credibility finding based on the Appellant's allegation that he was involved in a same-sex relationship with a male he met at XXXX. The RPD based its finding on the following: although the Appellant alleges he was he was involved in a same-sex relationship in Canada he failed to mention it in his BoC; the limited evidence of the alleged relationship; and, although he alleged his partner was willing and able to testify at his hearing, he failed to arrange for him to attend and testify at his hearing. [12] The Appellant submits that the RPD erred in rejecting his explanation that he did not mention his same-sex partner in his BoC because he did not believe it was necessary. He argues that he only feared persecution in Nigeria because of his bi-sexuality and that his relationship in Canada was not relevant to his fear of persecution in Nigeria. [13] The RAD is not persuaded by the Appellant's argument in this regard. As noted by the RPD, the Appellant's entire claim rests on his identity as a bi-sexual. It is reasonable to expect that if the Appellant was truly involved with a same-sex partner in Canada, he would have included this information in this BoC as it would have provided direct evidence of his bi-sexuality. The RAD notes that the Appellant was represented by competent counsel at the time he prepared his BoC and that the importance of including this information in his BoC is evident. [14] The RAD also notes that although the RPD has made other findings that undermine the Appellant's allegation that he is involved in a same-sex relationship in Canada, the Appellant has not contested those findings. The RAD finds after its own review and assessment of the evidence that there are no perceptible errors with these uncontested findings. On the basis of the foregoing, the RAD agrees with RPD and finds that the Credibility of the Appellant's allegation that he was involved in a same-sex relationship in Canada is undermined. [15] Accordingly, the Appellant's argument fails. Sexual Identity [16] The RPD drew adverse credibility findings regarding the Appellant's sexuality identity based on the combination of the Appellant's immigration history and timing of his claim and his testimony concerning the timing of his activities in Canada relating to his alleged sexual identity. [17] The RPD noted that the evidence in the record reveals that the Appellant entered Canada on XXXX XXXX, 2012 with a valid student visa. He successfully applied for a co-op work permit on XXXX XXXX, 2013 which was valid until XXXX XXXX, 2013. He then applied for a post-graduate work permit on XXXX XXXX, 2013 which was valid until XXXX XXXX, 2014. On XXXX XXXX, 2014, he applied for a work permit extension which was refused on XXXX XXXX, 2014. Fourteen days later, on XXXX XXXX, 2014, the Appellant made a claim for refugee protection. [18] The RPD further noted that it was not until a month after he made his refugee claim that the Appellant joined various gay organizations such as the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and the XXXX XXXX XXXX XXXX. The RPD found that the Appellant did not engage in any homosexual [or bi-sexual] activities in Canada and had only attempted to create this persona to advance his refugee claim. Aside from his purported visits in XXXX 2013 to the XXXX XXXX for which the RPD found no corroborative evidence, the Appellant's purported membership in various gay activities in Canada were generated following the initiation of his claim two-years after his arrival to Canada. [19] The Appellant submits that the RPD erred when it failed to consider his evidence that his sexual orientation did not become known to his family in Nigeria until XXXX 2014. [20] The RAD is not persuaded by the Appellant's argument in this regard. The Appellant testified that he did not become involved with organizations supporting the LGBT community in Canada before XXXX 2014 because he did not want his activities to become known to his family in Nigeria. However, as noted by the RPD the Appellant alleged that he was involved in homosexual activities and had sexual relationships with other men in Nigeria prior to coming to Canada. The RAD finds that the Appellant's explanation makes little sense given that the risk of his sexual orientation becoming known to his family through his activities in Nigeria was much higher than through his involvement with support groups in Canada. [21] The Appellant further submits that the RPD erred in drawing an adverse credibility finding based on his delay in making a claim. The Appellant argues that his claim was delayed because his sexuality did not become known until XXXX 2014. [22] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that the Appellant has misconstrued the finding of the RPD. Contrary to the Appellant's argument the RPD did not draw any findings from a delay in making a claim. Rather, the RPD drew an adverse credibility finding from the Appellant's two year delay in becoming involved in LGBT organizations. The RPD found that the Appellant did not provide a reasonable explanation for his delay and drew an adverse credibility finding about his bi-sexual identity. The RAD agrees with this uncontested finding of the RPD. [23] The Appellant further argues that the RPD erred when it found he was not credible because he could not answer questions to its satisfaction. The Appellant argues that the knowledge or lack of knowledge has nothing to do with his sexual orientation. [24] The RAD finds that the Appellant's argument has some merit in this regard. The RPD noted that although the Appellant alleged that he has been engaged in same-sex relationships throughout his time in Canada, he could only provide the name of one club on XXXX XXXX and could not provide names of other bars, clubs, restaurants or cafes frequented by the LGBT community. [25] After the RAD's review and assessment of the evidence the RAD finds that the RPD has failed to explain why it would be reasonable to expect that the Appellant to provide the names of establishments which cater to the LGBT community. The Appellant has testified that he frequented only one establishment. The evidence in the record does not establish that he ought to have frequented other establishments or that he otherwise ought to have known the names of other establishments. Nonetheless, the RAD finds that regardless of this unstained finding, the remaining findings of the RPD are sufficient to undermine the Appellant's bisexual identity. [26] On the basis the totality of the adverse findings and on a balance of probabilities, the RAD agrees with the RPD's finding that the Appellant did not engage in any same-sex activities in Canada and had only attempted to create this persona to advance his refugee claim. Treatment of the Appellant's Corroborating Documents [27] The Appellant submits that the RPD merely dismissed his documents on the ground that he was not credible and there was no weighing of the veracity of the documents. [28] The RAD is not persuaded by the Appellant's argument in this regard. After its own review and assessment of the evidence the RAD finds that with the exception of the psychologist of Dr. XXXX, the RPD provided rationale beyond the credibility of the Appellant in its analysis of the weight it should afford the Appellant's supporting documents. The RAD further finds that with regard to the psychologist of Dr. XXXX, given that the report was based on a self report from the Appellant, and based on its findings of the Appellant's credibility, it was open to the RPD to give little weight to the report. After its own assessment of the evidence, the RAD agrees with the RPD's finding in this regard and finds that the Appellant's argument fails. Other Evidence [29] The Appellant argues that notwithstanding the RPD's credibility findings, nothing prevents him from being declared a Convention refugee if the other evidence establishes both the subjective and objective basis of the claim. He argues that his basis of claim has not been contradicted and as such he could be declared a Convention refugee. [30] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that contrary to the Appellant's argument, the RPD did find that the Appellant has not established his identity as bi-sexual. The RPD has reviewed the additional evidence in the record and found that it is insufficient to establish the central aspects of the Appellant's claim. Accordingly, the RAD finds that the Appellant's argument in this regard fails. CONCLUSION [31] The RAD agrees with the RPD and finds based on the totality of the evidence that the Appellant has not established his identity as a bisexual. Given that the basis of his claim for refugee protection rests on his bi-sexual identity, the RAD finds that there is not a serious possibility that the Appellant would be persecuted in Nigeria, or that, on a balance of probabilities, he would be personally subjected to a danger of torture, or face a risk to his life, or to a risk of cruel and unusual treatment or punishment in Nigeria. [32] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD . (signed) "Leonard Favreau" Leonard Favreau June 10, 2015 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 : TB5-01217