MB8-02728

RAD File No. / No de dossier de la SAR : MB8-02728 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision September 2, 2020 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the person who is the subject of the appeal Moriba Alain Kone Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This is the appeal filed by XXXX XXXX, a citizen of Mali, against a decision of the Refugee Protection Division (RPD) rendered on December 20, 2017, rejecting his claim for refugee protection. [2] The appellant's written account can be summarized in a few sentences. He states that he is homosexual and that he fears for his life should he return to Mali. He explains that he has been attracted to people of the same sex from a young age, but that it was only in 2011 that he began a homosexual relationship, although in secret. He notes that, on September 12, 2016, his neighbourhood's imam caught him kissing his boyfriend in a car. He explains that the imam reported the incident to his father, who insulted him and threatened to kill him. He also swore on the Koran that he would shed blood to restore the family's honour, and he kicked his mother out of the house for being complicit in his sexual orientation. The appellant also submits that he received death threats from his uncle XXXX and that his boyfriend was [translation] "beaten by his parents and left to the criminals in his neighbourhood." He states that he hid at a friend's home and that he managed to flee to Canada on XXXX XXXX, 2016. He states that he did not mention his homosexuality on arrival out of fear and that he was unable to find an interpreter to record his story; he received help only in Montréal. [3] The RPD rejected the appellant's refugee protection claim for a lack of credibility. [4] On appeal, the appellant submits the following arguments: [translation] 1- "The panel [gave] too much weight to the amendments made to the appellant's written account when it accepted and admitted them into evidence." 2- "The panel erred in its assessment of the events, such as the appellant's mother's visit with his father in 2016 and 2017." 3- "The panel should not give too much weight to the content of the forms since the claimant's right to an interpreter was not respected"; the RPD "acknowledged that the appellant does not speak or write French, but refused to understand the errors that were made in the forms at the port of entry ... [and] confused the forms completed at the port of entry (Schedule A, Schedule 12 and IMM 0008) without an interpreter with the Basis of Claim Forms (BOC Forms)"; "the panel shockingly blames the appellant for the officer's failure to tell him about the services of an interpreter." 4- " ... the panel did not set out the criteria for determining homosexuality in past cases or according to the case law ... it is understood that the panel's analysis was based on stereotypes." 5- " ... the panel rejected all of the evidence provided in support of the claim, including the documentary evidence that was submitted ... this approach clearly shows that the panel was biased with respect to the case"; "... the RPD in no way challenged the authenticity of the primary documents, let alone whether the events occurred... This is a clear breach of procedural fairness." 6- " ... the panel did not consider the social context or all the circumstances surrounding this matter"; "the panel disregarded how homosexuals are treated in Mali" and "overlooked the fact that it was initially the appellant's parents who wanted him dead"; "the appellant cannot obtain his state's protection since he has established his homosexual identity." [5] The appellant is asking that the Refugee Appeal Division (RAD) [translation] "set aside the negative determination rendered on December 20, 2017, ... according to which the female claimant is neither a Convention refugee nor a person in need of protection" [sic]. Furthermore, he [translation] "orders a new hearing before the RAD or that the female appellant be directly recognized as a Convention refugee, and that any other order that this panel deems appropriate be made" [sic]. [6] The appellant is not asking to present new evidence under subsection 110(4) of the Immigration and Refugee Protection Act1 (IRPA) and, as previously requested in his conclusions in the memorandum, he is requesting that an oral hearing be held under subsection 110(6) of the IRPA. [7] The Minister's representative did not intervene on appeal. [8] The panel would like to note that it considered Guideline 92 in assessing this case. DETERMINATION [9] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the RPD's determination, namely, that XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. [10] The appeal is dismissed. Holding of an oral hearing [11] The appellant requests that the RAD hold an oral hearing under subsection 110(6) of the IRPA. Subsection 110(6) of the IRPA provides that the RAD may hold a hearing if, in its opinion, there is new evidence that is admissible and meets the three conditions set out therein.3 In this case, I am of the opinion that there is no cause to hold an oral hearing as no new evidence was submitted and found to be admissible under subsection 110(4) of the IRPA. [12] For these reasons, there is no cause to hold an oral hearing before the RAD. ANALYSIS [13] Having reviewed all of the testimonial and documentary evidence on the record, the RAD makes the same finding as the RPD, namely, that the appellant is not credible. [14] The appellant is of the opinion that the RPD did not properly assess his credibility and that the impact on the decision is to suggest that the appellant would not be persecuted in his country. [15] The very essence of this case is based on the appellant's credibility. [16] The first and third topics addressed in the memorandum pertain to the amendments the appellant made to his written account and the document entitled Schedule A.4 He argues that the RPD gave too much weight to these topics. The RPD is of the opinion that these numerous amendments made the morning of the hearing undermine credibility and that they serve only to adjust the information in the written account. What were these amendments? [17] These amendments,5 called corrections, pertain to several topics. The appellant submitted changes regarding his addresses in Bamako, his studies at the XXXX school and his occupation as a worker; lastly, he amended his father's family name. As for the written account, he clarified the fact that his parents' trip involved leaving their residence in Kodié to go to Bamako so that his father could receive medical treatment. [18] The RAD would like to mention that the appellant filed a number of documents the morning of the hearing, which required the RPD member to take them into consideration before conducting the examination on the merits. These amendments are not merely typographical errors or misprints in a text. Additional evidence regarding a letter of support,6 a medical report,7 and, lastly, a list of amendments to the BOC Form filed as D-12. [19] The appellant arrived in Canada on XXXX XXXX, 2016, he filed his information form completed with his counsel in Montréal on December 30, 2016, according to the stamp on the document, and the hearing was held on December 15, 2017. To explain the delay, he stated that he did not have access to an interpreter. A year passed before the appellant made any significant amendments to the documents submitted. The panel notes that Schedule A makes reference to an interpreter. The same is true for the BOC Form. He testified that he did not have an interpreter when he completed Schedule A. He notes that he does not speak English or French. Consequently, he would not have been able to complete the schedule, which includes many questions. In reading the document, however, it is clear that the appellant provided answers to all the questions. There is a contradictory version regarding the presence of an interpreter. [20] For instance, the BOC Form completed with the assistance of his counsel. The document reports that an interpreter was also there. However, the appellant made a significant amendment to his written account the morning of the hearing, indicating that his parents had been in Bamako when the imam allegedly saw the appellant and his boyfriend kissing in a car, and that he reported the incident to his parents, who were in the city for cardiac treatments. In Schedule A, numerous errors mentioned above become apparent, starting with his employment as a XXXX, which changes to a XXXX XXXX. If it is true that no interpreter was present when Schedule A was completed, it should be noted that it took nearly a year for the appellant to notice the errors in the various documents, and it was only on the morning of the hearing that he decided to amend them. Page 4 of Schedule A includes an interpreter declaration where a certain FS declares to have interpreted the content of the document. Furthermore, a government official declares that the document was completed on November 17, 2016. [21] The RAD is of the opinion that the appellant benefitted from an interpreter upon arriving in Canada and that it took him one year to notice the errors and to amend them the morning of the hearing. This finding seriously undermines his credibility and the entirety of his record. [22] As a result, the RAD is of the opinion that the RPD did not err. [23] The second topic addressed in the memorandum concerns the fact that the RPD erred in its assessment of the details regarding the appellant's mother's visit to Bamako in 2016 and in 2017. The RPD noted that the appellant's mother was unable to accompany her husband and be present in Bamako for the medical treatment in 2017, since her husband, the appellant's father, had previously rejected her. His testimony on the matter is rather convoluted. [24] The appellant testified that the imam reported their son's actions when they [translation] "were at our place." When asked to explain, the appellant testified that his parents had left Kodié for Bamako so that his father could receive adequate care. The father has allegedly had heart problems for the past six or seven years. He explains that his father received treatment in 2017, according to his most recent information. His mother and some young children accompanied the father to Bamako. After learning from the imam that his son had kissed a man, the father banished his spouse since he affirmed that she was in collusion with the appellant. He also rejected her and she did not return to the family home. His counsel revisited the topic, and the appellant confirmed that his mother was not present for the medical appointment in 2017. Contrary to the appellant's claim that the RPD erred in this matter, the RAD carefully listened to the recording, and the appellant did indeed state that his mother was present and accompanied the father to his medical appointment in 2017. This is another contradiction between the written account and the testimony heard. [25] The next topic in the memorandum is that the panel did not set out the criteria for determining homosexuality and that the RPD's analysis was based on stereotypes. The RPD mentions in its decision that the behaviour of the appellant, who was taken by surprise during the incident of September 12, 2016, which the imam reported to his parents on September 25, 2016, contradicts his claim that he acted discreetly and concealed his homosexuality. [26] In this case, the RPD questioned the appellant at length about his past in Mali. The presiding member wanted to know about his past, from the time he was in school until he left the country. After mentioning that he had studied in a XXXX school for a few years, he then went to Bamako to stay with an uncle who exchanges currency and he helped him with his business. It was understood that this trade was illegal, but they did not seem to be troubled by the authorities. He testified that he became acquainted with XXXX XXXX and that a relationship began in 2010. He reports in his written account that he first had sexual relations with this man in January 2011 in his residence, where he lived alone. This relationship continued in secret for several years. He adds that they went on outings together to national parks, zoos, restaurants and the movies. [27] It was not until September 12, 2016, that an imam noticed that two men were kissing in a car as he was leaving a mosque on a rainy evening. The appellant begged the imam not to say anything and he asked him for forgiveness. Later, the imam reported what he had seen to the family, and the father disparaged him and threatened to kill him and banish him from the family to restore the family's honour. [28] The RAD is of the opinion that the appellant describes the situation in his written account as a discreet and tranquil relationship, whereas he initially alleged that he was in an intimate relationship and did all kinds of activities with his boyfriend. He claims to live in hiding and to have a very discreet relationship even though he was kissing his boyfriend in a car. The RAD notes contradictions between the appellant's statements and actions. [29] The RAD is sensitive to people who claim to face difficult situations by reason of their sexual orientation and their gender. Discrimination against, or even the persecution of these individuals are reprehensible. The panel read a research report8 on the matter of concern in this case. What does this research show? Excerpts of the text are reproduced below. [30] "Sources indicate that samesex sexual acts are legal in Mali (ILGA May 2017, 148; Freedom House 2016). However, Country Reports on Human Rights Practices for 2016 of the US Department of State indicates that, with regard to sexual identity and orientation, 'the law prohibits association "for an immoral purpose."'" [31] The text goes on to report that the Research Directorate did not find any information on the treatment of sexual minorities by the authorities. However, sources indicate that there is discrimination based on sexual orientation. It exists in employment and occupation. There are individuals who isolate themselves and keep their sexual identities hidden. The Research Directorate also states that information on the protection provided by the state and the support services provided to sexual minorities is scarce. The report does not seem to be very positive for LGBT individuals in Mali. How does this relate to the file under review? [32] The appellant stated that he had been in a discreet relationship with a man since 2010. The connection between the couple appeared strong enough for them to go on outings together, dine in restaurants and go to the movies in plain sight. The panel is of the opinion that they were living openly without worrying about others. It should be noted that the appellant described the kiss in the car as a re-enactment of a scene he had seen at the movies. It is somewhat ironic that he explains the situation as a re-enactment of a scene when he claims to have lived with and have had feelings for this man since 2010. These explanations are unpersuasive with respect to the only event linked to his allegations of persecution. [33] The correction to the written account that his parents had gone to the house in Bamako for medical treatment, referring to the period of September 2016, is indicative of the amendment to his written account. Without this key sentence, the appellant's written account has no impact and takes a whole other direction. [34] Similarly, the contradictions and especially the late amendments to the written account and BOC Form submitted a year earlier, which were made the morning of the hearing, as well as the documents, including the one from the Centres locaux de services communautaires (CLSC) [local community service centres] dated December 10, 2017, and the letter of support signed on November 10, 2017, reflect the lack of urgency in preparing his file. The letter from the CLSC physician will be addressed later. [35] The appellant states in his memorandum that the RPD based its analysis on stereotypes. He does not provide details or examples of stereotypes to support his theory. The RPD member found that the appellant's story of persecution was not credible, without anything more. The RAD is of the opinion that the RPD's finding is correct. The panel is of the opinion that the written account submitted and especially the explanations, together with the corrections and adjustments to the testimony, seriously undermine his case and his credibility. It also notes that the written account submitted states that his boyfriend, XXXX, was beaten by his parents and left to the criminals in his neighbourhood. At the hearing, the appellant did not mention these points and added that he has been trying to reach him, in vain. He has not heard anything about him. He has not tried to reach him since arriving in Canada and he reiterated that he has not heard from him. The panel notes a discrepancy between the written account and the testimony heard. Once again, this undermines his credibility. [36] Another point in the memorandum is that the RPD rejected all of the evidence provided by the appellant. He adds that the RPD was biased against this case and that it breached procedural fairness. The RPD examined the letter from the CLSC physician.9 It did not find any bias against the document as alleged by the appellant, but rather that he did not mention any of the points in the letter during his testimony. What was this letter? [37] This letter from December 10, 2017, certifies he has been the appellant's physician since November 9, 2017. It is a compilation of information that the appellant provided, namely memory loss and repeated physical assaults against him in previous years. He added that he has been assaulted because of his homosexuality since he was a teenager. He was allegedly assaulted by both his family and his community, which led him to flee and move frequently. The RAD would like to mention that the appellant never shared the events reported in the physician's letter. None of these points is noted in his written account, other than the fact that he left Kodié for Bamako, but not for the reasons mentioned in the written account. He also did not mention repeated assaults from his family and the community. One might guess from reading the physician's letter that another person reported these events. Despite the filing of this letter, his own evidence, the appellant does not include its content in his written account or in his testimony. In light of the RPD's perfectly legitimate concern, the RAD is of the opinion that this letter adds nothing to the case, but worse, contradicts or is at least inconsistent with the written account submitted and the testimony heard. [38] He alleges procedural fairness in this point in the memorandum. With all due respect to the contrary opinion, this is not a breach of procedural fairness. The RPD member mentioned to the appellant's counsel that the late filing of exhibits the morning of the hearing caused a delay in the proper conduct of the hearing. However, the proceeding started well, the interpreter understood the appellant and vice versa, the member went beyond the time scheduled to complete the hearing and to facilitate counsel's task. No difficulties were raised during the hearing. Rejecting or not giving any weight to exhibits cannot be considered a breach of procedural fairness. [39] As a result, the RAD is of the opinion that the RPD did not err in this regard. [40] The last point in the memorandum mentions that the panel did not consider the social context or all the circumstances surrounding this matter and that he cannot obtain protection from the authorities since he has established his homosexual identity. [41] It is true that the decision makes no mention of this. However, the RPD found that the appellant lacks general credibility and that he did not discharge his burden of proof. Several factors argue in favour of this finding. The panel touched on major contradictions between the content of the letter from the CLSC physician and his testimony that cast doubt on his case. [42] There is a point that the RAD would like to highlight. The appellant stated that he has known his boyfriend since 2010. When asked to state his boyfriend's age, the appellant responded that he was born in 1985. When the panel asked the question again, there was a long pause instead of a response. He does not know if he is younger or older than he is. Lastly, when the question was asked again, the appellant speculated that he was 32 years old, but was not certain. The RAD is surprised by this response, since he stated that he had been in a relationship with this man for approximately seven years. The panel then asked him when the relationship began; the appellant responded that he did not understand the question. After a few more questions, he stated that it was in 2011. In an interview with an immigration officer on November 17, 2016,10 he stated that he was afraid to return to Mali because he had lost loved ones in the war and that he feared for his life. It was not until he arrived in Montréal that he would change the basis of his story. [43] The RAD mentioned above some excerpts from the documentary evidence on LGBT individuals in Mali. Their situation is certainly not easy. However, in this case, the basic account that he acknowledged as being complete, true and correct was undermined by his contradictory testimony and numerous amendments. That is not including his statements when he arrived in Canada with fraudulent identity documents and the letter from the physician whose content differs from the rest of the record. The RAD finds that the appellant is not credible on the basis of his entire record. [44] For the reasons expressed in this decision, the RAD is of the opinion that the RPD made the correct decision and the one that should have been made. REMEDY [45] For these reasons, the RAD confirms the RPD's determination, namely, that Diango Dianka is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the same Act. [46] The appeal is dismissed. (signed) Michel Jobin Michel Jobin September 2, 2020 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act (S.C. 2001, c. 27). 2 Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, May 2017. 3 M.C.I. v. Singh, 2016 FCA 96, paragraph 51. 4 SPR-1, Refugee Protection Division (RPD) record, Schedule A, IMM 5669, page 113 of 144. 5 SPR-1, RPD record, Exhibit D-12: Amendments to the Basis of Claim Form, page 65 of 144. 6 SPR-1, RPD record, Exhibit D-10: Letter of support from François Teasdale, intervenor for homosexual refugee protection claimants from Africa and the Caribbean, pages 66 to 67 of 144. 7 SPR-1, RPD record, Exhibit D-11: Medical report from Dr. XXXX XXXX XXXX, pages 68 to 70 of 144. 8 SAR-1, National Documentation Package (NDP) on Mali, March 31, 2020, Tab 6.1: The situation of sexual minorities and their treatment by society and the authorities, including in Bamako; protection provided by the state and support services (2015-July 2016). Immigration and Refugee Board of Canada. July 4, 2017. MLI105820.FE. 9 Supra, endnote 7. 10 SPR-1, RPD record, Canada Border Services Agency, page 141 and following of 144 of the court record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-02728 RAD.25.02 (January 2020) Disponible en français 10 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.25.02 (January 2020) Disponible en français