MB8-07131

RAD File No. / No de dossier de la SAR : MB8-07131 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 Montréal, Quebec Appel instruit / entendu à Date of decision September 9, 2020 Date de la décision Panel Me Love Saint-Fleur Tribunal Counsel for the person who is the subject of the appeal Me Perla Abou-Jaoudé 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 XXXX is a citizen of Mauritania. He alleges that due to his sexual orientation, he fears for his life in his country, where the society is strict and conservative. The appellant alleges that he has had same-sex relationships but that he is also attracted to women. He married in 2009 and has two children. After his father died in 2013, his half-brothers allegedly drove him from the house and made death threats against him because of his sexual orientation. The appellant alleges that he fled his country in XXXX 2013 to seek the protection of the United States. In XXXX 2016, after receiving a call from a loved one concerning an inheritance, he allegedly returned to Mauritania, where he states he was arrested by the police two days later. He states that on XXXX XXXX, 2016, he was sentenced to life imprisonment and payment of a fine for homosexuality, but that he was able to flee with help from a friend after bribing a guard. In XXXX 2016, the appellant allegedly returned to the United States before subsequently coming to Canada. [2] On March 2, 2018, the Refugee Protection Division (RPD) rejected the appellant's refugee protection claim, finding that he was not credible in that he did not demonstrate a subjective fear because he re-availed himself of Mauritania's protection and because he delayed coming to Canada. The RPD also noted significant omissions from his account and concluded that the objective evidence did not corroborate the appellant's allegations with regard to the sentences imposed on homosexuals. [3] The appellant is appealing this RPD decision, alleging that it erred in finding that he was not credible. He maintains that it violated his right to natural justice at the hearing, that it misinterpreted the facts concerning his return to Mauritania and that it erred in its assessment of the documentary evidence. The appellant alleges further that the RPD did not conduct any analysis of his sexual orientation. [4] I consider that under this appeal, the determinative issues are whether the RPD breached natural justice and whether it erred in its analysis of the appellant's credibility. After conducting a full and independent analysis of the evidence presented, I find that the RPD's decision contains two errors in relation to the appellant's credibility. DETERMINATION OF THE APPEAL [5] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) allows this appeal and refers the matter to a differently constituted RPD panel. NEW EVIDENCE AND ORAL HEARING BEFORE THE REFUGEE APPEAL DIVISION [6] Subsection 110(4) of the IRPA sets out that the person who is the subject of the appeal may present to the RAD only new 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. [7] The appellant is submitting the following two documents as evidence under subsection 110(4) of the IRPA: 1. Email from XXXX XXXX of America Immigration indicating that the appellant filed a second asylum application dated March 27, 2018; 2. Letter from Membership Renewal at the Montreal LGBTQ+ Community Centre for the year 2018-2019 dated March 13, 2018; 3. Statement from XXXX XXXX XXXX, the appellant's spouse, dated April 8, 2018; and 4. Letter from the organization Agir Montréal dated May 27, 2018. [8] I am of the opinion that the first two documents are admissible in evidence for the following reasons. [9] The email from XXXX XXXX confirming that the appellant filed a second asylum application is dated March 27, 2018, and reports facts that arose before rejection by the RPD. However, insofar as the author of the email indicates that she is on maternity leave, which is why she was unable to reply earlier, this letter meets the first criterion of subsection 110(4) of the IRPA. I am therefore required to consider the credibility, relevance and newness of this letter based on the jurisprudential criteria laid out in Singh1 and Raza.2 This document comes from an individual working in the immigration sector, is addressed to counsel for the appellant and describes facts of which the author had personal knowledge. I do not see any reason to doubt its credibility. This document is relevant in that it tends to demonstrate that the appellant filed an asylum application in the United States, which is a relevant factor in the assessment of his subjective fear. It is new evidence that arose after the rejection of his claim. This email is admissible in evidence. [10] The letter of support from Membership Renewal at the Montreal LGBTQ+ Community Centre confirms a membership renewal effective March 13, 2018, and therefore meets the first criterion of 110(4). This document comes from a Canadian organization, and I do not see any reason to question its credibility. This document is relevant in that it tends to demonstrate that the appellant is a member of this LGBTQ+ community organization. It is also new evidence that arose after the rejection of his claim. This letter is therefore admissible in evidence. [11] Although the statement from XXXX XXXX XXXX, the appellant's spouse, is dated April 8, 2018, or after the RPD's rejection of the claim, it describes facts that arose before the rejection and does not meet the first criterion of 110(4). Since the letter is from the appellant's spouse, with whom he has been in contact since leaving Mauritania, and since he did not provide any explanation indicating that this letter was not reasonably available before the rejection, I consider that the second criterion of 110(4) is not met. This letter addresses the appellant's sexual orientation and problems he allegedly had in his country for that reason that are consequently central to his claim. The appellant has failed to demonstrate that he would not reasonably have produced this letter in the circumstances before the rejection of his claim. The letter does not meet the third criterion of 110(4). In these circumstances, I am not required to consider its credibility, relevance and newness based on the jurisprudential criteria laid out in Singh3 and Raza.4 [12] Pursuant to rule 29 of the Refugee Appeal Division Rules (RAD Rules),5 the appellant is also asking the RPD to accept as new evidence a letter from the organization Agir Montréal dated May 27, 2018. In an affidavit dated June 2, 2018, he explains that at the time he filed his appeal memorandum, the person who was supposed to provide the letter was out of the office, but that she supplied the document in question to him on her return. This document is relevant because it relates to the appellant's alleged sexual orientation. That said, this document does not bring any new evidence to the appeal, since the appellant already submitted as evidence a letter from an organization working with LGBTQI+ people. Moreover, the appellant does not explain in his affidavit on what date or during what period he submitted his request to obtain a letter of support from Agir Montréal. The appellant knew that the issue of his sexual orientation was central to his claim. The author of the letter states that they met the appellant in March 2017, or even before his RPD hearing. In these circumstances, I am not satisfied that it was impossible for the appellant, with reasonable effort, to provide this letter of support with his appeal record. I consequently reject the appellant's request, and this letter cannot be admitted in evidence pursuant to rule 37 of the RAD Rules as a document not previously provided. [13] Although the email from XXXX XXXX of America Immigration and the letter from Membership Renewal at the Montreal LGBTQ+ Community Centre for the year 2018-2019 are admitted as new evidence, I consider that an oral hearing is not required in this case, because these documents do not raise a serious issue with respect to credibility, are not central to the decision in this case and would not justify allowing his claim within the meaning of subsection 110(6) of the IRPA. THE ROLE OF THE REFUGEE APPEAL DIVISION [14] On questions of fact, law, and mixed fact and law, the RAD applied the correctness standard, in accordance with the Federal Court of Appeal's decision in Huruglica.6 I will therefore conduct my own analysis of the record, which includes listening to the recording of the hearing, to determine whether the RPD erred. ANALYSIS OF THE MERITS OF THE APPEAL [15] In assessing this appeal, I considered Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.7 Natural justice [16] The appellant alleges that the RPD deprived him of the benefit of a more accommodating atmosphere and, as a result, of his right to natural justice and fairness at the hearing. He argues that due to the unusual practice of making incessant comments to the interpreter and arguing with him, his testimony was disrupted. [17] Listening to the recording of the hearing revealed that at the start of the hearing, the RPD asked the interpreter to advise when he was asking the appellant to clarify a point. The purpose of this precaution is to maintain the ongoing integrity of the hearing. Later in the hearing, after hearing the interpreter pronounced the word [translation] "judgment" while translating a question in which it had not mentioned a judgment, the RPD reminded the interpreter to translate its questions word for word.8 The interpreter then clarified his translation. Here again, the RPD appears to have acted fairly with a view to preserving natural justice. [18] Upon listening to the hearing, the appellant does not appear upset or bothered during testimony. I note further that throughout the hearing, the appellant understood the interpreter, the questions were asked in a calm, measured tone and he responded without problem. I did not note that the atmosphere at the hearing was in any way upsetting for the appellant. I find that no breach of natural justice occurred. The RPD did not err. Appellant's credibility [19] The appellant submits that the RPD made the following errors in relation to assessing his credibility. He argues that the RPD misinterpreted the facts in that, contrary to what the RPD writes in paragraph 11 of its decision, he did not state that his wife's sister's husband had resolved the problems but that he had reassured him that no harm would come to him in returning to Mauritania. He emphasizes that in the circumstances, returning to Mauritania to be near his spouse and children after receiving this reassurance constitutes the behaviour of a reasonable person despite abandoning his asylum application in the United States. With all due respect to the appellant, I disagree for the following reasons. [20] Listening to the recording of the RPD hearing reveals that when questioned by the latter as to why he returned to Mauritania in XXXX 2016, the appellant responded, [translation] "Because I heard that I could work out the problems with my brothers and my tribe."9 When asked by the RPD to explain why he returned to his country, the appellant testified that he returned because there were problems that his wife's sister's husband could resolve, which made him feel safer. He added that this man told him he had [translation] "worked out the problems with the relatives and the tribe and all that to make you feel safer."10 In my view, the recording demonstrates that the RPD's description in paragraph 11 of its decision is faithful to the testimony he delivered. The RPD did not misinterpret his words or make the error asserted. [21] The appellant argues on appeal that he returned to Mauritania to be near his spouse and children after receiving this reassurance and that this constitutes the behaviour of a reasonable person despite the fact that he abandoned his asylum application in the United States. [22] In my opinion, given the serious nature of the alleged risk to his life due to his sexual orientation in his country, where his brothers had reportedly made death threats against him, this explanation is not satisfactory. Mauritania is a country where, under Sharia, same-sex sexual activity is punishable by death by public stoning.11 Based on his statements, the appellant fled his country and applied for asylum in the United States because he feared being killed in his country. In these circumstances, I agree with the RPD that the appellant's return to his country without taking the trouble to check with his brothers while also abandoning his asylum application in the United States and waiving his right to appeal, which he does not challenge, seriously undermines his credibility. The RPD did not err. [23] The appellant alleges that the RPD erred in criticizing him for not amending his Basis of Claim Form (BOC Form) to indicate that his wife and children were in the United States insofar as this omission is not significant. In my opinion, since it appears that the latter persons fled Mauritania in relation to the appellant's problems, his failure to add this information to his BOC Form is major and undermines his credibility, particularly since he took care to confirm at the start of the hearing that the information it contains is true, complete and correct. As a result, the RPD did not err in its finding concerning this omission. [24] The appellant submits that at paragraph 15 of its decision, the RPD erred in criticizing him for failing to provide requested documents when the documents he provided responded to the RPD's request. [25] Listening to the recording of the hearing reveals that the RPD asked him to enter in evidence all documents from the United States authorities concerning his asylum claim and, in particular, the document he himself refers to which allegedly explains why his record was transferred to an immigration judge.12 It appears difficult to determine, based on the appellant's testimony, exactly which document this is and what form it takes. However, he provided documents to the RPD corresponding to his asylum claim in the United States and the transfer of his record to the immigration judge.13 As a result, I consider that the RPD erred in criticizing him for not submitting the documents requested. However, in my opinion, this error on the part of the RPD has little bearing on the appellant's credibility, as whether or not he submitted documents relating to his record in the United States, his return to Mauritania in the circumstances described above undermines his credibility. [26] The appellant argues on appeal that the RPD erred in failing to rely on the objective evidence under tabs 6.1 and 6.2 of the National Documentation Package (NDP) on Mauritania, which weighs in his favour.14 [27] The RPD drew a negative inference from the appellant's testimony because his statements with respect to his imprisonment and sentencing to life in prison by reason of his sexual orientation conflict with the documentary evidence under Tab 2.5 of the NDP on Mauritania indicating that it is rare for a person to be arrested solely on grounds of homosexuality except when caught in the act and that persons caught in the act are subject to a sentence of one to five years' imprisonment. The RPD should have indicated in its decision that it considered the tabs mentioned by the appellant in view of their relevance. [28] The appellant argues further that the RPD wrongly eliminated the evidence he himself had submitted, including a judicial police report and a court judgment. The RPD decided not to give any weight to the copies of the legal documents and letters of support15 produced because they aim to corroborate facts that were not believed. I agree that the letters of support from LGBTQI+ human rights organizations do not confirm the appellant's sexual orientation. That being said, with regard to the legal documents, I consider that he should have been questioned in their regard with a view to assessing their probative value and evaluating these documents. The RPD erred. [29] The appellant submits that the RPD did not conduct any analysis concerning his sexual orientation, which constitutes the basis of his refugee protection claim. In my view, this is indeed an error. [30] Particularly since I note upon listening to the recording of the hearing that the RPD questioned the appellant at length concerning his status and his asylum application in the United States rather than questioning him concerning his sexual orientation. This is an error. As stated in Guideline 9, I can understand that "[q]uestioning an individual about their SOGIE can feel intrusive and may be difficult for the individual concerned. Questioning should be done in a sensitive, non-confrontational manner. Open-ended questions should be employed where appropriate." That being the case, the review of a claim based on sexual orientation cannot disregard the importance of questioning the claimant in this area. [31] In short, with respect to both the legal documents and the appellant's sexual orientation, I consider that it is impossible for me to rectify the RPD's errors without holding a new hearing for the purpose of re-examining the evidence produced before the RPD, including his testimony. CONCLUSION [32] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the IRPA, the RAD refers the matter to a differently constituted RPD panel for re-determination. (Signed) Love Saint-Fleur Me Love Saint-Fleur September 9, 2010 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII). 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII). 4 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 5 Refugee Appeal Division Rules (SOR/2012-257). 6 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 7 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. Effective date: May 1, 2017. 8 Minute 01:18:30 et seq. of the recording before the RPD. 9 Minute 00:47:47 et seq. of the recording before the RPD. 10 Minute 00:49:47 et seq. of the recording before the RPD. 11 Refugee Protection Division (RPD) record. Document 3 - National Documentation Package (NDP) on Mauritania, July 31, 2017, Tab 6.1: The treatment of sexual minorities by society and the authorities, including laws, state protection and support services (2015-July 2017). Immigration and Refugee Board of Canada (IRB). July 11, 2017. MRT105821.FE. This document is also found in the NDP of March 31, 2020. 12 Minute 02:42:28 et seq. of the recording before the RPD. 13 RPD record, at pp. 187-190. 14 RPD record. Document 3 - National Documentation Package (NDP) on Mauritania, July 31, 2017, Tab 6.1: The treatment of sexual minorities by society and the authorities, including laws, state protection and support services (2015-July 2017). Immigration and Refugee Board of Canada (IRB). July 11, 2017. MRT105821.FE. This document is also found in the NDP of March 31, 2020, and Tab 6.2: Mauritania. State-Sponsored Homophobia 2017: A world survey of sexual orientation laws: criminalisation, protection and recognition. International Lesbian, Gay, Bisexual, Trans and Intersex Association. Aengus Carroll; Lucas Ramón Mendos. May 2017. 15 RPD record. Document 5 - exhibits C-3 to C-6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-07131 RAD.25.02 (January 2020) Disponible en français 9 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