TB5-08619

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 : TB5-08619 TB5-08620 TB5-08621 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 XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 9, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (hereinafter called "the Appellant"), his wife XXXX XXXX, and their son, XXXX XXXX, all citizens of Nigeria, are appealing the decisions of the Refugee Protection Division,(RPD) denying their claims for refugee protection. No new evidence has been submitted in support of their appeals nor are the Appellants requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. However, the Appellants are requesting that the RAD substitute a positive determination, or in the alternative, that the matter be remitted to a newly-constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to ss. 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter back to the RPD for re-determination by a differently-constituted panel. This appeal is allowed. BACKGROUND [3] The Appellant is an XXXX XXXX in the Christ Apostle Church in Abuja, Nigeria. He alleges that on XXXX XXXX, 2012, a homosexual man ran inside his church seeking shelter from members of Boko Haram, who were following him after they saw him having sex with another man. [4] The Appellant provided shelter and food to this individual, and as a result, the Appellant alleges that the Boko Haram group targeted him. He further alleges that individuals in society reported this to the police, who then began to pursue him. Rule 29 [5] Pursuant to rule 37 and 29 of the Immigration and Refugee Protection Act Rules, the Appellant has submitted the following new evidence subsequent to the perfection of this appeal on September 16, 2015: * An e-mail dated September 16 from XXXX XXXX, attached to which are pictures of the Appellant's alleged vandalized home. [6] Rule 29(4): In deciding whether to allow an application, the Division must consider any relevant factors including: a) The document's relevant and probative value b) Any new evidence the document brings to the appeal; and c) Whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the Appellant's record, Respondent's record or reply record. [7] The RAD finds that the Appellant has not indicated why these photographs were not reasonably available prior to the rejection of the claim on August 5, 2015. [8] Moreover, the RAD finds that although the attached photographs may be relevant to the claim as previously the Appellant provided no independent reliable corroboration, the probative value, given the undated photographs and the lack of identification of the residence, is insufficient to be admissible pursuant to ss. 110(4) of the IRPA. [9] However, the RAD is allowing this appeal due to unsustainable credibility findings, and therefore, this new evidence can be examined at the de novo hearing of the RPD. ROLE OF THE RAD [10] Counsel has made no submissions on the role of the RAD. However, the RAD has taken guidance from the Federal Court in Huruglica1 wherein 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. SUBMISSIONS BY THE APPELLANT * Did the RPD err in law in rendering an unreasonable decision when it determined that the Appellants lack subjective fear of persecution in Nigeria? * Did the RPD err in finding that the Appellant lacked credibility because he omitted the name of the person he gave shelter to on his BOC? * Did the RPD err in law by ignoring and misconstruing the documentary evidence before making its decision? Appellants' stay in the United States of America (U.S.) [11] The Appellant testified that upon his arrival in the U.S., he made a refugee claim and lived legally as an asylum applicant. His hearing was scheduled for June 21, 2017. The Appellant decided that he did not wish to wait that long for the outcome of his claim, and he testified that he was living in the U.S. in conditions that were not satisfactory. The RPD did not accept the latter explanation, as he was living in a church that provided him and his family with room and board. The Appellant alleged that his counsel advised him to file a refugee claim in a compassionate country, namely, Canada. The Appellant did not corroborate this evidence, i.e. the poor living conditions at the church or evidence from his lawyer in this regard, and as a result, the RPD drew a negative inference. [12] The RPD noted that the Appellant had entered Canada illegally which, given his legal status in the U.S., caused the RPD to find that his actions indicated that he did not fear deportation to Nigeria, as he had placed himself in a position which could have resulted in such action. As a consequence, the RPD found that the Appellant's behaviour indicated a lack of subjective fear of persecution in Nigeria. [13] The Appellant submits that the RPD erred in law when it rendered an unreasonable decision on the Appellant's lack of subjective fear because his lawyer suggested to him that his case might be adjourned again and it would be better for him to go to Canada and make his claim. Moreover, it is submitted that the Appellant testified that he and his wife had applied for work authorizations more than six times and they were denied each time because "they were still paroled in the country" and as a result they were not eligible. [14] The RAD finds that the RPD erred when it did not consider that the Appellant had been unable to obtain a work permit in the U.S. Moreover, while he was being taken care of in the church, the RAD finds that the Appellant's desire to move to another location ought not to be called in question; namely a room in a church approximately 5' x 7' for three persons for a lengthy period of time. [15] Accordingly, the RAD finds that the Appellant's desire to move to Canada, given the advice provided by their counsel, was in the RAD's opinion, a justifiable option. Accordingly, the RAD does not concur with the RPD that the Appellants' behaviour indicates a lack of subjective fear and, therefore, this finding is not sustainable. Whom the Appellant fears [16] The RPD noted that the Appellant testified that he fears the Boko Haram group, the police and society in general in Nigeria, due to having provided shelter and food to a homosexual, named XXXX. The RPD did not find it plausible that members of a terrorist group, Boko Haram, (according to the Appellant's testimony) would stand outside the church and simply shout instead of entering the church where the homosexual man they were looking for had entered. [17] The RPD noted that in his BOC form and his asylum claim in the U.S., the Appellant had not mentioned that the name of the homosexual man was XXXX. Moreover, the RPD noted that the sworn affidavits provided by the Appellant did not provide the name as well. Furthermore, the RPD noted that XXXX XXXX, the author of one of the affidavits was his friend and a minister at the church where he was a XXXX and his affidavit does not mention the name "XXXX". Given that the affidavits make general comments that accomplices to homosexuals are subject to imprisonment of 10 years in Nigeria, but no other specific information, the RPD could not accord much weight to the aforementioned documents. The RPD further noted that the affidavits from the Appellant's mother-in-law does not mention the name of XXXX nor does she explain for what reason the police had been to her home in pursuit of the Appellant. The Appellant had no knowledge as to why XXXX name had been omitted. [18] The RPD found the foregoing information was material to the claim; the homosexual man that the Appellant had testified was a Christian to whom he allegedly gave shelter and food. Moreover, the RPD questioned why the police had been to meet the authors of the affidavits some two years after the Appellant fled Nigeria. [19] The RPD further noted that the Appellant did not provide any corroborative evidence from an independent reliable source such as the police or medical personnel to indicate that he was targeted at his home and was injured, nor is there any corroborative evidence that the police had laid any charges against the Appellant, if in fact, they were pursuing him. [20] In light of the foregoing, the RPD was not persuaded that the police were looking for the Appellant after he left Nigeria. Moreover, the RPD was not persuaded that the homosexual man called "XXXX" was followed by Boko Haram to the church the Appellant operated and the Appellant gave shelter and food to this individual. In light of this finding, the RPD disbelieved that Boko Haram had beaten and injured the Appellant, and therefore, it did not find that the Appellant was targeted by Boko Haram, the society and the police in Nigeria as alleged. [21] The Appellant submits that the RPD erred in law when it determined that the Appellant lacked credibility because the name of "XXXX" was omitted. It is further submitted by the Appellant that the affidavits, notwithstanding the omissions noted above, should have been accorded weight as these people have direct knowledge of what happened to the Appellants when they were in Nigeria. It is argued that in his asylum application to the U.S., it is noted that the Appellant has always been straightforward in respect to his application. [22] It is further argued by the Appellant that the RPD erred in ignoring and misconstruing the evidence when it found it implausible that members of Boko Haram would wait outside the church and simply shout instead of entering the church where the homosexual man they were looking for had entered. The Appellant argues that the RPD failed to realize that the church has its own security personnel who had prevented the Boko Haram from entering the church premises. [23] On the latter point, the RAD concurs with the RPD that it is implausible that the Boko Haram did not enter the church, notwithstanding security personnel allegedly there to prevent entry. The RAD concludes this given the known actions by this ruthless group. [24] However, the RAD concurs with the Appellant that the RPD was microscopic in its findings with respect to the foregoing affidavits. The important factors to be noted are the Boko Haram and the harboring of a homosexual. To expect his name to be contained in the aforementioned affidavits, in the RAD's opinion, is not central to the claim, and therefore, the RAD finds that more weight should have been accorded to these sworn affidavits. [25] The Appellant argues that the RPD failed to consider his testimony that although he reported the incident of his attack to the police, he was sent away because of the complaints that he was known to be giving aid and shelter to homosexuals, and hence there was no police report. [26] The RAD concurs that the transcript reveals that although there was no police report, the Appellant had testified that after this complaint, he would have been known to have given aid and shelter to a homosexual and therefore, although he made a complaint, no such report was provided to him. With respect to the medical report, the RAD notes that the lack of corroborative evidence in this regard, was not put to the Appellant. [27] The Appellant submits that the RPD ignored the psychological report, which indicates the state of mind of the Appellant and the psychological trauma he and his family went through when they witnessed the death of their church member at the hands of Boko Haram. [28] Although not in and of itself fatal to the claim, the RAD finds that the lack of mention of this report, is an error on the part of the RPD. Notwithstanding this omission, in terms of corroboration of the claim, this report does not establish the allegations. Nevertheless, the RAD finds that the RPD ignored it. Internal Flight Alternative (IFA) [29] Although the RPD questioned in this regard, with the named IFA being Lagos, it made no findings in its Reasons. In light of the recent Federal Court decision in Ojarikre,2 the RAD cannot make a determination in this regard without apprising all parties of the issue. The RAD could do so, however, it finds that a number of the foregoing credibility findings are not sustainable. [30] The RAD finds that the first two submissions by counsel are supportable, namely the issue of the affidavits and the subjective fear by leaving the U.S. and arriving in Canada. [31] It is, therefore, necessary to re-examine the credibility of the claim along with the issue of an internal flight alternative prior to reaching a determination. [32] Pursuant to ss. 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter back to the RPD for re-determination by a differently-constituted panel. This appeal is allowed. (signed) "Roslyn Ahara" Roslyn Ahara November 9, 2015 Date 1 Huruglica Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799. 2 Ojarikre v. M.C.I. F. C. no. Imm-Imm-7033-14 Anis, July 23, 2015 FC 896. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08619 TB5-08620 TB5-08621