TC4-46739

RAD File / Dossier de la SAR : TC4-46739 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne en cause Date of decision October 30, 2024 Date de la décision Panel Kimberley Foreman Tribunal Counsel for the person who is the subject of the appeal Osazee Imafidon Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister C. Semenzin Conseil du ministre REASONS FOR DECISION OVERVIEW [1] In this appeal, the Appellant is the Minister of Public Safety and Emergency Preparedness (Minister), and the Respondent is XXXX XXXX XXXX XXXX XXXX, a citizen of Jamaica. The Appellant argues that the Refugee Protection Division (RPD) erred in finding that the Respondent was a Convention Refugee on May 31, 2024, arguing that the panel failed to conduct a proper analysis of the program integrity issues raised by the multiple unrelated Claimant's Basis of Claim form narratives that bare striking similarities to the Respondent's narratives. In short, the RPD's finding that the Respondent was credible was in error. [2] The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and either find that the Respondent is neither a Convention refugee nor a person in need of protection. DETERMINATION [3] The appeal is allowed. [4] For the reasons that follow, I set aside the RPD's decision pursuant to paragraph 111 (1)(b) of the Immigration and Refugee Protection Act (IRPA) and find that the Respondent is not a Convention Refugee nor a person in need of protection. BACKGROUND AND OVERVIEW OF THE APPEAL [5] The Respondent allegations are outlined in her Basis of Claim (BOC) form and narrative.1 In short, the Appellant alleges that she became aware of her sexual orientation as a lesbian when she was in grade school. The Appellant states that her mother supported her, but her father thought he could force her to change who she is. The Appellant fears she would be persecuted or even killed due to her sexual orientation, should she return to Jamaica. Role of the RAD [6] My role is to look at all of the evidence and decide if the RPD made the correct decision.2 I have considered and applied the Chairperson's Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board,3 as well as the Chairperson's Guideline 9: Proceedings before the IRB Involving Sexual Orientation, Gender Identity and Expression and Sex Characteristics.4 New Evidence and Oral Hearing [7] The Appellant has not presented new evidence in support of the appeal and has not requested an oral hearing. The RPD's decision [8] The Respondent's claim for refugee protection was heard before the RPD on March 7, 2024, and was accepted on Mary 31, 2024. The RPD found that the Respondent was a Convention Refugee based on her risk as a lesbian in Jamaica. ANALYSIS [9] For the following reasons, I find that the Respondent is neither a Convention refugee nor a person in need of protection and therefore allow the Minister's appeal. I find that the Appellant has not satisfied the burden of establishing that she faces the serious possibility of persecution on a Convention ground, or that, on a balance of probabilities, she would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment, or a danger of torture, should she return to Jamaica. The determinative issue in this matter is credibility. The strikingly similar Basis of Claim forms and narratives [10] On August 18, 2023, the Minister intervened in this claim, on the basis of credibility and program integrity. ARule 21 application was also included.5 In their Notice of Intervention, the Minister referred to a persuasive decision rendered by the Refugee Appeal Division (RAD) which outlined the steps that can be taken when analyzing BOC narratives with similar content.6 In considering the strikingly similar narratives of the nine narratives, I am guided by that decision which set out the framework of analysis that I summarize as follows: i. Sworn evidence is presumed to be true unless there is a reason to doubt its truthfulness; ii. The presumption of truthfulness may be displaced by a BOC narrative that bears a striking resemblance to one or more narratives. Striking similarities raise concerns with the integrity of the claim; iii. When BOC similarities are found similar enough to call the integrity of the claim into question, the burden of proof shifts to the claimant. The claimant must explain the similarities or establish, in whatever way they choose, on a balance of probabilities, that the narrative is their own; iv. If the claimant establishes the narrative as their own, on a balance of probabilities, the member goes on to fully consider the merits of the claim; v. If the claimant identifies a new narrative or story, the member will then go on to fully consider the merits of the claim; vi. The member considers the explanation; vii. The member accepts the explanation and continues with the claim or provides sufficient reasons that clearly articulate why the claimant's explanations did not, on a balance of probabilities, demonstrate that the BOC narrative was a true representation of their story; If the latter, the member may have sufficient basis to reject the claim without having to make any additional credibility findings because the finding in relation to ownership of the story, given the centrality of the BOC narrative in a refugee claim, automatically undermines each duplicative or similar element in the narrative.7 [11] In accordance with this framework of analysis, I have conducted an independent assessment of the Record. I have considered that sworn evidence is presumed to be true unless there is a reason to doubt its truthfulness and now must consider the contents of all of the BOC forms and narratives. [12] As noted by the Minister, there are numerous indications of duplications in the chronology of events amongst the nine similar BOC narratives, which includes the Respondent's. Question 2a) contains variations of the following phrases among all of the BOC forms:8 "I was accused/questioned/mistreated/harassed/called names/targeted/suspected/stopped/threatened with death because of my sexual identity" "The harm or mistreatment occurred from when I was very young/from early years at home to my early years of secondary school/from my teenage years/until I left Jamaica..." "The harm or mistreatment was caused by my family/school mates/at school/workplace/co-students/teachers and the community in general" "The reasons for the harm or mistreatment was because they think I am gay/bisexual/lesbian because of my life style/looks/for not getting married/for not seen with a girlfriend." "Persons in situations similar to mine who did not escape got seriously harmed or killed." [13] The next variations to be considered on all forms is found at question 2b):9 "I would be accused (of being gay), questioned/threatened/ followed/targeted/stopped and seriously harmed or killed/threatened with death or serious harm" "My family (members)/my ex-girlfriend's family members, and the community in general" [14] Question 2c) contains the following statement with slight variations across each of the forms: "I did not ask any authorities such as the police or any organization in my country to assist or protect me because they do not assist, or protect any homosexual that is being mistreated. They are also homophobic like the rest of the members of the society." For comparison, the Respondent's BOC at question 2c) read as follows:10 "I did not ask the authorities such as the police or any organization in my country for protection because they are also homophobic like the rest of the members of the general society" [15] The Minister goes on to outline a strikingly similar chronology of events for each claimant in Jamaica. All of the BOC narratives include the following statement with slight variations, and I note that the Respondent's BOC includes the same statement verbatim: As I was growing up as a teenager in Jamaica, I realized that I was doing things differently from the way other girls my age, or peers were doing. I could not do most things that they were capable of doing comfortably, such things as play with boys, hand (sic) around them, feel comfortable in their midst, or date them.11 [16] The Minister goes on to detail that each of the narratives note that the claimant's sexuality wasn't discussed with anyone, that they were sad and depressed, detail how their family discovered their sexuality, their experiences in high school and that their teachers did nothing when incidents of bullying took place. [17] After an independent review of the evidence, I agree with the Appellant that the Respondent's Basis of Claim form and narrative are strikingly similar to the eight other BOCs provided under the Rule 21 application. This does call into question the integrity of the claim for refugee protection. The presumption of truthfulness is displaced, and the onus has now shifted on the Respondent to respond to the similarities and establish that the narrative was her own. Credibility of the Respondent [18] At the hearing, the Respondent acknowledged that her Basis of Claim form and narrative were similar to the others presented in the Minister's documentary evidence. When asked by the panel who filled out her Basis of Claim form, the Respondent testified that she was referred to a friend from the community who has also made the same claim. She noted that she did not know the man's name but that they met at a coffee shop, he asked her questions and typed up the documents for her. She paid him $200.12 [19] The panel asked the Respondent how her story was written. She testified that the man would ask her questions as they went along and they were both looking at the screen and when he was finished, they would ensure the information was correct. The panel asked a number of clarifying questions to establish if the man wrote a lot of the story himself, or if she dictated the narrative to him. The Respondent provided testimony that was consistent for much of the exchange, clearly stating that she provided the information for the narrative. [20] For example, the panel asked, "But were you actually like telling him what to put down or you were just sort of telling him loosely and then he put it into?"13 The Respondent replied to this question, and a number of variations of this question, with the following: No, I was telling my experience and everything that he should write down...he mostly did word for word. So, it took some time...What he would do, he would ask me the questions and I would tell him. He would ask me my experiences, what happened exactly? And I would tell him how I was treated back home, within my family, within my community and secondary school, university. And then he would write it down.14 [21] The RPD then stated, But its not like you were dictating to him word for word, and you wrote down word for word. If you don't remember that's okay, but I think this is an important question because they are so similar. Its so similar to the other ones. If you were saying it word for word, its harder to believe.15 The Respondent then acknowledged the similarities, and her testimony evolved when stating, Yes, I do...I've read them. I've realized that they are all similar but we all face is the same problem. I do believe that he has done this before, but when I've read over everything, it is what I've experiences. Maybe as...summarized what I've said, but it's exactly what I've experienced.16 The panel then lead the Respondent with "Okay, so, he was summarizing what he said." The Respondent testifies "I think he did."17 [22] I find this exchange troubling. The Respondent provided internally consistent testimony over a series of questions from the RPD regarding how her BOC was created. In summary, she testified that she met this unnamed gentleman at a coffee shop, paid him cash and he asked her questions and in return, she provided him her experience. The Respondent made it clear that the man was writing her personal experience; she testified he wrote it down word for word and that he may have changed a few things but that her BOC was recorded as her experience as a lesbian woman in Jamaica. She also noted that she read it over and signed that the information was true, complete, and correct, therefore indicating that she approved of what had been written from her dictation. It was only after the Member made it clear that if she was dictating the information, or that it was word for word, then the similarities to the eight other BOC narratives would be problematic, that her testimony evolved. The Respondent then changed her testimony and agreed with the panel that man had summarized her dictation. [23] While the panel may have been satisfied with this testimony, I am not. I do not find the Respondent's testimony about how her BOC was created to be credible and it is insufficient to establish on a balance of probabilities that the narrative is indeed hers. Not only does her narrative follow the same pattern as eight other refugee claimant BOC narratives, but there are sections that are verbatim. There has been no reasonable explanation provided for this and the only conclusion that I can draw is a negative one; the BOC narrative was manufactured for the purpose of her refugee claim. [24] To use the words of the RAD's persuasive decision: [While] not every element, theme, and paragraph of the narratives are duplicated,...the duplication is so extensive, blatant, and wide ranging-touching on both material and non-material elements of the claim...-that the presumption of the truthfulness of the Appellant's narrative in this appeal is rebutted. I find that the Respondent has failed to establish on a balance of probabilities, that the BOC narrative is a true representation of her allegations in this matter. The similarities are so similar, including the use of identical wording in some cases, that it is highly likely that the nine narratives are duplicates of each other. There has been no explanation or testimony relating to the narrative that can substantiate the Respondent's claim for protection. The similarities are too significant to be a reflection of similar experiences for sexual minorities in Jamaica and I find that there is prima facie evidence of an integrity concern.18 The Respondent lacks overall credibility [25] I have found that the Respondent attempted to mislead the Immigration and Refugee Board (IRB) with a fraudulent BOC narrative. Therefore, I cannot rely on the allegations of the BOC in this claim, that the Respondent is at risk of persecution in Jamaica based on her sexual orientation and find that she lacks overall credibility. In addition, her corroborative evidence is limited in probative value. I find that the letter from her mother,19 and partner,20 which mirror evidence supplied in her fraudulent BOC, cannot be relied upon to overcome the credibility concerns that have been identified in this matter. Furthermore, I note there have been no additional allegations made for why the Respondent fears return to Jamaica. CONCLUSION [26] I find the Respondent has not established that she faces a serious possibility of persecution or that, on a balance of probabilities, she would be personally subjected to a danger of torture, risk to life, or risk of cruel and unusual treatment or punishment were she to return to Jamaica. [27] I set aside the RPD's decision. I find the Respondent is neither a Convention Refugee nor a protected person. The appeal is allowed pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act. (signed) Kimberley Foreman Kimberley Foreman October 30, 2024 Date 1 RPD Record, at pp. 20-32. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 3 Chairperson's Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board (IRB), Guideline issued pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act (IRPA), amended October 31, 2023. 4 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics, Guideline issued pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act (IRPA), IRB, Ottawa, effective May 1, 2017, revised December 17, 2021. 5 RPD Record, at pp. 136-152. 6 X (Re), 2018 CanLII 101516 (CA IRB) (RAD Persuasive Decision TB7-16268). 7 X (Re), 2018 CanLII 101516 (CA IRB), at para. 52. . 8 RPD Record, at p. 137. 9 RPD Record, at p. 137. 10 RPD Record, at p. 138. 11 RPD Record, at p. 138. 12 RPD Hearing Transcript, March 7, 2024, at p. 3. 13 RPD Hearing Transcript, at p. 5. 14 RPD Hearing Transcript, at p. 5. 15 RPD Hearing Transcript, at p. 5. 16 RPD Hearing Transcript, at p. 5. 17 RPD Hearing Transcript, at p. 5. 18 X (Re), 2018 CanLII 101516 (CA IRB), at para. 30. 19 RPD Record, at pp. 126-127. 20 RPD Record, at p. 130. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC4-46739 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