TB4-07543

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 : TB4-07543 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 January 28, 2015 Date de la décision Panel L. Favreau 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 [1] 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 bisexual. In 2011, he traveled to Belgium on a student visa to continue his education. He returned to Nigeria in XXXX 2013 to visit his ailing father. In XXXX 2013, he was observed to be kissing another male in a nightclub. His mother learned of the incident and confronted him about his sexual orientation. She reacted angrily which drew the attention of her neighbours who as a result became aware of his sexual orientation and attempted to seize him. The Appellant was able to flee and returned to Belgium. [4] The Appellant further alleged that his father was the XXXX XXXX XXXX XXXX at the shrine in his village of XXXX in Edo State. In accordance with the rules of the society, as the first and only born son, he was required to assume his father's position as XXXX XXXX following his father's death. As a Christian, the Appellant opposed the succession and made his wishes clear; however, the members of the society told him he had no option but to assume the position. [5] While in Belgium, he learned of his father's death and that the village elders were actively looking for him to be installed as the new XXXX XXXX. He learned that he would first have to undergo fourteen days of rituals for purification due to his sexual orientation. He later learned that plans were made to have him kidnapped in Belgium and forcibly returned to Nigeria so that he could be installed as the new XXXX XXXX. [6] Fearing he would be kidnapped in Belgium, the Appellant obtained a visa to travel to Canada where he made a refugee claim. [7] The Appellant's application for refugee protection was heard over two sittings on October 28, 2013 and January 20, 2014. In an oral decision of August 1, 2014, the RPD rejected the Appellant's claim, finding that the Appellant was not credible. [8] The Appellant submits that the RPD erred in its credibility findings and in s. 97 of IRPA. ROLE OF THE RAD [9] 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 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". [10] 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 Alyafi2 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. [11] 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. New Evidence [12] 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 the Appellant. S. 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. [13] The Appellant has tendered the following proposed new evidence in support of his appeal. (1) An affidavit from the Appellant's partner XXXX XXXX dated September 8, 2014 [14] This affidavit was prepared and signed following the rejection of the Appellant's claim and is submitted by the Appellant to corroborate his allegations that he is bisexual. [15] The Appellant has also tendered the following proposed new evidence in support of his appeal. (b) Photographs of the Appellant with his partner (c) Statutory declaration of Omorede Agbonifo dated July 31, 2014 (d) Reasons for the Decision of Omorede Agbonifo dated July 21, 2014. (e) Letter from the IRB stating that items (b) through (d) were not accepted as evidence before the RPD because the decision had been rendered prior to the receipt of the documents. [16] This evidence was previously tendered to the RPD; however, it was not received by the RPD until August 5, 2014. The RPD determination was rendered on August 1, 2014 and as a result, these documents were not considered in the RPD decision. This evidence was tendered to further corroborate the Appellant's sexual orientation. [17] The Appellant submits that he meets the statutory requirements set out in IRPA and satisfies the test set out in Raza.3 [18] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4). In assessing whether the proposed new evidence meets the statutory provisions of s. 110(4), the RAD considered the following: (1) 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.4 (2) 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.5 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. (3) It is important to note here that s. 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. (4) 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.6 (5) 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 s. 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, 7 or that it proves a fact that was unknown to him at the time of the hearing?8 If so, the RAD will proceed to assess the credibility, relevance, and materiality of the document. (6) 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 s. 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.9 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 evidence. [19] In the case at hand, with respect to items (a) (b) and (c), the RAD notes that although the Appellant was involved in a relationship with the affiant since XXXX 2014 and could have provided that evidence prior to the rejection of his claim on August 1, 2014, he failed to do so. The Appellant has also failed to provide an explanation of why he was unable to tender that evidence prior to the rejection of the claim. The RAD finds that this evidence was reasonably available to the Appellant prior to the rejection of his claim and that he could have reasonably tendered that evidence prior to the rejection of his claim. Accordingly, proposed new evidence items (a) (b) and (c) are not admitted as evidence in this appeal. [20] The RAD also considered the Appellant's proposed new evidence, item (d), the Decision of the RPD in the hearing of XXXX XXXX, with whom the Appellant alleges he is involved in an intimate relationship. The Appellant submits that the Decision and Reasons from his boyfriend's refugee claim hearing corroborates his allegation that he is bisexual. The Appellant alleges that he attended his boyfriend's refugee claim and was prepared to testify if necessary. He argues that the positive decision of the RPD confirms the validity of his relationship with his boyfriend and his identity as a bisexual. [21] The RAD finds that Decision and Reasons of the Appellant's boyfriend's refugee claim, while potentially important, is not new evidence within the meaning of s. 110(4) of IRPA. The RAD finds that the RPD's decision is simply case law which should have been tendered as such under the provisions of Rule (3)(f) of the RAD Rules. Accordingly, the RAD will consider the Decision and Reasons as case law. [22] The RAD further finds that the RAD is not bound by the decision of the RPD. Furthermore, while it is true the RPD member who conducted the hearing of the Appellant's boyfriend made a finding that the boyfriend is a bisexual man, the panel member did not make any determination with regard to the credibility of the Appellant's alleged sexual orientation. The RAD notes that the Appellant's testimony is that he did not testify and there is no persuasive evidence before the RAD that the Appellant provided a sworn declaration for the purposes of that hearing. The RAD finds the Reasons and Decision of the RPD in the boyfriend's refugee protection hearing provides little in the way of pervasive evidence to corroborate the Appellant's bisexuality. ANALYSIS OF THE MERITS OF THE APPEAL [23] The Appellant submits that the RPD misstated, misunderstood, ignored and or mischaracterized the evidence presented before it and that its decision was based on speculation and unwarranted inferences. In particular, the Appellant argues that the RPD's credibility findings were in error and that the RPD focused on peripheral matters which do not go to the heart of his claim. [24] The RPD found that the Appellant's testimony was inconsistent with his Basis of Claim form (BoC) and that he provided contradictory evidence with respect to determinative aspects of his claim. While the Appellant acknowledges there are inconsistencies in his testimony, those inconsistencies did not go to the heart of his claim. Kissing his Boyfriend in Public [25] The Appellant submits that the RPD drew an adverse credibility findings based on a failure of the Appellant to include the details in his BoC that the incident in which he was observed kissing another male actually took place in a corner of the bathroom in the nightclub. [26] The Appellant argues that while this detail was not included in the BoC, this detail is not imperative to his claim. The Appellant further argues that he was merely adding details to what was already in the BoC narrative and that the additional detail does not significantly alter his story as a whole. The Appellant further argues that it was not proper for the RPD in this case to impugn the credibility of the Appellant for the perceived embellishment given that his explanation was not all obviously implausible and given that it merely added to his story without significantly changing the details. [27] The RAD is not persuaded by the Appellant's argument in this regard. The Appellant stated in his BoC that the incident occurred in the corner of the nightclub. However, when confronted with the risk associated with openly kissing another male in the nightclub, given the societal attitude towards same-sex behaviours in Nigeria, the Appellant modified the details to state that he was drunk and that he kissed his male friend while they were in the bathroom. He went on to explain that he thought no one else was in the bathroom at the time. Although the Appellant argues that the details do not significantly alter the story, the RAD disagrees. The RAD agrees with the RPD that there is a significant distinction between openly kissing in the public area of the nightclub and kissing in what the Appellant alleges he thought was the privacy of the unoccupied bathroom. [28] The RAD also notes that the Appellant modified the nature of the contact between him and his male friend. In his BoC, he alleges they were observed "necking", whereas after being confronted about the obvious risk of this necking in a public place, the Appellant modified his allegation that he simply kissed his boyfriend while they were both in the washroom. The RAD further finds that contrary to the Appellant's arguments, the circumstances of this encounter was a pivotal event in his life which resulted in him being identified as a bisexual and which also resulted in him going into hiding and fleeing Nigeria. [29] The RAD finds it was open to the RPD to find that the Appellant adjusted his testimony in an effort to mitigate the concerns expressed by the RPD. The RAD further finds that it was open to the RPD draw an adverse credibility finding based on the Appellant's apparent evolving testimony. [30] The RAD finds that the RPD's adverse credibility finding in this regard is sound and underpinned by the evidence in the record and should be afforded deference. Conversations with His Aunt about his Sexual Orientation [31] The RPD drew an adverse credibility finding based on the discrepancy in the Appellant's testimony concerning his discussion about his sexual orientation with his aunt. The RPD found that the Appellant first testified that he had not discussed his sexual orientation with his aunt and then later changed his testimony and stated that he had discussed his sexual orientation with his aunt. The RPD rejected his explanation for the contradiction. [32] The Appellant's argument is as follows: The panel drew a negative inference from the ostensibly contradictory answer provided by the Appellant in response to the Panel's question about whether the Appellant had discussed his sexuality with his aunt. The Appellant's initial response was yes, and then according to the Panel went on to state that he had discussed it with her when he called her and told her that he needed an affidavit. [33] The RAD finds that the Appellant's argument is not consistent with the evidence in the record. After reviewing the transcript of the hearing, the RAD finds that it is clear that the Appellant's initial response was that he did not discuss his sexual orientation with his aunt. He later adjusted his testimony that he had discussed his sexual orientation with her when he was questioned by the RPD about the contents of his aunt's affidavit. [34] The Appellant also seems to argue that while he did have some discussion with his Aunt concerning the affidavit, it was not a long conversation and that he merely confirmed with her what she was including in her affidavit. The RAD finds the Appellant's argument in this regard confusing and not well articulated. It is unclear whether the Appellant is arguing the contradiction does not exist because his initial response was that he had discussed his sexual orientation with his aunt or that the contradiction does not exist because the short conversation he had with her does not amount to a contradiction. Either way, the RAD finds the Appellant has not made out his argument. [35] The Appellant further submits that even if it is determined that there was a contradiction, the RPD erred in basing its adverse credibility findings on matters that were tangential or peripheral to the reasons he sought protection in Canada. The Appellant argues that the RPD's finding in this regard is not germane to the central issue of his bisexuality. [36] The RAD is not persuaded by the Appellant's argument in this regard. The credibility of the Appellant's allegation that he bisexual is central to his risk of persecution in Nigeria. His inability to accurately recall the conversations he had with his aunt after his sexual orientation was exposed undermines the credibility of his allegations in this regard. [37] The RAD finds that the RPD's adverse credible finding in this regard is sound and underpinned by the evidence in the record and should be afforded deference. Affidavit of XXXX XXXX [38] The Appellant submits that the RPD erred by impugning the credibility of the Appellant based on omissions and embellishments in a third party document. The RPD noted that the affidavit of the Appellant's friend XXXX XXXX did not mention the Appellant's alleged sexual orientation or allegations of an alleged plot to kidnap him. The RPD further noted that the affidavit contained embellishments. The Appellant argues that the RPD ought not to have drawn negative inferences with regard to his credibility based on the embellishments and omissions in the affidavit of his friend. The Appellant argues that it was an error to, on one hand, use the contents of the affidavit to undermine the credibility of the Appellant and on the other hand, reject the affidavit. [39] The RAD is not persuaded by the argument of the Appellant in this regard. The RAD has carefully considered the relevant paragraphs of the RPD's reasons and finds that the RPD did not draw a negative inference with regard to the credibility of the Appellant but rather with regard to the credibility of the affidavit itself in determining to afford little weight to the document. [40] The RAD finds that the Appellant's argument in this regard fails. The RPD's Failure to Consider Vital and Relevant Evidence [41] The Appellant submits that the RPD erred in law by wrongly and unduly disregarding his supporting evidence, in particular, the affidavits from his aunt and friend XXXX and the report of Dr. XXXX. The Appellant argues that the basis for rejecting these documents was based solely on the RPD's determination that he was not credible rather than an analysis of the content of the documents. [42] The RAD finds it somewhat problematic that the RPD did not provide more fulsome reasons for affording little weight to the Appellant's corroborating documents. However, the RAD finds there is sufficient reason to afford the Appellant's documents little weight. The RAD finds that with respect to the affidavit of XXXX, the RAD finds that the RPD did provide reasons to give the affidavit little weight. The RPD noted that the affidavit lacked specifics and did not contain information that it ought to have contained given the allegations of the Appellant. [43] The RAD also notes that the Appellant testified that he told the affiants what to put in the affidavits. The RPD has found that the Appellant is not credible. Accordingly, it was open to the RPD to find that the information in the affidavits could not be relied upon as the Appellant influenced their content. As such, it was open to the RPD to place little weight on the affidavits. [44] Similarly with regard to the report of Dr. XXXX, the RPD found that the Appellant was not a credible witness. The RAD notes that report was based upon the self-report of the Appellant. There is no indication in the report that Dr. XXXX assessed the credibility of the information that he received in forming his opinion nor does he provide any opinion with regard to the genuineness of his sexual orientation. [45] The report indicates that the Appellant is suffering from post-traumatic stress disorder and depression and that he reports experiencing other symptoms. However, there is no persuasive evidence that the post-traumatic stress disorder or the symptoms he is experiencing arise as a result of the circumstances he has alleged in his refugee claim. He was encouraged to seek further counselling; however, the report does not refer the Appellant for treatment or further care. In addition, there is no evidence in the record which confirms that he is obtaining ongoing treatment for the condition identified by Dr. XXXX. [46] The RAD finds that Dr. XXXX opinions were based upon the unverified self- report of the Appellant rather than on independent clinical studies. Accordingly, the validity of the conclusions depends heavily upon the truth of the information provided by the Appellant. [47] Accordingly, the RAD finds that it was open to the RPD to afford little weight to this report in establishing that the Appellant's allegations are credible. Uncontested Credibility Findings Inconsistency about when the Appellant learned about the kidnapping plot against him [48] The RPD drew an adverse credibility finding based upon inconsistencies about when the Appellant first learned about the kidnapping plot against him. The RPD found that the Appellant's testimony evolved. He first stated that it was in XXXX, then he changed his answer to XXXX, and stated that he was told about the plot in June. At the second sitting of his hearing, he again testified that it was in XXXX that he first learned about the plot to drug and kidnap him and take him back to Nigeria from Belgium. [49] The RAD noted that the Appellant's testimony in this regard contradicts the information in his BoC in which he stated that he first learned of the threat after the death of his father in June 2013. [50] The RAD finds that the RPD's uncontested credibility finding in this regard is underpinned by the evidence in the record and should be afforded deference. Failure to Claim in Belgium [51] The RPD drew an adverse credibility finding based on the Appellant's failure to claim in Belgium. The RPD rightfully rejected the Appellant's explanation that he feared he could be kidnapped in Belgium. The RPD noted that the Appellant did not report to police in Belgium that there was plot to kidnap him. Furthermore, the RPD noted the Appellant did not seek the protection of police while he waited to obtain a visa to Canada, even though he alleges he was at risk. [52] The RAD finds that the RPD's uncontested credibility finding in this regard is underpinned by the evidence in the record and should be afforded deference. [53] The RAD further finds that the Appellant's failure to claim in Belgium not only undermines the Appellant's subjective fear, it also undermines the credibility of his allegations. Discrepancy regarding the account of the incident with his mother [54] The RPD drew an adverse credibility finding with regard to the reliability of the Appellant's testimony concerning the confrontation he had with his mother following her discovery of his sexual orientation. The RPD found that the Appellant's account of the conversation was internally inconsistent. The RPD found that the Appellant gave two different accounts of the same confrontation. In one account, the Appellant testified that she used the terms "gay" and "bisexual" and in another account she did not use those terms. [55] The RAD finds that the RPD's uncontested credibility finding in this regard is underpinned by the evidence in the record and should be afforded deference. Discrepancy in date of father's death between the TRV and the claimant's evidence [56] The RPD drew an adverse credibility finding based on discrepancy between the Appellant's written evidence in his BOC and the information provided by the Appellant to Canadian government officials when applying for his Temporary Resident Visa (TRV). The RPD noted that the Appellant had stated in his TRV application of XXXX XXXX, 2013, that his father was deceased in Benin City in 1995. The RPD rejected the Appellant's explanation that it was an error. The RPD noted that the TRV included both the date and place of death which were both inconsistent with allegations made by the appellant in his refugee claim. The RPD further noted that the discrepancy undermines his allegations that he was being pursued by village elders to succeed his father as XXXX XXXX XXXX XXXX after his father died in 2013. [57] The RAD finds that the RPD's uncontested credibility finding in this regard is underpinned by the evidence in the record and should be afforded deference. Failure to Conduct a Section 97 Analysis [58] The Appellant submits that the RPD did not carry out a proper analysis of s. 97 of IRPA. The Appellant submits that the RPD erred when it failed to consider his particular circumstances as a bisexual Nigerian man. The Appellant argues that the objective evidence makes it clear that by virtue of his sexual orientation he is at risk in Nigeria. The Appellant argues that he tendered sufficient evidence which, on a balance of probabilities, would suggest he is bisexual. The Appellant further submits that the RPD failed to give full consideration to the objective documentary evidence. [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 Appellant's personal documentary evidence establishes that the Appellant is bisexual and the objective evidence establishes that he is at risk because he is bisexual. While it is true that persons who are bisexual 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. The RAD has found that that RPD fairly and appropriately assessed the probative value of the personal supporting documents. The RAD has also found that the RPD has made credibility findings which undermine the credibility of the Appellant's allegations of his sexual orientation. The RPD found that the Appellant is not a bisexual man. As such, there was no need for the RPD to assess the risk to the Appellant as a bisexual or gay man in Nigeria. CONCLUSION [60] On the Basis of the findings noted above and after its own assessment of all the evidence in the record including the transcript of the hearing, the RAD agrees with the RPD's finding that the Appellant has not established on a balance of probabilities that he is bisexual. The RAD further agrees with the RPD that the Appellant has not established on a balance of probabilities that he is sought after to succeed his father as the XXXX XXXX XXXX XXXX. The RAD finds that the Appellant is neither a Convention refugee nor a person in need of protection. [61] Pursuant to ss. 111(1)(a) of IRPA, the RAD confirms the decision of the RPD. (signed) "L. Favreau" L. Favreau January 28, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 4 Raza, para. 13.3(a). 5 Raza, para. 16. 6 Raza, para. 13.5(b). 7 Raza, para. 13.5(a). 8 Raza, para. 13.3(b). 9 Raza, para. 13.5(a). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-07543