Docket: IMM-9348-24
Citation: 2026 FC 72
Ottawa, Ontario, January 16, 2026
PRESENT: Mr. Justice McHaffie
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BETWEEN: |
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KEHINDE ALIU OLOYEDE ADEKUNLE |
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Applicant |
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and |
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MINISTER OF CITIZENSHIP AND IMMIGRATION |
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Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Refugee Protection Division [RPD] of the Immigration and Refugee Board of Canada [IRB] rejected Kehinde Aliu Oloyede Adekunle’s refugee claim, and further found it had no credible basis. The RPD identified numerous inconsistencies and evolutions in Mr. Oloyede Adekunle’s narrative and evidence, which led it to reject his testimony that he was gay and had suffered persecution in Nigeria based on his sexual orientation.
[2] On this application for judicial review, Mr. Oloyede Adekunle argues the RPD made adverse credibility findings on peripheral issues and unreasonably rejected or failed to address relevant evidence on which it could have made a favourable decision. He therefore argues that both the RPD’s rejection of his claim and its finding that his claim had no credible basis were unreasonable.
[3] For the reasons below, I conclude the RPD’s credibility findings and its no credible basis finding were reasonable. The RPD clearly explained its credibility findings, which related to central aspects of Mr. Oloyede Adekunle’s narrative and not merely peripheral questions. It also gave reasonable grounds for not giving weight to a supporting letter said to be from Mr. Oloyede Adekunle’s current same-sex partner. Having reached the conclusion that Mr. Oloyede Adekunle had not credibly established his sexual orientation, there was no need for the RPD to address country condition evidence regarding the treatment of the LGBTQ+ community in Nigeria.
[4] Contrary to Mr. Oloyede Adekunle’s arguments, the RPD did not fail to consider relevant evidence before reaching its finding that his claim had no credible basis. While the RPD’s reasons could have more clearly referred to two letters from two Canadian LGBTQ+ community organizations, I am satisfied the RPD addressed those letters in its assessment of the evidence. In any event, the letters did not provide any direct evidence that could ground a successful refugee claim in the absence of credible testimony from Mr. Oloyede Adekunle regarding his sexual orientation.
[5] The application for judicial review is therefore dismissed.
II. Issues and Standard of Review
[6] The RPD’s credibility findings, and its conclusion that Mr. Oloyede Adekunle’s application had no credible basis, are reviewable on the standard of reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25; Mohamed v Canada (Citizenship and Immigration), 2020 FC 186 at para 34.
[7] The central issue on this application is therefore whether the RPD’s decision was reasonable.
[8] A reasonable decision is one that is internally coherent and is transparent, intelligible, and justified in relation to the constellation of law and facts that are relevant to it: Vavilov at paras 15, 95–96, 99–102, 105. When assessing the reasonableness of a decision, the Court does not engage in a rehearing of the case or a reweighing of the evidence. Rather, it reviews the decision made by the body entrusted by Parliament with decision-making power, in light of the administrative context, the record, and the submissions that were before that decision maker, to ensure that it meets the requirements of a reasonable decision: Vavilov at paras 82–86, 91–94, 103, 125–128.
[9] In his written submissions, Mr. Oloyede Adekunle also raised an issue of procedural fairness, contending that it was unfair for the RPD not to have shared with him an audio recording of his hearing. This argument was not pressed in oral submissions before this Court, by which time Mr. Oloyede Adekunle had received the audio recording. Any failure to provide the audio recording after the RPD’s decision was rendered can only have related to the fairness of this judicial review proceeding and not to the fairness of the process leading to the RPD’s decision, and any such unfairness (about which I make no finding) was rectified by the subsequent provision of the recording. I therefore need not address this argument further.
III. Analysis
A. Mr. Oloyede Adekunle’s refugee claim
[10] Mr. Oloyede Adekunle claims that he is a gay man, that he faced persecution in Nigeria owing to his sexual orientation, and that he would continue to face such persecution if required to return there. He alleges that he became aware of his sexuality in his teens and that he had an early romantic involvement with another boy at his church until the boy’s father, and subsequently his own father and stepmother, found out about it. After university, Mr. Oloyede Adekunle returned to his village to handle the family’s farm business since his father was ailing. Under pressure from his family, he entered a common-law relationship with a woman, with whom he had three children.
[11] Mr. Oloyede Adekunle claims he met a man named Ibrahim after his father’s death in early 2019, and they began dating and planning a life together, sleeping with each other in a room at the farm in the village. However, on February 2, 2022, Mr. Oloyede Adekunle’s common-law partner and her brother followed him and discovered him having sex with Ibrahim at the farm. They took videos and pictures of the couple and threatened to expose them. Mr. Oloyede Adekunle’s common-law partner and her brother blackmailed him, but after making some payments, he left Nigeria on March 11, 2022, ultimately arriving in Canada in late May 2022.
[12] Mr. Oloyede Adekunle gave evidence at his refugee hearing before the RPD, which was ultimately held in April 2024. He also filed a number of documents, including notably (a) a membership card and other documents from the Nigerian Automobile Technicians Association [NATA]; (b) a sworn affidavit in his name, dated April 20, 2023, attesting to his father’s death, together with a certificate of death dated April 17, 2023; (c) a letter from a man said to be his current partner in Canada and pictures of them together; (d) a letter from his older brother; (e) letters from two Canadian community organizations, Centre Communautaire LGBTQ+ de Montréal [CCLGBTQ+] and Action LGBTQ avec les immigrant.es et les réfugié.es [AGIR]; and (f) pictures of himself at a Pride Parade and a CCLGBTQ+ event.
B. The RPD’s decision
(1) The RPD’s credibility determinations
[13] For the RPD, the determinative issue in Mr. Oloyede Adekunle’s case was credibility. It identified five issues on which it drew negative credibility inferences.
[14] First, it found a number of inconsistencies in Mr. Oloyede Adekunle’s evidence regarding his addresses in Nigeria, including an address on Shagbe Road in the city of Ibadan. Mr. Oloyede Adekunle testified that this was a room he began renting after his father died in 2019, to have a place to stay when he took goods from the farm to the city. He said none of his family knew about the room on Shagbe Road, as he and Ibrahim would meet and stay there when they were in the city.
[15] The RPD found that this testimony was inconsistent with (a) Mr. Oloyede Adekunle’s refugee application form, which stated that he lived at the Shagbe Road address between October 2012 and February 2022; (b) his NATA membership card and documents from 2012, which included the same address; (c) his father’s death certificate, which said his father was living at the Shagbe Road address when he died; and (d) the fact that his brother, who he claimed did not know of the address, obtained the death certificate with the address on it. The RPD did not accept Mr. Oloyede Adekunle’s various explanations for these inconsistencies. It concluded on a balance of probabilities that the Shagbe Road address was Mr. Oloyede Adekunle’s family home address and his father’s residence before his death, such that (a) the incidents described in his narrative could not have occurred as described; and (b) he could not have been secretly spending nights with Ibrahim at that address.
[16] Second, the RPD found inconsistencies and omissions between Mr. Oloyede Adekunle’s written narrative and his testimony regarding events between the February 2, 2022, incident and his departure from Nigeria. Mr. Oloyede Adekunle testified that he ran away from the farm to Ibadan the day after the incident and stayed with an older brother. He claimed that his common-law partner made her blackmail demands through his brother, accompanied by threats to report him to the authorities. The RPD noted that none of these relevant facts—the flight to his brother’s residence in Ibadan, the blackmail demands being relayed by the brother, and the threats to report him to the authorities—had been mentioned in Mr. Oloyede Adekunle’s narrative. The RPD again rejected Mr. Oloyede Adekunle’s explanation for not including these matters in his narrative, noting that the basis of claim form both instructs claimants to include everything that is important to the claim and specifically asks whether a claimant has moved to another part of their country to seek safety. The RPD concluded that Mr. Oloyede Adekunle was “improvising”
at the hearing.
[17] Third, the RPD referred to Mr. Oloyede Adekunle’s testimony that the Nigerian police had summoned his brother to the police station to speak about him after his common-law partner reported him missing. Mr. Oloyede Adekunle testified that since his brother had not gone to the police station, the police were now looking for him and his brother was looking for a way to run away. In addition to noting that the testimony was internally inconsistent and evolving as to the date of this alleged summons, the RPD drew a negative inference from the fact that this highly relevant allegation was raised for the first time in his testimony, rather than in his narrative or an amendment to it, and was uncorroborated by evidence from his brother. Again, the RPD concluded that Mr. Oloyede Adekunle was improvising at the hearing.
[18] Fourth, the RPD identified an inconsistency between Mr. Oloyede Adekunle’s written narrative and his testimony with respect to his job. In his written forms, Mr. Oloyede Adekunle declared that he focused on farming after finishing university in 2008 because he had no money to establish his own mechanic workshop, but that he was nonetheless self-employed as a car engineer from May 2012 to March 2022. In his oral testimony, he said he was a farmer, and that his work as a mechanic was not a stable source of income. The RPD noted that Mr. Oloyede Adekunle had filed documentary information relating to his work as a mechanic, but no documents relating to his ownership of a farm. It found on a balance of probabilities that Mr. Oloyede Adekunle was working as a mechanic in Ibadan.
[19] Fifth, the RPD drew a negative credibility inference from the fact that Mr. Oloyede Adekunle submitted a fraudulent affidavit. As noted above, Mr. Oloyede Adekunle filed an affidavit dated April 20, 2023, attesting to his father’s death. The affidavit, which was sworn in Nigeria, purports to be sworn by Mr. Oloyede Adekunle, who was in Canada in April 2023. Mr. Oloyede Adekunle explained that it was in fact his brother who swore the affidavit in Nigeria in order to get the death certificate to prove his father’s death and his relationship to his father. Mr. Oloyede Adekunle was unable to reasonably explain why his brother could not have sworn an affidavit in his own name regarding their father’s death, but instead posed as Mr. Oloyede Adekunle to swear an affidavit in his name. Nor could Mr. Oloyede Adekunle explain why he knowingly submitted a fraudulent affidavit in support of his refugee claim. The RPD found that the submission of the fraudulent affidavit by Mr. Oloyede Adekunle and its creation by his brother seriously undermined the credibility of both Mr. Oloyede Adekunle and his brother. This negatively impacted the evidence in the brother’s letter, to which the RPD therefore gave no weight.
[20] Having addressed these credibility concerns, the RPD turned to the remaining pertinent documents, which it listed as being “a letter purporting to be from the claimant’s current partner, photos of the claimant with his alleged partner, and photos of the claimant participating in the LGBTQ+ community activities.”
[21] The RPD found that the letter from the current partner provided very limited information about the relationship. It also did not accept Mr. Oloyede Adekunle’s explanation as to why the partner was not produced as a witness, namely that he could not attend because it was a workday. Mr. Oloyede Adekunle had said at the outset of the hearing that there was no evidence he wanted to produce in support of his claim but was unable to provide, and he had not made any request to schedule the hearing at a time when the partner could be present. Citing decisions of this Court, the RPD found that Mr. Oloyede Adekunle’s submission of a fraudulent affidavit made it likely that he also created a letter from his alleged partner and posed for photographs with the individual to create evidence in support of his refugee claim: Uddin v Canada (Citizenship and Immigration), 2022 FC 117 at para 11; Towolawi v Canada (Citizenship and Immigration), 2020 FC 245 at para 33; Manzi v Canada (Citizenship and Immigration), 2021 FC 711 at para 9.
[22] The RPD also noted that the evidence was self-serving, since the alleged partner had also filed a refugee claim based on his sexual orientation, with the support of Mr. Oloyede Adekunle. While the RPD did not disregard the evidence on this basis, it considered the nature of the evidence together with the other credibility issues, the submission of other fraudulent evidence, and the inability to test the partner’s evidence. It concluded that it could not give any weight to the letter and photographs in the circumstances of the claim.
[23] With respect to the photographs of Mr. Oloyede Adekunle participating in LGBTQ+ community activities, the RPD accepted that the claimant had participated in these events, but that since they were “open to the public,”
they did not substantiate Mr. Oloyede Adekunle’s alleged sexual orientation.
[24] The RPD concluded that the inconsistencies it identified on central and material aspects of Mr. Oloyede Adekunle’s claim, together with his submission of a fraudulent document and his failure to produce a witness who could reasonably have been expected to provide evidence, negatively impacted his overall credibility. In light of “the totality of the evidence,”
the RPD found that Mr. Oloyede Adekunle lacked overall credibility and had not established any of his allegations, including his sexual orientation, on a balance of probabilities.
(2) The RPD’s no credible basis finding
[25] The RPD went on to conclude that Mr. Oloyede Adekunle’s claim had no credible basis pursuant to subsection 107(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. In a brief paragraph, the RPD stated that it had considered the totality of Mr. Oloyede Adekunle’s documentary and testimonial evidence, “including parts of the testimony that have not been explicitly discussed in this decision,”
and found that no credible documentary or testimonial evidence had been provided on which it could have made a favourable decision. It therefore found there was no credible basis for the claim.
C. The RPD’s decision is reasonable
[26] Mr. Oloyede Adekunle focused his oral submissions on the RPD’s finding that there was no credible basis for his claim. However, he maintained the arguments raised in his written memorandum regarding the RPD’s credibility findings and other evidentiary findings. These issues are evidently related, as the RPD’s no credible basis finding was premised on the evidentiary determinations it made in assessing Mr. Oloyede Adekunle’s claim. Further, a number of Mr. Oloyede Adekunle’s arguments about the no credible basis finding invoke the RPD’s assessment of particular aspects of the evidence. In the following discussion, I will address Mr. Oloyede Adekunle’s arguments related to particular evidentiary findings by the RPD before turning to the no credible basis finding, recognizing that the two are interrelated.
(1) The RPD’s evidentiary determinations are reasonable
[27] Mr. Oloyede Adekunle acknowledges that there were some mistakes and inconsistencies in his evidence. However, he argues the RPD made a number of unreasonable findings in reaching its conclusion that he generally lacked credibility. For the following reasons, I am not persuaded the RPD’s credibility findings were unreasonable.
(a) The RPD did not unreasonably focus on peripheral issues
[28] Contrary to Mr. Oloyede Adekunle’s arguments, the RPD’s credibility findings with respect to his addresses and his work did not relate to peripheral issues. Mr. Oloyede Adekunle’s claim raised the incident of February 2, 2022, as a central event relating to both his sexual orientation and his past persecution in Nigeria. His credibility with respect to that event was therefore of material importance to the credibility of his claim as a whole. According to Mr. Oloyede Adekunle’s written narrative, the incident occurred at a room at the family farm in the same village where he resided, where he had met Ibrahim, and where Ibrahim had stayed with him in the past. As the RPD stated, his residential address was therefore central as it related to where he was located at the time of the alleged incident of February 2, 2022.
[29] However, Mr. Oloyede Adekunle’s evidence showed direct, material, and unexplained inconsistencies in respect of the Shagbe Road address. In particular, his testimony claiming that he started secretly renting the Shagbe Road location in 2019 directly conflicted with his own refugee forms, the 2012 NATA documents with the address on them, and the death certificate showing the address as his father’s residence. These inconsistencies were not merely peripheral, and it was reasonable for the RPD to rely on them as undermining Mr. Oloyede Adekunle’s credibility.
[30] Indeed, Mr. Oloyede Adekunle’s written submissions on this application concede that it is “important to assess whether or not the persecution occurred where the applicant lived.”
Those submissions go on to claim that it was “not contested”
that the persecution of Mr. Oloyede Adekunle based on his sexual orientation occurred in Ibadan at the Shagbe Road address, where Mr. Oloyede Adekunle lived. This is not so. Mr. Oloyede Adekunle’s evidence was in fact that the incident of February 2, 2022, occurred not at the Shagbe Road address in the city of Ibadan (which he says his family did not know about), but at the farm in the village where he said he resided. As the RPD reasonably concluded, this incident cannot have occurred in the manner Mr. Oloyede Adekunle described if he was not in fact living in the village where the farm was located, but in the city at a family address.
[31] The same is true with respect to the RPD’s conclusions about Mr. Oloyede Adekunle’s job. The circumstances in which Mr. Oloyede Adekunle says he met Ibrahim, the continuation of that relationship, and the incident of February 2, 2022, were all premised on Mr. Oloyede Adekunle working as a farmer in his village. The RPD’s conclusion, based on the inconsistencies in Mr. Oloyede Adekunle’s documents and narrative, that on a balance of probabilities, he was working as a mechanic in the city of Ibadan is therefore directly relevant to central aspects of his narrative.
[32] Mr. Oloyede Adekunle also contends that the RPD focused on peripheral issues regarding his father’s death certificate. However, the RPD’s findings related to the death certificate focus on Mr. Oloyede Adekunle’s submission of a fraudulent affidavit addressing his father’s death. As noted, the affidavit states on its face that it was sworn by Mr. Oloyede Adekunle, but he admitted (only at the hearing and only in response to questions from the RPD) that it was falsely sworn by his brother posing as him. I cannot accept that presenting a fraudulent affidavit to the RPD to support a refugee claim is merely a peripheral matter, even if the subject of the affidavit (in this case, the father’s death) is only a part of the overall narrative. Rather, it is central to Mr. Oloyede Adekunle’s credibility, as the RPD reasonably found.
[33] Mr. Oloyede Adekunle’s argues that the RPD also focused on peripheral issues in conducting the hearing. He alleges the RPD spent too much of the hearing on issues such as his addresses, while failing to ask questions about the danger or persecution he faced in Nigeria, including the central incident of persecution on February 2, 2022. This argument must be rejected, for several reasons.
[34] First, while Mr. Oloyede Adekunle refers generally to the conduct of the hearing, he did not obtain a transcript of the hearing or point to any particular aspect of either the transcript or the audio recording to permit the Court to assess his argument. As noted above, while Mr. Oloyede Adekunle may not have had the audio recording when he first brought or perfected his application for leave and judicial review, he did receive it during the conduct of this application. Yet he neither obtained a transcript nor filed a further memorandum of argument to support his arguments about the conduct of the hearing. It is simply not sufficient for counsel to state that they have listened to the recording and to submit that the RPD did not ask enough questions about an aspect of an applicant’s narrative, as occurred here. I adopt Justice Norris’s observation that it is not the Court’s responsibility to listen to the audio recording of a hearing to determine whether an applicant’s position is well-founded, especially absent guidance from the applicant as to what parts of the recording are pertinent: Zararsiz v Canada (Citizenship and Immigration), 2020 FC 692 at para 63; see also Mubengayi v Canada (Citizenship and Immigration), 2022 FC 1324 at para 34.
[35] Second, Parliament has tasked the RPD with the conduct of refugee hearings, including through questioning witnesses, examining the evidence, and making credibility determinations: IRPA, ss 106–107, 170(b), (d.1), (e), (h). In performing that mandate, the RPD is entitled to ask the questions it considers necessary to assess the applicant’s claim, provided that it does so within the appropriate bounds of its role. The RPD’s conduct of a hearing is reviewable on judicial review (or on appeal to the Refugee Appeal Division where available), and such review may reveal concerns about bias or other procedural fairness issues. However, the Court will not lightly second-guess the RPD’s judgment of what aspects of the evidence require further elaboration or questioning within the time available for a hearing. It may be that a lack of questioning in a particular area simply indicates that the RPD did not consider that the evidence required further elaboration. Conversely, an applicant’s answers to questions in a particular area may raise additional questions on the part of the RPD, particularly where they demonstrate inconsistencies that require further probing. Such questioning does not itself render a decision unreasonable or demonstrate an unreasonable focus on peripheral issues.
[36] Third, Mr. Oloyede Adekunle was represented by counsel during his hearing before the RPD. Counsel could have asked questions in any area the RPD left unexplored and could have raised an objection if they considered the RPD’s questioning improper. There is no indication that they did so. Nor is there any indication that counsel was unable to address any areas in the time provided for the hearing. To the contrary, it is clear the RPD ensured that there was sufficient time for the conduct of all questioning, conducting the hearing over the course of six hours.
[37] I therefore conclude that Mr. Oloyede Adekunle has not established that the RPD unreasonably focused on peripheral issues, either in making its credibility findings in its decision or in its conduct of the hearing. Mr. Oloyede Adekunle’s personal credibility was of particular importance in his claim, given that he sought to establish both the central relevant fact of his claim—his sexual orientation—and other associated facts such as his persecution in Nigeria, primarily on the basis of his own evidence.
(b) The RPD did not reject evidence solely on grounds that it was self-serving
[38] Mr. Oloyede Adekunle argues that it was unreasonable for the RPD to reject the supporting letter from his current partner on the basis that it amounted to self-serving evidence. While I agree that evidence cannot be rejected solely on the basis that it is “self-serving,”
this is not what the RPD did.
[39] This Court has recognized on a number of occasions that evidence from an applicant or their family cannot be rejected solely on the basis that it is “self-serving,”
i.e., that it assists the applicant’s case: Sohel v Canada (Citizenship and Immigration), 2023 FC 1217 at para 49; Singh v Canada (Citizenship and Immigration), 2015 FC 1210 at para 12; Cruz Ugalde v Canada (Public Safety and Emergency Preparedness), 2011 FC 458 at paras 27–28, and the cases cited in each. The RPD recognized this, stating that it had “considered the Federal Court’s direction on the treatment of self-serving evidence and that while the panel cannot disregard such evidence, it is open to the panel to consider the self-serving nature of the evidence in weighing it.”
While I would underscore that it is improper to discount evidence solely because it is “self-serving,”
the RPD’s statement is a reasonable summary of the law and conforms with the relevant legal constraints on it: Cruz Ugalde at para 28; Magonza v Canada (Citizenship and Immigration), 2019 FC 14 at para 44; Rahman v Canada (Citizenship and Immigration), 2019 FC 941 at paras 24–25; Ibrahim v Canada (Citizenship and Immigration), 2022 FC 1424 at paras 12–13; Nagarasa v Canada (Citizenship and Immigration), 2018 FC 313 at para 24; Vavilov at paras 99, 101, 111–112.
[40] In this regard, this Court has confirmed that it is reasonable for a decision maker to consider or refer to the interest of a witness in the outcome or the self-serving nature of evidence as part of a broader review of the evidence and the weight to be given to it: Magonza at para 44; Omar v Canada (Citizenship and Immigration), 2024 FC 299 at paras 18–22; Arif v Canada (Citizenship and Immigration), 2021 FC 1048 at paras 31–37; Ibrahim at paras 12–13; Ferguson v Canada (Citizenship and Immigration), 2008 FC 1067 at para 27; Rahman at paras 27–28. This was the analysis the RPD undertook in this case, considering the current partner’s letter in the context of the very limited information in it, Mr. Oloyede Adekunle’s submission of other fraudulent evidence, the other inconsistencies and omissions in Mr. Oloyede Adekunle’s evidence, and the partner’s unavailability for questioning. It was open to the RPD not to give weight to the letter and the photographs of the current partner in the circumstances, and its analysis of this evidence was reasonable.
(c) The RPD’s assessment of the evidence of participation in community events was reasonable
[41] As noted, the RPD found that photographs of Mr. Oloyede Adekunle participating in LGBTQ+ community events demonstrated that he participated in those events, but did not substantiate his alleged sexual orientation, since the events were open to the public. Mr. Oloyede Adekunle argues this was an erroneous finding, since only one of the events (the Pride Parade) was open to the public, while the other, an event for CCLGBTQ+ members, was not open to the public.
[42] To the extent that a distinction can be made between events open generally to the public and events for members of a community organization that is in turn open to the public, I cannot conclude that any error on the part of the RPD affected the reasonableness of its assessment of this evidence. It is clear that the RPD’s reasoning was that participation in events for the LGBTQ+ community did not itself substantiate Mr. Oloyede Adekunle’s sexual orientation. Whether the events were open to the public at large, or only a subset of the public, does not materially affect the RPD’s analysis.
(d) The RPD’s limited reference to the community organization letters does not render the decision unreasonable
[43] This latter point leads to one of Mr. Oloyede Adekunle’s central arguments, raised primarily in connection with the no credible basis finding, but also relevant to the RPD’s rejection of his claim. Mr. Oloyede Adekunle argues that the RPD made no express reference to the two letters that he filed from the CCLGBTQ+ and AGIR organizations. He argues that these were important pieces of evidence and that it was unreasonable for the RPD to fail to address them.
[44] It would have been preferable for the RPD to have made more direct or express reference to the community organizations’ letters. However, I cannot conclude that the absence of such reference renders the RPD’s decision unreasonable. The RPD is presumed to have considered all of the evidence and is not required to refer to every piece of evidence before it, particularly where that evidence is not central to the matter: Florea v Canada (Minister of Employment and Immigration), [1993] FCJ No 598 (CA) at para 1; Kanagendren v Canada (Citizenship and Immigration), 2015 FCA 86 at para 36; Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC) at paras 14–17; Aghaalikhani v Canada (Citizenship and Immigration), 2019 FC 1080 at para 24; Kot v Canada (Attorney General), 2022 FCA 133 at para 14, citing Vavilov at paras 91, 128.
[45] While Mr. Oloyede Adekunle insists on the importance of the community organizations’ letters, I am not satisfied that they are of a nature that required specific comment by the RPD. The CCLGBTQ+ letter simply states that Mr. Oloyede Adekunle is a member of the organization and used their services. It indicates that he sought assistance and support, and that the organization was happy to consider him among their members and donors. It further confirmed that he volunteered and took part in community activities. However, it does not purport to speak directly to Mr. Oloyede Adekunle’s sexual orientation. In this regard, it is different from the more personal and detailed letter described in Adejuwon v Canada (Immigration, Refugees and Citizenship), 2017 FC 432 at paras 8, 21.
[46] Similarly, the AGIR letter confirms that Mr. Oloyede Adekunle had received support services offered by AGIR for migrants who self-identify as sexual and/or gender minorities. It notes that he had identified as a cis gay man, both at an initial conversation with an AGIR team member and during other conversations. However, the letter again does not purport to do more than repeat Mr. Oloyede Adekunle’s own statements regarding his sexual identity. Indeed, the letter expressly acknowledges that AGIR does not have the capacity to produce more personalized letters for individual LGBTQ+ migrants.
[47] It is important to recall the context and to consider the RPD’s decision as a whole, rather than digging for errors: Vavilov at para 102. The RPD found not only that Mr. Oloyede Adekunle’s evidence lacked credibility, but that he had submitted fraudulent evidence, and had likely “created a letter from his alleged partner and posed for photographs with said individual to create evidence in support of his refugee claim.”
Further, the RPD did not omit all mention of Mr. Oloyede Adekunle’s participation in these community organizations. It specifically addressed the photographs of his participation in events and social media posts from the CCLGBTQ+, finding that while they indicated participation, they did not substantiate Mr. Oloyede Adekunle’s sexual orientation. This reasoning can be understood to apply not only to participation in the events but also to participation in the organizations. In the circumstances of this decision and in light of the RPD’s other findings, I conclude that the lack of direct and specific reference to the two letters themselves is not an omission that renders the decision unreasonable.
(e) It was reasonable not to address country condition evidence
[48] Mr. Oloyede Adekunle argues that the RPD did not take into account the country conditions in Nigeria with respect to the treatment of LGBTQ+ people. He argues that the RPD was required to consider the corroborative value of objective documentary evidence of country conditions, citing this Court’s decision in Yahaya v Canada (Citizenship and Immigration), 2019 FC 1570 at para 14.
[49] I disagree. Mr. Oloyede Adekunle’s refugee claim was based on his allegation that he faced persecution in Nigeria as a gay man. The discrimination and persecution faced by the LGBTQ+ community in Nigeria is therefore relevant, but only if Mr. Oloyede Adekunle established on a balance of probabilities that he was a member of this community. As he failed to prove to the RPD’s satisfaction that he was a gay man, the objective evidence of persecution of gay men in Nigeria became irrelevant and did not need to be addressed.
[50] As Justice Pamel noted in Yahaya, tribunals should be attentive to relevant evidence related to the social and legal realities of sexual minorities in making their credibility assessments: Yahaya at para 14. However, the RPD’s credibility determinations in this case were based on matters such as central inconsistencies and omissions in Mr. Oloyede Adekunle’s testimony and narrative and his submission of a fraudulent affidavit. None of these findings were affected by the social and legal realities of the LGBTQ+ community in either Nigeria or Canada. In this regard, Mr. Oloyede Adekunle has not pointed to any particular aspect of the country condition evidence that he asserts is relevant to the credibility findings that the RPD actually made. Rather, he simply points generally to the RPD not having addressed the persecution of gay men in Nigeria in its assessment of the claim. Having reasonably concluded that Mr. Oloyede Adekunle had not credibly established that he was gay, it was not incumbent on the RPD to nonetheless address the treatment of gay men in Nigeria.
[51] I reach the same conclusion with respect to Mr. Oloyede Adekunle’s argument that the RPD did not address the central issue of whether he had a well-founded fear of persecution based on sexual orientation in Nigeria. The RPD did directly address this issue, through its assessment of whether Mr. Oloyede Adekunle had established his sexual orientation such that he would be exposed to such persecution.
[52] I therefore conclude that Mr. Oloyede Adekunle has not established that the RPD’s assessment of the evidence, including its credibility findings, were unreasonable. It follows that the RPD’s conclusion based on these findings that Mr. Oloyede Adekunle had not established the elements of his claim, and in particular his sexual orientation, was reasonable.
(2) The RPD’s conclusion that the claim had no credible basis was reasonable
(a) No credible basis findings under the IRPA
[53] Subsection 107(2) of the IRPA requires the RPD to state that there is no credible basis for a claim where it is of the opinion that there is “no credible or trustworthy evidence on which it could have made a favourable decision”
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No credible basis
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Preuve
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107 (2) If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim.
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107 (2) Si elle estime, en cas de rejet, qu’il n’a été présenté aucun élément de preuve crédible ou digne de foi sur lequel elle aurait pu fonder une décision favorable, la section doit faire état dans sa décision de l’absence de minimum de fondement de la demande.
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[Emphasis added.]
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[Je souligne.]
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[54] A finding that a claim has not been established, even on grounds of credibility, is not the same as a finding that it has no credible basis: Omar v Canada (Citizenship and Immigration), 2017 FC 20 at para 19 [Omar (2017)], citing Eze v Canada (Citizenship and Immigration), 2016 FC 601 at para 26. As Mr. Oloyede Adekunle points out, the Federal Court of Appeal has confirmed that a no credible basis finding requires consideration of the totality of the evidence and not simply the credibility of the applicant: Rahaman v Canada (Minister of Citizenship and Immigration), 2002 FCA 89 at paras 19, 27, 51. The threshold for such a finding has been described by this Court as being high or even “very high”
: Ramón Levario v Canada (Citizenship and Immigration), 2012 FC 314 at para 18; Eze at para 26; AB v Canada (Citizenship and Immigration), 2020 FC 562 at para 30; Omar (2017) at para 16; Rahaman at para 51.
[55] At the same time, to avoid a no credible basis finding, the credible or trustworthy evidence of a claim must be sufficient that the RPD could have made a favourable decision. It is therefore not enough that there be some credible or trustworthy evidence; that evidence must be sufficient in law to sustain a positive determination of the claim: Rahaman at paras 29–30. Since an applicant must show that they are personally at risk, country condition reports alone are not normally a sufficient basis on which a favourable decision can be made: Rahaman at para 29; Regala v Canada (Citizenship and Immigration), 2020 FC 192 at para 24.
(b) The RPD’s no credible basis finding
[56] After quoting subsection 107(2), with emphasis on the word “shall,”
the RPD set out its reasons for concluding that there was no credible basis for Mr. Oloyede Adekunle’s claim in the following paragraph:
The panel has considered the totality of the claimant’s documentary and testimonial evidence, including parts of the testimony that have not been explicitly discussed in this decision. Per subsection 107(2) of IRPA, the panel finds that no credible documentary or testimonial evidence has been provided by the claimant on which the panel could have made a favorable decision. Therefore, the panel finds that there is no credible basis for this claim.
[57] This paragraph provides little more than a summary of the RPD’s reasoning, with a restatement of the test set out in subsection 107(2) and a confirmation that the RPD had considered all of the evidence. Considered on its own, this reasoning would fall short of the requirements of transparency, intelligibility, and justification required of a reasonable decision.
[58] However, this paragraph cannot be read in isolation. Rather, it must be read in the context of the RPD’s decision as a whole: Vavilov at paras 15, 84–85, 99. That context is critical in understanding the RPD’s conclusion that there is no credible documentary or testimonial evidence on which the panel could have made a favourable decision. Most of the RPD’s decision is directed to an assessment of the credibility of the documentary and testimonial evidence. These aspects of its analysis are relevant to both its finding that Mr. Oloyede Adekunle had not established his claim and its finding that there was no credible basis for it.
(3) The RPD’s no credible basis finding is reasonable
[59] As set out above, the evidence presented by Mr. Oloyede Adekunle in support of his claim consisted of his own testimony and a number of documents including those itemized at paragraph [12] above: (a) the NATA membership card and documents; (b) the affidavit in his name regarding his father’s death and the certificate of death; (c) a letter from his alleged current partner and pictures of them together; (d) a letter from his older brother; (e) letters from CCLGBTQ+ and AGIR; and (f) pictures of himself at a Pride Parade and a CCLGBTQ+ event.
[60] The RPD made express negative credibility findings with respect to Mr. Oloyede Adekunle’s testimony, finding that he “lacked overall credibility and has not established any of his allegations, including his sexual orientation, on a balance of probabilities.”
The case is therefore different than that in the Omar (2017) decision Mr. Oloyede Adekunle relies on. There, Justice Fothergill expressly noted that “the RPD did not find Mr. Omar’s evidence to be wholly lacking in credibility,”
and pointed to particular elements of the evidence which had been given little weight—but not no weight—that could have established his well-founded fear: Omar (2017) at paras 7, 13–16, 20.
[61] The RPD similarly gave no weight to the letter from Mr. Oloyede Adekunle’s brother, given his role in producing a fraudulent affidavit. Mr. Oloyede Adekunle does not challenge that finding on this application.
[62] Mr. Oloyede Adekunle contends that the letter from his current partner was credible evidence to which the RPD could have given some weight and on which it therefore could have made a favourable decision. However, the RPD found the letter not to be credible, expressly finding it likely that Mr. Oloyede Adekunle “created a letter from his alleged partner and posed for photographs with said individual to create evidence in support of his refugee claim.”
The RPD therefore clearly did not accept this letter as credible evidence. It is important to note that the question for purposes of subsection 107(2) of the IRPA is not whether the evidence could have been found credible, but whether there is credible or trustworthy evidence that could have supported a favourable decision. While the partner’s letter could have supported a favourable decision if it had been found credible or trustworthy, the RPD found it not to be, and as explained above, that finding was reasonable.
[63] As neither the death certificate of Mr. Oloyede Adekunle’s father nor the NATA documents speak in any way to either Mr. Oloyede Adekunle’s sexual orientation or his narrative, this leaves the letters from CCLGBTQ+ and AGIR and the photographs from the Pride Parade and the CCLGBTQ+. As discussed above, the RPD accepted that the photographs established that Mr. Oloyede Adekunle had participated in the events. However, it found that participation in the events did not themselves substantiate his sexual orientation. While not specifically referred to in its discussion of the no credible basis finding, it is clear that the RPD found that the photographs were credible and trustworthy evidence (in the sense that they credibly established Mr. Oloyede Adekunle’s participation in the events) but that they could not ground a favourable decision since they did not substantiate Mr. Oloyede Adekunle’s sexual orientation.
[64] Mr. Oloyede Adekunle’s strongest argument is that the RPD should not have reached a finding that there was no credible basis for his claim without express consideration of the two letters from the community organizations. There is no indication that the RPD found these letters not credible or trustworthy, in the sense of being authentic letters prepared by the organizations in question. The quality of the RPD’s reasons would certainly have been improved had it expressly and directly addressed these letters. However, recognizing that the decisions of administrative tribunals are not held to a standard of perfection, I cannot conclude that the lack of specific discussion of the letters renders the RPD’s no credible basis finding unreasonable or shows that the RPD failed to meaningfully grapple with key issues or account for the evidence: Vavilov at paras 91, 125–128. I say this for two reasons, which parallel those discussed above.
[65] First, the RPD set out its reasoning with respect to whether participation in the community organizations substantiated Mr. Oloyede Adekunle’s sexual orientation in light of his general lack of credibility. Its conclusion—essentially that Mr. Oloyede Adekunle could have attended those events whether he was in fact gay or simply making a false assertion regarding his sexual orientation—applies equally to the letters, which do not speak directly to Mr. Oloyede Adekunle’s sexual orientation but only to his involvement in the organizations.
[66] Second, on the face of the letters, it is reasonable to conclude they are insufficient to ground a favourable decision on Mr. Oloyede Adekunle’s claim in the absence of other credible evidence pertaining to his sexual orientation. Even if accepted on its face, the CCLGBTQ+ letter only confirms Mr. Oloyede Adekunle’s membership in the organization, his use of their services, and his involvement as a volunteer and participant in activities. The AGIR letter does state that Mr. Oloyede Adekunle self-identified as a cis gay man. However, given the RPD’s finding that Mr. Oloyede Adekunle’s statements regarding his sexual orientation lacked credibility, evidence that he made similar statements to a third party cannot be sufficient evidence on which the RPD could make a favourable decision.
[67] In other words, while the two letters from the community organizations corroborate Mr. Oloyede Adekunle’s membership and participation in the organizations, and could, when combined with other credible evidence, help establish Mr. Oloyede Adekunle’s claim, they do not themselves corroborate his sexual orientation. Given its findings that the evidence speaking directly to Mr. Oloyede Adekunle’s sexual orientation (his own testimony and the letters from his brother and alleged current partner) wholly lacked credibility, it was reasonable for the RPD to conclude that there was no credible and trustworthy evidence on which it could have made a favourable decision.
[68] I therefore conclude that despite some shortcomings in the RPD’s reasons, Mr. Oloyede Adekunle has not met his onus to show that the RPD’s conclusion that his refugee claim had no credible basis was unreasonable.
IV. Conclusion
[69] As Mr. Oloyede Adekunle has not established that the RPD’s decision was unreasonable or unfair, the application for judicial review is dismissed.
[70] Neither party proposed a question for certification under paragraph 74(d) of the IRPA. I agree that no serious question of general importance is involved in the matter.
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