TB4-04802

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 : TB4-04802 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 September 17, 2014 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Anthony P. Navaneelan Barrister and Solicitor 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 and Decision [1] XXXX XXXX (the Appellant), a citizen of Ghana, has appealed a negative determination of the Refugee Protection Division (RPD) issued on May 9, 2014. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection. BACKGROUND [3] The Appellant alleges that he refused the chieftaincy of his community because of his Christian beliefs. The Appellant was summoned to a meeting by the elders in XXXX 2013 where the news of his installation as next chief was announced. The Appellant opposed the elders, including his family members, and the Appellant was threatened with death for his refusal. [4] The Appellant's father told the Appellant that, if he did not want the throne, he should go and hang himself. On XXXX XXXX, 2013, the Appellant was attacked by a group of approximately seven youth, who were angered by the Appellant's decision to refuse the chieftaincy. The Appellant suffered injuries, but he did not go to the hospital for treatment. [5] The Appellant ran away to a friend's house in Eastern Ghana on XXXX XXXX, 2013 where he remained in hiding for two months. Someone telephoned his friend's house and said that they knew that the Appellant was in hiding, and they were going to attack the place. The house was set on fire by some youths. The Appellant's friend asked him to find another place to hide. The Appellant moved to XXXX to an uncle's to hide until XXXX XXXX, 2013. [6] The Appellant came to Canada via XXXX on XXXX XXXX, 2013, and he made his claim for refugee protection on September 23, 2013. After submitting his Basis of Claim (BoC) narrative, the Appellant submitted two amendments to the BoC, which included the allegations that he fears returning to Ghana because of his identity as a bisexual man, and XXXX XXXX XXXX XXXX. [7] The Appellant had a refugee determination hearing which spanned two sittings (December 6, 2013, January 16, 2014), and written Reasons were issued on May 9, 2014. In its Reasons and Decision, the RPD decided the claim on issues of credibility, and whether the Appellant faces a serious possibility of persecution for reasons of his sexuality, XXXX XXXX XXXX, and refusal of chieftaincy of his clan. The RPD based its determination on the following individual findings: 1. The Appellant has failed to establish the essential elements of his claim based on credibility concerns with his testimony which was found to be vague and evasive. 2. The Appellant's allegation that he was threatened as a result of his refusal to become the chief was not credible, based on inconsistencies in his oral testimony and the fact that the Appellant was not forthcoming regarding his whereabouts during the material time, and concerns regarding his testimony that he was part of the royal family. 3. The Appellant's allegations of being harmed for his failure to take on the role as chief was contradicted by the objective documentary evidence which indicated that the position would not be forced on anyone. 4. There is no evidence that state authorities are persecuting people XXXX XXXX XXXX XXXX and there is evidence of the availability of medical treatment in Ghana. 5. XXXX XXXX XXXX in Ghana suffer a certain degree of XXXX XXXX; however, there is no evidence before the RPD that the discrimination is sufficiently persistent and punitive to amount to persecution under the Act. 6. The Appellant's testimony regarding his relationship with XXXX was not credible based on concerns with his testimony and the omission of any reference to the Appellant's newly-discovered XXXX XXXX XXXX in the e-mail received from XXXX. 7. The Appellant's testimony regarding his social activities in the gay community in Canada was vague, which undermined his credibility. 8. The Appellant was found not to be a credible witness overall, as per Shiekh,1 which extended to all aspects of his testimony. [8] Appeal pleadings were received on June 19, 2014. In the appeal, counsel focused on the issue of the Appellant's XXXX XXXX XXXX and argued that the RPD erred in its findings of fact on this issue. Specific errors included: 1. The RPD erred as it did not discuss a single piece of evidence which contradicted its conclusion that the Appellant would face discrimination and not persecution in Ghana. 2. The RPD erred, as it failed to provide reasons for why it found that the treatment amounts to discrimination and not persecution. [9] The RPD erred by failing to consider the risks to the Appellant from his family or from homophobic violence due to imputed sexual orientation as a result of his XXXX XXXX XXXX XXXX XXXXThe Appellant provided new documentary evidence and requested an oral hearing should the RAD impugn the credibility of the declarations made in the Appellant's affidavit. The Appellant requests that the RAD set aside and substitute the negative determination with a positive one. ADMISSIBLITY OF NEW EVIDENCE [10] The Appellant provided the following documents as new evidence: 1. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX in XXXX Ghana;2 2. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX3 3. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX4 [11] Section 110(4) of IRPA indicates that: "the person who is the subject of the appeal may 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". [12] The Appellant became aware of his XXXX XXXX before the first sitting of the hearing on December 6, 2013. In fact, the Appellant provided evidence from the XXXX XXXX Hospital5 dated XXXX XXXX, 2013. The Appellant provided a BoC narrative amendment6 and supporting documents regarding XXXX XXXX XXXX in Ghana before the second sitting of the hearing. The claim was rejected on May 9, 2014. [13] Appeal counsel provided the four documents cited above which it asks the RAD accept as new evidence. The RAD noted that all four of the documents presented were produced before the Appellant's final sitting on January 16, 2014, after he found out that he was XXXX XXXX and after the Appellant added this ground to his refugee claim. [14] In his affidavit7 in support of the pleadings, the Appellant explained: "I did not know that I was supposed to gather this evidence as part of my RPD hearing and I do not know why my counsel did not gather more of it". In the appeal pleadings,8 counsel indicated that: "the Appellant's counsel (not present counsel) admitted only three short documents concerning the treatment of XXXX XXXX XXXX XXXX XXXX in Ghana. This is an alarming and regrettable lack of documentary evidence concerning the seriousness of the risk at issue." [15] The Appellant was represented by experienced counsel throughout his refugee proceedings. In fact, counsel disclosed documents related to the treatment of persons XXXX XXXX in Ghana which were considered by the RPD, and counsel made extensive submissions on the risks that the Appellant would face as XXXX XXXX XXXX XXXX, should he return to Ghana. The Appellant also provided evidence regarding his fears related to XXXX in the form of his BoC amendment. The Appellant did not provide any evidence in support of an argument that his counsel had been incompetent in not disclosing further documentary information. [16] Given that the Appellant was aware of XXXX XXXX XXXX before the second sitting, as reflected in his BoC amendments and evidence presented to the RPD, given that the Appellant amended his BoC narrative on XXXX XXXX, 2014 and made specific reference to the treatment of XXXX XXXX XXXX in Ghana, given that the Appellant's counsel had provided documentary evidence XXXX XXXX in Ghana, given that no formal complaint was lodged alleging incompetence on the part of former counsel, and given that all of the evidence presented as new evidence was available to the Appellant before his second sitting, the RAD finds that it cannot place significant weight on the Appellant's explanation that he was unaware that he needed to gather evidence related to this issue, as both he and his counsel provided evidence on the issue. [17] In addition, the RAD finds that the Appellant has not provided sufficient evidence to persuade the RAD that the new evidence was not reasonably available, or that the Appellant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection, as per s. 110(4) of IRPA. [18] The RAD finds that it is bound by s. 110(4) of IRPA, and it is not bound by jurisprudence which related to the admissibility of new evidence in Pre-Removal Risk Assessment (PRRA) applications, and therefore the RAD does not have discretion to accept evidence that is not covered by s. 110(4). [19] The RAD notes that s. 110(3) clearly indicates that: "The Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division". Section 110(4) indicates what can be considered as new evidence. The recent Huruglica9 decision directs the RAD to: "review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection". Nowhere in this decision does Justice Phelan indicate that the RAD should depart from the limits imposed on new evidence, as outlined in s. 110(4) of IRPA. The RAD's assessment will be based on a review of the totality of the evidence which was presented at the time of the rejection. As such, the RAD will not engage in its own independent research, as argued by counsel in the pleadings. The RAD will limit its analysis to the evidence that was before the RPD at the time of the rejection, including the recording, the claim documents, the National Documentation Package (NDP) for Ghana dated August 30, 2013, and the case-specific documents submitted in support of the claim. [20] The RAD will not consider the arguments or evidence presented in the appeal pleadings that are based on the rejected new evidence for the reasons outlined above. In addition, the RAD will not consider the appeal arguments or evidence presented in the pleadings which were not before the RPD panel and/or which are based on more recent versions of documentary evidence. For example, the US DOS report referenced by counsel in footnote 4410 or the March 14, 2014 Freedom House Report,11 as these were not before the RPD. [21] The RAD will come to an independent assessment regarding whether the Appellant is a Convention refugee or person in need of protection based on the totality of the evidence before the RPD at the time of the rejection. ANALYTICAL APPROACH [22] The RAD focused on two issues in assessing this appeal: a) Were the Appellant and his allegations credible? b) Would the Appellant be subject to persecution based on his XXXX XXXX XXXX should he be returned to Ghana? [23] In assessing the appeal, the RAD is guided by the recent Huruglica12 decision which outlines the approach that the RAD should take as an appellate body in reviewing the first-level decisions of the RPD. The RAD notes that, in his submissions,13 appeal counsel supports the adoption by the RAD of Huruglica. In this decision, Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD's determination that, in its opinion, should have been made, as per s. 111(b) of IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusion; however, the RAD has equal or greater expertise than the RPD in the interpretation of country condition evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. [24] The Appellant's affidavit14 and the appeal pleadings15 indicate that the appeal will focus on the RPD's assessment of the risk to the Appellant in Ghana as a result of XXXX XXXX XXXX XXXX. In addition to finding that the Appellant would not face a serious possibility of persecution based on his XXXX XXXX XXXX should he return to Ghana, the RPD found that the Appellant was not a credible witness and that his allegations regarding his sexual orientation and his refusal to take on the role as chief were not credible. The RPD also found that the Appellant was not credible overall. These negative credibility findings were not challenged in the appeal. [25] The RAD focused on two issues in assessing this appeal: a) Were the Appellant and his allegations credible? b) Would the Appellant face a serious possibility of persecution based on XXXX XXXX XXXX XXXX should he be returned to Ghana? Credibility Findings [26] The RPD found that the Appellant's allegations were not credible and that the Appellant was not a credible witness overall, as per Sheikh.16 The Appellant did not allege any errors on the part of the RPD with regard to these findings; rather, it chose to focus on the sur place component of the claim, the Appellant's XXXX XXXX XXXX. [27] In addition to the findings of the RPD, the RAD considered the evidence on the record in relation to the Appellant's credibility, and it concurs with the RPD that the Appellant's allegations were not credible, and that he was not a credible witness overall. The RAD noted several inconsistencies in the Appellant's testimony, concerns with the evidence that the Appellant provided in support of his allegations, and examples where his testimony evolved as he provided it, all of which undermined the credibility of the Appellant. [28] For example, the Appellant did not provide sufficient credible or trustworthy evidence to support the fact that he had been living in XXXX during the period of alleged persecution. The Appellant's IMM-566917 indicated that the Appellant was a self-employed XXXX in XXXX from XXXX 2009 until XXXX 2013. This did not conform to his response in relation to Question 12 in which he changed his address from XXXX to XXXX. The Appellant explained that there had been a mistake on his IMM-5669; however, the RAD noted that the Appellant had an opportunity to correct errors on the form itself, or at any time before the two sittings, and he did not make the change related to his place of employment. The Appellant testified that he had moved to XXXX in XXXX of 2009; however, his IMM-5669 indicates that he lived there from XXXX of 2009. Other than the affidavits (given no weight as outlined below), the Appellant did not provide any other evidence to attest to his residence in XXXX during the period of alleged persecution. In fact, his BoC listed his wife and daughter as residents of XXXX XXXX despite his testimony that they were living with her family in XXXX. Given the credibility concerns with the allegations, and the lack of independent evidence to establish that he was in XXXX when he alleges, the RAD finds that it is not persuaded that the Appellant was a resident of XXXX, where he alleged he was threatened if he did not accept the chieftaincy. [29] The RAD concurs with the findings of the RPD that the documentary evidence does not support the Appellant's claim that he was harmed and pursued because of his refusal to take on the role as chief. The IRB's Response to Information Request (RIR)18 is not consistent with the Appellant's allegations. The RIR confirms that a person can travel away from the village to avoid the possibility of being offered the position. There is no practice of punishing persons for running away before being offered a position. The person can also offer a sheep to sacrifice to pacify the annoyed ancestors. Individuals who refuse positions may face social ostracism and may face negative socio-economic consequences. Finally, a researcher indicated that he was not personally aware of any actual case in which a traditional priest has been subjected to mistreatment or violence because he or she has converted to Christianity. Given the concerns with the evidence presented and the Appellant's testimony, and given the contents of the RIR, the RAD finds that the Appellant's allegations have been rebutted by the documentary evidence, as per Adu.19 [30] The RAD considered the affidavits provided by the Appellant in support of his allegations. The RAD noted that there were several omissions and/or inconsistencies in the affidavits. The RAD is cognizant that the Appellant cannot be held accountable for credibility concerns with evidence produced by a third party; however, the RAD notes that it can assign the evidence little or no weight based on concerns with the documents, especially given that the affiants are not present to explain the concerns. The RAD noted that the affidavits of the Appellant's mother, uncle, friend, and pastor were all sworn in XXXX on the XXXX XXXX XXXX of XXXX, 2013. None of the affiants were residents of XXXX, and in fact, the affiants from XXXX (mother, pastor) would have had to travel at least 8 hours to swear the affidavits in XXXX. There is no explanation as to why these affidavits were sworn in the capital, which is some distance from all of the places of residence of the affiants. The RAD finds the fact that the affidavits were all sworn in XXXX, despite the affiants being residents of XXXX XXXX XXXX, and XXXX, undermined the credibility of the documents. [31] The RAD noted that the affidavit by the Appellant's mother,20 sworn on XXXX XXXX, 2013, did not conform to the Appellant's revised BoC narrative. The affidavit indicates in paragraph 17: "That my son is believed to be bisexual which belief is growing among section of the youth though XXXX XXXX has not admitted to be true or false". The Appellant's BoC Amendment21 indicated: "I met with the coordinator who advised me to come open to the board. I did not do so initially because my sexual orientation was never discovered by anyone at least not yet." [32] The Appellant indicated in his second revised BoC narrative that the rumours about his sexual orientation were the result of his call to his wife regarding XXXX XXXX XXXX XXXX. The Appellant testified that this call was made some time in late XXXX or early XXXX. This was after the affidavit from his mother was produced. The RAD finds that the claim of bisexuality in the mother's affidavit did not conform to the Appellant's BoC amendments which indicated that no one knew of the Appellant's sexuality and that the rumours started as a result of his telephoning his wife well after the affidavit was sworn. The RAD finds that this inconsistency undermined the credibility of the affidavit. Furthermore, the RAD noted that the Appellant's BoC indicated that his father had beaten his mother for opposing the Appellant's installation. The Appellant's mother's affidavit does not indicate that she was beaten despite her addressing her efforts to dissuade the family in line 10 of the affidavit. [33] The RAD noted that the affidavit from the Appellant's friend22 did not make reference to the fact that the affiant's house had been set ablaze, as the Appellant claimed in his BoC narrative. The affidavit indicates that the affiant received anonymous calls threatening the affiant; however, it does not indicate that any direct actions were taken against the affiant as a result of his hiding the Appellant. This is a significant omission given that the Appellant alleged that his friend's home was set ablaze. The inconsistency undermined the credibility of the affidavit. [34] The Appellant's IMM-5669 indicated that he became a Christian in XXXX of 2005. At the hearing, the Appellant testified that he attended church in XXXX on a regular basis ever since accepting Christ as his personal saviour. The Appellant was living and working in XXXX until at least XXXX 2009. The Appellant did not provide a reasonable explanation as to why he would travel at least 8 hours (one way) in order to attend church in XXXX. He indicated that he would attend church in XXXX on holidays or during school vacations. This did not conform to his earlier testimony that he attended church regularly. Furthermore, the RAD finds that the explanation was not reasonable as the Appellant alleges that he joined the church in 2005, which was well after he completed his studies in 2001, and therefore he did not attend church during school vacations. [35] The RAD concurs with the RPD that it is implausible that the Appellant would travel such a distance to attend church, especially given that there would be churches available to attend in XXXX. Given this, the RAD finds that it is not persuaded that the Appellant adopted Christianity in XXXX of 2005, as he alleged, and that he attended church in XXXX as alleged. As such, the RAD finds that it cannot place significant weight on the evidence (affidavit and letter) of the Appellant's pastor in Nigeria. Furthermore, the Appellant's BoC narrative indicated that the Appellant was stopped from going to church by the family members. The Appellant did not indicate this in his oral testimony, and this was not included in the affidavit by the Appellant's pastor. [36] Finally, the affidavit of the pastor indicated that the Appellant had asked the pastor to dissuade the Appellant's father from forcing him to take on the chieftaincy. This allegation was not included in the Appellant's BoC. In oral testimony, the Appellant indicated that he asked the pastor to pray that his father would change his mind. For the reasons outlined above, the RAD finds that it cannot place weight on the affidavits and letter from the Appellant's pastor in support of his allegations. [37] The Appellant testified at the beginning of the hearing that he had attended XXXX training between XXXX and XXXX of 2013. Later on, when questioned about this, the Appellant maintained that he had indicated that he testified it was in the year 2009. A review of the recording indicates that the Appellant clearly indicated that he attended from XXXX to XXXX, 2013. This further undermined the Appellant's allegations, as he would have attended the training during a time he alleged that he was in hiding at his uncle's home. [38] The Appellant provided the wrong name of the chief who died, and he was supposed to replace when he was questioned about the photographs. The Appellant explained that he was going to mention the names of all the people in the photo and that he just mentioned one. This is not a reasonable explanation given that the Appellant was asked a direct question "What's the Chief's name?" and he responded XXXX XXXX and not the name of the chief in his narrative. The inconsistency undermined the credibility of the Appellant's allegations that he was persecuted because he declined to take the role of chief. [39] The RAD considered the credibility of the Appellant's allegations regarding his sexuality. The RAD noted that the Appellant changed his description of himself from bisexual (in his BoC amendment) to homosexual at the second sitting of the hearing. The RAD finds that sexual orientation is a core part of a person's identity. The Appellant testified that he had the urge to be with a man for years since he was 21 years of age. The Appellant did not provide an explanation for the change between his self-identification in how he perceives his sexual orientation changed from bisexual on October 18, 2013 to homosexual at the hearing on January 16, 2014. The RAD finds the inconsistent description related to his sexual orientation, an innate characteristic, without an explanation, undermined the Appellant's allegations regarding his sexual orientation. [40] The RAD noted that none of the supporting documents provided from Canada attest to the Appellant's sexual orientation. The letter from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 23 does not mention the basis for the Appellant's alleged persecution or torture, and does not mention the Appellant's sexual orientation. The letter from the University XXXX XXXX24 does not mention that the Appellant acquired XXXX as a result XXXX XXXX XXXX XXXX XXXX and does not comment on the Appellant's sexual orientation. The XXXX XXXX25 document and the XXXX Membership Card do not attest to the Appellant' sexual orientation. The Appellant did not provide a letter from the XXXX attesting to the fact that he was a regular attendee at the XXXX XXXX support program for LGBT newcomers as he alleged. It would be reasonable to expect the Appellant to be able to provide a letter from the coordinator if he had attended the support group on a regular basis for over two months, as he alleged. The RAD finds that the Appellant's allegations of being bisexual or homosexual were an embellishment aimed at strengthening his claim for protection. [41] The Appellant's BoC narrative amendment26 indicates that the Appellant is a bisexual. The document does not mention that the Appellant had been in a relationship with a man in Ghana, and it makes no reference to his sexual activities in Ghana. The RAD placed little weight on the e-mail from XXXX XXXX27 given that it was sent via a Gmail account. Anyone can create and send an e-mail from a Gmail account. In addition, the Appellant's failure to indicate in his BoC amendment that he had a relationship with a man for three to four years while he was in Ghana undermined the credibility of this e-mail from the Appellant's alleged partner. Finally, the Appellant testified that he called XXXX and asked him how he was feeling. He told XXXX that he wanted to tell him what was going on with his health. XXXX informed the Appellant that he was taking medication. The e-mail does not contain any reference to the Appellant's health or XXXX health. The RAD concurs with the RPD that it is not plausible for communication between to former lovers who XXXX XXXX XXXX XXXX XXXX XXXX XXXX not to make reference to the issue or to their health. [42] Finally, the RAD noted that the Appellant was asked when his first sexual experience was, and he indicated that it was with XXXX in 2009 when he was 29. The Appellant then later testified that he had sex with the owner of the hostel he lived in while he attended XXXX school. He testified that he was provided alcohol and had sexual relations. The inconsistency in the Appellant's testimony regarding his first sexual experiences with a man undermined his claim of bisexuality. The RAD also noted that the nature of the Appellant's evidence regarding his sexual experience with the man at school evolved. At the first sitting, the Appellant testified that he slept with the man because he was given alcohol. The Appellant clarified that the two ate and drank, and he got drunk, and he slept with him. At the second sitting, the Appellant described this incident as sex without consent and that he was not ready to have sex at that time. This was not consistent with the Appellant's testimony at the first sitting. This is further evidence of the evolving nature of the Appellant's evidence in order to embellish his claim. [43] The RAD also concurs with the RPD that the Appellant's testimony was often vague and evasive, which undermined the Appellant's overall credibility. The RAD also finds that the Appellant's allegations evolved over time as evidenced by his two BoC amendments, and that many of the allegations were embellishments to strengthen his claim. For the reasons highlighted above, the RAD finds that the Appellant and his allegations were not credible, as the RAD concurs with the RPD that the credibility concerns extend to all aspects of his testimony, as per Sheikh.28 [44] After consideration of the totality of the evidence, what the RAD is left with is the fact that the Appellant is a heterosexual man from Ghana who was XXXX XXXX XXXX after his arrival in Canada. The RAD will consider this sur place aspect of the Appellant's claim. Serious Possibility of Persecution for XXXX XXXX XXXX [45] The RAD considered the totality of the evidence before the RPD concerning conditions for XXXX XXXX XXXX XXXX+ in Ghana, and, as found above, it did not refer to the new evidence provided nor did it consider the arguments in the pleadings that were supported by the 2014 National Documentation Package which was not before the RPD. [46] The RAD had before it evidence that the Appellant has been XXXX XXXX XXXX The RAD considered whether the Appellant would face a serious possibility of persecution based on his XXXX XXXX. The RAD considered the evidence before it regarding the treatment of persons with XXXX XXXX XXXX in Ghana. [47] At the hearing, counsel submitted a document entitled XXXX XXXX XXXX XXXX XXXX.29 The article speaks about the impact of stigma in a general sense and its impact on seeking testing and treatment. The article goes on to explore stigma at the personal, family, and community level. The article is general in nature and does not present any specific information on country conditions in Ghana or on conditions of persons who are similarly situated to the Appellant. As such, the RAD finds that the article has limited probative value. [48] The RAD considered the second article presented by counsel: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.30 This article indicates that stigma and discrimination remain major impediments to XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX It quotes one person indicating that she was discriminated against when people got to know her status. While the article speaks in generality about stigma and only provides a passing comment from the woman regarding discrimination, it does not provide detailed examples from individuals who have been stigmatized which would assist the RAD to determine whether stigma experienced by similarly-situated persons could rise to the level of persecution. [49] The RAD considered the article XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Ghana.31 This article was written in 2011, and therefore its relevance to conditions in 2014 may be limited. The article indicates that, because of national laws against homosexuality, the only XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Family members of those with XXXX XXXX XXXX are often stigmatized by their communities. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX individuals. Similar to the two previous articles, this article does not provide any specific examples and only speaks about stigmatization and its impact in a general sense. As such, it is of little probative value to analyzing whether the discrimination that the Appellant may face would rise to the level of persecution. [50] A final document highlighted to the RPD by counsel was a RIR entitled Ghana: Treatment of sexual minorities by society and government authorities, including legislation, state protection, and support services.32 As found above, the Appellant has not provided sufficient credible or trustworthy evidence to support his claim of being a homosexual, or a bisexual. The appeal focused on the sur place aspect of the claim - the Appellant's XXXX XXXX status and did not challenge the finding of the RPD that the Appellant and his allegations were not credible overall. Given that the RIR relates to conditions of individuals who are not labelled as bisexual or homosexual in Ghana, and given that the Appellant was found not to be bisexual or homosexual, the RAD finds that the document has little probative value in assessing the impact of the Appellant's XXXX XXXX status. [51] The RAD considered the remaining evidence in the National Documentation Package dealing with the treatment of XXXX XXXX persons in Ghana. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXThe RAD consulted the core human rights documents in the National Documentation Package including the US DOS Report, the UK Country of Origin Report, the Amnesty International Report 2013, Ghana: Country at the Crossroads, and the Freedom of the World Report33 and found that there were only XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. For example, a section in the US DOS Report which indicates that: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX [52] This report does not provide any more detail other than a general statement that it was XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX The statement does not indicate whether the situation was XXXX XXXX XXXX XXXX XXXX such as the Appellant or if the situation differed between rural areas or in large cities such as XXXX. [53] The Ghana: XXXX XXXX XXXX XXXX report34 indicates: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX [54] The report does not provide details of the nature and extent of the human rights abuses, and it does not differentiate between the abuses experienced because of issues related to sexual orientation, or solely on the basis of XXXX XXXX. The RAD concedes that the National Documentation Package provides ample evidence regarding the human rights abuses experienced by homosexuals; however, the RAD finds that it cannot place significant weight on a broad, all-encompassing statement regarding human rights abuses in Ghana, as cited above. [55] The Appellant testified at the second sitting that he was aware of a person who had committed suicide because of the treatment that he received XXXX XXXX XXXX XXXX XXXX XXXX. The Appellant was unable to provide more details regarding the situation of this individual such as whether or not the individual was homosexual, etc. Given the Appellant's history of embellishing his claim, and given his inability to provide details of the incident, the RAD finds that it cannot place significant weight on the Appellant's example. [56] The RAD noted that no evidence was presented to establish that state authorities are involved in the XXXX XXXX XXXX XXXX individuals, or that individuals whose rights have been denied have been denied state protection. As such, the RAD finds that the Appellant has failed to rebut the presumption of state protection with clear and convincing evidence. [57] The RAD considered the legal underpinnings of persecution. Ward35 cites Professor Hathaway as stating: "Persecution has been ascribed the meaning of sustained or systemic violation of basic human rights demonstrative of a failure of state protection". The mistreatment resulting from the violation must be "serious" and must be distinguished from the less serious consequences of discrimination and harassment. In the pleadings, counsel cites from the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees36 regarding the difference between discrimination and persecution: ... It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequence of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities. [58] Based on the evidence outlined above and based on the jurisprudence regarding discrimination vs. persecution, the RAD finds that it was not provided with sufficient credible or trustworthy evidence to persuade it that the treatment that the Appellant would face would rise to the level of persecution. The evidence before the RAD does not take into consideration the particular situation of the Appellant. At the hearing, counsel focused her submissions regarding the treatment of the Appellant on issues tied to the refusal for chieftaincy and the Appellant's sexual orientation. The RPD found that the Appellant's allegations regarding the chieftaincy as well as his sexual orientation were not credible. The appeal did not challenge these findings. Appeal counsel also linked some of his arguments to the Appellant's perceived sexual orientation. The RAD noted that the argument that social stigma related to sexual immorality must be assessed taking into consideration the particular situation of each claimant. [59] The RAD finds that the Appellant has been found to be a heterosexual man, who is married and has a child. His allegations of being a bisexual or homosexual and the perception that he is homosexual or bisexual were found not to be credible. The RAD also notes that "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX The RAD finds that the Appellant has not provided sufficient credible or trustworthy evidence to persuade the RAD that he would be perceived as sexually immoral or to be a homosexual XXXX XXXX XXXX XXXX XXXX XXXX. Even if this were the case, the RAD finds that the Appellant has failed to provide sufficient credible or trustworthy evidence that the stigma he might face would rise to the level of persecution and would result in a denial of a core human right. [60] The Appellant has provided evidence that he has XXXX XXXX XXXX until XXXX of 2013.37 The Appellant was well educated, having completed 12 years of schooling. The Appellant has lived most of his adult life in XXXX. The Appellant was self-employed as a XXXX for 4 years. The Appellant has been made aware of XXXX XXXX XXXX in Canada. [61] All of these particular factors need to be addressed in support of an argument that the Appellant has a well-founded fear of persecution in Ghana XXXX XXXX XXXX XXXX XXXX XXXX. The RAD finds that the pleadings and the evidence before the RPD have not taken into account the particular situation of the Appellant. [62] For the reasons cited above, the RAD finds that it has not been provided with sufficient credible or trustworthy evidence to support the Appellant's claim that he would face a serious possibility of persecution XXXX XXXX XXXX XXXX XXXX XXXX, should he return to Ghana. DISPOSITION [63] Based on a review of the totality of the evidence, the RAD confirms the RPD's determination that the Appellant is not a Convention refugee nor is he a person in need of protection, as per s. 111(1)(a) of IRPA. [64] The appeal is dismissed. (signed) "Daniel McSweeney" Daniel McSweeney September 17, 2014 Date 1 Sheikh, Abdulhakim Ali v. M.E.I., [1990] 3 F.C. 238 (C.A.). 2 Appeal Pleadings, Tab K, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 3 Appeal Pleadings, Tab K, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX September 2013, pp. 186-188. 4 Appeal Pleadings, Tab K, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX pp. 189-192. 5 RPD's Record, Exhibit C-5, Letter form Dr. XXXX XXXX, p. 123. 6 RPD's Record, Exhibit C-9, BoC Amendment and supporting documentary evidenceXXXX XXXX XXXX XXXX 2014, pp. 134-146 7 Appeal Pleadings, Affidavit of XXXX XXXX, pp. 15-19. 8 Appeal Pleadings, paragraph 29, p. 205. 9 Huruglica, Bijar et. al. v. M.C.I. (F.C. no., IMM-6362-12), Phelan, August 22, 2014, 2014 FC 799. 10 Appeal Pleadings, paragraph 45, footnote 44, p. 212. 11 Appeal Pleadings, paragraph 46, footnote 47, p. 213. 12 Huruglica, Bijar et. al. v. M.C.I. (F.C. no., IMM-6362-12), Phelan, August 22, 2014, 2014 FC 799. 13 Exhibit P-4, Submissions by counsel, dated XXXX XXXX XXXX 2014. 14 Appeal Pleadings, Affidavit of XXXX XXXX, Paragraphs 10-11, p. 18. 15 Appeal Pleadings, paragraph 2, p. 194. 16 Sheikh, Abdulhakim Ali v. M.E.I., [1990] 3 F.C. 238 (C.A.). 17 RPD's Record, Exhibit 1, IMM-5669 pp. 46-47. 18 RPD's Record, Exhibit 3, NDP for Ghana (30 August 2013), item 13.1, RIR GHA104154. 19 Adu, Peter v. M.E.I. (F.C.A., no. A-194-92), Hugessen, Strayer, Robertson, January 24, 1995, per J. Hugessen. 20 RPD's Record, Exhibit 5, Affidavit from XXXX XXXX, pp. 105-106. 21 RPD's Record, Exhibit 4, BoC Amendment, dated October 18, 2013, p. 102. 22 RPD's Record, Exhibit 5, Affidavit of XXXX XXXX, p. 112. 23 RPD's Record, Exhibit 11, Letter from XXXX, p. 148. 24 RPD's Record, Exhibit 5, Letter from Dr. XXXX, p. 123. 25 RPD's Record, Exhibit 6, Documents from XXXX XXXX XXXX, pp. 124-125. 26 RPD's Record, Exhibit 4, BoC Amendment, p. 102. 27 RPD's Record, Exhibit 8, E-mail from XXXX XXXX, p. 127. 28 Sheikh, Abdulhakim Ali v. M.E.I., [1990] 3 F.C. 238 (C.A.). 29 Appeal Pleadings, Tab I, XXXX XXXX XXXX XXXX XXXX XXXX pp. 106-111. 30 Appeal Pleadings, Tab IXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX - Ghana's Situation, pp. 112-113. 31 Appeal Pleadings, Tab IXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Ghana, pp. 114-116. 32 RPD's Record, Exhibit 3, National Documentation Package (NDP) for Ghana (30 August 2013), Item 6.1, RIR GHA104153.E, 16 August 2012. 33 RPD's Record, Exhibit 3, NDP for Ghana (30 August 2013), human rights documents in s. 2 of the NDP. 34 RPD's Record, Exhibit 3, NDP for Ghana (30 August 2013XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 35 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. 36 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, HCR/IP/4/Eng/REV.1, Reedited, Geneva, January 1992, at para 54. 37 RPD's Record, Exhibit 1, Republic of Ghana, National Health Insurance Scheme Membership Card, p. 53. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-04802