TB9-12259

RAD File / Dossier de la SAR : TB9-12259 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision November 13, 2020 Date de la décision Panel John Helis Tribunal Counsel for the person who is the subject of the appeal Dariusz Wroblewski Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellant, XXXX XXXX, a citizen of Kenya, alleges that he is homosexual and that he fears persecution based on his sexual orientation. The Refugee Protection Division (RPD) found that the Appellant lacked credibility and rejected his claim in a decision dated April 30, 2019. The Appellant appeals to the Refugee Appeal Division (RAD) and requests that the RPD's decision be set aside and substituted with a determination that he is a Convention refugee.1 DETERMINATION [2] The appeal is dismissed. I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection.2 SUMMARY OF THE FACTS [3] The Appellant purportedly fears persecution in Kenya as a gay man. He allegedly began a relationship with a male athlete in October 2013 while training as a XXXX XXXX. Both the Appellant and his same-sex partner were married, but they managed to conceal their relationship from their wives. [4] The Appellant's problems allegedly began in March 2015 in the town of Ziwa, when a group of three men broke into a room while he was engaged in an intimate act with his partner and beat them. He did not know the men or how they became aware of his sexual orientation. The Appellant and his partner escaped and hid in a bar overnight. The next morning, they travelled to Kaptagat to collect their belongings and proceeded to the town of Limuru where they began training with other runners. In the second week of training another athlete accused the Appellant and his partner of being gay. Fearing for their safety they travelled to Nairobi where they parted ways - the Appellant stayed with a friend and his partner went to Ngong on the outskirts of Nairobi. [5] The Appellant obtained a visa to run in the XXXX XXXX and entered Canada on XXXX XXXX XXXX 2019. He filed his claim for refugee protection on October 21, 2015. THE RPD DECISION [6] The RPD denied the Appellant's claim on the basis that he was not a credible witness and because he relied upon documents that are not genuine. NEW EVIDENCE [7] The Appellant states that he will be presenting "anticipated evidence regarding current relationship," but has not presented any such evidence with his appeal record. Instead, the Appellant has only included documents that are already in the record from the RPD hearing as exhibits to his appeal memorandum, including an affidavit and identity documents from his former same-sex partner in Kenya, a police report dated February 2, 2016, and a letter from the "Office of the President, Ministry of Interior and Coordination of National Government, Eldoret West Sub-County." These documents are not subject to the rules of admissibility since they already form part of the record. [8] The Appellant has not requested an oral hearing and one is not merited since there is no new evidence in this appeal.3 THE ISSUES [9] The determinative issue in this appeal is the Appellant's credibility. STANDARD OF REVIEW [10] The standard of correctness applies to this appeal as set out by the Federal Court of Appeal in Huruglica.4 This requires an independent assessment of the refugee claim to determine whether the RPD was correct in its findings and determinations.5 While deference can be afforded to the RPD on specific issues when it enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, such an advantage does not arise in the present case. ANALYSIS [11] After considering the Appellant's arguments and conducting an independent review of the entire record, including listening to the recording of the proceeding before the RPD, I agree with the RPD that the Appellant is not credible. As will be outlined below, the Appellant provided contradictory evidence regarding the question of whether he ever informed his wife about his sexual orientation and the various incidents he allegedly experienced in Kenya, and relied upon fraudulent documents in support his claim that the agents of harm continue to pursue him. While the Appellant points out that the RPD failed to consider an affidavit from his same-sex partner, the affidavit further undermines the Appellant's credibility because it was sworn after he lost contact with his partner according to his testimony. These credibility findings go to the heart of the Appellant's claim that he is gay and that he experienced homophobic incidents by agents of harm that continue to pursue him, and therefore undermine his overall credibility. Contradictions in the Appellant's evidence [12] The RPD correctly impugned the Appellant's credibility because of contradictions in his evidence concerning whether he ever informed his wife about his sexual orientation and the incidents he allegedly experienced in Kenya. [13] According to the narrative in the Basic of Claim (BOC), the Appellant and his same-sex partner entered a relationship in October 2013 and decided "to keep it a secret" from their wives. The Appellant expressly states in the BOC that, "[t]o this day, I have never told my wife that I am gay, or that [my same-sex partner] and I have a relationship together." Moreover, he is also quite explicit in the BOC that his wife believes that he is in Canada to race with no indication that he was fleeing because of the incidents he allegedly experienced in Kenya: "[m]y wife knows I am in Canada, but I told her it was for racing. Due to the uncertainty in my life at this time, I do not know when or if I will tell her the reason I am here." [14] Contrary to the account outlined in the BOC, the Appellant testified that his wife is aware that he is gay and that he told her about his ordeal while he was hiding in Nairobi. [15] There is no merit to the submission that "there is no contradiction between the Appellant's BOC which he signed almost five years ago and his testimony that his wife became aware about his sexuality sometime later." This submission suggests that the Appellant's wife may have become aware of his sexual orientation sometime after he prepared the BOC but before his hearing before the RPD, yet the Appellant in fact testified that he informed his wife of his sexual orientation while he was hiding in Nairobi. He expressly stated that "she was not aware at that time until we were caught," and that "she knows because [...] she was calling me while I was back in Nairobi in a hiding place, and asked 'what is going on, what is going on, what is going on,' and I decided to be open and tell her what is going on." [16] I do not accept the submission that this contradiction in the evidence is a result of the Appellant's limited education or sophistication. I am not satisfied that a contradiction concerning a basic fact such as whether he ever informed his wife about his sexual orientation and the incidents he allegedly experienced in Kenya can be attributed to his limited education or sophistication. Reliance on fraudulent documents [17] The RPD correctly found that the two documents which the Appellant submitted in support of his claim that the agents of harm that carried out the attack in March 2015 continue to search for him are not genuine. [18] The first document is a police report which the Appellant's wife allegedly filed on February 2, 2016, in which she reported that a group of men were looking for him at their home. I agree with the RPD that this document is not genuine because it is being presented as a police report but is entirely handwritten and does not even contain a letterhead from the police. [19] The second document is a letter which was purportedly issued by the "Office of the President, Ministry of Interior and Coordination of National Government, Eldoret West Sub-County." The letter states that the people searching for the Appellant may be "the same people who have been killing people claiming that they are cleaning society against evil, the message left in your place is that no matter how long you run away you will account for your evils." I agree with the RPD that the irregularities on the face of this document bring its authenticity into doubt, particularly the fact that the letterhead is photocopied and faded while the text of the letter is original and handwritten in ink. [20] While I agree with the Appellant's submission that it is essential to consider the totality of the evidence and any explanations when assessing whether a document is genuine according to the Federal Court decision in Jiang, the Appellant did not provide a reasonable explanation for the irregularities on the face of these documents.6 As the RPD notes, the Appellant merely suggested that this may be the way such documents are provided by the authorities in Kenya. I am mindful of the fact that foreign documents cannot always be expected to meet Canadian standards, but I cannot accept that an original copy of a letter from the Office of the President would be issued on a photocopied letterhead, or that an official police report would lack a letterhead or other markings which provide the title of the police force. [21] The principle which the Appellant cites from the Federal Court decision in Cheema has no application in this case because the RPD did not question the authenticity of these documents based on the widespread availability of forgeries, but rather on irregularities on their face.7 In the circumstances, I find that the extent of the irregularities fully rebuts the presumption that these documents are authentic.8 [22] Nor do I accept the Appellant's argument that the RPD's finding that the documents were not genuine constitutes a microscopic analysis. The Federal Court explained in Lubana that "[i]t would be not be proper for the Board to base its findings on extensive 'microscopic' examination of issues irrelevant or peripheral to the applicant's claim." 9 The ongoing motivation of the perpetrators of the March 2015 incident to pursue the Appellant, the involvement of the "Office of the President," and his wife's report to the police are neither irrelevant nor peripheral to the Appellant's claim. The Appellant's reliance on fraudulent documents to help establish a forward-looking risk of persecution from these particular agents of harm therefore undermines his credibility. Affidavit from same-sex partner [23] I agree with the Appellant that the RPD's finding that he did not provide an affidavit from his same-sex partner in Kenya is factually incorrect, although in my independent assessment I find that the date of this affidavit contradicts the Appellant's testimony about when he lost touch with his partner and therefore further undermines his credibility. [24] The short affidavit from the Appellant's partner is meant to confirm their relationship and that he "was beaten with him at Ziwa." [25] Most importantly, the Appellant's ability to obtain this affidavit from his same-sex partner in Kenya is suspect because it was sworn on November 16, 2015, which is long after he claims to have lost contact with him. He testified that he lost contact with his same-sex partner after they fled to Nairobi and parted ways in XXXX 2015. When the member asked the appellant, "when was the last time you heard from him or were together?" he answered that his partner "disappeared" after they parted ways in Nairobi. The Appellant's presentation of an affidavit that was allegedly sworn by his partner some eight months after he claims to have completely lost contact with him undermines his credibility. [26] I have considered whether this could amount to a new issue but have determined that it is not. The Appellant put forward the arguments that the RPD failed to assess the affidavit, and that it erred in its determination that his testimony that he had lost contact with his same-sex partner was inconsistent with his subsequent statement that he had unsuccessfully attempted to reach his partner by telephone. In my independent assessment of both the affidavit and the Appellant's testimony, I find that the more significant concern is the contradiction between the Appellant's testimony that he lost contact with his same-sex partner after they parted company in Nairobi in XXXX 2015, and the date that his partner swore the affidavit.10 [27] I do not need to address the RPD's credibility findings surrounding the Appellant's failure to obtain letters confirming his current relationship, that a neighbour warned his wife about the agents of harm, or about his involvement in the LGBT community in Canada, since I find that the credibility concerns outlined above, for which the Appellant did not provide reasonable explanations, fully rebut the presumption of his truthfulness.11 These credibility findings concern central elements to his claim, including the Appellant's sexual orientation, the various incidents he allegedly experienced in Kenya, and the motivation of the agents of harm from the March 2015 incident to pursue him, and therefore undermine his overall credibility. [28] In reaching this determination, I remained mindful of both the challenges experienced by some people when presenting evidence about their sexual orientation, and the need to avoid stereotyping and inappropriate assumptions about diverse sexual minorities as outlined in the Chairperson's Guideline: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE). The RPD's credibility findings were not based on stereotypes or assumptions, but rather on contradictions in the Appellant's own evidence and his reliance on fraudulent documents. The Appellant did not provide a reasonable explanation in which the contradictions can be attributed to cultural, psychological, or other barriers outlined in the SOGIE Guideline. [29] Since I find that the Appellant is not credible regarding his sexual orientation, I do not need to assess whether he faces a serious possibility of persecution based on the overall treatment of sexual minorities in Kenya. Reasonable apprehension of bias [30] There is no merit to the argument that the RPD's credibility findings give rise to a reasonable apprehension of bias. The Appellant specifically submits that "once the panel made determination that the report from police and letter from the office of the President are not genuine the panel closed its mind and summarily rejected all other evidence of the Appellant giving rise to reasonable apprehension of bias." [31] The Federal Court has explained that with a reasonable apprehension of bias "the issue is not so much whether the decision-maker was biased against the applicants, but rather whether there is an appearance that there was a lack of impartiality," and that "[t]he value that needs to be protected is the public confidence in the integrity of the decision-making process."12 [32] The analytical framework for assessing the existence of a reasonable apprehension of bias was outlined by the Supreme Court of Canada in Committee for Justice and Liberty et al v. National Energy Board et al.: [T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is 'what would an informed person, viewing the matter realistically and practically--and having thought the matter through--conclude'. ... I can see no real difference between the expressions found in the decided cases, be the 'reasonable apprehension of bias', 'reasonable suspicion of bias', or 'real likelihood of bias'. The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the 'very sensitive or scrupulous conscience'.13 [33] The standards for reasonable apprehension of bias may vary, although the Federal Court has held that in the refugee determination context, "the nature of the decision (refugee status or person in need of protection) and the importance of the decision to the persons affected militate in favour of a rather strict application of the test."14 [34] The Appellant has not specifically pointed to anything in the record in support of his assertion that the RPD closed off its mind after finding that two documents were not genuine, or that it subsequently summarily rejected the Appellant's claim. I have not identified anything in my independent assessment. CONCLUSION [35] For the reasons outlined above, I agree with the RPD that the Appellant was not credible and has not established his sexual orientation as a gay man on a balance of probabilities. The Appellant therefore does not face a serious possibility of persecution in Kenya, nor, on a balance of probabilities, a danger of torture, a risk to his life, or a risk of cruel and unusual treatment or punishment. [36] The decision of the RPD is confirmed and the appeal is dismissed.15 John Helis John Helis November 13, 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 111(1)(b) [IRPA]. 2 IRPA s. 111(1)(a). 3 IRPA s. 110(6). 4 Canada v. Huruglica (Citizenship and Immigration), 2016 FCA 93. 5 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 6 Jiang v. canada (citizenship and Immigration), 2007 FC 1292 at para. 7. 7 Cheema v. Canada (Minister of Citizenship and Immigration),2004 FC 224. 8 Sertkaya v. Canada (Minister of Citizenship and Immigration), 2004 FC 734; Kazadi v Canada (Minister of Citizenship and Immigration), 2005 FC 292; Rasheed v. Canada (Minister of Citizenship and Immigration), 2004 FC 587. 9 Lubana v. canada (Minister of Citizenship and Immigration), 2003 FCT 116 at para. 11. 10 See: Etienne v. Canada (Citizenship and Immigration), 2019 FC 1461. 11 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776 at para. 6, citing Maldonado v. M.E.I., [1980] 2 FC 302 at 305. 12 Cipak v. Canada (Citizenship and Immigration), 2014 FC 453 at para. 24. 13 Committee for Justice and Liberty et al. v. National Energy Board et al, [1978] 1 SCR 369 at pp. 394-395. 14 Cipak, supra note 12 at para. 29. 15 IRPA s. 111(1)(a). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-12259 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français