TB8-20265

RAD File / Dossier de la SAR : TB8-20265 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 16, 2019 Date de la décision Panel Linda Hart Tribunal Counsel for the person(s) who is(are) the subject of the appeal Adrienne C. Smith Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX (a.k.a. XXXX XXXX XXXX) (the Appellant) is a citizen of Pakistan. He is appealing a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection because of his multiple re-availment's back to Pakistan between 2014 and 2017, his abandonment of his US asylum claim in 2014, and his failure to claim protection in the US during periods of residence in that country in 2015 and 2017. DETERMINATION [2] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. BACKGROUND [3] The Appellant alleged before the RPD that he is gay and that he has rejected his Muslim religion and is now an atheist. The Appellant was married in Pakistan, but he divorced his wife after nine years of marriage prior to going to the US. The Appellant made a claim for asylum in the US in 2014 based on his sexual orientation and his rejection of Islam. He abandoned that claim a few months later in order to return to Pakistan to honour his former wife after her death. [4] The Appellant returned to the US in XXXX 2015 after experiencing harassment from his ex-wife's family, but he encountered difficulties in accommodation because of his lack of religious belief and sexual orientation in that country. He returned to Pakistan because his sexual orientation was not openly known in that country. However, his family was aware of his sexual orientation and lack of interest in Islam, and he was not accepted. [5] The Appellant travelled to Dubai in XXXX 2016 but discovered that it was a very strict religious country and found that he could not live in such a repressive environment. [6] The Appellant returned to Pakistan in XXXX 2017 and was beaten in a public place by his brother and two cousins who called him a "faggot" and said that he had killed his wife. He was picked up by the police, and at the station, his brother informed the officers that the Appellant was not Muslim and that he was gay. The Appellant was issued a summons to appear before a local justice in two weeks. He was advised by the registrar of the court to leave Pakistan because he could be killed at any time. He borrowed money from a friend, and in XXXX 2017, he flew to the US, made an illegal entry into Canada, and made a refugee claim in this country. [7] The Appellant's refugee claim was heard on July 24, 2018. In a decision dated August 7, 2018, the RPD rejected the Appellant's claim. [8] The Appellant argues that the RPD erred by not conducting a separate section 97 analysis, rejecting the claim based on subjective fear without making a negative credibility finding, and by failing to make any determination with respect to his atheism. ANALYSIS [9] The RPD accepted that the Appellant had established his identity. However, the RPD was not persuaded to believe, on a balance of probabilities, that he faces persecution in Pakistan. The RPD found that the abandonment of his US claim in 2014 and his failure to file asylum claims while residing in the US in 2015 and 2017 were fatal to his claim. The RPD found that his explanations-that he did not like the US or want to live there and that he had been told that he could live in peace as a gay person in Canada-were not reasonable. The RPD noted that individuals with his sexual orientation are accepted in the US as well. The RPD did not find his reasons for failing to claim protection in the US to be credible. [10] The Appellant argues that the RPD erred in finding that a lack of subjective fear was fatal to his claim when no adverse credibility findings were made about his sexual orientation. He submits that the RPD erred by relying solely on his re-availment and failure to make an asylum claim in the US without addressing the fact that his failure to claim and re-availment did not diminish his risk in Pakistan as a gay man. He submits that the refugee definition is forward looking and regardless of his past re-availments to Pakistan, the abandonment of a refugee claim and failure to make refugee claims, the RPD is still obligated to consider if he would face a future risk of persecution in his country. He argues that the RPD did not raise any credibility concerns regarding his sexual orientation or identity as an atheist. [11] The Appellant argues that he reasonably explained why he returned to Pakistan in 2014, 2015 and 2016. He explained that, in 2014, his wife had passed away, and he felt an immense amount of guilt and pressure to return to Pakistan to honour their marriage and undertake certain cultural rituals. In 2015, he struggled to find adequate housing in the US because of his sexual orientation and was convinced by his brother to return home to Pakistan. He submits that he made the decision to return while in a vulnerable state and regretted the decision when he returned, and his brother kicked him out of the house. [12] He submits that his Basis of Claim (BOC) narrative described how his family and in-laws targeted him prior to leaving Pakistan and how he was violently attacked because of his sexual orientation. He submits that he consistently testified about events in Pakistan at the hearing. The Appellant argues that the RPD raised no credibility concerns with this evidence. [13] The Appellant argues that country condition documents show that gay men have been personally targeted both by the state and by community members, and that Pakistan's Penal Code continues to criminalize same-sex conduct. He submits that he would be at risk of being jailed and physically attacked by the police, his family and in-laws and would face discriminatory treatment on account of his sexual orientation. He submits that he concealed his sexual orientation in Pakistan in the past but continued to engage in same-sex relationships and would do so in the future, which would put his identity at risk of further exposure. [14] The RAD has reviewed the record and has considered the Appellant's arguments and the relevant case law. The RAD notes that Federal Court jurisprudence holds that it is unreasonable for the RPD to dismiss a claim for protection under section 96 on the basis that there was a lack of subjective fear and when the panel accepted the claimant's evidence as truthful.i The RAD notes that the RPD accepted that the Appellant was "who he says he is". The RAD takes this to mean that he accepted that the Appellant is a gay man who has rejected Islam and is presently an atheist. [15] The RAD has considered as well that the Federal Court has indicated that a finding of a lack of subjective fear is not reasonable when a general negative credibility finding is not made and that, if the RPD accepts that persecutory events occurred, the claimant would have a subjective fear of returning to the location of his aggressors when country authorities are unwilling and/or incapable of protecting him.ii The RAD notes that the RPD did not find it reasonable that the Appellant would return to Pakistan given harassment by family members and his inability to access police protection. The RPD further found the Appellant's assertion that he was told that, if he went to Canada, he could live in peace as a gay man was not credible because sexual orientation claims are accepted in the US as well as Canada. However, the RAD notes that the RPD did not conduct an analysis or make any credibility findings regarding the Appellant's allegations of persecution in Pakistan and events that occurred in that country. [16] The RAD has reviewed the record including the Appellant's testimony and the testimony of the witness. The RAD finds that the Appellant's testimony was consistent with his allegations in his BOC and the country condition documentary evidence on the record. The RAD finds that the witness at the hearing credibly corroborated the Appellant's identity as a gay man. This witness described how he met the Appellant through his volunteer work and how they became friends. He provided a detailed description of his knowledge of the Appellant's life in Canada as a gay man. The RAD finds, on a balance of probabilities, that the Appellant has credibly established his sexual orientation. [17] The RAD has considered the documentary evidence regarding the situation for the LGBT community in Pakistan and notes that it is against the law to engage in a same-sex male relationship and that there is violence and discrimination against members of the LGBT community. The authorities do not provide effective protection to members of the LGBT community. Furthermore, same-sex relationships tend to remain secret due to social stigma and the potential exposure to abuse and blackmail.iii [18] The RAD has considered the Federal Court jurisprudence which states that, if the risk that the Appellant would face is credible, it is unreasonable to reject the claim based on re-availment or failure to claim elsewhere.iv [19] The RAD finds that there is a serious risk of harm to the Appellant in Pakistan based on his sexual orientation and that the credibility concerns identified by the RPD regarding re-availments to Pakistan and failure to claim protection in the US do not impugn his overall credibility and, specifically, his identity as a gay man. [20] The RAD finds that the Appellant has established that he has both a subjective and objective fear of persecution in Pakistan because of his sexual orientation, given the country condition documentary evidence, the Appellant's inability to openly live as a gay man in Pakistan, and his credible allegations regarding persecutory events that occurred in that country. [21] Having conducted its own assessment of the evidence and having considered Federal Court jurisprudence, the RAD finds that there is a serious possibility that the Appellant would suffer persecution in Pakistan because of his membership in a social group. CONCLUSION [22] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) "Linda Hart" Linda Hart January 16, 2019 Date i Hidalgo Tranquino, Claudia Isabel v. M.C.I. (F.C., no. IMM-86-10), Mactavish, July 29, 2010, 2010 FC 793. ii Avila Rodriguez, Mari Ilda et al. v. M.C.I. (F.C., no. IMM-986-12), Shore, November 5, 2012, 2012 FC 1291. iii Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Pakistan (April 30, 2018), item 1.13, United Kingdom, Home Office, "Country Information and Guidance, Pakistan: Sexual orientation and gender identity", April 2016; item 2.1, United States, Department of State, "Pakistan, Country Reports on Human Rights Practices for 2017", April 20, 2018; item 2.4, Human Rights Watch, "Pakistan. World Report 2018: Events of 2017", January 2018. iv Hidalgo Tranquino, Claudia Isabel v. M.C.I. (F.C., no. IMM-86-10), Mactavish, July 29, 2010, 2010 FC 793. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-20265 RAD.25.02 (September 18, 2018) Disponible en français 7 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 (September 18, 2018) Disponible en français