TB3-06502

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 File No. / N° de dossier de la SAR : TB3-06502 Private Proceeding / Huis clos Redetermination of the Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 27,2016 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Pablo Andres Irribarra Valdes Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant) appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal and requests an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to find him to be a Convention refugee. In the alternative, the Appellant asks the RAD to refer the matter back to a different member of the RPD for a redetermination DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. This appeal is allowed. Background [3] The Appellant alleged before the RPD that, upon return to Saint Christopher and Nevis (St. Kitts), he will be targeted for persecution by the homophobic community due to his sexual orientation as a homosexual man. [4] The Appellant's application for refugee protection was heard on August 21, 2013. By a decision of September 10, 2013, the RPD rejected the claim finding that the Appellant was not a credible and trustworthy witness and had failed to rebut the presumption of state protection with clear and convincing evidence. The RPD was not persuaded that St. Kitts would not be reasonably forthcoming with adequate state protection should the Appellant wish to seek and pursue it. [5] Upon appeal to the RAD, the Appellant submitted that the RPD erred in its assessment of his credibility, ignored relevant evidence that directly contradicted the conclusion it reached, and failed to consider the cumulative impact of discrimination. On January 9, 2014, the RAD dismissed the appeal and confirmed the determination of the RPD. [6] On March 31, 2015, the Federal Court issued a judgment indicating that the Appellant's application for judicial review was granted and the matter was to be returned to the RAD for redetermination. The Court found that the RAD had failed to conduct an independent assessment of the matter, contrary to Huruglica.1 [7] Following the decision of the Federal Court in this matter, the Appellant presented new evidence and submitted that it should be considered by the RAD in assessing the appeal. On July 8, 2015 the RAD once again dismissed the appeal and confirmed the determination of the RPD. [8] On April 6, 2015, the Federal Court issued a judgment indicating that the Appellant's application for judicial review was granted and the matter was to be remitted for reconsideration on the merits by a different decision maker. The Court found that the RAD had based its decision on an erroneous finding of fact. ANALYSIS Role of the RAD [9] What is the role of the RAD in considering an appeal against a decision of the RPD? [10] In his most recent submissions, the Appellant refers to the decision of the Federal Court in Huruglica2 and submits that the RAD must conduct its own independent assessment of the evidence, including the new evidence he submitted, and arrive at its own conclusion on whether he is a Convention refugee or person in need of protection. [11] The Federal Court of Appeal has indicated that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law; and this translates into an application of the correctness standard of review.3 The Court held that, with respect to findings of fact (and mixed fact and law), which raises no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. It went on to indicate that after carefully considering the RPD decision, the RAD is to carry out its own analysis of the record to determine whether the RPD erred. The Court also stated that having done the above, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination.4 [12] Considering the recent jurisprudence, the RAD will conduct its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. Where the credibility of the oral evidence before the RPD was not a determinative issue, the RAD will apply a standard of correctness when assessing RPD findings of fact or of mixed fact and law. Where the credibility of the oral evidence before the RPD was a determinative issue, the RAD will defer to certain findings of the RPD where the RPD enjoyed an advantage over the RAD in assessing the oral evidence of witnesses who appeared before it. The extent of this deference will be assessed on a case-by-case basis dependent upon the particular circumstances of the matter and in conjunction with the RAD's own analysis of the record as a whole. In addition, the standard of correctness will be used for any error of law including a breach of natural justice or procedural fairness found in the RPD decision on appeal to the RAD. Admissibility of evidence submitted on appeal [13] Subsection 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in his Memorandum of Argument about how any proposed new evidence meets the requirements of subsection 110(4) and how that evidence relates to him.5 Assessment of evidence that meets the requirements of subsection 110(4) [14] Where a document meets the test in subsection 110(4) the RAD will conduct a further assessment of that evidence. While subsection 110(4) provides the RAD with factors to consider in assessing a document's newness, these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, it would make little sense to admit such document even if it meets the test in subsection 110(4). [15] In Singh,6 the Federal Court of Appeal held that there is no valid reason the RAD cannot apply the criteria set out in Raza7 to the assessment of new evidence. While Raza predates the introduction of subsection 110(4) of the IRPA, it is based on nearly identical wording of subsection 113(a). In Raza, the Federal Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.8 In Singh, the Court found that the criteria from Raza are necessarily implied in the wording of subsection 110(4).9 [16] Where evidence meets the test in subsection 110(4), the RAD will go on to assess it for credibility. While this is a factor set out in Raza, there are also other reasons to apply it. Subsection 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. This provision makes it clear that, in addition to the factors in subsection 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [17] Relevance is a basic condition for the admissibility of any piece of evidence.10 RAD Rule (3)(3)(g)(iii) requires the Appellant's Memorandum to include full and detailed submissions about how any proposed new evidence relates to him. It would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to subsection 162(2) of the IRPA which requires all divisions of the IRB to deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. [18] In addition to credibility and relevance, the factors in Raza include newness and materiality. Newness is implicitly incorporated into subsection 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in subsection 110(6) of the IRPA, which describes when the RAD may hold an oral hearing.11 [19] For these reasons, the RAD will apply the following factors to considering the Appellant's proposed new evidence. It will first consider whether the evidence passes the test in subsection 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of subsection 110(4), the RAD will assess its credibility and relevance in order to determine whether it is admissible. [20] The Appellant tendered the following items as proposed new evidence in support of his appeal. (a) Second request letter to the Royal St. Kitts & Nevis Police Force, dated April 14, 2015, requesting a copy of any police records or other documents pertaining to the report filed by the Appellant in 2004;12 (b) Response from the Royal St. Kitts & Nevis Police Force, dated April 29, 2015, requesting further information; 13 (c) Letter to Royal St. Kitts & Nevis Police Force, dated May 13, 2015, providing the requested information and reiterating request for documents or for letter explaining why documents cannot be provided; 14 (d) Second request letter to the XXXX XXXX XXXX XXXX Hospital, dated April 13, 2015, requesting copies of hospital records; 15 (e) Affidavit of XXXX XXXX XXXX, sworn on May 1, 2015, along with a copy of his Canadian refugee travel document identity page and his refugee claim BoC narrative; 16 (f) Excerpt from International Lesbian, Gay, Bisexual, Trans and Intersex Association A world survey of laws: Criminalisation, protection, and recognition of same-sex love, dated May 2014; 17 (g) sknvibes.com article What Kittitians say about homosexuality..., dated February 10, 2014;18 (h) freedomhouse.org report Freedom in the World 2014 - St. Kitts and Nevis;19 and (i) Excerpt from Kaleidoscope Trust report Speaking Out - The rights of LGBTI citizens from across the Commonwealth, dated November 2013.20 Items (a), (b) and (c) [21] The Appellant points out that items (a), (b) and (c) are letters pertaining to communication between his counsel and the Royal St. Kits and Nevis Police Force (St. Kitts Police Force). He explains that these communications are a follow-up from prior communication by him and his counsel to the St. Kitts Police Force, requesting records arising from a report he filed in 2004. The Appellant notes that the original requests made prior to his RPD hearing had received no response. He also notes that the updated request for information was sent to the St. Kitts Police Force on April 14, 2015, and the police force then sent a letter to him dated April 29, 2015 requesting further information to process the request. He notes that a response was then sent on May 13, 2015 providing the requested information, and reiterated the request for documents, or in the alternative an explanation as to why documents pertaining to the police report he filed could not be provided. The Appellant submits that these documents meet the requirements of 110(4) as the letters were written after the rejection of his claim and were not reasonably available prior to the rejection since the St. Kitts Police Force did not respond to the letters filed by him prior to the rejection. He maintains that the letter from the St. Kitts Police Force was not reasonably available to him despite his best efforts to obtain such a document prior to the rejection of his claim. He further submits that items (a), (b) and (c) are credible, relevant and material. [22] The RAD finds that items (a), (b) and (c) do not meet the statutory requirements of subsection 110(4). The Appellant requested police records from the St. Kitts Police Force prior to his hearing with the RPD, and the rejection of his claim.21 He indicated that police did not respond to his request for records. He continued requesting police records, even after the rejection of his claim. Police responded to one of his requests for records, asking him for additional information regarding the police report he made. Police have not provided the Appellant with records, even after the Appellant provided police with additional information. The RAD accepts that the Appellant made attempts to obtain a police report he filed in or about 2004. His request for police records is in the record and was before the RPD before it rendered its decision. [23] The Appellant maintains that the letter from the St. Kitts Police Force was not reasonably available prior to the rejection of his claim despite his best efforts to obtain such a document. The RAD does not agree. The RAD notes that the Appellant's requests for police records prior to the rejection of his claim were made via e-mail messages to an individual's gmail.com account while his request for police records made subsequent to the rejection were made by registered mail to the Royal St. Kitts & Nevis Police Force Headquarters. It is no surprise that he received a response to official correspondence sent by registered mail. It is unclear who the recipient of Appellant's e-mail messages is. The Appellant has failed to demonstrate that his request for police records made by registered mail to the Royal St. Kitts & Nevis Police Force Headquarters could not have been made prior to the rejection of his claim. Further, the Appellant has failed to establish that the Royal St. Kitts & Nevis Police Force Headquarters would not have responded to such a request prior to the rejection of his claim if it had received his request in this format prior to the rejection. Since items (a), (b), and (c) do not meet the test for new evidence, they will not be accepted in this appeal. Item (d) [24] The Appellant point out that item (d) is a follow-up letter to the XXXX XXXX XXXX XXXX Hospital, dated April 13, 2015, requesting copies of hospital records pertaining to treatment he received there in April of 2014. He notes that his previous request to the same agency received no response. The Appellant submits that item (d) was not reasonably available to him prior to the rejection of his claim. He further submits that item (d) is credible, relevant and material. [25] Item (d) does not meet the statutory requirements of subsection 110(4). The Appellant requested copies of hospital records prior to his hearing with the RPD, and the rejection of his claim.22 Therefore, he has failed to establish that item (d), a request for copies of hospital records, was not reasonably available prior to the rejection of his claim. Since it does not meet the test for new evidence, it will not be accepted in this appeal. Item (e) [26] The Appellant points out that XXXX XXXX XXXX filed a successful claim for refugee protection in Canada due to persecution that he was subjected to in St. Kitts as a result of being a homosexual. He notes that Mr. XXXX details in his narrative the multiple incidents of homophobic abuse and violence that he was subjected to in St. Kitts as a result of his sexual orientation, and in addition, he relates an incident in which he reported an attack to the police, but the officer interviewing him did not seem interested despite the serious nature of the attack. The Appellant submits that the experiences described by Mr. XXXX are consistent with own negative experience with police and indicates that adequate state protection is not available for victims of homophobic violence in St. Kitts. He submits that this evidence and the next four documents are relevant and material to his claim. [27] Item (e) does not meet the statutory requirements of subsection 110(4). While the affidavit of XXXX XXXX XXXX is dated subsequent to the rejection of the Appellant's claim for refugee protection, the incidents Mr. XXXX describes in his affidavit and narrative occurred prior to the rejection of the Appellant's claim. The Appellant has failed to establish that the proposed evidence that is item (e) arose after the rejection of his claim or that it was not reasonably available prior to the rejection of his claim, or that he could not reasonably have been expected in the circumstances to have presented it at the time of the rejection. Since it does not meet the test for new evidence, it will not be accepted in this appeal. Item (f) [28] The Appellant submits that item (f) arose after the rejection of his claim and was therefore not reasonable available prior to the rejection. He notes that while an earlier version of this document was in the record reviewed by the RPD, this is an updated document that confirms that anal sex, described as "the abominable crime of buggery", continues to be criminalized in St. Kitts, with prescribed terms of imprisonment of up to ten years. [29] The RAD finds that item (f) meets the statutory requirements of subsection 110(4). The excerpt is from a document published after the rejection of the Appellant's claim. Further, a reading of the document, including the sources referenced, suggests that it was published by a reputable organization. The RAD finds it to be credible evidence. Considering that the excerpt provides information regarding homophobia in St. Kitts, the RAD finds it to be relevant to the Appellant's claim for refugee protection. Since the document meets the statutory requirements of 110(4), and the credibility and relevancy considerations as per Singh and Raza, item (f) will be accepted as new evidence in this appeal. Item (g) [30] The Appellant submits that item (g) was not reasonably available prior to the rejection of his claim as it arose after the rejection. He submits that item (g) sheds light on the widespread hostile attitudes towards homosexuals in St. Kitts society, consistent with his evidence concerning the environment he was subjected to as a suspected homosexual in that country, and his fears of being forced to return. He further submits that item (g) addresses the negative credibility inferences drawn by the RPD regarding his description of this environment due to the fact that he nevertheless continued residing with his aunt and continued his employment with the same company. [31] Item (g) meets the statutory requirements of subsection 110(4). The article was published after the rejection of the Appellant's claim. A reading of the document suggests that the publisher is a reputable source. The RAD finds it to be credible evidence. Considering that the excerpt provides information regarding homosexuality and opinions regarding homosexuality in St. Kitts, the RAD finds it to be relevant to the Appellant's claim for refugee protection. Since the document meets the statutory requirements of 110(4), and the credibility and relevancy considerations as per Singh and Raza, item (g) will be accepted as new evidence in this appeal. Item (h) [32] The Appellant submits that item (h) was not reasonably available prior to the rejection of his claim as it arose after the rejection. He notes that item (h) corroborates the information he provided at his hearing that legal and social discrimination against the LGBT community persists, and that same-sex conduct between men is criminalized with prison sentences of up to 10 years. He submits that item (h) addresses the negative inference drawn about his credibility due to the fact that, despite the homophobic environment in St. Kitts, he continued living with his aunt and going to work with the same employer. [33] The RAD finds that item (h) meets the statutory requirements of subsection 110(4). The report was published after the rejection of the Appellant's claim. It is from a reputable source whose documents are found in the Board's National Documentation Packages. The RAD finds it to be credible evidence. Considering that the report provides information regarding discrimination against the LGBT community and the criminalization of same-sex conduct between men in St. Kitts, the RAD finds it to be relevant to the Appellant's claim for refugee protection. Since the document meets the statutory requirements of 110(4), and the credibility and relevancy considerations as per Singh and Raza, item (h) will be accepted as new evidence in this appeal. Item (i) [34] The Appellant submits that item (i) arose after the rejection of his claim and was therefore not reasonably available prior to the rejection. He points out that item (i) notes that the LGBTI community in St. Kitts continues to face discrimination and acts of violence due to their sexual orientation; that no laws prohibit discrimination on the basis of sexual orientation; that the act of buggery continues to be criminalized; that LGBT people are impeded in being open regarding their sexual orientation due to the stigma and discrimination they face; and that there have been a few charges of buggery against men in the last five years, including in 2010, when two men were charged for the 'abominable crime of buggery'. The Appellant submits that item (i) provides corroborating evidence of the homophobic environment he described in his testimony and Basis of Claim Form and confirms his concerns that he would not be able to obtain adequate protection from the authorities as a result of his sexual orientation. [35] The RAD finds that item (i) meets the statutory requirements of subsection 110(4). The excerpt is from a document published after the rejection of the Appellant's claim. Further, a reading of the document, including the sources referenced, suggests that it was published by a reputable organization. The RAD finds it to be credible evidence. Considering that the excerpt provides information regarding the problems LGBTI people face in St. Kitts, the RAD finds it to be relevant to the Appellant's claim for refugee protection. Since the document meets the statutory requirements of 110(4), and the credibility and relevancy considerations as per Singh and Raza, item (i) will be accepted as new evidence in this appeal. Request for an oral hearing [36] The Appellant requests an oral hearing pursuant to subsection 110(6) of the IRPA.23 [37] Subsection 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to subsection 110(4), present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [38] According to subsection 110(6) of the IRPA, which the Appellant relies on, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no further evidence from or in response to the Minister, the documentary evidence referred to in subsection 110(3) must be understood in relation to subsection 110(4). [39] When read together, subsections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new 110(4) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [40] Items (f), (g), (h) and (i) have been accepted as new evidence in this appeal. However, as the new evidence does not raise a serious issue with respect to the credibility of the Appellant, the requirements under subsection 110(6) have not been met. Therefore, the Appellant's request for an oral hearing is denied. MERITS OF THE APPEAL Credibility Failure to approach police in April 2004 [41] The Appellant notes that the RPD drew a negative inference with respect to his credibility because he did not approach the police when he was first attacked in April 2014, despite the fact that the incident was serious enough that he was hospitalized, and the fact that he did approach the police after a later and less serious attack that same year. He maintains that it is unclear why the fact that he went to police after a later incident of violence puts his credibility in question for not having gone earlier. He argues that the reasonable inference is that he would be more inclined to go, given the escalation of risk that a subsequent attack would tend to suggest. The Appellant also argues that the RPD did not consider his explanation - that he did not seek the police after the first incident because he was hospitalized and his family did not approach police - and it would be unreasonable to fault him for the lack of appropriate action taken by third parties such as his family or the hospital or the police. He notes that the RPD made no reference to his efforts to obtain corroborating documents about his hospitalization. He submits that the RPD's findings are unreasonable. [42] The RAD finds that the Appellant's arguments have merit. While the RPD drew a negative inference with respect to the Appellant's credibility from his failure to report to police the first of two incidents that had occurred in 2004 and found his explanation for not reporting the first incident unreasonable, it failed to provide a reason why it found his explanation unreasonable for it to draw a negative inference from his actions. The mere fact that the Appellant reported to police an apparently less serious incident, is insufficient for the RPD draw a negative inference. The RPD was wrong to draw a negative inference from the Appellant's failure to report to police the first of two incidents that occurred in 2004. Basis of Claim Form amendment [43] The Appellant notes that the RPD made a negative credibility determination because he made an amendment to his Basis of Claim Form (BoC), having originally stated that an attack he experienced and reported to the police took place in 2005, and then amending this to 2004. He argues that it is well-established that an amendment to a refugee claimant's Personal Information Form (PIF) or Basis of Claim Form should not necessarily result in a negative inference on credibility, and Rule 9 of the RPD Rules specifically contemplates the possibility that amendments may need to be made to the BoC. The Appellant submits that it was a simple oversight which he corrected upon reviewing his BoC and the amendment was made in a timely manner. He submits that the RPD's findings are unreasonable. [44] The RAD concurs with the Appellant. Although it would be reasonable to expect refugee claimants to indicate the correct dates for significant incidents in their original BoCs, considering the incident in question occurred many years before the Appellant came to Canada, it is not unreasonable that the Appellant provided the incorrect year for an incident in his original BoC narrative, requiring him to change the year in the narrative and file the amendment with the Board before his hearing. The RPD was wrong to make a negative credibility determination because the Appellant made an amendment to his original Basis of Claim Form narrative. Failure to leave home and employment [45] The Appellant notes that the RPD also drew a negative inference because, despite reporting homophobic harassment and abuse from family and community members, he continued to work and live in the same place since 2008, and continued to live with his aunt, who was one of the individuals who harassed him. He notes that the RPD rejected his explanation that he could not afford to move out of his family's house, pointing to the fact that he was working. The Appellant argues that the RPD ignored his evidence that he tried his best to keep his sexual orientation a secret while residing in St. Kitts. He also argues that the mere fact that one is employed does not automatically establish that the individual in question was able to therefore afford his own housing and cost of living. He submits that although he was working, he did not earn enough to move out of his aunt's house and become economically independent. The Appellant submits that the RPD finding is speculative and unreasonable. [46] The Appellant's arguments have merit. The RAD finds that the Appellant's explanations are reasonable for continuing to work and live in the same place despite homophobic harassment and abuse from family and community members. The RPD's reference to the Appellant's employment is insufficient to conclude that he could afford to live outside his aunt's house. Furthermore, considering that St. Kitts is such a small island, living outside his aunt's house would have had little effect on the homophobic harassment he received since the harassers would all remain in close proximity to the Appellant. The RPD was wrong to draw a negative inference because the Appellant continued to work and live in the same place since 2008. Summary on credibility [47] The Appellant notes that while the RPD accepted his evidence that he is a homosexual, and despite the fact that it identified state protection as the determinative issue in the case, it found that he was not a credible and trustworthy witness. He submits that based on the RPD's unreasonable findings noted above, the RPD's finding that he was not a credible and trustworthy witness was also unreasonable. [48] The RAD has found that the RPD was wrong to make the credibility findings noted above. Therefore, the RPD's conclusion that the Appellant is not a credible and trustworthy witness is also wrong. Considering all the evidence, the RAD finds that the Appellant is generally credible. The RAD finds the Appellant's evidence to be credible and trustworthy and consistent with country condition documents. State Protection [49] The Appellant notes that the RPD accepted his evidence that he is a homosexual man and identified state protection as the determinative issue in the claim. He also notes that the RPD then rejected his claim on the issue of state protection finding that he had failed to rebut the presumption of state protection with clear and convincing evidence. The Appellant notes relevant state protection principles and submits that there was substantial evidence before the RPD specifically establishing that an individual such as him, a homosexual man, faces a serious possibility of persecution in St. Kitts, and corroborating the fact that adequate state protection is not available to homosexuals when faced with persecution on the basis of sexual orientation. [50] The Appellant points to his own evidence that, after being violently attacked in late 2004, he filed a report with the police, but the police did not follow-up and did not respond to his requests for further information; that the case was never resolved; and that he believes that this was because the police suspected he was a homosexual and therefore did not take the matter seriously due to the widespread homophobic attitudes in St. Kitts society. He submits that the RPD's credibility assessment of this evidence was unreasonable in light of the evidence before it and his testimony on the availability of state protection was not assigned the appropriate weight in determining whether adequate state protection was available to him. [51] The Appellant also points to documentary evidence supporting his fear of persecution in St. Kitts and the lack of state protection in St. Kitts for homosexuals. He submits that the RPD did not engage in any meaningful analysis of this evidence or of how it could make a determination of adequate state protection available to him despite the existence of this evidence. He points out, for example, that while the RPD noted that same-sex acts are criminalized in St. Kitts, there is no consideration of the negative impact that this has on both the ability of victims of homophobic violence to approach the authorities given the risk of prosecution, and the reinforcing effect that anti-homosexual laws have on an already homophobic environment. He submits that the RPD does not appear to take into consideration the fact that the authorities of St. Kitts have demonstrated both domestically and at the international level that they share similar homophobic attitudes as the wider society in St. Kitts. He submits that some of this can be drawn from his evidence, as well as other similarly situated homosexuals who have sought protection from the police, but who have found that the authorities are unwilling to take their reports of homophobic abuse and violence seriously due to their sexual orientation. [52] The Appellant submits that the evidence confirms both the existence of widespread homophobia in St. Kitts, and the lack of adequate state protection for victims of homophobic violence. He further submits that the RPD committed the error of ignoring relevant evidence that directly contradicts the conclusion it reached. He submits that the determination that he had not rebutted the presumption of state protection was unreasonable. [53] The RAD has considered the Appellant's credible evidence of harassment and physical attacks against him in St. Kitts. It has also considered the documentary evidence regarding the treatment of homosexuals in St. Kitts. The RAD does not concur with the RPD in its conclusion on state protection. The Appellant's credible evidence demonstrates that adequate state protection was not reasonably available to him in response to physical attacks he endured at the hands of homophobes. Moreover, the state criminalizes homosexual activity. This is reflective of a state that is homophobic. [54] Documentary evidence is clear that LGBT persons face mistreatment and abuse in St. Kitts and the state is unable or unwilling to provide them with adequate protection. The United States Department of State reports that discrimination against the lesbian, gay, bisexual, and transgender (LGBT) community is a problem in St. Kitts. Also reported is that sexual activity between men is illegal and carries a penalty up to 10 years in prison; unofficial reports indicated that violence and discrimination based on sexual orientation remained a problem; and anecdotal evidence suggested that LGBT persons were reluctant to report incidents of violence or abuse out of fear of retribution or reprisal due to their sexual orientation.24 The report also documents incidents of homophobic violence against an LGBT minor in 2011 and 2012. Following multiple attacks, the minor was shot and paralyzed. [55] The state's view of the LGBT community is reflected in its criminalization of same-sex activity and the absence of laws protecting LGBT persons. Freedom House reports that legal and social discrimination against the LGBT community persists; same-sex sexual conduct between men is criminalized with prison sentences of up to 10 years.25 Another report indicates that certain homosexual acts are illegal under the laws of St. Kitts and Nevis, there are no laws that prohibit discrimination against a person on the basis of sexual orientation, and homophobia is rampant.26 Despite progressive utterances of the prime minister about repealing the buggery law, LGBT people continue to face stigma and discrimination in St. Kitts & Nevis.27 Evidence of widespread homophobia in St. Kitts suggests that it is pervasive in all areas of society and government, including law enforcement. [56] While the RPD indicated that it was not persuaded that Saint Kitts and Nevis would not be reasonably forthcoming with adequate state protection should the Appellant wish to seek and pursue it, the preponderance of the evidence suggest otherwise. The RAD finds that the Appellant has provided credible personal evidence which demonstrates, by the preponderance of probabilities, that St. Kitts would not be able to afford him adequate protection. The country condition documents support his personal evidence. The RAD therefore concludes that the Appellant has rebutted the state protection presumption. Cumulative effects of discrimination [57] The Appellant notes that the RPD accepted that he faced discrimination in St. Kitts on account of his sexual orientation but found that this treatment did not amount to persecution. He submits that the RPD erred by failing to go through a meaningful analysis of whether the cumulative impact of the discrimination that he will likely face in St. Kitts as a homosexual man - rather than just the individual instances of discrimination in question - amounts to persecution. [58] Considering the credible evidence noted above and the UNHCR guideline on persecution, the RPD was wrong to find that the discrimination experienced by the Appellant did not reach the level of persecution. The Appellant faced harassment and discrimination on a daily basis. He faced physical assaults from homophobes. He faced possible arrest and prosecution for homosexual acts he was involved in. The documentary evidence noted above in the state protection analysis clearly establishes the existence of homophobia and serious problems of violence and discrimination based on sexual orientation in St. Kitts. There is no indication that the government has made legitimate efforts to protect LGBT citizens from persecution in St. Kitts. Further, state actors are often complicit in its persecution of LGBT citizens, as evidenced by the failure of the state to repeal the buggery and associated laws. Moreover, the Appellant presented personal evidence which tied events of discrimination to him. The RAD finds that the credible evidence presented by the Appellant, when considered together, amounts to persecution. Disposition [59] The Appellant is a citizen of St. Kitts and a homosexual man. He has been found to be generally credible. He suffered harassment, discrimination and violence in St. Kitts amounting to persecution. He did not receive adequate protection from the state when he reported a violent attack. Documentary evidence is clear and overwhelming that homophobia is widespread in St. Kitts and LGBT people continue to face stigma, discrimination, abuse and violence. As a result of inadequate state protection and a lack of a viable internal flight alternative, the RAD finds, on a balance of probabilities, that the Appellant has satisfied the burden of establishing a serious possibility of persecution should he return to St. Kitts. The RAD, therefore, concludes that the Appellant has established a well-founded fear of persecution under section 96 of the IRPA. CONCLUSION [60] Pursuant to subsection 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. This appeal is allowed. (signed) "M. Pettinella" M. Pettinella July 27, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016; 2016 FCA 93, para. 78. 4 M.C.I. v. Huruglica, para. 103. 5 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 6 M.C.I. v. Singh, Parminder (F.C.A., No. A-512-14), Nadon, Gauthier, De Montigny, March 29, 2016; 2016 FCA 96. (F.C., No. IMM-6711-13), Gagné, October 28, 2014; 2014 FC 1022. 7 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 8 Raza, paras. 13-15. 9 M.C.I. v. Singh, Parminder, 2016 FCA 96, para. 64. 10 Singh, 2016 FCA 96, para. 45. Also: "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence", Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, loose-leaf ed. (Toronto: Carswell, 2004) at 17-6.12; Re. Bortolloti and Ministry of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33, at para. 64. 11 Singh, 2016 FCA 96, para. 48. 12 Exhibit P-3, Further submissions and documents from Appellant, at pp. 7-9. 13 Exhibit P-3, Further submissions and documents from Appellant, at p. 10. 14 Exhibit P-3, Further submissions and documents from Appellant, at pp. 11-13. 15 Exhibit P-3, Further submissions and documents from Appellant, at pp. 14-17. 16 Exhibit P-3, Further submissions and documents from Appellant, at pp. 18-33. 17 Exhibit P-3, Further submissions and documents from Appellant, at pp. 34-35. 18 Exhibit P-3, Further submissions and documents from Appellant, at pp. 36-37. 19 Exhibit P-3, Further submissions and documents from Appellant, at pp. 38-40. 20 Exhibit P-3, Further submissions and documents from Appellant, at pp. 41-42. 21 Exhibit RPD-1, RPD's Record, at pp. 87-91. 22 Exhibit RPD-1, RPD's Record, at pp. 84-86. 23 Exhibit P-2, Appellant's Record, at p. 10; Exhibit P-3, Further submissions and documents from Appellant, at p. 43. 24 Exhibit RPD-1, RPD's Record, at pp. 59-65, National Documentation Package (NDP) for Saint Kitts and Nevis, 3 May 2013, item 2.1. 25 Exhibit P-3, Further submission and documents from Appellant, at p. 40. 26 Exhibit RPD-1, RPD's Record, at pp. 59-65, National Documentation Package (NDP) for Saint Kitts and Nevis, 3 May 2013, item 6.1. 27 Exhibit P-3, Further submission and documents from Appellant, at p. 42. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB3-06502