TB6-11482

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 / Dossier de la SAR : TB6-11482 Private Proceeding / Huis clos Redetermination of Appeal ? Nouvel examen de l'appel Reasons and decision ? Motifs et decision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Date(s) of hearing June 19, 2018 Date(s) de l'audience Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 9, 2018 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are) the subject of the appeal Lisa Winter-Card Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Michelle Clark Conseil du ministre REASONS FOR DECISION OVERVIEW OF THE APPEAL [1] XXXX XXXX XXXX (the Appellant), a citizen of Barbados, appeals the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He maintains that, days before the RPD's decision was rendered, a new sur place claim arose; however, he was unable to put the new sur place claim before the RPD before a decision was rendered. He asks the Refugee Appeal Division (RAD) to assess his new sur place claim. The Minister of Immigration, Refugees and Citizenship (the Minister) intervened in this appeal and requests that the RAD confirm the determination of the RPD that the Appellant is not a Convention refugee or a person in need of protection. Having assessed the Appellant's sur place claim, I am confirming the decision of the RPD and dismissing the appeal. BACKGROUND [2] The Appellant alleged before the RPD that he is bisexual. He alleged that he was attacked by a man named XXXX in Barbados in XXXX 2013 and by three men in XXXX 2013. He alleged that the attacks were due to his sexual orientation and because he told XXXX that his girlfriend was cheating on him. The Appellant came to Canada on May 16, 2015 and made a claim for refugee protection approximately eight months later. The RPD rejected the claim finding, on a balance of probabilities, that the Appellant was not credible regarding his sexuality and allegations. [3] On appeal, the Appellant alleges that an immigration officer disclosed to a fellow Barbadian named XXXX that the Appellant had "ratted him out". He alleges that XXXX was deported and has threatened to kill the Appellant, if he returns to Barbados. SCOPE OF THE APPEAL [4] As held by the Federal Court of Appeal in Huruglica, the RAD is to review decisions of the RPD on a standard of correctness on questions of law, fact, and mixed fact and law, after conducting an independent assessment of the evidence before it.1 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases may attract a standard of review of reasonableness.2 Unless otherwise stated, a correctness standard has been applied. ANALYSIS Findings of the RPD Credibility Inconsistent evidence and vagueness of testimony regarding Appellant's realization that he is bisexual [5] The RPD noted that the Appellant, according to his Basis of Claim Form (BoC) narrative, indicated that he realized he was bisexual when he was 12 or 13 years old; however, according to his oral testimony at his hearing, he realized he was bisexual when he was 8 or 9 years old. It also noted that the Appellant was vague when describing his experience in realizing he was bisexual. The vagueness of his testimony coupled with the inconsistency noted above led the RPD to conclude that the Appellant was not credible about how and when he realized he was bisexual. [6] The Appellant has not argued any specific error with respect to the RPD's analysis or findings, and I see none. Inconsistent evidence and evasiveness in answering questions about his same-sex partners [7] The RPD noted that the Appellant was unable to remember the name of a hotel in Barbados (a hotel that was accepting of gays) that he and his same-sex partners would have sexual encounters. His inability to remember such an important detail led the RPD to draw an adverse inference against the Appellant's credibility concerning his alleged relationships. The RPD also noted that the Appellant provided inconsistent evidence regarding an alleged same-sex partner in Texas. It noted that the Appellant first testified that his partner's name was XXXX, then at the next sitting of his hearing, he stated that his name was XXXX. He also indicated at the second sitting that he could not remember XXXX last name. The RPD noted that the Appellant, in his BoC narrative, referred to his same-sex partner in Texas as XXXX XXXX XXXX.3 It also noted that the Appellant was evasive when asked to explain the inconsistency. As a result of the inconsistency and his evasiveness in explaining the inconsistency, the RPD concluded that the Appellant was not credible about his relationship. [8] The Appellant has not argued any specific error with respect to the RPD's analysis or findings, and I see none. Inconsistent evidence and evasiveness of testimony regarding the Appellant's openness as a bisexual in Barbados [9] The RPD noted an inconsistency in the Appellant's evidence regarding his openness as a bisexual in Barbados, and he was evasive when asked about the inconsistency. It noted that the Appellant testified that he was not open about his sexuality in Barbados; but then, in response to a question about how people knew he was bisexual, he indicated that people saw him hanging around gay people. It noted that, when the Appellant was asked why he would hang around gay people if he was trying to be discreet about his sexuality, the Appellant stated how he tried to live in hiding and raise money to flee Barbados. The RPD drew an adverse inference against the Appellant's credibility regarding his lifestyle as a bisexual male in Barbados. It found that this undermined the Appellant's overall credibility. It found, on a balance of probabilities, that the Appellant was not credible about his sexuality. [10] The Appellant has not argued any specific error with respect to the RPD's analysis or findings, and I see none. Lack of documents to support his allegations [11] The RPD noted the Appellant's allegation that several individuals in Barbados knew what he had experienced; yet, there were no supporting letters from them. It found the lack of sufficient documentation to support the Appellant's claim further undermined his overall credibility. [12] The Appellant has not argued any specific error with respect to the RPD's analysis or finding, and I see none. Delay in departure and reavailment [13] The RPD noted that the Appellant travelled to the United States on XXXX XXXX, 2013, after XXXX release from custody, and returned to Barbados on XXXX XXXX, 2013. It noted that the Appellant traveled again to the United States on XXXX XXXX, 2013 and returned to Barbados on XXXX XXXX, 2013. It noted that, on October 22, 2014, the Appellant came to Canada. It noted that the Appellant travelled back to Barbados on XXXX XXXX, 2015 (to get his birth certificate and Barbados Identification Card because he and his then girlfriend in Canada were planning to get married) and returned to Canada on May 16, 2015. The RPD found it puzzling that the Appellant would remain in Barbados for almost one year before deciding to flee to Canada, considering his alleged fear for his life, and considering that he had been to the United States twice before. It found it reasonable to expect a person with a well-founded fear of persecution to not waste any time before fleeing from his country of persecution. More importantly, for someone who alleged that the threat to his life continued to exist, the RPD found it troublesome that the Appellant would risk returning to Barbados for one month, even if it was to obtain his birth certificate and identity card. The RPD drew an adverse inference against the Appellant's overall credibility and found that his decision to voluntarily return to the country where he allegedly faces persecution brought his subjective fear into question. [14] The Appellant has not argued any specific error with respect to the RPD's analysis or findings, and I see none. Delay in claiming [15] The RPD noted that the Appellant first came to Canada on October 22, 2014; he went back to Barbados in XXXX 2015, and he then returned to Canada in May 2015; however, he did not make a claim for refugee protection until January 2016. It noted the Appellant's explanations regarding his delay in claiming - he had planned to marry his girlfriend in Canada shortly after his first entry; he was arrested in XXXX 2015 and was in detention for XXXX months, and he did not know he could make a claim and first found out he could while in detention in January 2016. While accepting that the Appellant is not very sophisticated, the RPD nevertheless drew an adverse inference against his credibility from the almost eight-month delay in claiming. The RPD found the Appellant's delay in claiming undermined his overall credibility and his fear of persecution in Barbados. [16] The Appellant has not argued any specific error with respect to the RPD's analysis or finding, and I see none. Notes from the immigration officer [17] The RPD allowed notes from immigration officer XXXX XXXX to be entered in evidence. It found that the notes were of no assistance in assessing the Appellant's credibility and gave them no weight. It noted that the credibility findings it had made were based on the Appellant's testimony at the hearing and the information in his BoC. [18] On appeal, the Appellant has not argued any specific error with respect to the RPD allowing the immigration officer's notes into evidence or the weight it assigned the notes, and I see none. Conclusion on credibility [19] Based on its findings (summarized above), the RPD found, on a balance of probabilities, that the Appellant was not credible regarding his sexuality and allegations. [20] The Appellant has not argued any specific error with respect to the RPD's finding on his credibility, and I see none. Admissibility of evidence submitted on appeal [21] The Appellant tendered the following documents as proposed new evidence in support of his appeal. (a) Appellant's affidavit, dated September 16, 2016, Supplementary BoC Narrative Addendum, dated August 10, 2016, and amended Supplementary BoC Narrative Addendum, dated September 16, 2016;4 (b) Letter from Appellant's sister, XXXX XXXX (undated);5 (c) Barbados Free Press blog "Guns, guns and more guns...Welcome to the new Barbados";6 and (d) Letter from Appellant's sister, XXXX XXXX, dated August 11, 2017.7 [22] The Appellant maintained that he was in detention when he learned that an individual who had been deported to Barbados was looking to harm him. He submitted that he became aware of this on August XXXX, 2016 or XXXX XXXX, 2016 and, since he was in detention, he was unable to reach his counsel until August 9, 2016, the day after the RPD's decision was rendered. He submitted that he could not reasonably have been expected in the circumstances to have presented items (a) and (b) above at the time of the rejection. The Appellant pointed out that item (d) is an updated letter from his sister that refers to events that occurred up to the date of the letter. He submitted that he could not reasonably have been expected to have presented evidence of what was happening on XXXX XXXX, 2017 at the time his record was filed in September 2016. The Appellant also asked the RAD to consider item (c) regarding the prevalence of gun violence in Barbados. [23] As noted above, the Minister intervened in this appeal and tendered the following document as proposed new evidence in support of the intervention. (i) Solemn declaration of immigration officer, XXXX XXXX, dated September 27, 2016.8 [24] In my view, item (c) does not meet the statutory requirements of subsection 110(4). I note that this item consists of excerpts from a blog with posts dated June 24, 2015 and August 15, 2015. It is not evidence that arose after the rejection of the Appellant's claim. Since the Appellant alleged before the RPD that he was the victim of violence (including gun violence) in Barbados, and item (c) contains information regarding the prevalence of gun violence in Barbados, it would be reasonable to expect him to have provided information such as that contained in item (c) to the RPD prior to the rejection. He does not allege that item (c) was not reasonably available at the time of the rejection. Since it does not meet the test for new evidence, it will not be accepted in this appeal. [25] While the events and circumstances described in items (a) and (b) arose prior to the rejection of the Appellant's claim, considering that the Appellant was in detention and unable to reach his counsel in order to provide the information to the RPD prior to the rejection, the Appellant could not reasonably have been expected in the circumstances to have presented these items to the RPD prior to the rejection of his claim. Based on the Appellant's allegations, items (a) and (b) meet the statutory requirements of subsection 110(4). Item (d) also meets the requirements of subsection 110(4) as it contains information regarding incidents or circumstances that arose after the rejection of the Appellant's claim. [26] Item (i) meets the statutory requirements for new evidence in an appeal. Subsection 171(a.5) of the IRPA provides that the Minister may, at any time before the RAD makes a decision, submit documentary evidence and make written submissions in support of a Minister's appeal or intervention in an appeal. Therefore, item (i) is admissible as new evidence. [27] Since items (a), (b), (d) and (i) met the statutory requirements of subsection 110(4) or 171(a.5), they were admitted as new evidence in this appeal. The new evidence is assessed below. Oral hearing before the RAD [28] The Appellant requested that an oral hearing be held pursuant to subsection 110(6), as the new evidence raised a new sur place claim which needed to be assessed. [29] I considered the new evidence in this appeal that met the statutory requirements of subsection 110(4) and determined that it raised a serious issue with respect to the credibility of the Appellant, is central to the decision with respect to the Appellant's refugee protection claim and, if accepted, would justify allowing the claim. Since the new evidence met the criteria for a hearing before the RAD, an oral hearing was scheduled. The hearing was restricted to the issue of credibility and was held on June 19, 2018. The evidence adduced at the hearing is assessed below. Credibility Inability to provide details of what he told the immigration officer to cause someone to want to harm him [30] The Appellant alleges that XXXX and his associates in Barbados want to harm him because of something the Appellant told an immigration officer in Canada about XXXX to cause XXXX to be arrested and/or deported. However, the Appellant was unable to provide details of what he told the immigration officer in Canada to cause someone to be arrested and/or deported. At the RAD hearing, the Appellant indicated that he gave immigration officer, XXXX XXXX XXXX two names: XXXX XXXX... and XXXX XXXX....9 When asked why he gave the immigration officer those names, the Appellant indicated that he was in detention with 11 individuals from Barbados, and some of them had asked if he knew XXXX XXXX... saying that XXXX XXXX... looked like him. He went on to indicate that this caused him to believe he was arrested because the police officers thought he was someone else. [31] The Appellant failed to provide details of what he allegedly told the immigration officer about any other individuals, including XXXX. If XXXX is intent on harming the Appellant in Barbados because of something the Appellant told an immigration officer in Canada, it would be reasonable to expect the Appellant to provide detailed information about what he told the immigration officer. The Appellant's inability to do so undermines his credibility and the credibility of his allegations. Appellant's evidence inconsistent with immigration officer's declarations [32] The Appellant points out that the immigration officer who interviewed him specifically stated in a declaration that the Appellant had approached him to exchange information that might lead to other criminals or inadmissible persons in Canada. While it is clear from the immigration officer's notes that the Appellant offered to provide information regarding other individuals in an effort to have charges against him dropped, the notes also reveal that the immigration officer indicated to the Appellant that he did not have the authority to speak with police to have the charges dropped.10 There is no indication in those notes that the Appellant provided information on other individuals after the immigration officer told him he could not help him. [33] Further, in a solemn declaration, the immigration officer indicates that, after he told the Appellant that he had no ability to impact his criminal charges, he told the Appellant that, if he wanted to provide information without promise of favour, he would accept that information; however, the Appellant provided no information regarding any individuals, other than the ones he had mentioned in his initial interviews. The immigration officer goes on to indicate that the Appellant did not provide any information to him for any purpose in any form that pertained to any individuals inside or outside of Canada except as documented in the Appellant's refugee intake interview with him at the time of the Appellant's initial arrest by the Niagara Regional Police Service.11 [34] I give considerable weight to the declaration made by the immigration officer. At the time he made the declaration noted immediately above, immigration officer XXXX XXXX position was XXXX with the Canada Border Services Agency.12 He was acting in an official capacity and does not have a personal interest in the outcome of this case. The Appellant and his allegations have been found to lack credibility. As a result, I find, on a balance of probabilities, that the Appellant did not provide immigration officer XXXX XXXX with information about XXXX or anyone else from Barbados or elsewhere, other than those he mentioned in his initial interviews.13 I find that the Appellant's contention that he provided immigration officer XXXX XXXX with such information when XXXX XXXX declares that he did not further undermines the Appellant's credibility and the credibility of his allegations. Vague testimony lacking in detail regarding how he came to know that XXXX was seeking to harm him in Barbados [35] The Appellant indicates in his affidavit that, on XXXX XXXX or XXXX, 2016, he was told by family in Barbados that XXXX was looking to harm him.14 The Appellant's sister indicates in her first letter that, on XXXX XXXX, 2016, XXXX and three armed men were looking for the Appellant in Barbados and had threatened to kill him.15 However, at his RAD hearing, when asked who he initially spoke with and found out that XXXX was looking to harm him, the Appellant indicated that he had spoken with his sister XXXX and, while she asked him what he had done in Canada to cause individuals to go to her house and place dead animals on her doorstep, she had not named XXXX as one of the individuals. This inconsistency undermines the Appellant's allegation that he learned that XXXX was looking to harm him when he called home on XXXX XXXX or XXXX, 2016. [36] The Appellant went on to explain that, because he had told an immigration officer about XXXX and because his nephew said it was XXXX who was looking for him in Barbados, he then figured it was XXXX who was looking for him in Barbados. The Appellant's evidence about how he learned that XXXX was looking to harm him in Barbados is inconsistent, confusing, and vague. It would be reasonable to expect the Appellant's evidence regarding this central element of his claim to be clear and contain sufficient detail. The absence of these elements further damage the Appellant's credibility and the credibility of his allegations. Lack of effort to obtain police reports and court documents [37] I note that the Appellant made little, if any, effort to obtain police reports or court documents regarding incidents of threats or attacks from XXXX or XXXX that were allegedly reported to police and, in the case of an incident involving XXXX, addressed by the court in Barbados. The Appellant indicated in his BoC that police arrested XXXX after XXXX came at the Appellant with a sword in XXXX 2013; XXXX was charged and brought to court and remanded into custody for XXXX days; and XXXX was released from custody in XXXX2013 after he plead guilty and sentenced to time served.16 At his RPD hearing, the Appellant indicated that he had asked the mother of his children in Barbados to obtain a statement from the police regarding the incident involving XXXX; however, he was told that only the Appellant or XXXX could get a statement. At his RAD hearing, when asked if he attempted to obtain the police report or court documents regarding XXXX, the Appellant indicated that he had contacted a lawyer in Barbados and asked if he could get a statement from police regarding XXXX, and the lawyer had told him that he would look into it. I note that the Appellant made no mention at his RPD hearing that he had contacted a lawyer in Barbados to obtain a statement from police regarding XXXX. No police or court documents were presented by the Appellant to the RPD or the RAD. [38] With respect to XXXX, the Appellant's sister indicates in her first letter that, on XXXX XXXX, 2016, XXXX and three other men threatened to kill the Appellant. She also indicates that police were investigating the matter.17 At his RAD hearing, when asked if police had completed their investigation, the Appellant said that all he heard was that XXXX had been arrested. He also indicated that he did not know what his sister reported to police. When asked if he attempted to obtain a copy of the police report involving XXXX from the lawyer in Barbados, the Appellant indicated that he had not. When asked if he had called or written to police in Barbados himself to obtain police reports or court documents regarding XXXX or XXXX, the Appellant indicated that he did not, as police might have asked him for identification. [39] I attach great importance to police reports and court documents which would have supported the Appellant's allegations. The Appellant has presented evidence indicating that XXXX and XXXX were investigated by police regarding incidents involving the Appellant. He has presented evidence that XXXX appeared before a court in Barbados regarding an incident involving the Appellant. It would be reasonable to expect police and court documents regarding these investigations and court proceeding to exist, if they occurred as alleged. One would expect the Appellant to make a concerted effort to obtain such documentation to support his refugee claim; yet, he made little, if any, effort to obtain it. [40] I note that the Appellant made a substantial effort to obtain documents so that he could marry his girlfriend in Canada and have her sponsor him. He indicates in his BoC narrative that his relationship with his girlfriend in Canada progressed quickly; his girlfriend became pregnant, and they looked into what was required for them to get married and found out that he needed two pieces of identification. He also indicates that he returned to Barbados to obtain his National Identification Card and birth certificate, and he returned to Canada four days after his birth certificate was issued.18 At his RPD hearing, the Appellant indicated that he asked the mother of his children in Barbados to apply for and obtain a birth certificate for him. He indicated that he attended a government office to apply for and obtain his National Identification Card. This evidence is indicative of the Appellant's wherewithal to obtain supporting documentation when required. [41] I draw a negative inference from the Appellant's lack of effort in acquiring police and court documents to corroborate central elements of his claim. I find that his lack of effort further undermines his credibility and the credibility of his allegations. Letters from the Appellant's sister [42] The two letters from the Appellant's sister contain an irregularity on their face that undermines their reliability. Although they are allegedly signed by the same person, the signatures are noticeably different. I also have other concerns with the letters. The first letter is undated; identification documents for the author are not attached to either letter; the statements made in the letters were not verified by the swearing or affirming of an oath by the author; only copies of the letters were provided when it was asked that the originals be presented at the RAD hearing. These factors further undermine the reliability and probative value of the letters. [43] Further, the Appellant's corroborating evidence from his sister does not make his incredible story credible. The irregularity and other concerns noted with the letters, the Appellant's general lack of credibility and his lack of credibility regarding his allegations, and his lack of effort in obtaining corroborating police and court documents from Barbados, adversely impact the amount of weight I can give the letters from his sister. I give the letters no weight in terms of establishing the Appellant's allegations, including those allegations presented to the RPD. Disposition [44] The Appellant maintains that he has provided credible and trustworthy evidence establishing that he is a person in need of protection under paragraph 97(1)(b) of the IRPA. [45] As a cumulative result of the above-noted anomalies in the Appellant's evidence and my other findings noted above, I find that the Appellant lacks credibility. I do not accept, on a balance of probabilities, that the material events, as described by the Appellant in his Basis of Claim Form and at his hearing with the RPD and the RAD, occurred as described. [46] Therefore, I find that there is not a serious possibility of persecution should the Appellant return to Barbados. I therefore conclude that the Appellant has failed to establish a well-founded fear of persecution under section 96 of the IRPA, and, for these same reasons - the lack of credibility - I find that the Appellant is not a person in need of protection or at a risk to life, or at risk of cruel and unusual treatment or punishment, or in danger of torture as set out in section 97 of the IRPA. CONCLUSION [47] Pursuant to paragraph 111(1)(a) of the IRPA, I confirm the decision of the RPD and dismiss the appeal. (signed) "M. Pettinella" M. Pettinella July 9, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 2 Huruglica, 2016 FCA 93, at paras. 69-74; X (Re), 2017 CanLII 33034 (CA IRB). 3 The surname of the Appellant's alleged same-sex partner in Texas has been omitted to ensure privacy, as recommended at paras 5.1 and 5.2 of the Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, issued by the Chairperson, pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, May 1, 2017 ("SOGIE Guideline"). 4 Exhibit P-2, Appellant's Record, at pp. 13-21. 5 Exhibit P-2, Appellant's Record, at p. 22. 6 Exhibit P-2, Appellant's Record, at pp. 23a-23b. 7 Exhibit P-3, Appellant's additional new evidence, at p. 2. 8 Exhibit M-1, Minister's notice of intervention and new evidence, at pp. 4-6. 9 The surnames have been omitted to ensure privacy. 10 Exhibit RPD-1, RPD Record, at pp. 71, 189. 11 Exhibit M-1, Minister's notice of intervention and new evidence, at p. 3. 12 Exhibit M-1, Minister's notice of intervention and new evidence, at p. 1. 13 Exhibit RPD-1, RPD Record, at pp. 68-120. 14 Exhibit P-2, Appellant's Record, at pp. 13-14. 15 Exhibit P-2, Appellant's Record, at p. 22. 16 Exhibit RPD-1, RPD Record, at pp. 34-35, paras. 16-27. 17 Exhibit P-2, Appellant's Record, at p. 22. 18 Exhibit RPD-1, RPD Record, at p. 36, paras. 39, 41. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB6-11482 16 RAD.28.07 (August 9, 2017) Disponible en français