MC1-05853

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. / No de dossier de la SAR : MC1-05853 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Date of decision November 26, 2021 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Stéphanie Valois Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre INTRODUCTION [1] Mr. XXXX, you are a citizen of Chad, and you stated that you fear persecution in your country by reason of your sexual orientation.1 [2] The Refugee Protection Division (RPD) found that you were not a credible witness and rejected your refugee protection claim.2 [3] On appeal, you have provided photographs3 and argued that the RPD's decision contains numerous errors concerning your credibility assessment.4 [4] I conclude that the photographs presented on appeal are not admissible (I) and that it is not possible to hold an oral hearing (II). Additionally, I conclude that the RPD did not err as you allege (III). [5] In light of these conclusions, your appeal is dismissed. I. PHOTOGRAPHS PRESENTED ON APPEAL [6] On appeal, you provided a series of photographs taken in Montréal in XXXX 2021 at the pride festivities.5 [7] The Refugee Appeal Division Rules (RAD Rules) provide that the person who is the subject of the appeal must submit a memorandum that includes full and detailed submissions regarding how any documentary evidence that they want to rely on in the appeal meets the requirements of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and how that evidence relates to them.6 [8] In your written account, you ask to submit new evidence under subsection 110(4) of the IRPA, and you state that you participated in the pride parade and attended a barbecue organized by the community centre.7 In your memorandum, you indicate that you are submitting new documents concerning your recent activities in Canada.8 [9] In my opinion, these photographs do not comply with the conditions of subsection 110(4) of the IRPA. [10] The conditions set out in subsection 110(4) of the IRPA must be satisfied and leave the Refugee Appeal Division (RAD) no room for discretion, meaning that only the following evidence is admissible: - evidence that arose after the rejection of the claim; - evidence that was not reasonably available; or - evidence that was reasonably available, but that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.9 [11] Subsection 110(3) of the IRPA sets out that the RAD must proceed without an oral hearing, on the basis of the record of the RPD proceedings. Subsection 110(4) creates an exception to this general rule. The existence of criteria governing the admissibility of new evidence on appeal helps to preserve the integrity of the process by promoting finality with respect to the factual record at the first level of decision-making, with very limited exceptions, and encouraging the narrowing of issues as matters move up the appellate ladder.10 [12] It is my view that the photographs submitted on appeal do not seek to establish facts that were unknown at the time of the RPD hearing and, as such, are not new.11 In that respect, the Federal Court notes that subsection 110(4) deals strictly with evidence that a claimant did not submit to the RPD before it rejected the refugee protection claim.12 That said, at the RPD hearing, you produced documents regarding your involvement in the LGBTQ+ community in Montréal and photographs that you took at a gay pride parade.13 II. ORAL HEARING BEFORE THE REFUGEE APPEAL DIVISION [13] Under the RAD Rules, an appellant is required to submit a memorandum that includes full and detailed submissions regarding why the RAD should hold an oral hearing.14 [14] In your written account, you indicate that you are not requesting an oral hearing as provided in subsection 110(6) of the IRPA. However, you indicate that in the event that such a hearing is held, it should be held in French with an interpreter.15 [15] The onus rests with the RAD to determine whether the criteria set out in subsection 110(6) of the IRPA have been met.16 Under this subsection, an RAD hearing may be held, subject to three conditions associated with the existence of new documentary evidence.17 The photographs that you have presented on appeal do not constitute new evidence. Consequently, it is not possible to hold an oral hearing.18 III. ANALYSIS OF THE APPEAL [16] The role of the RAD is not to conduct a de novo consideration of a claim for refugee protection but rather to determine whether the RPD erred as alleged.19 I have conducted an analysis of your record in order to reach my own conclusions and to respond to the central issues raised by your appeal,20 including listening to the recording of the RPD hearing,21 taking into account Chairperson's Guideline 922 and reviewing the documentary evidence. I am of the opinion that the correctness standard must be applied.23 A. The Refugee Protection Division's alleged errors [17] Under the RAD Rules, the person who is the subject of an appeal must state: (i) the errors that are the grounds of the appeal, and (ii) where the errors are located in the RPD's decision or in the transcript or in any recording of the hearing.24 [18] In your memorandum, you refer to studies that show how difficult it is to assess the credibility of LGBT claimants.25 You also argue that the RPD's decision contains numerous errors concerning your credibility assessment.26 Your arguments are summarized as follows. [19] The RPD considered your testimony to be vague and unpersuasive, whereas you testified as to your problems with your family, your circle and schoolmates and the insults directed at you while you were working as a mechanic. You also explained the situation you went through when you were young, when you were living with your parents, and it was very difficult to know why others identified you as a homosexual. In addition, your attraction to other boys fluctuated over the years, not to mention the fact that since you come from a country where homosexuality is repressed, it was difficult for you to have the distance required to answer the questions put to you by the RPD.27 [20] The RPD did not accept that you had had a relationship with a man because you did not know his date of birth and had no way of contacting him. However, you knew that there was a four-year age difference between you and him. Moreover, in Chad, birthdays are not celebrated. As for communication with this man, it was done through intermediaries, because in Nigeria, he does not have a telephone and cannot afford to go to Internet cafés. Lastly, you testified at the hearing regarding your relationship with him, how you met and how you were able to live together. However, the RPD did not state anything about this evidence even though it was credible.28 [21] According to the RPD, there was a contradiction between the letter from your aunt and your testimony. However, in your testimony, you stated that your aunt knew about your relationship with this man and that you shared a home together. The RPD erred in this regard.29 [22] With respect to the newspaper article, the RPD did not attempt to determine whether the information in question had been published. Its conclusion in this regard cannot have an impact on your credibility assessment, since you fled your country, and the situation for homosexual individuals is very clear in the documentary evidence.30 [23] The RPD considered that the evidence of your involvement in Montréal's gay community was insufficient to demonstrate that you are homosexual, which you are challenging. Given the difficulties in demonstrating your sexual orientation in your country, where homosexual individuals are repressed, the evidence of your situation here in Canada becomes highly relevant. You received assistance and support from the LGBTQ+ Community Centre, you attended events and you volunteered, all of these activities demonstrating your interest in meeting people who share a portion of your identity and can help you to accept it. This is important evidence that was disregarded by the RPD.31 B. The Refugee Protection Division's decision [24] In its decision, the RPD indicated that it had taken into consideration and applied the Chairperson's Guideline 9.32 It summarized your allegations.33 It indicated that your credibility was the determinative issue and that due to multiple issues in this regard, which were central to your allegations, it considered that you were not a credible witness.34 [25] The RPD noted a number of credibility issues in your testimony concerning your discovery of your sexual orientation. It identified your omission from your Basis of Claim Form (BOC Form) of the statement that you had been suspended from school because of your sexual orientation. It also found your testimony concerning your homosexuality, your behaviour and the reactions of those around you to be insufficient, vague, contradictory and not credible.35 [26] With regard to the relationship you had in Chad with a man who now lives in Nigeria, the RPD identified credibility issues: first, the fact that you made an error concerning his date of birth; next, the fact that on the topic of communication with this man, you adjusted your testimony as the hearing went on; and lastly, the fact that if the letter submitted had indeed been written by this man, he would not have made an error writing his own first name. The RPD then concluded that all of this undermined your credibility regarding this relationship and your sexual orientation, and it did not give any value to the letter in question.36 [27] With respect to the letter from XXXX, the RPD identified credibility issues: first, a contradiction between its content and your testimony; and then, the fact that the signature appearing in this letter did not match the one appearing on the identity card of the person in question. The RPD did not give any probative value to this letter and considered that the issues concerning this letter further undermined your credibility regarding your sexual orientation and your allegations in general.37 [28] The RPD also considered that the fact that you had not taken any steps to verify whether a newspaper article had been published concerning the police intervention and arrests that occurred on XXXX XXXX, 2017, further undermined your credibility.38 [29] As for the documents concerning your involvement in the LGBTQ+ community, the RPD determined that they were not sufficient to offset the previously identified credibility issues. It also determined that the fact that you were a member of the LGBTQ+ Community Centre and had attended the pride parade in Montréal was insufficient to demonstrate that you were a homosexual.39 C. The Refugee Protection Division did not err as you allege [30] First and foremost, it is to be noted that a person's sexual orientation or gender identity constitutes a fundamental part of the human identity and that as a decision-maker, it is important to maintain an understanding general attitude not only toward sexual practices as such but also with respect to societal disapproval of appearances, attitudes or conduct deemed to not conform with its cultural norms and values.40 It is by taking into consideration this fundamental dimension of the identity of a person who states that they are homosexual, lesbian or bisexual, for example, that the nature of their fear if they were to return to live in their country of citizenship should be understood, insofar as the test for establishing a well-founded fear of persecution is forward-looking.41 One also should not expect a person's sexual orientation to be proven by objective evidence like a contract, a diagnosis or nationality can be.42 It is for the decision-maker to decide whether the conditions of the definition of refugee have been met, taking into account all the evidence,43 and on the understanding that central to the necessity of adequate justification is the perspective of the refugee protection claimant.44 [31] In analyzing the credibility of the statements and the documentary evidence of a refugee protection claimant, the RPD, just like the RAD, must uphold and apply the Chairperson's Guideline 9.45 This Guideline notably points out that the dynamics and characteristics of romantic or sexual relationships are not the same across all cultures.46 [32] When claimants swear to the truth of certain allegations, they are presumed to be telling the truth. However, this presumption is rebuttable where the evidence is inconsistent with the testimony or where the RPD is unsatisfied with the explanation provided for those inconsistencies. Even though they may be insufficient when taken individually or in isolation, the accumulation of contradictions, inconsistencies and omissions regarding crucial elements of a refugee protection claim can support a negative finding about their credibility.47 The RPD may make adverse findings based on implausibilities, inconsistencies or omissions. It is the entirety of the evidence that must be assessed.48 [33] Based on my own analysis of your record, the RPD did not err as you allege. The reasons are as follows. Concerning your experiences as an adolescent [34] First, with regard to what you stated you had experienced in your younger years, based on my analysis of your record, I do not see any errors in the RPD's decision. [35] In your BOC Form, you write that you were insulted and threatened by your schoolmates, but you never mentioned that you were suspended five or six times from school because it was thought that your behaviour was not that expected of a boy.49 When the RPD asked you to explain this omission, you replied that you had kept things brief and that if you had included every detail, it would have been long. The RPD member then asked you if being sent home from school by the administration was not something that you found important. You replied that it was important but that it was just two days' punishment, that they had not banned you from school entirely and that if you had been banned from school entirely, you would have documented it.50 In my opinion, your response regarding this omission is not acceptable, since at the start of the hearing, you had stated that the information in your BOC Form was complete, true and correct.51 [36] At the hearing, the RPD member pointed out to you that the sole conduct that allegedly raised doubts regarding your sexual orientation was that you spoke with girls and women. He then asked you if there were any other behaviours that led your father to have doubts about your sexual orientation. You replied at that time by referring to rumours in your neighbourhood, at school and among your friends and neighbours.52 In my opinion, you did not directly answer the question put to you. [37] At the hearing, the RPD member asked you if you had had any problems other than those you had at school and with your family during your adolescence and on the evening of XXXX XXXX, 2017. You replied that after you graduated from school, you worked XXXX XXXX XXXX XXXX XXXX and that rumours were going around that you were homosexual. The member then asked you why people were talking about you in this way. Your answer was that it was because [translation] "that follows you for the rest of your life," that you no longer had any friends, that it had become a war, and that whenever people saw you, they told you to go away because you were labelled a homosexual.53 In my opinion, you did not directly answer the question then put to you. In other words, you did not explain how the rumours had allegedly made their way from the small community of XXXX, where you lived with your family and went to school,54 all the way to XXXX, your country's XXXX XXXX and a city of more than one million people. [38] In its decision, the RPD provided the following explanations: [translation] 37. I am sensitive to the fact that it can be difficult for refugee protection claimants to answer questions concerning their sexual orientation and that this can also appear intrusive. However, I used sensitivity in formulating my questions while also taking care to word my questions so that the claimant could respond in as much detail as possible. Despite this, I consider that the claimant was unable to provide sufficient details to explain how he reached the conclusion that he was homosexual.55 [39] I listened closely to the hearing, and I am satisfied that the RPD asked its questions in a respectful manner, giving you an opportunity to express yourself as freely as possible.56 [40] It is clear to me that that RPD was seeking to understand how you were able to conclude that you were homosexual when your family and your community in general, including the school, were against it. Your reply was that you were personally comfortable with what your life choice was, that you wanted to live like that, that you had made the decision and that nothing could change you. That said, when you were with your parents, you owed them respect; if your father spoke to you, you did not respond; at school, you could not admit anything; and before the marabout, you observed him while simply standing by your decision.57 [41] In the Chairperson's Guideline 9, sexual orientation is defined as a person's physical, romantic and/or emotional attraction to, and/or intimate relations with, individuals of a different gender, the same gender or no gender. It is added that a person's understanding of their sexual orientation may change over time.58 [42] I consider that your testimony concerning your sexual orientation during your adolescence was unsatisfactory, and I state that with all due respect. First, you made a firm decision in this regard, which means that one can only infer that you had cultural, psychological and other barriers to report. Second, apart from preferring to be around girls, you did not express yourself,59 nor did you exhibit behaviours corresponding to this firm decision that you allegedly made to live by, from that moment forward, as a person attracted to persons of the same gender as you. Regardless, the RPD did not limit itself to this single dimension of your refugee protection claim. Concerning your relationship with a man while you were living in Chad [43] In its decision, the RPD explained why it did not believe that you had a romantic relationship with another man in Chad. It identified several issues in this regard: you made an error concerning his date of birth; you adjusted your testimony concerning communication with this man who, based on your statements, now lives in Nigeria; and in the letter he allegedly wrote, this man made an error writing his own first name.60 [44] I accept your argument that less importance is placed on birthdays in Chad. On the other hand, your argument that you knew that there was a four-year age difference between him and you is inconsistent with what you stated at the hearing. When the RPD member asked you if you knew how old he was, you replied that he was born in approximately 82 or 81 and that he was the same age as you. The member then pointed out that according to his national identity card,61 he was born in 86 and that there was a four-year difference between him and you. You then stated, [translation] "Okay, I knew I wasn't far off. The thing is that we don't celebrate birthdays." The member then stated that he understood that you did not celebrate birthdays but that he would have expected you to at least know his age. You replied that in Chad, where you lived, people do not pay attention to age.62 It is consequently not true that at the hearing, you knew that there was a four-year age difference between him and you. It was after being confronted by the RPD that you finally made reference to this age difference. [45] With respect to the communication between a friend of yours who lives in Chad and the man you present as your lover, who has the same name as you and now lives in Nigeria, after listening closely to the recording of the hearing,63 I find that the RPD did not err in considering that you had adjusted your testimony. I would add that your explanation that your friend had managed to make contact with the man you present as your lover through merchants who travelled with their livestock between Chad and Nigeria appears particularly difficult to understand. That your friend and your lover were cousins does not resolve the problem since, based on your own testimony, your lover has no telephone and cannot afford to use the services of an Internet café. I also find your response mystifying that since your lover went to Nigeria, you have not communicated with him, because if you saw him, you would not be able to talk with him, because he is not well and is demoralized. [46] I must add that it is surprising to note that as evidence, you were able to provide this man's national identity card, who has the same first and last name as you. Yet, you were unable to provide your own national identity card or your birth certificate which, in passing, could have been obtained by contacting the Cameroonian authorities, since it was in that country, not Chad, where you were born. Regardless, this remark is only incidental, and I do not make any credibility findings based on it. [47] With respect to the letter allegedly written by your lover, I consider your explanation for him writing his name incorrectly as the result of a typo or a short form used in Nigeria64 to be unacceptable. What is more, apart from your testimony, nothing demonstrates that this letter was in fact sent to you from Africa. [48] In your memorandum, you also submit that the RPD erred in concluding that there was a contradiction between the letter from your aunt and your testimony, when during testimony, you had stated that your aunt knew about your relationship with this man and that you were sharing a home together. After listening to the hearing myself, I note that your testimony changed as time went on in this regard: you initially responded that your aunt was not aware of your relationship, and then you corrected yourself and stated that she was. Your exchange with the RPD was as follows: [translation] "Was she aware that you were in a relationship with XXXX?" "No. I told her I wanted to go rent, was going to go rent a place, I found something around XXXX, now that I'm feeling grown up, I can't continue living with you. That's when she said: Okay, if you think you can do it. Before, I took you out of there, it was so you wouldn't have problems with your father because the Quran doesn't work with him, with the hitting, throwing things, who knows, someday worse things could happen. No, but if you feel you're able to go, take charge of your life, but be very careful. People really look down on you, that's all I can say." "So your aunt wasn't aware that you were in a relationship, that you were living with..." "No, no. But she knew that we were sharing the house, that we had a system, we each had our own room."65 [49] Later at the hearing, the RPD member asked you to explain why your aunt writes in her letter that she was the only one who knew that you had a partner with the same name as you and that you were living together in your own house, if you had never informed her of that. You then offered the following explanation: [translation] "I can come back to your question for a moment. At first, you asked me, when I left home, was she aware? I told you no. Because when I said so, I was going to go live with my partner, she knew I was risking my life, she was against it. But after a while, when the problems started, she told me, "Now you need to tell me everything that's going on there, because I can't do anything the way things are." That's when I told her everything from beginning to end: how it started, how it ended up, how it happened. Because she told me that until I told her the truth, she wasn't going to help me. So that's when I explained everything, at the last minute when I was already going to leave. But earlier you said, when I wanted to leave home, did she know?" "I didn't say, when you left home. I asked you whether you had already told anyone or your aunt about your relationship. I never said...You're the one who said, when I left, she wasn't aware." "Okay, I understood, it's like you asked me, was she aware when I was going to leave to go live with XXXX."66 [50] In the letter in question,67 your aunt does not state when she found out that you had a partner or that you were living together in your own house. In any case, the RPD did not limit itself to this sole issue. It also indicated to you that the signature appearing on this letter did not match the one appearing on your aunt's national identity card, and the panel asked you to explain this difference. You replied that you did not know.68 At the hearing, the member also pointed out that your aunt's name as it appears in the letter is XXXX XXXX XXXX, when earlier, you had identified her as XXXX XXXX, your mother's little sister.69 You then replied that you, at home, it was XXXX, that it was errors in the identity documents.70 However, at one place in your BOC Form, you yourself write that your aunt XXXX XXXX XXXX has always supported you,71 and then in another place, without naming her as such, you state that it was the cousin, not your mother's little sister, who helped you escape from prison.72 [51] All in all, I consider that the RPD did not err in identifying these various credibility issues and in concluding that they were important enough to infer that they undermined your credibility regarding your sexual orientation and your allegations in general. Concerning your arrest and detention in December 2017 [52] In your memorandum, you argue that your not attempting to find out whether your arrest had been published in a newspaper in Chad should not have had any impact on your credibility assessment. You also noted that you had been arrested and fled a country where, based on the documentary evidence, the situation of homosexual individuals is very clear. [53] Based on my own analysis of your record, your arguments in this regard are unfounded. [54] The corroboration analysis is a two-step process. First, one must inquire whether a shortcoming in the evidence triggers a requirement for corroboration. Second, one must ask whether the corroborative evidence was reasonably available or whether the claimant provided a satisfactory explanation for its absence.73 [55] In its decision, the RPD found that you were not credible concerning both your sexual orientation and your allegations overall. There were consequently shortcomings in your evidence triggering a requirement for corroboration. [56] At the hearing, the RPD member asked you if you knew whether the arrests in XXXX 2017 had been mentioned in the news or the newspapers. You replied that you had not listened to the newspapers. The member then asked if you had done any research to determine whether this information had appeared in the newspapers. You replied that you had not done any research and that your problem had been to get away. The member then pointed out that you were claiming refugee protection in Canada and asked you again if you had tried to do research to determine whether anyone had written about these arrests at that time. You replied that you had not tried to find out.74 [57] I consider your response to be unacceptable given that once the requirement for corroboration has been triggered, refugee protection claimants are responsible for providing acceptable documents to establish their allegations. If they cannot do so, they must explain why they did not provide the documents and what steps they took to obtain them.75 In your case, you did not take any steps to obtain the documents that could have established that arrests did take place on XXXX XXXX, 2017, in connection with the event you had organized. [58] I would like to point out that following the RPD hearing, you were given time to find out whether you could obtain your birth certificate. I consider that during that time, you could have determined whether there were any publications that refer to the arrests and detentions that, based on your testimony, occurred on XXXX XXXX, 2017, in XXXX. You did not do so. [59] At the same time, and again in relation to your arrest, your detention and the fact that you then fled the detention centre to go live outside the city, you state in form IMM 5669 that you were arrested. However, you do not indicate that you lived at any other address other than in the XXXX district of XXXX between XXXX 2008 and XXXX 2018.76 Based on my own analysis of your record, the omission from this form that from XXXX XXXX, 2017, until you left Chad on XXXX XXXX, 2018, you lived somewhere other than your home undermines your credibility with respect to the statement that you were detained, and after fleeing that detention centre, you lived outside the city until you left the country. [60] Since the issue of your credibility is not a new issue to be analyzed on appeal, I am not obliged to give you notice of my analysis in this regard and give you an opportunity to respond.77 [61] Consequently, based on my own analysis, the RPD did not err when it found that your credibility was undermined by your lack of effort to find out whether any newspaper articles existed in the Chadian newspapers that could have corroborated the occurrence of your arrest and detention in XXXX 2017.78 Concerning your involvement in the LGBTQ+ community in Montréal [62] In your memorandum, you argue that the RPD disregarded the evidence of your involvement in Montréal's gay community and the fact that you have received assistance and support, attended events and volunteered. [63] Your argument is unfounded. The RPD indicated clearly in its decision that it had taken into account your involvement in that community, your membership at the LGBTQ+ Community Centre and the fact that you attended the pride parade in Montréal.79 [64] During testimony, you stated that you had become involved in Montréal's LGBTQ+ community, and you also stated that you had never had a romantic relationship with a man since coming to Canada.80 Your counsel asked you to explain why you had not had a romantic relationship since coming to Canada. You replied that you had decided to remain with XXXX because you loved him and, if you someday obtained refugee status, you were going to fight to bring him here.81 That said, as I have just explained, I consider that the RPD did not err in finding that you were not credible with regard to the existence of this romantic relationship with this man. [65] In your testimony, you stated that you had received assistance and support concerning your refugee protection claim as a result of your being with them. However, you never stated that you had received assistance because you were having problems in relation to your sexual orientation or gender identity. [66] Concerning the letter of support signed by the Community Centre's executive director, in my opinion, it indicates simply that they offered you advice as to what they deemed the most beneficial and referred you to the appropriate resources knowing that they specifically address issues encountered by LGBTQ+ persons and their integration into our society.82 During the hearing, however, you never mentioned having made use of these resources intended specifically to integrate LGBTQ+ persons into our society. [67] Based on my own analysis of your record, the RPD did not err in determining that being a member of a community centre and attending events of the LGBTQ+ community were not sufficient to establish, on a balance of probabilities, your sexual orientation or your gender identity. [68] I would add that overall, based on my analysis of your record, the RPD member ruled on the merits of your refugee protection claim after thoroughly preparing as objective an assessment as possible of your testimony and documents, and in applying both the Chairperson's Guideline 9 and the relevant law.83 [69] Insofar as you had not established your identity as a person whose sexual orientation or gender identity would be that of a gay man, the RPD did not have to analyze the documentary evidence on the situation of such persons living in Chad. CONCLUSION [70] For these reasons, I confirm the determination of the RPD, namely that you did not discharge your burden of establishing the existence of a serious or reasonable possibility of persecution within the meaning of section 96 or that, on a balance of probabilities, you would be subjected personally to one of the risks described in subsection 97(1) of the IRPA if you returned to live in Chad. [71] Your appeal is dismissed. (signed) Alain Bissonnette Me Alain Bissonnette November 26, 2021 Date IRB translation Original language: French 1 Your Basis of Claim Form (BOC Form) and supplementary documents are reproduced at pages 19 to 33; the documents you presented in evidence are reproduced at pages 71 to 83; and the list of documents admitted in evidence is reproduced at page 34 of the scanned version of the Refugee Protection Division (RPD) record. 2 RPD reasons and decision, July 21, 2021, pages 5 to 18 of the scanned version of the RPD record. 3 Your written statement, page 3 of the scanned version of your appeal record. 4 Your memorandum, pages 35 to 42 of the scanned version of your appeal record. 5 These photographs are reproduced at pages 4 to 34 of the scanned version of your appeal record. 6 Refugee Appeal Division Rules (RAD Rules), SOR/2012-257, subparagraph 3(3)(g)(iii). 7 Your written statement, supra, endnote 3. 8 Your memorandum, supra, endnote 4, page 37 of the scanned version of your appeal record. 9 Canada (Minister of Citizenship and Immigration) v. Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, paragraphs 34 and 35 [emphasis added]. 10 Canada (Minister of Citizenship and Immigration) v. Davoodabadi, No. IMM-1047-18, Norris, March 21, 2019; 2019 FC 350, paragraph 21, citing the Federal Court of Appeal decision in Singh. Anyira v. Canada (Minister of Citizenship and Immigration), No. IMM-4790-20, Walker, August 26, 2021; 2021 FC 882, paragraphs 23, 24 and 25. 11 Singh, supra, endnote 9, paragraph 38, citing the decision in Raza. 12 Idumonza v. Canada (Minister of Citizenship and Immigration), No. IMM-6675-19, Walker, January 25, 2019; 2019 FC 80, paragraph 24. 13 The documents in question (P-4 to P-7) are reproduced at pages 78 to 83 of the scanned version of the RPD record. 14 RAD Rules, supra, endnote 6, subparagraphs 3(3)(g)(v) and 5(2)(d)(iii). 15 Your written statement, supra, endnote 3, paragraphs 6 and 7. 16 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018; 2018 FC 147, paragraph 18. 17 Singh, supra, endnote 9, paragraph 48. 18 Abdi v. Canada (Minister of Citizenship and Immigration), No. IMM-566-18, Boswell, January 16, 2019; 2019 FC 54, paragraph 29. 19 Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. Kanawati v. Canada (Minister of Citizenship and Immigration), No. IMM-6486-18, Norris, January 3, 2020; 2020 FC 12, paragraphs 23 and 24. 20 Hundal v. Canada (Minister of Citizenship and Immigration), No. IMM-441-20, Diner, January 21, 2021; 2021 FC 72, paragraph 17. 21 Recording of first part of hearing on May 10, 2021, 00:01 to 01:07:09 (from 1 second to 1 hour, 7 minutes and 9 seconds). Recording of second part of hearing on May 10, 2021, 00:01 to 01:06:13 (from 1 second to 1 hour, 6 minutes and 13 seconds). Recording of third part of hearing on May 10, 2021, 00:01 to 12:19 (from 1 second to 12 minutes and 19 seconds), which contains essentially counsel's submissions. 22 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, effective May 1, 2017. 23 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 24 RAD Rules, supra, endnote 6, subparagraphs 3(3)(g)(i) and (ii). 25 Your memorandum, supra, endnote 4, page 38. You make reference there to an article from Nicholas Hersh, "Challenges to Assessing Same-Sex Relationships under Refugee Law in Canada," 2015, Issue 60, Number 3, McGill Law Journal, 527. 26 Your memorandum, supra, endnote 4, page 37. 27 Ibid., pages 38, 39 and 40. 28 Ibid., pages 40 and 41. 29 Ibid., page 41. 30 Idem. 31 Ibid., page 42. 32 RPD reasons and decision, supra, endnote 2, paragraph 12. 33 Ibid., paragraphs 3 to 10. 34 Ibid., paragraph 19. 35 Ibid., paragraphs 20 to 42. 36 Ibid., paragraphs 44 to 55. 37 Ibid., paragraphs 56 to 60. 38 Ibid., paragraphs 61, 62 and 63. 39 Ibid., paragraphs 64, 65 and 66. 40 Office of the United Nations High Commissioner for Refugees (UNHCR), Guidelines on International Protection no. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/12/09, October 23, 2012, unpaginated, paragraphs 5 to 9, 15 and 23. This document is available on the UNHCR website. Although these Guidelines have no binding character, I consider that they are of valuable aid to the RPD and the Refugee Appeal Division and deserve consultation. 41 Emezieke v. Canada (Minister of Citizenship and Immigration), No. IMM-4453-13, Locke, September 29, 2014; 2014 FC 922, at paragraph 30. James Hathaway and Michelle Foster, The Law of Refugee Status. Second Edition, Cambridge, Cambridge University Press, 2014, 693 pages, at pages 161 to 169. 42 JKL v. Canada (Minister of Citizenship and Immigration), No. IMM-6590-20, Diner, November 2, 2021; 2021 FC 1166, paragraph 34. 43 Duversin v. Canada (Minister of Citizenship and Immigration), No. IMM-3714-17, Gagné, May 1, 2018; 2018 FC 466, paragraph 34. 44 Canada (Minister of Citizenship and Immigration) v. Valilov, 2019 SCC 65, paragraph 133. 45 Yankson v. Canada (Minister of Citizenship and Immigration), No. IMM-2749-19, Pentney, December 17, 2019; 2019 FC 1608, paragraphs 20 and 21. 46 Chairperson's Guideline 9, supra, endnote 22, section 6.1. 47 Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, paragraphs 21 and 22. 48 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, at paragraphs 22 and 27. 49 Your BOC Form, page 31 of the scanned version of the RPD record. 50 Recording of first part of hearing, supra, endnote 21, 39:00 to 39:50. 51 Ibid., 04:35 to 06:25. 52 Ibid., 38:30 to 39:00. 53 Ibid., 55:00 to 57:30. 54 Based on the information in form IMM 5669, page 49 of the scanned version of the RPD record. 55 RPD reasons and decision, supra, endnote 2, paragraph 37. 56 Chairperson's Guideline 9, supra, endnote 22, section 7.3.1. 57 Recording of first part of hearing, supra, endnote 21, 31:30 to 32:00, 40:30 to 43:30, and 44:20 to 49:30. Recording of second part of hearing, supra, endnote 21, 56:40 to 57:20. 58 Chairperson's Guideline 9, supra, endnote 22, section 2.5. 59 Recording of first part of hearing, supra, endnote 21, 50:30 to 51:00: [translation] "After you reached age 15, did you tell anyone that you were homosexual or that you felt that you were homosexual?" "I didn't. I kept it inside because I was afraid that if I admitted it, they would say that." 60 RPD reasons and decision, supra, endnote 2, at paragraphs 44 to 55. 61 This document is reproduced at page 74 of the scanned version of the RPD record. 62 Recording of second part of hearing, supra, endnote 21, 17:00 to 18:30. 63 Ibid., 18:40 to 23:30. 64 Ibid., 28:00 to 28:30. 65 Ibid., 14:50 to 15:40. 66 Ibid., 31:15 to 32:30. 67 This letter is reproduced at pages 75 and 76 of the scanned version of the RPD record. 68 Recording of second part of hearing, supra, endnote 21, 33:00 to 34:30. 69 Ibid., 13:30 to 14:15. 70 Ibid., 28:50 to 29:15. 71 Your BOC Form, page 19 of the scanned version of the RPD record. 72 Your BOC Form, page 33 of the scanned version of the RPD record. 73 Senadheerage v. Canada (Minister of Citizenship and Immigration), No. IMM-4471-19, Grammond, October 15, 2020; 2020 FC 968, at paragraphs 25 to 28. 74 Recording of second part of hearing, supra, endnote 21, 48:00 to 48:45. 75 Senadheerage, supra, endnote 73, paragraphs 30 and 32, referring to rule 11 of Refugee Protection Division Rules, SOR/2012-256. 76 This form is reproduced at pages 48 to 51 of the scanned version of the RPD record. 77 Adefule v. Canada (Minister of Citizenship and Immigration), No. IMM-4225-20, Mosley, November 15, 2021; 2021 FC 1227, paragraphs 23 to 27. Farah v. Canada (Minister of Citizenship and Immigration), No. IMM-4, Shore, February 5, 2021; 2021 FC 116, paragraph 16. 78 RPD reasons and decision, supra, endnote 2, paragraphs 61, 62 and 63. 79 Ibid., paragraphs 64, 65 and 66. 80 Recording of second part of hearing, supra, endnote 21, 38:25 to 46:20. 81 Ibid., 51:00 to 52:15. 82 This letter is reproduced at page 78 of the scanned version of the RPD record. 83 IRB, Code of Conduct for Members of the Immigration and Refugee Board of Canada, revised version effective April 9, 2019, section 33. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------