MB9-29984

RAD File No. / No de dossier de la SAR : MB9-29984 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, Quebec Appel instruit / entendu à Date of decision January 12, 2021 Date de la décision Panel Me Agnès Connat Tribunal Counsel for the person who is the subject of the appeal Jamal Addine Fraygui 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] XXXX XXXX (the appellant) is a citizen of Senegal. [2] The appellant fears a group of people in his neighbourhood who threatened him because they perceived him to be homosexual. [3] The Refugee Protection Division (RPD) found that the appellant was not credible because of significant contradictions and inconsistencies during his testimony on important elements of his claim. The RPD concluded that the appellant failed to demonstrate that he would be in danger if he returned to his country, and that it is unreasonable for him not to have considered moving somewhere else in his country. [4] The appellant alleges that the RPD erred in its assessment of his credibility and that he did not change his answers. He adds that the RPD erred in concluding that he could relocate to another neighbourhood in Dakar and live there safely. [5] For the Refugee Appeal Division (RAD), the determinative issue is whether the RPD erred in its analysis of the appellant's credibility and whether there is a possible internal flight alternative (IFA) for the appellant in Saint-Louis or Rufisque. DETERMINATION [6] I dismiss the appeal and confirm, for other reasons, the determination of the RPD that the appellant is neither a refugee within the meaning of the United Nations Convention Relating to the Status of Refugees (the Convention) nor a person in need of protection. ORAL HEARING REQUEST AND NEW EVIDENCE [7] On December 23, 2020, the RAD advised the appellant of its intention to address two new determinative issues, namely, the prospective risk he would face if he returned to Senegal and the existence of an IFA in the Dakar area, in Rufisque or in Saint-Louis, in the Saint-Louis area, as well as its intention to use the most recent version of the National Documentation Package. The appellant made new submissions but presented no new evidence. [8] The appellant is asking that the RAD hold an oral hearing. The RAD may hear an appellant if new evidence raises a serious issue with respect to his credibility, is central to the decision with respect to the refugee protection claim, and would justify allowing the refugee protection claim. I did not admit any new evidence as the appellant did not submit any. As the requirements of subsection 110(6) of the Immigration and Refugee Protection Act are not met, I am denying the oral hearing request. ANALYSIS [9] My role is to examine all of the evidence, including listening to the hearing, and establish whether the RPD's decision is correct.1 [10] The RPD erred in not applying the Guidelines on Individuals with Diverse Sexual Orientation and Gender Identity and Expression (SOGIE)2 (the Guidelines) and in not referring to them in its reasons. This error is not determinative given my findings. I have applied the Guidelines, which are intended for the analysis of both a refugee protection claim based on real sexual orientation and a claim where sexual orientation is perceived. Appellant's allegations [11] To better understand these reasons, a summary of the facts alleged by the appellant in his Basis of Claim Form (BOC Form) follows. In XXXX 2017, he and his childhood friend XXXX XXXX XXXX XXXX XXXX XXXX were subjected to death threats, insults and stigmatization by a group of people living in the same neighbourhood. He alleges that people in the neighbourhood no longer speak to him, that people his age or older are threatening him and that they do not want him to continue living in the neighbourhood. He believes that they will eventually eliminate him and his friend XXXX XXXX In XXXX 2017, these people threatened him with a bladed weapon. He writes that people in his neighbourhood accuse him of being homosexual and that, in Senegal, homosexuals are threatened and beaten to death. He argues that the police do not usually pay much attention to those who are wrongly accused. He states that police authorities refuse to intervene if a person has no relatives or contacts in the police force. He states, [translation] "I want to make it clear that I am not homosexual but because I am a good friend of XXXX, who is homosexual, the neighbours call me a homosexual and want to come after me." The appellant's allegations are credible [12] The appellant argues that the RPD should have given him the benefit of the doubt, should have considered his explanations and put them in their socio-cultural contexts. He asserts that the RPD should have assessed his explanations rather than pointing out inconsistencies. He believes that the RPD did not independently consider the merits of each of his allegations and did not objectively weigh the facts and the evidence or apply the presumption of truthfulness to his testimony. [13] The role of the RPD is not to give the appellant the benefit of the doubt. Rather, his credibility is assessed positively when his testimony, statements and evidence are free of omissions, contradictions with his prior and written statements or other inconsistencies.3 In this case, I found no omissions, inconsistencies or contradictions significant enough to find that the appellant is not credible. [14] The RPD found that the appellant's testimony was confusing and that he adjusted his testimony. First, when he explained that he had been threatened by a group of people before going to work, and then when he explained that people who were at the scene helped him, although he did not speak about it right away and implied that all the members of the group had a weapon in their hands. [15] The appellant argues that he did not mean that each member of the group had a knife, but that one of them had a knife and threatened him with it and that he was able to get away because some passersby intervened and deterred his assailants, who then left. He adds that he had not been stabbed, but simply threatened. [16] The RPD erred in concluding that the appellant's testimony was confusing and that he adjusted his testimony. Although the appellant's testimony was at times unclear, I found it to be consistent with his BOC Form and without significant contradiction. When the RPD first asked him to explain the threats, he stated he was being ignored and insulted. He then explained that a large group of people came with a bladed weapon and asked him to leave and he clarified that it was a large group of people, only one of whom had a knife.4 This part of his testimony is consistent with the statements in his BOC Form. I do not draw any inference as to his credibility. [17] The RPD believed that it was reasonable to expect the appellant to go to the authorities to report the assault before going to work. It explained that the appellant implied that he did not know the group of people and that this was why he did not report them. However, the RPD believed that the appellant had initially stated that he knew them. According to the RPD, he adjusted his response in stating [translation] "did not report because the police do not take responsibility." [18] The appellant argues that he did not go to the police because he would have been forced to state that his assailants suspected him of being homosexual, which would have gotten him into trouble with the police and that, at best, the police would not have even taken his complaint seriously. He adds that he did not adjust his answer as he gave almost the same answer in section 2c) of his BOC Form. [19] The RPD erred in stating that it was reasonable to expect the appellant to report the assault and that he adjusted his response, in part because the RPD failed to consider the documentary evidence. [20] In question 2(c) on his BOC Form, the appellant did respond that he did not seek police protection because [translation] "the police do not generally pay much attention to this type of case (false accusation)." He added, as he stated at the hearing,5 that "if the person doesn't have a relative or a contact in the police force, the police authorities refuse to intervene." [21] Instead, at the hearing, he stated that the police do not take responsibility, relating it to the type of complaint he might have made, which was being called homosexual. [22] While I did note a difference between his testimony and his BOC Form, I do not consider this to be significant enough to make a negative finding about the appellant's credibility. He did not adjust his response, and the fact that he knew his assailants and did not report them is not enough to draw a negative inference about his credibility. [23] The appellant's explanation that he was afraid the police would not take his complaint seriously is credible. It is supported by documentary evidence6 that, according to Amnesty International, sexual minorities have no access to justice and that many people belonging to sexual minorities are afraid to report violations of their rights to the authorities for fear of arrest or violence after filing a complaint. [24] Considering that the appellant's testimony was consistent with his BOC Form7 and considering the documentary evidence on the treatment of sexual minorities by the authorities, I do not draw a negative inference about his credibility from the fact that the appellant did not complain to the police. [25] A claimant's credibility is assessed positively when his testimony, statements and evidence are free of omissions, contradictions with his prior and written statements or other inconsistencies.8 In the appellant's case, after analyzing the evidence, his statements and the documentary evidence, I find that he is credible and that he has established the allegation that in his neighbourhood some individuals considered him to be homosexual and attacked him. [26] Although the appellant's allegations are credible, there is an IFA. There is a viable internal flight alternative for the appellant in the Dakar area, in Rufisque, or in Saint-Louis, in the Saint-Louis area [27] The RPD did not analyze the issue of IFA in its reasons. The RAD sent a notice to the appellant on this new issue. He made additional submissions. [28] I have incorporated some of the RPD's findings into this part of my analysis since they are relevant to the IFA. [29] Two prongs must each be established before finding that an IFA exists.9 The questions to be asked are as follows. On a balance of probabilities: (1) Would the appellant be personally exposed to a serious possibility of persecution or a risk of torture, a threat to his life or a risk of cruel and unusual treatment or punishment by the authorities in Rufisque or Saint-Louis? (2) Considering all of the circumstances, is it reasonable for the appellant to move to the IFA given his particular circumstances and the situation in Rufisque or Saint-Louis? [30] Since it is not necessary to first establish that the appellant had a well-founded fear of persecution or risk of harm before considering the issue of an IFA,10 I have considered the appellant's risk in the analysis of the first IFA criterion. [31] The RPD was of the opinion that, since the appellant alleged that the threats became more serious, such as those demanding that he leave the country or be killed, he should have moved to a different neighbourhood or city and gone to the police station to report the violence he was experiencing from some of his neighbours. The RPD believed that his failure to do so clearly demonstrates that his story was false, and rejected his testimony as not credible. The RPD rejected his explanation that he did not know anyone who could support him to go and live elsewhere in his country because, before seeking protection in another country, he had to exhaust all of his remedies at home. For the RPD, the appellant's case is an economic one. He was out of work and married to a woman who had no means and could not help him. The RPD added that [translation] "since his friend XXXX has left the country and the claimant does not know where he might have gone, the claimant was asked to explain why he would be targeted if he were to return to his country if the opportunity to see his friend was no longer there. To this, he replied, 'it's going to be the same thing.'" [32] According to the appellant, the departure of his friend XXXX does not change anything because people in the neighbourhood will continue to call him homosexual, whether XXXX still lives in Senegal or not. He believes that this will not change what the assailants think of him. He argues that he did not move because he did not want to give in to the whims of his assailants, that he acted like a docile victim and put up with the threats and intimidation in silence. He stated he was aware of the Senegalese authorities' inertia in protecting homosexuals or those believed to be homosexual. He argued that he did not move to another neighbourhood because, as a suspected homosexual, he feared that the information would continue to circulate and that he would face the same insults and threats wherever he may be. The appellant argues in his additional memorandum that he is a XXXX and that he will be exposed to the public and [translation] "will be dealing with potential customers who may come from different parts of Senegal" and that "this constant contact with the public" would not protect him from chance encounters with individuals who would recognize him and again call him homosexual and come after him. [33] As I have concluded earlier in these reasons, the appellant's allegations are credible. However, if he moved elsewhere in Senegal, such as Saint-Louis or Rufisque, he would not be at risk for the following reasons: [34] Homophobia is a scourge in Senegal as it is in other countries around the world. According to the documentary evidence, Senegal is the seventh least accepting country in the world for sexual minorities,11 and the environment is hostile toward them. The 2017 U.S. Country Report states that sexual minorities have experienced "frequent threats, mob attacks, robberies, expulsions, blackmail, and rape."12 In a recent report,13 the International Lesbian, Gay, Bisexual, Trans and Intersex Association is of the opinion that "Hostility against LGBT people is reported to be very strong in Senegalese society, violence appears to be widespread, and the media contributes to stigmatization and discrimination." [35] Men who are perceived as gay may also experience criminalization and harassment.14 The law criminalizes homosexuality; more specifically it criminalizes sexual "acts" and not sexual orientation,15 and although the authorities believe that homosexuals are not mistreated, Human Rights Watch considers that the law is used as a means to target certain "types" of individuals on the basis of their actual or perceived sexual orientation, and homosexual behaviour is inferred from physical appearance alone or based on hearsay, sometimes in the absence of any evidence.16 [36] The documentary evidence is clear. Homosexuals and perceived homosexuals may be subject to discrimination and violence in Senegal by society at large, in addition to not being able to count on police protection, as I mentioned earlier in these reasons. [37] The appellant is not homosexual. He alleges that he was perceived as such by his neighbours. He made it clear in his BOC Form [translation] "I want to make it clear that I am not homosexual but because I am a good friend of XXXX, who is homosexual, the neighbours call me a homosexual and want to come after me. We have been two inseparable friends since forever, and since 2017, the neighbours have been calling me homosexual," "My whole neighbourhood has wrongly accused me of being gay." [38] He reaffirmed this clearly at the hearing, then in his memorandum of appeal [translation]: "I want to make it clear that I am not homosexual but because I am a good friend of XXXX, who is homosexual, the neighbours call me a homosexual and want to come after me;"17 then with his new submissions: "The appellant is considered by people in his neighbourhood to be a person with a homosexual orientation, while the appellant has no doubts about his heterosexuality."18 [39] The question then is whether, if he were to move to another city, another neighbourhood, he would be at serious risk of being perceived as homosexual, since, as I have analyzed earlier in these reasons, people perceived as homosexual are at risk in Senegal. [40] The appellant made it clear that his friend XXXX no longer resides in Senegal. He testified at the hearing that his friend had left and that he does not know where he is. If the appellant no longer has ties to his friend, then someone who does not know him would have no reason to believe that he is in an intimate relationship with a homosexual person. Whether in his BOC Form, testimony or submissions on appeal, it is neighbours, people who have known him for a long time, who consider him to be homosexual because of his friendship with his friend XXXX. [41] If he were to live elsewhere in Senegal, the only people who might recognize and perceive him as homosexual would be those neighbours. Senegal has a population of over 15 million spread over more than 196,000 square metres.19 The probability of one of the neighbours running into him by chance is low, if not to say non-existent. That neighbours might recognize him is only a hypothesis of the appellant, unsupported by any evidence or facts. I fail to see how the fact that he is a XXXX would, as the appellant contends, increase his risk. Furthermore, he did not explain in his BOC Form or at the hearing that neighbours have made any efforts to locate him since he left on XXXX XXXX, 2018. He did not state that his wife, who lives with his family, had been contacted about her husband. [42] The appellant is still married, as he stated at the hearing. If he were to relocate elsewhere in Senegal, he would be seen as a married man by the general population who do not know him. [43] Under the Guidelines, a person may be subject to persecution by reason of their perceived SOGIE if their appearance fits the SOGIE stereotypes. This is supported by the documentary evidence mentioned above that, in Senegal, a person can be perceived as homosexual simply because of their physical appearance. In the appellant's case, he did not allege that he was perceived as homosexual because of his physical appearance or because of stereotypes. Instead, he alleged that it was because of his close ties to his friend XXXX. Neither the evidence nor the appellant has established that he would be targeted because of his physical appearance or some stereotype. [44] According to the Guidelines, people who advocate for or report on the rights of people with diverse SOGIEs may be perceived as being people with diverse SOGIEs. The appellant alleges that he was friends with XXXX, a gay man. He spoke of the problems experienced by people in Senegal at the hearing and in his BOC Form, but did not allege that he had taken a stand for the rights of homosexuals while in his country, or even that he would do so if he returned. He has not established that he would be targeted because he advocates for the rights of people with diverse SOGIEs. [45] The appellant submits that Senegalese society poses a risk to him and that the police could not protect him. [46] If the appellant were to relocate with his wife to another city, far away from his neighbourhood, he would not be considered or perceived as homosexual. Senegalese society would not be a risk to him any more than the police would. Although the Guidelines state that people who support people with diverse SOGIEs may be perceived as having diverse SOGIEs, particularly because of stereotyping or because they support people with diverse SOGIEs, this does not apply to the appellant who has not alleged that this would be the case. [47] After analyzing his particular situation, there is no serious possibility of persecution throughout the country if he were to return to Senegal and relocate elsewhere in Saint-Louis or Rufisque, because of his perceived homosexuality. Given the appellant's particular circumstances, an internal flight alternative in Saint-Louis or Rufisque is reasonable [48] The second prong of the IFA test may be stated as follows: would it be unduly harsh to expect the appellant to move to another, less hostile part of the country before seeking refugee status abroad? The test is an objective one: is it objectively reasonable to expect the appellant to seek safety in another part of the country, in this case Saint-Louis or Rufisque? When it comes to determining what is unreasonable, the threshold is very high and the appellant must establish the existence of conditions that would jeopardize his life and safety with actual and concrete evidence. [49] For the IFA to be reasonable, the appellant must be able to find housing and work, among other things. In this case, he is XXXX years old and did not cite difficulties associated with finding work. He has a trade, XXXX, and did not explain that he would not be able to find work in Rufisque or Saint-Louis. Saint-Louis is a big city20 with a university and an airport, which increases the possibility of finding a job. On the balance of probabilities, the appellant could find work and housing. He would not be alone and could live with his wife, to whom he is still married and who is living with appellant's family. [50] The appellant did not submit any evidence that country conditions would not allow him to live and work safely. According to Freedom House,21 Senegal is one of the most stable electoral democracies in Africa, although there are some problems. The country is known for its relatively independent media and freedom of expression, although government corruption exists and protection of the rights of women and LGBT people is not adequate. [51] After analyzing the evidence, I conclude that the appellant has not established by actual and concrete evidence that it would be unreasonable for him to settle in Saint-Louis or Rufisque. [52] First prong: The appellant would not be personally exposed to a serious possibility of persecution or a risk of torture, a threat to his life or a risk of cruel and unusual treatment or punishment by the authorities in Saint-Louis or Rufisque. [53] Second prong: Considering all the circumstances, including those specific to him, and the situation in Saint-Louis or Rufisque, it is reasonable for the appellant to move there. [54] The RPD's determination is confirmed for reasons other than those set out by the RPD, namely that there is a viable IFA for the appellant in Saint-Louis or Rufisque. CONCLUSION [55] I dismiss the appeal and confirm, for other reasons, the RDP's determination that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Agnès CONNAT Me Agnès Connat January 12, 2021 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Gender Expression. 3 Maldonado v. Canada (M.E.I.), [1980] 2 F.C. (C.A.), at paragraphs 302 to 305. 4 Recording of the hearing before the Refugee Protection Division (RPD) on October 21, 2019, 00:28:12 to 00:34:04. 5 Ibid, starting at 01:04:47. 6 SAR-1, National Documentation Package (NDP) on Senegal, May 29, 2020, Tab 6.2: ?The situation of sexual minorities, including legislation, treatment by society and authorities, state protection and support services (2014-October 2018). Immigration and Refugee Board of Canada. October 31, 2018. SEN106182.FE. 7 Recording of the hearing held before the RPD on October 21, 2019, 00:43:04 to 00:52:04. 8 Maldonado v. Canada (M.E.I.), [1980] 2 F.C. (C.A.), at paragraphs 302 to 305. 9 Leon v. Canada (Citizenship and Immigration), 2020 FC 428, [30] Before the RAD, the claimant has the burden of presenting "actual and concrete" evidence that it would be unreasonable to relocate to the IFA: Ranganathan v. Canada (Citizenship and Immigration), 2000 CanLII 16789 (FCA), [2001] 2 FC 164 (CA) at para 15; Olvera Correa v. Canada (Citizenship and Immigration), 2012 FC 243 at para 17. The case law is clear that the burden is very heavy and that "[i]t requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area": Ranganathan at para 15; Hamdan v. Canada (Immigration, Refugees and Citizenship), 2017 FC 643 at para 12. 10 Kanagaratnam, Parameswary v. M.E.I. (F.C.A., No. A-356-94), Strayer, Linden, McDonald, January 17, 1996. 11 Supra endnote 6, NDP, Senegal, Tab 6.2, page 5/15. 12 Supra endnote 6, NDP, Senegal, Tab 6.2, page 6/15. 13 SAR-1, NDP, Senegal, May 29, 2020, Tab 6.1: Senegal. State-Sponsored Homophobia 2019. International Lesbian, Gay, Bisexual, Trans and Intersex Association. Lucas Ramón Mendos. March 2019. 14 Supra endnote 6, NDP, Senegal, Tab 6.2, page 9/15. 15 SAR-1, NDP, Senegal, May 29, 2020, Tab 6.3: ?La situation actuelle des personnes homosexuelles [current situation of homosexual people]. France. Office français de protection des réfugiés et apatrides [French office for the protection of refugees and stateless persons]. September 25, 2014, page 1/14. 16 Ibid, NDP, Senegal, Tab 6.3, page 2/14. 17 P-2, Appellant's record, Appellant's memorandum, at paragraph 15, page 12. 18 P-3, Appellant's additional memorandum, at paragraph 1, page 2. 19 SAR-1, NDP on Senegal, May 29, 2020, Tab 1.3: Senegal. The World Factbook. United States. Central Intelligence Agency. May 20, 2020. 20 SAR-1, NDP, Senegal, May 29, 2020. 21 SAR-1, NDP Senegal, May 29, 2020, Tab 2.3: Senegal. Freedom in the World 2019. Freedom House. 2020. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-29984 RAD.25.02 (January 2020) Disponible en français 12 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