TC2-09075

RAD File / Dossier de la SAR : TC2-09075 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Date of decision September 7, 2022 Date de la décision Panel Harold Shepherd Tribunal Counsel for the person who is the subject of the appeal Orr Kolesnik Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister C. Levett Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal. The Refugee Protection Division (RPD) was correct in finding that the Respondent is a Convention refugee. [2] The Appellant is the Minister of Immigration, Refugees, and Citizenship (the Minister), and the Respondent, XXXX XXXX XXXX, is a citizen of Uganda whose refugee claim was accepted by the RPD. [3] A transcript and audio recording of the hearing are available. [4] The parties did not apply to file new evidence, nor was a hearing requested. [5] The Respondent based her claim on domestic abuse from her husband. She also fears persecution as a result of her sexual orientation. She self-identifies as being a lesbian who fears being arrested and prosecuted, harmed or killed by the community because her sexual orientation has been exposed. The RPD concluded that the Respondent is credible and that there is an objective basis for her fear of persecution. [6] The Minister appealed the decision on the grounds that the Minister was denied the right to an impartial decision-maker who did not demonstrate bias. [7] The determinative issue for the appeal is whether the Respondent received a fair hearing in light of mistakes made by the RPD in its assessment of the Minister's case. The RPD erred in its treatment of the Minister's evidence and submissions. It ignored relevant evidence, failed to provide adequate reasons to support its conclusions; it addressed an irrelevant issue, and it made inappropriate comments about the conduct of the Minister's representative. I was able to assess the Minister's submissions and evidence myself and correct the mistakes made by the RPD. Although the RPD made inappropriate comments, they do not give rise to a reasonable apprehension of bias as understood in Canadian jurisprudence. My assessment of the totality of the evidence led me to conclude that the Respondent was a credible witness and that the supporting documents are reliable. My independent review concluded that the Respondent is at risk of persecution in Uganda on the basis of her sexual orientation. ANALYSIS [8] My role is to look at all the evidence and decide if the RPD made the correct decision.1 [9] The Minister intervened on the basis of information from two of the Respondent's Facebook accounts, which is incorrect, and because she posted a "like" to the Facebook page of XXXX XXXX XXXX" whom the Minister submits is likely her husband. The Respondent's Facebook page indicates that she works at the XXXX XXXX XXXX; she attended XXXX XXXX XXXX, and she lived in Los Angeles. The Respondent admitted that these accounts belong to her, but she indicated that not all of the information in them is true. For example, she never lived in Los Angeles. The incorrect information in the Respondent's Facebook accounts are peripheral issues which have no bearing on the substance of her refugee claim. No adverse credibility inference may be drawn from them.2 [10] The Minister believes that XXXX XXXX account likely belongs to the Respondent's husband because he lives in XXXX, and he was born on XXXX XXXX, 2019, which corresponds to information in the Basis of Claim (BOC) form. The Respondent "liked" some of his posts. The Minister cited the Federal Court's Diaz decision in support of the submission that an adverse inference may be drawn from information in a Facebook account which is inconsistent with the claimant's allegations of fact.3 The Minister invited the RPD to draw a negative credibility inference from the Respondent's continued contact with her spouse after she left the country. [11] The RPD stated in its reasons for decision that the Respondent's explanation was reasonable and logical without providing reasons to support this conclusion. The RPD went on to state that the Minister's submissions about the interpretation of the Facebook pages are pure conjecture which is unsupported by any objective evidence. The RPD erred in this statement. The Minister's intervention was based on the Respondent "liking" posts from someone with the same name as her spouse. The issue was the sufficiency of the evidence to establish a fact, not the absence of any objective evidence as alleged by the RPD. [12] The RPD stated that the Minister's representative "fails to understand that social media profiles are not always an accurate reflection of reality for a wide range of reasons linked to each individual and their respective freedom of expression." The RPD erred in this assessment. The RPD was not in a position to speculate about the officer's level of understanding of issues related to the reliability of information posted to a Facebook account. The Minister's representative made submissions based on evidence which the RPD was required to evaluate for purposes of weight and probative value. In this case, the Respondent's BOC indicates that her spouse was born on XXXX XXXX, 1979.4 He would have been 42 years old on the day of the hearing. A statement from "XXXX XXXX" is accompanied by a copy of his national identity card (ID) which indicates that he was born on XXXX XXXX, 1993.5 The Facebook post dated XXXX XXXX XXXX 1979 was sent on his birthday.6 The national ID card gives his birthday as being XXXX XXXX, 1993.7 Although he and the Respondent's spouse were both born on XXXX XXXX, one was born in 1979 and the other in 1993. The photographs in the Facebook account are similar to the one in the national ID card of XXXX XXXX, not those of a man in his 40s. The statement from XXXX XXXX explains that he shares the same name as that of the Respondent's spouse, but they are not the same person. I also note that the BOC indicates that the Respondent's spouse lives in XXXX, not XXXX. Having considered all of the evidence, I am satisfied that XXXX XXXX Facebook account does not belong to the Respondent's spouse. The RPD erred by rejecting the Minister's submissions without regard to the evidence.8 [13] The RPD went on to consider an irrelevant issue. The Respondent declared S.S. to be her spouse in her Canadian visa application. They arrived in Canada on the same flight and lived together at two addresses after their arrival. The Minister applied to have their two refugee claims joined on the basis of the submission that they are likely spouses. The request was rejected by a co-ordinating member of the RPD before the hearing took place because there was insufficient evidence to establish that they were in a relationship. The Minister did not intervene on this issue, nor was there a request that it be reconsidered by the RPD. As a result, it was res judicata. Nevertheless, the RPD addressed it in its reasons for decision. The Panel stated that people may have many motivations for sharing an apartment with a member of the opposite sex. It went on to say that: Presumptions about the nature of that relationship are inappropriate, in the Panel's view, and efforts to reach unsubstantiated conclusions about the private life of a claimant in Canada, had the Minister not relied in part upon jurisprudence of the Federal Court, would risk crossing the line into behaviour one would expect from an authoritarian regime, not a free and democratic country with a Charter of Rights and Freedoms. [14] The Minister submits that the RPD breached principles of natural justice by failing to provide an impartial hearing before a Panel which was free from bias against the Minister. [15] From a procedural point of view, the application to join the two claims was decided by a different decision-maker based on the evidence, including access to the files from both claimants which were not before the Panel which heard the claim. In addition, the decision had already been made, and it was not challenged by the Minister. Two significant errors were committed. First, the RPD had no good reason to revisit a final decision made by another decision-maker. Second, it made inappropriate comments about the integrity and professionalism of the Minister's representative. There were sufficient common elements between the two claims to justify making the application to join them. The Minister accepted the determination that the Respondent and S.S. were not likely in a relationship. That should have ended the matter. Instead, the RPD characterized the Minister's application as representing an intrusion into the Respondent's private life which risked crossing the line into behaviour that one would expect from an authoritarian regime. Given the fact that the Respondent held herself out to be S.S.'s spouse in her Canadian visa application, and then lived at the same address as he did after arrival, the Minister's application was not unreasonable under the circumstances, even if it was ultimately found to lack adequate substantiation. The Minister did not go beyond the mandate found in paragraph 3(2)(e) of the Immigration and Refugee Protection Act (IRPA) to provide procedures that maintain the integrity of the Canadian refugee protection system, nor was the Minister's conduct inconsistent with the policy directives concerning Ministerial interventions.9 There was nothing inappropriate in the Minister's application to join the claims. The RPD's insinuation that the Minister intruded into the Respondent's private life is unfounded, given the fact that the application to join the claims was based on the two visa applications and information provided by them to the RPD and Immigration, Refugees, and Citizenship Canada (IRCC). The RPD also held that the conduct of the Minister's representative risked crossing the line into conduct which one could expect from an authoritarian regime. This allegation was made without evidence, and it unfairly questioned the integrity and professionalism of the Minister's representative. [16] There is a distinction in law between a reasonable apprehension of bias and making an inappropriate statement. According to the Supreme Court of Canada in the Committee for Justice and Liberty decision:10 The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.... [That] test is "what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly." [17] The primary issue with respect to a reasonable apprehension of bias concerns whether the person who is the subject of the proceedings received a fair hearing, not whether the Minister's representative was treated fairly. Bias against the person concerned could constitute a breach of principles of natural justice which would justify holding a new hearing. The unfair treatment of the Minister's representative may lead to an erroneous conclusion which can be dealt with by a reviewing tribunal, as is the case in this appeal. The RPD's assessment of the Minister's submissions and evidence was wrong and has been set aside. The legal issue of bias is inapplicable on the facts of this case because it does not concern the person who is the subject of the proceedings. The RPD did not breach principles of natural justice in its assessment by denying the Minister any of the participatory rights which procedural fairness demands. Rather, the RPD ignored evidence, failed to justify its assessment of the Minister's submissions, considered an irrelevant issue, and made inappropriate comments about the conduct of the Minister's representative. [18] After reading all of the evidence, including the transcript of the hearing, I agree with the RPD's determination of the merits of the claim. The Respondent made a port-of-entry refugee claim at which time she provided a statement which is consistent with information contained in her BOC narrative. She arrived in Canada on XXXX XXXX, 2019 and joined XXXX XXXX XXXX XXXX XXXX XXXX on XXXX XXXX, 2019,11 and she provided evidence about her attendance at the XXXX XXXX program at XXXX. XXXX Community House.12 She filed a statement from the woman she is currently in a relationship with, together with photographs and text messages. She provided affidavits from people in Uganda with knowledge of her sexual orientation and the problems which she encountered as a result of it. The Respondent's testimony at the hearing was consistent with all of the other evidence. The RPD correctly concluded that the Respondent was likely telling the truth about her past experiences and her sexual orientation. It correctly considered the documents pertaining to country conditions and concluded that state protection and an internal flight alternative are unavailable to her. The Minister did not challenge this conclusion. My independent assessment concludes that the Respondent has a well-founded fear of persecution in Uganda because of her sexual orientation. [19] The Respondent also provided affidavits, medical evidence and psychological evidence in support of the allegation that she was the victim of past domestic abuse. Given the previous conclusion, this is not a determinative issue. Even if the Minister were correct that the RPD erred in its assessment of this issue, it would not affect the outcome of the claim. CONCLUSION [20] I dismiss the appeal and confirm the decision of the RPD that the Respondent is a Convention refugee. (signed) Harold Shepherd Harold Shepherd September 7, 2022 Date 1 M.C.I. v. Huruglica (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, Rozas del Solar v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 2 Lubana v. M.C.I. (F.C.T.D., no. IMM-2936-02), Martineau, February 3, 2003, 2003 FCT 116, at para. 11. 3 Diaz v. M.C.I. (F.C., no. IMM-1986-16), Strickland, December 7, 2016, 2016 FC 1343. 4 Exhibit RPD-1, RPD Record, p. 13, 5 Ibid., pp. 264-265. 6 Ibid., pp. 139-140. 7 Ibid., p. 265. 8 Cepeda-Gutierrez v. M.C.I. (F.C.T.D., no. IMM-596-98), Evans, October 6, 1998; (1999) 1 FC 53; 1998 CanLII 8667 (FC), at para. 17. 9 Immigration, Refugees and Citizenship Canada, ENF 24. Ministerial Interventions. https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf24-eng.pdf 10 Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 SCR 369, at p. 394. 11 Exhibit RPD-1, RPD Record, p. 210. 12 Ibid., p. 214. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC2-09075 RAD.25.02 (August 20, 2021) Disponible en français 2 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 (August 20, 2021) Disponible en français