TB4-03330

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 : TB4-03330 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXXXXXXXX (a.k.a. XXXXXXXXXXXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 29, 2014 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Bolanle Olusina Ogunleye 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 (de la) ministre REASONS FOR DECISION [1] XXXXX, (the Appellant), who claims to be a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted any new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) allow his appeal and find him to be a Convention refugee, or refer his claim back to the RPD for re-determination by a differently-constituted panel. [2] The Appellant did ask that an oral hearing be held, pursuant to Section 110(6) of IRPA. [3] The RAD has not admitted any of the new evidence submitted by the Appellant in support of his appeal, and, since the Appellant also did not request an oral hearing, the RAD must proceed without a hearing. DETERMINATION [4] Pursuant to Section 111(1) (a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This Appeal is dismissed. Background [5] The Appellant alleges that in his final year of secondary school, he became aware that his sexual preference was toward men. The Appellant, in May 1999, began a secret sexual relationship with a male named XXX which lasted until 2004. The Appellant then entered into another same sex relationship with XXX in August 2006 and they terminated their relationship in July of 2009. In March 2010, he met and began a same sex relationship with XXX. In July 2011, the Appellant and XXX were discovered in his bed. XXX's father informed the police and both were arrested and detained. The Appellant, with the help of one of his uncles, was able to be released from jail, after his uncle paid a bribe. The Appellant fled Nigeria on xxx, 2012, arriving in Canada on February 09, 2013 and claimed protection in Toronto. [6] The Appellant's refugee claim was heard on April 10, April 23, May 17 and June 7, 2013. By decision and reasons dated March 20, 2014, the RPD rejected the claim, finding that the Appellant had not established his personal identity and, citing inconsistencies in the Appellant's evidence about key elements of his claim, the RPD found him to be generally lacking in credibility. [7] The Appellant has raised two legal issues in respect of the RPD's decision, as well as a challenge to the credibility findings in respect of inconsistencies in the testimony. The RPD found that that there was no obligation to perform a s. 97 analysis in the face of an adverse credibility finding. The Appellant submits that the RPD's assessment of the evidence was unreasonable. Standard of Review [8] The Appellant did provide submissions on standard of review. [9] In the case at hand, the Appellant alleges that the RPD made errors of fact in the assessment of the evidence related to its credibility findings; this is an issue of fact. [10] The Appellant argues that the RPD erred in the manner in which it made its determination that the Appellant failed to establish his identity in accordance with the Act and Regulations. [11] The issue raised by the Appellant is a question of mixed and law and subject to the reasonable standard. The Federal Court in Iyamuremye1 addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. The reasonableness standard is concerned with the "existence of justification, transparency and intelligibility in the decision-making process" and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law as per Dunsmuir.2 The correctness standard is applicable to questions of law and issues of general legal importance. [12] The appropriate standard of review in this appeal is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.3 [13] Given the analysis above, the RAD therefore has afforded a considerable level of deference to RPD findings on questions of fact in this claim and considered whether the findings meet the reasonableness test. [14] The RPD's decision focuses on the issue of identity and credibility. A claim for refugee protection must be denied as soon as the RPD determines that a claimant's identity has not been established,4 however, in the case at bar, the RPD did proceed to consider the merits of the claim, including the Appellant's alleged sexual orientation. ANALYSIS OF THE MERITS OF THE APPEAL [15] The RAD finds that the Appellant did not meet the requirements of RAD Rule 3(3), which states: * (g) a memorandum that includes full and detailed submissions regarding: (i) the errors that are the grounds of the appeal, (ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the Appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing. [16] For these reasons, while the Appellant was not in strict compliance with the rule, for example, the RAD has found information that starts in paragraph 14 but it appears to be incomplete. Pages in the Appellant's memorandum are not numbered and make it difficult to footnote, and some arguments are unidentifiable. [17] However, the Appellant has made general, although vague and confusing, submissions as to the errors it believes were made by the RPD and has filed an appeal and is entitled to one; therefore, the RAD will review the reasonableness of the RPD's decision. The RPD's Findings on Identity [18] The RPD found that the Appellant had not established his civil identity. The RPD also found the Appellant not to be credible based on numerous inconsistencies, and omissions between the Appellant's viva voce evidence against statements which he made earlier in his Basis of Claim form (BOC), and Point of Entry Notes (POE). The RPD cited some fourteen findings in its reasons as not being credible. [19] The Appellant also argues that the RPD, after reviewing the evidence in its totality, found that the claimant was not a credible or trustworthy witness and rejected his claim. The RPD failed to make any generalized risk assessment of the risk to life if he were to return to Nigeria. The RAD has reviewed this portion of the evidence; the Appellant has not pointed out the location in its memorandum, and where this is specifically located in the RPD decision; instead, it footnoted the entire set of Reasons for Decision. [20] The RPD found the Appellant not to be a credible or trustworthy witness with respect to the central allegations of his claim.5 The RPD, in its decision, cited very clearly that it did not believe the Appellant's story which he had present to support his claim. Therefore, it also found that, due to the numerous amounts of negative credibility findings, and the Appellant's inability to support his claim, it was unnecessary to consider section 97 of the Act.6 [21] In Bouaouni,7 Justice Blanchard's comments, in particular, in regard to the following: There may well be instances where a refugee claimant, whose identity is not disputed, is found to be not credible with respect to his subjective fear of persecution, but the country conditions are such that the claimant's particular circumstances make him/her a person in need of protection. It follows that a negative credibility determination, which may be determinative of a refugee claim under s. 96 of the Act, is not necessarily determinative of a claim under subsection 97(1) of the Act. ...[Emphasis added] [22] The Appellant submits that the RPD, even in the face of the adverse credibility findings, was obliged to engage in a s. 97 analysis. [23] The RAD relies upon the decision in Grama,8 at paragraph 8, where the court states: In situations where the Board feels a claim has been exaggerated, it must still determine whether there is sufficient evidence to justify a well-founded fear of persecution. ... It seems to us that the Board should have asked itself whether, even assuming some exaggerations, the applicant had not shown that he had been undoubtedly the victim of harassment of a variety of forms amounting to persecution, making thereby his fear to go back [sic] not only genuine but objectively founded. [24] In the RAD's view, the RPD did exactly what was referred to in both the Grama and Bouaouni decisions above, in that the RPD found that, given the nature of the evidence in front of it, there was no reason to do a "thorough analysis" under s. 97. Mr Justice Layden-Stevenson, in Brovina ,9 summarised the state of the law which RAD also adopts and follows: These authorities, in my view, do not demand that a section 97 analysis be performed in every case. Rather, it will be required in some cases. It is a question that must be reviewed on a case by case basis. If there is evidence before the board to support a section 97 analysis, the analysis must be conducted. [25] The Appellant put forward no evidence upon which to base the s. 97 analysis with respect to his fear of persecution arising from his comments. The Appellant did not raise enough evidence to warrant a s. 97 analysis. [26] The RAD adopts the comments of Justice Blanchard in Bouaouni,10 where he says at paragraph 42:... However, in the circumstances of this case and in the exercise of my discretion, I also find that the error is not material to the result. I find that the Board's conclusion, that the applicant was not a "person in need of protection" under paragraphs 97(1)(a) and (b) of the Act, was open to it on the evidence. [27] The Appellant argues that the oral and documentary evidence, adduced by him before the RPD, establishes his personal identity, sexual orientation as a gay or a person perceived in his country as gay, and the decision of the RPD is unreasonable and should be set aside. [28] The Driver's Licence: The RPD, in its decision regarding the claimant, turned its attention to the pieces of identification which were provided by the claimant; one such piece being a driver's license issued by the Federal Republic of Nigeria. The RPD noted in its decision that the license was issued on xxx, 2011 and was missing some information; in this case, the Blood Group (BG) information. The RPD asked the Appellant if he had provided the BG information when he acquired his licence. The Appellant had replied that he did not remember. The RPD cited, in its reasons, that the Appellant had testified that his blood type was xxx and that he was a xxx. In reviewing the evidence, the RAD finds the RPD's negative finding to be reasonable. A person who is a xxx, who attends the hospital annually, would not forget or would omit such information on a government document, especially a driver's licence which would be readily available in case of a medical emergency. The RAD also noted, in the documentary evidence, that there was a pause in the issuance of the Driver's Licence in the beginning of 2011 which lasted for approximately six months; this made it almost impossible for anyone to obtain a driver's licence, however the Appellant's driver's licence has an issuance date of xxx 2011. [29] The RPD went on to state that, given the concerns and questions about the issuance of this document noted above, and given the documentary evidence suggesting that false documents are readily available in and from Nigeria,11 the panel gives this document no weight in establishing the claimant's identity and the panel also notes that, even if the driver's license were accepted as genuine, it does little to establish the claimant's nationality, as there is nothing before it to suggest only citizens of Nigeria can obtain a driver's licence in Nigeria. The RAD, having reviewed the documentary evidence, which is referenced to in the RPD's reasons in paragraph 37, finds that the RPD's adverse credibility finding on the driver's licence was justifiable, transparent, and intelligible. [30] Lagos State registration of birth: The Appellant had testified that the Lagos Registration of Birth was his original certificate. Evidence was presented by Minister's counsel at the hearing that the Appellant had stated to a Canadian Border Services Agency (CBSA) that the Lagos Registration of Birth was the replacement document that he applied for before leaving Nigeria in 2013. The Lagos Registration of Birth was issued in 1980 and, when this was put to the Appellant, he testified that he had not seen the document at the immigration holding, and that once his mother found it she sent it to him. The RPD found this explanation to be unacceptable and not reasonable, and, as a result, found, on a balance of probabilities, that the document is fraudulent and gave it no weight. The RAD has reviewed the evidence in this area, and finds it unreasonable and most unlikely that, upon receipt of the documents at the immigration holding/detention centre, the CBSA officer(s) would not have shown or given the documents or any mail to the Appellant. As such, the RAD finds the RPD finding to be reasonable in this area of the evidence. [31] The RAD, having reviewed the documentary evidence,12 which is referenced to in the RPD's reasons, finds that the RPD's adverse credibility finding on the driver's licence, the Lagos Registration of Birth were justifiable, transparent, and intelligible. It was reasonable in light of the evidence that was before the RPD, that the RPD made a negative finding in respect of the Appellant's civil identity on the basis of apparent deficiencies in the driver's licence, the Lagos Registration of Birth documents as well as on the other identifying documents. [32] The Appellant further argues that the RPD raised the burden of this case far beyond the balance of probabilities in its assessment of the oral and documentary evidence and thereby committed a reviewable error in law. Unfortunately, the Appellant does indicate in his Appellant's memorandum, as stated earlier, that it failed to comply with RAD Rule 3, where the RPD committed these errors, or where they are located on the record. As such, the RAD is unable to review these errors and thus there is no persuasive evidence to advance this argument. [33] The Appellant argues that, because the CBSA placed a stamp on some documents as "identity accepted," and released the Appellant from his Immigration Detention Facility (holding area), the RPD should accept those documents as establishing the Appellant's identity. [34] The RAD, in reviewing this portion of the evidence, finds that there is no evidence before it to ascertain what methods or how the Canadian Border Services Agency (CBSA) established the Appellant's identity, and stamped the documents as it did. The RPD and the RAD are not bound by the findings of the CBSA officers. As such, the RAD can only rely upon the evidence on the record which was before the RPD in regards to the Appellant's national and personal identity, and that is what the RAD shall do. [35] The RPD made a reasonable finding that the Appellant failed to establish his identity, when it cited the documentation provided by the Appellant, such as the National Population Commission's Attestation of Birth and a Nigerian Driver's Licence.13 A claim for refugee protection must be denied as soon as the RPD determines that a claimant's identity has not been established.14 As the RAD has confirmed the RPD's finding on identity, this is sufficient to dispose of the appeal. [36] The RAD finds that the RPD's finding that the Appellant has not established his identity falls within a range of possible, acceptable outcomes that is defensible in respect of the facts and law. As such, this appeal cannot succeed. CONCLUSION [37] Pursuant to Section 111(1) (a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [38] This appeal is, therefore, dismissed. (signed) "Luis F. Agostinho' Luis F. Agostinho July 29, 2014 Date 1 Iyamuremye c. Canada (Citoyenneté et Immigration), 2014 CF 494 - 2014-05-26 [ French ] 2 Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at paragraph 47. 3 Dunsmuir, paragraph 47; in Khosa, paragraph 4, the "range of reasonable outcomes." 4 Ipala, Nkum-Ilub v. M.C.I. (F.C., no. IMM-3932-04), Blanchard, April 8, 2005; 2005 FC 472. 5 Appellant's memorandum page 20, Reasons for Decision, paragraph 60 6 Appellant's memorandum page 20, Reasons for Decision, paragraph 61 7 Bouaouni, Riadh Ben Solta v. M.C.I. (F.C., no. IMM-5570-02), Blanchard, October 20, 2003, 2003 FC 1211 8 Grama. Vadym v. M.C.I. (F.C., no. IMM-5203-03), O'Reilly, July 23, 2004, 2004 FC 1030 9 Brovina, Qefsere v. M.C.I. (F.C., no. IMM-2427-03), Layden-Stevenson, April 29 2004, 2004 FC 635 10 Supra, footnote 8 11 Reasons for Decision, paragraph 16, footnote 9 12 U.S. Dept. of State Report, Nigeria, items 3.9 and 3.11 13 Appellant's record page, 12, Reasons for Decision, paragraphs 34-45 14 Ipala, Nkum-Ilub v. M.C.I. (F.C., no. IMM-3932-04), Blanchard, April 8, 2005; 2005 FC 472. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-03330