TB6-05978

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 : TB6-05978 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 10, 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 person in need of protection and/or 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 [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that, upon return to the Commonwealth of the Bahamas (the Bahamas), he will be targeted for persecution due to his sexual orientation as a homosexual man. His claim for refugee protection was heard on February 16, 2016. By a decision dated April 15, 2016, the RPD rejected the claim finding that the Appellant was not a credible or reliable witness. Based on a number of credibility concerns taken cumulatively, the RPD found on a balance of probabilities that the Appellant is not gay and there is insufficient credible or trustworthy evidence to establish that the allegations in his claim occurred. [4] The Appellant submits that the RPD's treatment of his supporting evidence corroborating his sexual identity as a homosexual man was largely inadequate. He argues that the RAD can re-assess and reweigh this evidence of his sexual identity on a correctness standard and, together with the new evidence, should conclude that he is a homosexual man in light of the totality of the evidence before it. The Appellant further submits that his appeal should be granted given the evidence on the record regarding the homophobic persecution faced by members of the LGBT community in the Bahamas. ANALYSIS Role of the RAD [5] What is the role of the RAD in considering an appeal against a decision of the RPD? [6] The Appellant notes that the Federal Court of Appeal, in Huruglica,1 clarified the 'standard of review' to be applied by the RAD with regards to decisions from the RPD. [7] The Court, in Huruglica, 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.2 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.3 [8] 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 [9] 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.4 Assessment of evidence that meets the requirements of subsection 110(4) [10] Where a document meets the test in subsection 110(4) the RAD will conduct a further assessment of that evidence. In Singh,5 the Federal Court of Appeal held that there is no valid reason the RAD cannot apply the criteria set out in Raza6 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.7 In Singh, the Court found that three of the criteria from Raza are necessarily implied in the wording of subsection 110(4).8 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.9 Newness is implicitly incorporated into subsection 110(4) and does not require additional analysis. [11] 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 apply the Raza factors, minus the "materiality" factor, as this is to be assessed in light of subsection 110(6) only. [12] The Appellant tendered the following documents as proposed new evidence in support of his appeal. (a) Letter from XXXX XXXX, (undated);10 (b) Letter from XXXX XXXX, dated May 5, 2016;11 (c) Letter from XXXX XXXX(undated);12 (d) Letter from XXXX XXXX XXXX XXXX XXXX dated May 4, 2016;13 and (e) Letter from XXXX XXXX XXXX XXXX, dated May 12, 2016.14 Item (a) [13] The Appellant submits that the letter from XXXX XXXX meets the statutory requirements under subsection 110(4) as it was provided to him after the rejection of his refugee claim. He maintains that although he made multiple attempts to get into contact with XXXX while he was preparing for his refugee claim, including sending e-mails and leaving voicemail messages, XXXX did not respond to his communication. He alleges it was only after his cousin, XXXX XXXX, met with XXXX in person, on his behalf, that XXXX finally agreed to prepare the supporting letter and subsequently forwarded it to him. He submits that the letter from XXXX was not reasonably available to him prior to the rejection of his claim given his genuine efforts to obtain this supporting document prior to the rejection and the fact that the failure to provide this document to the RPD was through no fault of his own but rather the failure of a third party to provide this evidence. He further submits that the letter from XXXX provides personal corroborative evidence of his sexual orientation as a member of the LGBTQ community; and is reliable and credible, relevant to the matter under appeal, and meets the requirement of newness. [14] The RAD finds that the Appellant has failed to establish that the letter from XXXX XXXX meets the statutory requirements of subsection 110(4). Although the Appellant alleges that he made multiple attempts to get into contact with XXXX XXXX while he was preparing for his refugee claim, including sending e-mails and leaving voicemail, he provides no corroborating evidence of his attempts to contact her such as the e-mail messages he allegedly sent or telephone records of calls he allegedly made. It would be reasonable to expect that a record of such attempted contact would exist. Considering that the Appellant is alleging that he made multiple attempts to contact XXXX XXXX by phone and e-mail messages prior to the rejection of his claim, to satisfy the requirements of subsection 110(4) it would be reasonable to expect the Appellant to provide corroborating evidence of this. More importantly, while the Appellant alleges that it was only after his cousin, XXXX XXXX, met with XXXX XXXX that she agreed to prepare the supporting letter, he fails to explain why his cousin could not have met with XXXX XXXX and obtained a letter from her prior to the rejection of his claim. He also does not explain why he could not have provided a letter from XXXX XXXX post hearing, prior to the rejection of his claim. Considering the above, the RAD finds that the Appellant has failed to establish that item (a) was not reasonably available at the time his claim was rejected. [15] Furthermore, credibility is an issue in all claims for refugee protection. The RPD indicated at the outset of the hearing that credibility was an issue in the Appellant's claim and expressed concern regarding his credibility throughout the hearing. The Appellant provided the RPD with corroborating letters from other individuals. The Appellant was represented by legal counsel. The Appellant knew that evidence corroborating his sexual orientation was expected. He could reasonably have been expected in the circumstances to have presented corroborating evidence regarding his sexual orientation prior to his claim being rejected. Since item (a) does not meet the statutory requirements of subsection 110(4), it will not be accepted as new evidence in this appeal. Item (b) [16] The Appellant submits that the letter from XXXX XXXX meets the requirements of subsection 110(4) because it was not reasonably available prior to the rejection of his claim and he could not reasonably have been expected to have provided the document in the circumstances. He maintains that he had not been in communication with XXXX XXXX and did not have any means of contacting him prior to the rejection of his claim. He maintains that it was only after his cousin, XXXX XXXX, came across XXXX XXXX at a gay pageant in Nassau that XXXX XXXX helped reconnect him with XXXX XXXX. He states in his affidavit that XXXX XXXX agreed to provide a supporting letter, and soon after contacted him on the social media app WhatsApp to communicate in detail about this. The Appellant submits that the letter directly corroborates his self-identification as a homosexual man and is credible and relevant, and meets the criteria of newness. [17] The RAD finds that the Appellant has failed to establish that the letter from XXXX XXXX meets the statutory requirements of subsection 110(4). Although the Appellant alleges that he had lost contact with XXXX XXXX, XXXX XXXX helped him reconnect him with XXXX XXXX, and XXXX XXXX contacted him on the social media app WhatsApp to communicate in detail about providing a supporting letter, the Appellant provides no corroborating evidence of his communication with XXXX XXXX on WhatsApp. Considering that the Appellant is alleging that he lost contact with XXXX XXXX and only reconnected with him after his claim was rejected, to satisfy the requirements of subsection 110(4) it would be reasonable to expect the Appellant to provide corroborating evidence of this. One would expect that his communication on WhatsApp would be reasonably available as this type of communication is typically stored on electronic devices. It would be reasonable to expect the Appellant to provide evidence of his communication with XXXX XXXX to demonstrate that a letter from him was not reasonably available at the time his claim was rejected. Considering the above, the RAD finds that the Appellant has failed to establish that item (a) was not reasonably available at the time his claim was rejected. Furthermore, since credibility is an issue in all claims for refugee protection and sexual orientation was central to his claim, the Appellant could reasonably have been expected in the circumstances to have presented corroborating evidence regarding his sexual orientation prior to the rejection of his claim. Since item (b) does not meet the requirements of subsection 110(4), it will not be accepted as new evidence in this appeal. Item (c) [18] The Appellant submits that the notarized letter from XXXX XXXX meets the requirements of subsection 110(4) as it was not reasonably available prior to the rejection of his claim and he could not reasonably have been expected to have provided the document in the circumstances. He maintains that he had asked XXXX XXXX on multiple occasions to prepare a supporting letter while he was preparing his refugee claim but despite XXXX XXXX confirmation that he would prepare such a letter no such document was provided prior to the rejection of his claim. He alleges he made reasonable efforts to secure the supporting letter from XXXX XXXX well in advance of his refugee hearing and the document was not filed with the RPD through no fault of his own. The Appellant submits that the letter provides direct corroboration that he is a homosexual man and meets the criteria of credibility, relevancy and newness. [19] The RAD finds that the Appellant has failed to establish that the letter from XXXX XXXX meets the statutory requirements of subsection 110(4). Although the Appellant maintains that he had asked XXXX XXXX on multiple occasions to prepare a supporting letter while he was preparing his refugee claim, the Appellant provided no corroboration of this. It would be reasonable to expect the Appellant to provide corroboration of his attempts to get a supporting letter from XXXX XXXX prior to the rejection of his claim, to satisfy the requirements of subsection 110(4). Considering that the Appellant communicated with others he attempted to obtain corroborating documents from by e-mail message, phone message and through the App, WhatsApp, one would expect that the Appellant communicated with XXXX XXXX by such means and a record of such communication would exist. In the RAD's view, the lack of documentary evidence showing the Appellant's attempts to obtain corroborating documents from individuals who are aware of his sexual orientation prior to the rejection of his claim undermines the Appellant's assertion that the corroborating documents were not available prior to the rejection of his claim. Furthermore, since credibility is an issue in all claims for refugee protection and sexual orientation was central to his claim, the Appellant could reasonably have been expected in the circumstances to have presented corroborating evidence regarding his sexual orientation prior to the rejection of his claim. Since the Appellant has failed to establish that item (c) meets the statutory requirements of subsection 110(4), it will not be accepted as new evidence in this appeal. [20] Even if item (c) met the statutory requirements of subsection 110(4), there are credibility concerns with the document. Although the Appellant alleges that the letter from XXXX XXXX is notarized, there is no seal or stamp one would expect to see on a notarized document. The Appellant alleges that a justice of the peace notarized the letter, however, the name of the person who allegedly notarized the document is indistinguishable and the only indication that the person who signed it may be a justice of the peace are the initials XXXX XXXX XXXX XXXX after a statement certifying the letter to be true and correct and an undistinguishable signature. A document that has been notarized is one that has been marked with a stamp or seal, which indicates that the signature on the document is legitimate. In this case, the letter from XXXX XXXX has not been marked with a stamp or seal and there is no indication that his signature on the document is legitimate. It would be unusual for a justice of the peace to certify that the contents of a letter are true and correct, as indicated in the letter from XXXX XXXX, as the certifier is not the author of the letter and is unlikely to have had firsthand knowledge of XXXX XXXX, or the Appellant's, activities. The anomalies regarding the notarization of the letter from XXXX XXXX undermine the letter's credibility. Item (d) [21] The Appellant submits that the notarized letter from XXXX XXXX XXXX XXXX meets the requirements of subsection 110(4) as it was not reasonably available prior to the rejection of his claim and he could not reasonably have been expected to have provided the document in the circumstances. He maintains that he did not believe that XXXX XXXX XXXX XXXX would be able to prepare a letter and forward it to him in Canada since he had been recently released from hospital following the XXXX XXXX XXXX XXXX and was facing serious health complications while recovering at home. He alleges that following the rejection of his claim, XXXX XXXX spoke with XXXX XXXX XXXX XXXX who then prepared a supporting letter and made the necessary arrangements to provide it to him; demonstrating that he had been incorrect to believe that XXXX XXXX XXXX XXXX would not be able to provide this document to him. The Appellant submits that the letter confirms that he is a gay man and it meets the criteria of credibility, relevancy and newness. [22] The letter from XXXX XXXX XXXX XXXX does not meet the statutory requirements of subsection 110(4). While the Appellant submits that the letter was not reasonably available prior to the rejection of his claim because he did not believe XXXX XXXX XXXX XXXX would be able to provide him with a letter, he admits that he had not asked XXXX XXXX XXXX XXXX for a letter before his claim was rejected and he had been incorrect in believing that XXXX XXXX XXXX XXXX would not be able to provide this document to him. This suggests that the document was reasonably available prior to the rejection of his claim. Furthermore, since credibility is an issue in all claims for refugee protection and sexual orientation was central to his claim, the Appellant could reasonably have been expected in the circumstances to have presented corroborating evidence regarding his sexual orientation prior to the rejection of his claim. Since the Appellant has failed to establish that item (d) meets the statutory requirements of subsection 110(4), it will not be accepted as new evidence in this appeal. [23] Even if item (d) met the statutory requirements of subsection 110(4), there are credibility concerns with the document similar to those found in the analysis of item (c). Although the Appellant alleges that the letter from XXXX XXXX XXXX XXXX is notarized, there is no seal or stamp one would expect to see on a notarized document. The Appellant alleges that a justice of the peace notarized the letter, however, the name of the person who allegedly notarized the document is indistinguishable and the only indication that the person who signed it may be a justice of the peace are the initials XXXX XXXX XXXX. after a statement certifying the letter to be true and correct and an undistinguishable signature. A document that has been notarized is one that has been marked with a stamp or seal, which indicates that the signature on the document is legitimate. In this case, the letter from XXXX XXXX XXXX XXXX has not been marked with a stamp or seal and there is no indication that his signature on the document is legitimate. It would be unusual for a justice of the peace to certify that the contents of a letter are true and correct, as indicated in the letter from XXXX XXXX XXXX XXXX, as the certifier is not the author of the letter and is unlikely to have had firsthand knowledge of XXXX XXXX XXXX XXXX, or the Appellant's, activities. The anomalies regarding the notarization of the letter from XXXX XXXX XXXX XXXX undermine the letter's credibility. Item (e) [24] The Appellant submits that the letter from XXXX XXXX XXXX XXXX meets the requirements of subsection 110(4) as it was not reasonably available prior to the rejection of his claim and he could not reasonably have been expected to have provided the document in the circumstances. He maintains that it was only after the RPD had rejected his claim that XXXX XXXX XXXX XXXX replied to a message he had sent him on Facebook and, following a discussion, XXXX XXXX XXXX XXXX agreed to prepare a letter in support of his claim. The Appellant submits that the letter provides corroborative evidence that he is gay and it meets the criteria of credibility, relevancy and newness. [25] The letter from XXXX XXXX XXXX XXXX does not meet the statutory requirements of subsection 110(4). Attached to the letter is an excerpt of text communication with XXXX XXXX XXXX XXXX dated February 3, 2012. Since credibility is an issue in all claims for refugee protection and sexual orientation was central to his claim, the Appellant could reasonably have been expected in the circumstances to have presented corroborating evidence regarding his sexual orientation prior to the rejection of his claim. If the Appellant wished to present evidence of his relationship with XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX prior to the rejection of his claim, he could have provided the printout of text communication dated February 3, 2012. The Appellant has failed to indicate that it was not reasonably available prior to the rejection of his claim. The RAD concludes that the excerpt of text messages with XXXX XXXX XXXX XXXX, attached to the letter from XXXX XXXX XXXX XXXX, was reasonably available prior to the time the Appellant's claim was rejected. Since it forms part of item (e), and it was reasonably available, the RAD finds that item (e) does not meet the statutory requirements of subsection 110(4) and will not be accepted as new evidence in this appeal. Request for an oral hearing [26] The Appellant requests a hearing pursuant to subsection 110(6) of the IRPA.15 He submits that all of the documents filed under subsection 110(4) also meet the requirements stipulated under subsection 110(6) as their corroboration of his sexual orientation as a homosexual man raise a serious issue with respect to his credibility, the issue of his sexual orientation was clearly central to the decision, and, if accepted, would justify the acceptance of his refugee claim.16 [27] 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. [28] 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). [29] 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. The Appellant's proposed new evidence has been rejected by the RAD. It does not meet the statutory requirements of 110(4). As no new evidence has been accepted in this appeal, the RAD must proceed without a hearing and the Appellant's request for an oral hearing is denied. MERITS OF THE APPEAL [30] The Appellant submits that while the RPD is entitled to find that sworn evidence provided by a refugee claimant on a particular issue - such as self-identification as a member of the lesbian, gay, bisexual, or transgender (LGBT) community - is unreliable on the basis of negative inferences drawn about a refugee claimant's credibility, the analysis of whether or not a refugee claimant is a member of a sexual minority does not necessarily stop there. He submits that a decision-maker must still consider and meaningfully weigh evidence separate from the refugee claimant's own testimony regarding his sexual identity. The Appellant argues that just because a refugee claimant is found to have been unreliable regarding certain elements of the claim - such as for example his address history, employment record, delay in claiming, and experience of specific incidents that they related - does not automatically mean that every component of their claim is inherently unreliable, including elements that might, on their own, form a basis for the risk and/or persecution they face, independent of their unreliable testimony. He further argues that the fact that a refugee claimant has been found to have been generally untruthful about their past, for example, does not mean that they are not gay, and facing persecution in their country on the basis of this identity. [31] The Appellant maintains that he provided ample supporting evidence corroborating his sexual orientation as a homosexual man. He submits that while the RPD does make reference to some of this evidence in assessing his sexual orientation, its treatment of this evidence was largely inadequate, particularly with respect to evidence with indicia of reliability independent from his own testimony, ultimately resulting in an unreasonable determination that he is not gay. He submits that the RAD can re-assess and reweigh this evidence of his sexual orientation on a correctness standard. The Appellant submits that, together with the new evidence, the RAD should conclude that he is a homosexual man in light of the totality of the evidence before it. He submits that, given the evidence on the record of the homophobic persecution faced by members of the LGBT community in the Bahamas, the RAD should grant his appeal. [32] It is important to note that the RAD has not accepted the Appellant's proposed new evidence. The analysis of the Appellant's proposed new evidence is found above. It is also noteworthy that the Appellant makes no arguments with respect to the RPD's findings on failure to claim elsewhere, delay in departure, omissions, and other anomalies in his evidence, other than the RPD's treatment of his supporting documents. The RAD conducted its own analysis of the record to determine whether the RPD erred, taking into considerations the Appellant's submissions. Failure to claim elsewhere and omissions from BoC [33] The RPD noted the Appellant's allegation that he travelled to the United States in August 2001 to leave the homophobic environment of the Bahamas. It also noted that the Appellant remained in the U.S. for approximately 12 years but did not file an asylum claim. It found it reasonable to assume that if the Appellant genuinely feared returning to the Bahamas, he would have made an asylum claim in the United States or at the very least researched the options available to him to stay in the United States so he would not have to return to the Bahamas. It found the Appellant's explanation as to why he did not research his options of staying in the United States unreasonable. It found that if the Appellant genuinely believed he would be harmed or killed if he returned to the Bahamas, he would have gone to see a lawyer or immigration consultant to discuss his legal options for staying in the United States and not returning to the Bahamas. The RPD attached an adverse inference with respect to the Appellant's overall credibility and the truthfulness of his allegations from his failure to seek such immigration advice in the United States. The RPD also drew an adverse inference with respect to the Appellant's overall credibility and the truthfulness of his allegations from his failure to research his options of staying in the United States, his failure to research the United States asylum process, and his failure to research the process of exceptions. [34] The RPD noted that the Appellant agreed to be deported to the Bahamas, even after he learned from a United States custody officer the existence of an asylum claim based on sexual orientation. It found it reasonable to assume that the Appellant would have learned more about the possibility of making a claim as opposed to agreeing to return to the Bahamas. The RPD attached an adverse inference with respect to the Appellant's overall credibility and the truthfulness of his allegations from his actions, or inaction. [35] The RPD also noted the Appellant's testimony that he did not tell a United States immigration judge that he feared returning to the Bahamas. It found the Appellant's explanations for not telling the judge unreasonable. The RPD noted omissions in the Appellant's BoC regarding his interactions with the United States custody officer and immigration judge. It drew a negative inference with respect to the Appellant's overall credibility and the truthfulness of his allegations from the omissions. [36] Having reviewed the record, the RAD concurs with the RPD's findings noted above. The RAD finds that the Appellant's explanations for not claiming refugee protection in the United States are not reasonable. If the Appellant left the Bahamas in August 2001 due his sexual orientation and the prevalence of homophobia in his country, it would be reasonable to expect him to claim protection in the safe place he travelled to. It would be reasonable for the Appellant not to rely on the advice of acquaintances in the United States as there is no indication that any of them had expertise in such matters. The United States is a signatory to the Refugee Protocol and no credible evidence was presented by the Appellant to indicate that his asylum claim, had he filed one in the United States, would not have been appropriately considered. The Appellant did not even speak with a lawyer or immigration consultant or other professional regarding the possibility of an asylum claim in the approximately 12 years that he resided in the United States even though it is likely there was no risk in doing so. He spoke with a lawyer about a sponsorship application and still did not ask the lawyer about staying as an asylum seeker. If the Appellant's desire was to find a place where he would be safe as a homosexual male, it does not make sense that he would not make significant efforts to learn about the protection offered by the United States and to seek the advice of a professional, especially in light of his lack of status and risk of removal. [37] The RAD finds it unreasonable that the Appellant failed to file a refugee claim in the United States after an immigration officer had told him that he had heard of a case where a person alleged a fear of returning to his country due to his sexual orientation. This suggests that the Appellant was aware of the possibility of filing an asylum claim in the United States based on his alleged sexual orientation prior to being deported. One would expect the Appellant to pursue this option considering his alleged fear of returning to the Bahamas. Also, the RAD finds it unreasonable that the Appellant failed to tell the immigration judge at his deportation hearing that he feared returning to the Bahamas. The Appellant testified that he was asked by the immigration judge if he feared returning to the Bahamas; however, he alleges he was not given a chance to respond as the judge went on about the positive attributes of the Bahamas. The RAD is not persuaded that the Appellant was not provided an opportunity to tell the immigration judge that he feared returning to the Bahamas due to his sexual orientation. Even if the judge espoused the positive attributes of the Bahamas after asking the Appellant if he feared returning, it would not prevent the Appellant from telling the judge about his fear of returning after the judge spoke about how wonderful it is. [38] The RAD takes judicial note of the fact that the United States is a highly democratic country. It would be reasonable to expect a person with 13 years of education such as the Appellant to have pursued refugee protection in the United States if he feared returning to the Bahamas as alleged. One would expect a person fearing persecution or harm in their home country to pursue refugee protection in the safe country they have travelled to. The Federal Court has indicated that a person fleeing persecution is expected to seek protection in the first safe place.17 Considering the above, the RAD finds that the Appellant's failure to claim in the United States, without a reasonable explanation, undermines his credibility and the credibility of his allegations, including the credibility of his alleged sexual orientation. Delay in departure [39] The RPD noted that after the Appellant was deported back to the Bahamas, he remained in the Bahamas for approximately two and a half years before coming to Canada. It found that if his fears were genuine - that he would be seriously harmed or murdered if he remained in the Bahamas - he would have left much sooner. It found his explanations for the delay unreasonable. The RPD drew an adverse inference with respect to the Appellant's overall credibility and the truthfulness of his allegations from his delay in leaving the Bahamas. It drew a further adverse inference with respect to the Appellant's overall credibility and the truthfulness of his allegations from his purchase of a vehicle in the Bahamas instead of purchasing a ticket to leave the Bahamas. [40] On the one hand, the Appellant claimed to fear for his life in the Bahamas. On the other hand, he waited approximately two and a half years in the Bahamas, after he was deported from the United States, to come to Canada. This is a major inconsistency within the Appellant's own evidence-he said he was afraid, but he certainly did not act like he had such a fear. [41] The RAD concurs with the RPD drawing an adverse inference with respect to the Appellant's overall credibility and the truthfulness of his allegations from his delay in leaving the Bahamas and his purchase of a vehicle in the Bahamas instead of a flight ticket to Canada. Having reviewed the evidence, the RAD reaches the same conclusion: the Appellant's actions are highly inconsistent with his alleged fear. The Appellant's explanation that he wanted to earn money in the Bahamas before he came to Canada to make a refugee claim is not reasonable, considering his alleged fear. [42] The Appellant had the wherewithal to travel to Canada to file a refugee claim based on his sexual orientation immediately after, or shortly after, his deportation from the United States in February 2013. He knew that Canada considers refugee claims based on sexual orientation. He was told this by a fellow detainee in the United States before he was deported. The Appellant had the funds to travel to Canada. He purchased a vehicle in the Bahamas after he was deported from the United States that cost almost twice as much as a flight to Canada would cost. He had travelled to the United States previously. He had resided in the United States for approximately 12 years. He had returned to the Bahamas on two occasions while he was residing in the United States. His sister moved to Canada in or about XXXX 2014. The above suggests that the Appellant had the means and ability to come to Canada to file a refugee claim after he was deported to the Bahamas from the United States. [43] The RAD does not accept as reasonable that the Appellant would wait for two and a half years to leave the Bahamas, after being deported from the United States, if in fact the threat to his safety was genuine. The RAD finds that the Appellant's delay in departing the Bahamas, after he was deported from the United States, undermines his credibility and the credibility of his allegations, including the credibility of his alleged sexual orientation. Omission from original BoC narrative [44] The RPD noted an amendment to the Appellant's BoC narrative in which he described an incident he was involved in at a gay nightclub in the Bahamas in or about 1995. It found the Appellant's explanation for the omission of this incident in his original BoC not credible and unreasonable. It drew an adverse inference with respect to the Appellant's overall credibility and the truthfulness of his allegations from the omission. [45] The RAD concurs with the RPD drawing an adverse inference with respect to the Appellant's overall credibility and the truthfulness of his allegations from the omission noted above. The incident in question is a significant event. It involves the Appellant and the seriously harmful treatment of him and others in the Bahamas due to their sexual orientation. The Appellant writes of other less serious incidents in his original BoC narrative. One would expect the Appellant to write about, and to not omit, a more serious incident of harm he and others experienced in the Bahamas in his original BoC narrative. The Appellant indicated that he was not sure why he omitted the incident in his original BoC narrative. The RAD finds that the omission, without a reasonable explanation, further undermines the Appellant's credibility and the credibility of his allegations, including the credibility of his alleged sexual orientation. Absence of letter from Appellant's sister [46] The RPD noted the absence of a letter from the Appellant's bisexual sister residing in Canada. It found the Appellant's testimony as to why his sister did not file a letter or affidavit vague and confusing and did not make sense. The RPD noted the Appellant's explanations that his sister did not want her husband to be aware of her sexual orientation and she did not want to write a supporting letter for the Appellant as it may adversely affect her application for permanent status in Canada. He later indicated that he was just guessing that those were the reasons his sister would not provide a supporting document. The RPD attached an adverse inference with respect to the Appellant's overall credibility and the truthfulness of his allegations from his unreasonable explanations. [47] The RAD concurs with the RPD's findings noted above. The Appellant's sister is allegedly bisexual, supportive of the Appellant, and residing in Canada. One would expect her to have provided the Appellant with a supporting document after he requested one. The Appellant's credibility is undermined by the fact that he offered reasons his sister did not provide him with a supporting letter then subsequently indicating the he was only guessing as to the reasons his sister would not provide him with a letter. One would expect the Appellant to know why his sister would not provide him with a supporting document after he asked her for such a document considering she is supportive of him. If he did not know the reason, it would be reasonable for him to have initially indicated he did not know. Psychotherapist's report [48] The RPD noted that it had carefully considered the psychotherapist's report and how the Appellant's psychological condition might have affected his ability to provide testimony. It accepted that the Appellant suffers from the ailments described in the report however, found that the psychotherapist was no in a position to state categorically that the Appellant is a victim of the allegations mentioned in his BoC narrative. The RPD found that the psychotherapist's report did not explain away the significant credibility concerns mentioned in its decision. [49] The RAD concurs with the RPD's assessment of the psychotherapist's report. After considering the Appellant's testimony, along with general findings of lack of credibility, the RAD finds that the psychotherapist's report does not assist in explaining the credibility concerns with the Appellant's testimony. The RPD's conclusions with respect to the weight accorded to this document was absent of any error. Supporting letters and photographs [50] The RPD noted that many of the letters the Appellant provided were not notarized and some did not have any reliable identification documents attached to them to establish who the authors were. It also noted that the authors of the letters were not present at the hearing to answer questions regarding the content of the letters and other credibility concerns it had. The RPD found that the letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX) does not establish that the Appellant is gay as anyone can join the organization. It found that the photographs the Appellant provided do not substantiate the Appellant's allegation that he is gay as there was no way of knowing who the men in the photographs are or what their sexual orientation is or what relationship they have with the Appellant. The RPD found that the supporting letters and photographs do not overcome all of the significant credibility concerns mentioned in its decision regarding the Appellant's sexual orientation and allegations. [51] As noted above, the Appellant submits that the RPD's treatment of his supporting letters and photographs was largely inadequate. He makes specific reference to four documents. His submissions and the RAD's assessment of the documents are as follows. Letter from XXXX XXXX [52] The Appellant submits that The XXXX is a well-known, respected, and independently-verifiable community organization that contributes towards the advancement of LGBTQ equality and inclusion in Toronto. He argues that regardless of the negative inferences drawn with respect to his general credibility, the letter from The XXXX constitutes an independent source of verifiable evidence from a reliable third party source and should therefore be given substantial weight in light of its credibility. He maintains that his membership in the XXXX XXXX LGBT Refugee Support Group is limited to LGBT refugee claimants only and therefore provides significant further corroboration of his sexual orientation as a member of the LGBTQ community. [53] The RAD notes that XXXX XXXX XXXX XXXX XXXX XXXX which provides support to the general community, including the large LGBTQ community in downtown Toronto. The letter from The XXXX does not confirm that the Appellant is homosexual. This evidence solely indicates that the Appellant became a member of XXXX XXXX peer driven support group for LGBT refugee claimants in XXXX 2015 and that he regularly attends and participates in weekly group meetings and LGBT related workshops. With respect to the letter indicating that the peer driven support group the Appellant is a member of is for LGBT refugee claimants only, the RAD notes that the Appellant is an LGBT refugee claimant which means that he has made a refugee claim based on his sexual orientation as a homosexual; however, this does not mean that his alleged sexual orientation is credible. The RAD gives no weight to the evidence from XXXX XXXX in support of the Appellant's identity as a homosexual man and the allegations of persecution or harm in the Bahamas. Letter from XXXX XXXX [54] The Appellant notes that the notarized letter from his cousin, XXXX XXXX, is a sworn statement, affirmed before a justice of the peace in the Bahamas. He submits that the letter provides details about the homophobic environment in the Bahamas as well as information about him, corroborating his allegations and sexual orientation. He maintains that the letter is reliable as it was duly sworn and executed before a Justice of the Peace and the writer of the letter provides his complete legal name, along with his contact information, and a copy of his government-issued photo identification. [55] Although the Appellant alleges that the letter18 from XXXX XXXX is notarized, there is no seal or stamp one would expect to see on a notarized document. The Appellant alleges that a justice of the peace notarized the letter, however, the name of the person who allegedly notarized the document is indistinguishable and the only indication that the person who signed it may be a justice of the peace are the initials XXXX XXXX XXXX. after a statement certifying the letter to be true and correct and an undistinguishable signature. A document that has been notarized is one that has been marked with a stamp or seal, which indicates that the signature on the document is legitimate. In this case, the letter from XXXX XXXX has not been marked with a stamp or seal and there is no indication that his signature on the document is legitimate. It would be unusual for a justice of the peace to certify that the contents of a letter are true and correct, as indicated on the letter from XXXX XXXX, as the certifier is not the author of the letter and is unlikely to have had firsthand knowledge of XXXX XXXX, or the Appellant's, activities. The anomalies regarding the notarization of the letter from XXXX XXXX undermine the credibility of the letter. [56] Furthermore, the Appellant's allegations have been found to lack credibility. The letter from XXXX XXXX does not remediate this lack of credibility. The Federal Court has held that corroboration does not make an incredible story credible.19 The RAD gives the letter from XXXX XXXX no weight in support of the Appellant's identity as a homosexual man and the allegations of persecution or harm in the Bahamas. Letter from XXXX XXXX [57] The Appellant notes that the notarized letter from his friend and former roommate, XXXX XXXX XXXX states that he has been friends with him for the past 17 years and confirms that he is a homosexual. He submits that the document directly corroborates his self-identification as a homosexual man. He maintains that the document is reliable as the writer provided his complete legal name, address and telephone contact information; the writer provided a copy of photo-identification; and the document contains a certificate indicating that the letter was sworn and executed by a notary public in the State of Florida. The Appellant submits that the letter should be accorded significant weight in the RAD's assessment. [58] The RAD notes that a notary public acknowledged the personal letter of XXXX XXXX dated February 3, 2016;20 however, the personal letter of XXXX XXXX is dated February 2, 2016.21 It would be reasonable to expect the dates to correspond. Also, the letter of XXXX XXXX contains no seal or stamp one would expect to see on a notarized document. These anomalies undermine the credibility of the acknowledgement and the letter. Furthermore, the letter from XXXX XXXX is brief and lacking in detail. Also, the Appellant's story has been found to lack credibility. The letter from XXXX XXXX does nothing to repair the Appellant's credibility and does not make the Appellant's incredible story credible. Letter from XXXX XXXX XXXX XXXX [59] The Appellant submits that the notarized letter from his friend, XXXX XXXX XXXX XXXX, confirms that he is gay and active in the LGBTQ community in Canada. He maintains that the document is reliable as it was duly sworn and executed before a notary public and the writer provides his address. [60] The RAD notes that while the notarized letter from XXXX XXXX XXXX XXXX indicates that the Appellant has been active in the LGBTQ community in Canada, it fails to confirm that the Appellant is gay. Nevertheless, it appears that XXXX XXXX XXXX XXXX merely reiterates what the Appellant has told him regarding his sexual orientation and fear of returning to the Bahamas. Since XXXX XXXX XXXX XXXX indicates that he had known the Appellant for two months when he wrote the letter, he does not have firsthand knowledge of the Appellant's activities in the Bahamas or the United States. The Appellant's story has been found to lack credibility therefore the story he told XXXX XXXX XXXX XXXX, which is briefly described in his letter, also lacks credibility. The letter does not make the Appellant's allegations credible. Disposition [61] As a cumulative result of the above-noted anomalies, the RAD finds that the Appellant lacks credibility. The RAD does not accept, on a balance of probabilities, that the events, as described by the Appellant in his Basis of Claim Form and at his hearing with the RPD, occurred as described. The RAD also finds the Appellant's evidence lacking in credibility with respect to the events material to his refugee claim. [62] On the basis of the findings noted above and after its own assessment of all the evidence in the record, including the recording of the hearing, the RAD finds that the Appellant has not established, on a balance of probabilities, that he is homosexual. The RAD further finds that the Appellant has not established, on a balance of probabilities, that he was harmed or threatened with harm by individuals in the Bahamas because of his sexual orientation. [63] Therefore, the RAD finds that there is not a serious possibility of persecution should the Appellant return to the Bahamas. The RAD therefore concludes that the Appellant has failed to establish a well-founded fear of persecution under section 96 of the IRPA, and, for these same reasons - the lack of credibility - the RAD finds that the Appellant is not a person in need of protection or at a risk to life, or at risk of cruel and unusual treatment or punishment, or in danger of torture as set out in section 97 of the IRPA. CONCLUSION [64] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the decision of the Refugee Protection Division and dismisses the appeal. (signed) "M. Pettinella" M. Pettinella August 10, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016; 2016 FCA 93. 2 M.C.I. v. Huruglica, para. 78. 3 M.C.I. v. Huruglica, para. 103. 4 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 5 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. 6 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 7 Raza, 2007 FCA 385, paras. 13-15. 8 M.C.I. v. Singh, Parminder, 2016 FCA 96, para. 64. 9 Singh, 2016 FCA 96, para. 48. 10 Exhibit P-2, Appellant's Record, at pp. 36-37. 11 Exhibit P-2, Appellant's Record, at pp. 39-40. 12 Exhibit P-2, Appellant's Record, at pp. 42-44. 13 Exhibit P-2, Appellant's Record, at pp. 46-47. 14 Exhibit P-2, Appellant's Record, at pp. 49-51. 15 Exhibit P-2, Appellant's Record, at p. 70. 16 Exhibit P-2, Appellant's Record, at p. 71. 17 Caicedo, Marcela Ximena Guarin v. M.C.I. (F.C., no. IMM-722-10), Near, November 4, 2010, 2010 FC 1092. 18 Exhibit RPD-1, RPD's Record, at pp. 271-273. 19 Gomez, Hector Cisneros v. M.C.I. (F.C., no. IMM-5741-04), Harrington, June 16, 2005, 2005 FC 859. 20 Exhibit RPD-1, RPD's Record, at p. 301. 21 Exhibit RPD-1, RPD's Record, at p. 307. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-05978