MB5-05110

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 : MB5-05110 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 à Date of decision June 17, 2016 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Moriba Alain Koné Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] The appellant, XXXX XXXX, a citizen of Mali, is appealing against the decision of the Refugee Protection Division (RPD). He is submitting that the RPD breached the principles of procedural fairness and erred in the assessment of his credibility. II. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD, namely, that XXXX XXXX is not a "refugee" under section 96 or a "person in need of protection" under section 97 of the IRPA. III. BACKGROUND A. Summary of alleged facts [3] In the Basis of Claim Form (BOC Form) that he signed on June 23, 2015, the appellant states that he is homosexual and that in his country he had romantic same-sex relationships that he kept hidden, but that on XXXX XXXX, 2015, he was caught making love to his friend XXXX XXXX by XXXX's father, who was outraged, wanted to kill the appellant and informed the appellant's father of the situation. He also states that some friends helped him flee, that he spent a week in XXXX, Senegal, and that he then arrived in Montréal on XXXX XXXX, 2015. [4] In his BOC Form, the appellant states that he travelled to Canada using a false passport, but that he revealed his true identity when he arrived at the airport and immediately claimed refugee protection. He also states that he is afraid to return to his country because his entire family is aware of the situation and has told him that he betrayed them and that they are a laughing stock because of him.1 [5] In addition to his BOC Form, the appellant, referred to as the claimant at the time, submitted some documents into evidence before the RPD.2 B. RPD decision [6] The hearing before the RPD was held on September 17, 2015, and the decision to reject the claim for refugee protection was rendered on September 22, 2015.3 [7] In its reasons for decision, the RPD indicates that the determinative issue is credibility and that the claimant's testimony was often difficult and confused. Given the accumulation of major inconsistencies and contradictions that are central to the refugee protection claim, the RPD ultimately finds that the claimant is not credible.4 [8] First, the RPD is of the opinion that the claimant contradicted himself about the number of years spent at XXXX school, namely, six years instead of four.5 [9] The RPD also identifies contradictions with respect to when the claimant stated he had his first homosexual relationship; these contradictions undermined his credibility regarding his sexual orientation. Furthermore, the RPD is not satisfied as to the claimant's reasons for why he apparently realized he was homosexual at the age of 18.6 [10] Moreover, the RPD finds that the claimant was unable to provide intimate details about his friend XXXX XXXX, with whom he allegedly had a romantic relationship for four years. It also finds that he adjusted his testimony and that it is implausible that he did not try to inquire about XXXX after the incident with XXXX's father.7 [11] Finally, the RPD finds that the claimant's testimony was confused, that his answers were inconsistent and that there were implausibilities when he was questioned about the incident that allegedly led him to flee his country and about where he was hiding in the days that followed. This is what it wrote in this respect: [translation] [18] In addition, when asked about the incident that led him to flee his country, the claimant's testimony was confused. He provided inconsistent answers about the date of the event, at first placing the incident at a time when he was already in Canada. If it were simply a matter of date, the panel could have given him the benefit of the doubt. However, his account was also inconsistent. For example, he stated that he was caught in the middle of lovemaking by XXXX's father. When the father entered the room, the claimant alleged that he immediately jumped over the wall to escape. When asked how he could have fled so quickly when he was undressed, the claimant stated that he left in his underwear. The panel finds it unreasonable, to say the least, that the claimant could have gone about in XXXX without incident dressed as he was, considering that Mali is a Muslim country with strict morals. [19] Furthermore, the claimant stated that XXXX's father had drawn a crowd of neighbours and that they arrived and began to beat his partner. When asked to explain how he knew that his friend was beaten by neighbours when he had immediately fled and had had no contact with his lover afterwards, the claimant answered that he had heard some noise. [20] The panel finds it implausible that the claimant heard some noise and that he was able to infer from that noise that his partner was being beaten, when he states that he immediately got away by jumping over the wall. [21] Moreover, he stated that after this incident he took refuge at his friend XXXX's home. He stated that only his brother XXXX knew that he was at XXXX's place. When confronted with the fact that he had alleged that his father had called him at XXXX's home and had threatened to kill him, when only his brother knew his hiding spot, the claimant replied that his brother had given his father XXXX's telephone number. [22] The panel finds that the claimant adjusted his testimony when confronted with discrepancies. The claimant's inconsistent account further undermines his credibility regarding this assault.8 C. Grounds of appeal and decision sought [12] In his memorandum, the appellant submits that the RPD breached the principles of procedural fairness and erred in the assessment of his credibility.9 [13] As to procedural fairness, the appellant submits that by not contesting the authenticity of the claimant's documentary evidence but simply relying on his lack of credibility, the RPD did not observe the principles of procedural fairness. He adds that by not conducting a separate analysis of his claim under subsection 97(1) of the IRPA, the RPD thereby made an error in law.10 [14] As to the assessment of his credibility, the appellant submits that the RPD made a number of errors in its decision. His main arguments are presented in the memorandum as follows: [translation] 8. The RPD failed to take into account the appellant's lack of education in rendering its decision, and it was very demanding regarding event details, dates and personal questions; 9. It ignored African practices in a number of areas, including regarding homosexuality in Mali, by requiring the appellant to know when his partner became homosexual or the number of partners he had had before him; 10. Nevertheless, the appellant was forthcoming by stating that he had never discussed these issues with his partner, which is neither surprising nor impossible in the African context; [...] 18. The panel did not try to understand the appellant's homosexual identity: his life with his partner in Mali, his homosexual life in Canada since his arrival, his integration into the gay community, etc. 19. The panel chose to ask subtle questions that were at times confusing to mix up the appellant, who was already stressed by the hearing, weakened by his state of health and limited in his analysis by his lack of education; 20. The RPD focused on details rather than on key aspects, which constitutes an error set out in Jamil [...];11 [15] In conclusion, the appellant is asking the RAD to set aside the determination of the RPD, to order a new hearing before it or to determine directly that he is a Convention refugee and to make any other order deemed relevant.12 IV. ADMISSIBILITY OF DOCUMENTS SUBMITTED ON APPEAL A. The appellant submitted documents on appeal [16] In his memorandum13 and in his written statement,14 the appellant states that he is submitting to the RAD evidence that was not available at the time of the RPD's decision, namely, a photograph of himself and his partner XXXX XXXX15 and a document from the XXXX XXXX XXXX.16 B. Test for admissibility [17] Subsection 110(4) of the IRPA states that the person who is the subject of the appeal may present to the RAD 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. It should be noted that subsection 110(4) refers to the rejection of the appellant's claim for refugee protection as the time limit, not the hearing before the RPD. After the RPD hearing but before the decision takes effect, a party who wants to provide a document as evidence may make an application to the Division.17 [18] In a recent, highly anticipated decision, the Federal Court of Appeal finds that the explicit conditions in subsection 110(4) of the IRPA are inescapable, have to be met and leave no room for discretion on the part of the RAD.18 It also found that the criteria established by the case law in terms of the credibility and the relevance of evidence come implicitly from the wording of the subsection in question.19 In short, there is a clear legislative intention not to authorize any new evidence on appeal before the RAD other than in very specific and carefully defined circumstances. This is because the RAD's role is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law, or mixed errors of fact and law to be corrected.20 [19] Furthermore, the Refugee Appeal Division Rules (RAD Rules) provide that the appeal record must contain, among other documents, a written statement indicating whether the appellant is relying on any evidence referred to in subsection 110(4) of the IRPA, as well as a memorandum that includes full and detailed submissions regarding how that evidence meets the requirements of that subsection and how it relates to the appellant.21 C. RAD decision on the admissibility of the documents in question [20] From the outset, I have to emphasize that, in this case, the hearing before the RPD took place on September 17, 2015, and the decision to reject the claim for refugee protection was rendered five days later on September 22, 2015. This means that the claimant had only a few days to take the necessary steps to obtain the documents that, at the time, he might have considered necessary to submit to the RPD. [21] In his memorandum, the appellant states that he is submitting to the RAD two documents that could have changed the RPD's decision. He specifies that those documents essentially deal with his identity as a homosexual and his state of health, which made him vulnerable at the time of the hearing. He adds that the documents were not available to him or that, even if some of them were available, he did not know they existed and therefore could not provide them in support of his claim for refugee protection.22 i) The photograph showing the appellant sitting beside another man [22] The first document is a photograph.23 In his memorandum, the appellant indicates that this photograph was sent to the RPD on September 23, 2015.24 [23] After reviewing this photograph in which he appears with another man, I note that it contains no date and that it is impossible for me to know exactly when and where it was taken. Furthermore, in presuming that it was taken prior to his arrival in Canada, the appellant did not establish that this photograph was not reasonably available to him, or that he could not reasonably have been expected in the circumstances to have presented it to the RPD prior to the rejection of his refugee protection claim. [24] Moreover, this photograph is neither trustworthy nor credible, nor relevant with respect to the appellant's allegations that he is homosexual and that he had a romantic relationship with a person by the name of XXXX XXXX. First, nothing in this photograph, other than a handwritten inscription, makes it possible to identify the person sitting beside the appellant. Then, it contains no information as to the time and place it was taken and under which circumstances. Finally, in Mali, as in Canada, friends can be photographed together without them necessarily being romantically involved even if, for example, they are holding hands or physically touching; such behaviours are not signs of sexual orientation. [25] Consequently, in light of subsection 110(4) of the IRPA and the case law, I conclude that this photograph is not admissible on appeal. ii) The document from a Montréal hospital [26] The second document includes two undated pages that do not mention the appellant's name but refer to the detailed medical treatment of an unidentified individual.25 [27] Having carefully read these two pages, I am of the opinion that they do not include any evidence that arose after the rejection of the appellant's refugee protection claim. I am also of the opinion that the appellant did not establish that these two pages were not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented them to the RPD prior to the rejection of his refugee protection claim. [28] In addition, before the RPD, the appellant, referred to as the claimant at the time, submitted documents concerning his health and the fact that he had been treated at XXXX XXXX XXXX XXXX.26 Therefore, the two pages filed on appeal do not seem relevant to me because some documents had been filed into evidence before the RPD about his state of health. [29] Consequently, in light of subsection 110(4) of the IRPA and the case law, I conclude that these two pages are not admissible on appeal. V. HEARING BEFORE THE RAD A. The appellant requested a hearing before the RAD [30] In his written statement, the appellant is requesting a hearing before the RAD to better explain his problems that were not well understood by the RPD.27 In his memorandum, he is asking the RAD to order a hearing before it, but does not explain why the RAD should hold such a hearing.28 B. Test under subsection 110(6) of the IRPA [31] The RAD Rules state that the record of the person who is the subject of the appeal must include, among other things, a written statement indicating whether the appellant is requesting that a hearing be held under subsection 110(6) of the IRPA, as well as a memorandum that includes full and detailed submissions regarding why the RAD should hold a hearing, if the appellant is requesting that a hearing be held. 29 [32] Pursuant to subsection 110(6) of the IRPA, when evidence presented on appeal is found to be admissible, it must be determined whether it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, whether it is central to the decision with respect to the refugee protection claim, and whether it would justify allowing or rejecting the refugee protection claim. If so, the RAD may then hold a hearing. C. RAD decision on holding a hearing [33] The RAD bears the burden of determining whether or not the requirements set out in subsection 110(6) of the IRPA have been met.30 One of the determinative criteria in this regard is that the evidence presented on appeal is found to be admissible.31 In this case, I have found that the documents submitted on appeal are not admissible according to the criteria set out in paragraph 110(4) of the IRPA. Consequently, I conclude that there is no cause to hold a hearing before the RAD. VI. APPROACH TO BE TAKEN IN THIS APPEAL A. Appellant's position [34] In his memorandum, the appellant submits that the RAD must be able to correct the RPD's palpable and overriding errors in order to avoid or reduce needless duplication of proceedings. He submits that the RPD made a number of palpable and overriding errors, which he identifies one by one, and is therefore asking the RAD to set aside the determination of the RPD and to determine directly that he is a Convention "refugee."32 B. Brief summary of the Federal Court of Appeal decision in Huruglica [35] Following an exhaustive analysis of the legislative history and various arguments used to date, in a recent, long-awaited decision, the Federal Court of Appeal states that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law.33 It also states that an appeal before the RAD is not a true de novo proceeding.34 It also clearly specifies the approach to be taken by the RAD: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.35 [36] As for the degree of restraint or deference owed by the RAD to the RPD's conclusions or findings as to the credibility of any testimony, Justice Gauthier makes a number of clarifications that I find very useful: [70] This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [71] One can imagine many possible scenarios. For example, when the RPD finds a witness straightforward and credible, there is no issue of credibility per se. This will also be the case when the RAD is able to reach a conclusion on the claim, relying on the RPD's findings of fact regarding the relative weight of testimonies and their credibility or lack thereof. [72] Problems will occur when the credibility findings themselves are disputed on appeal, and the RAD has no way to reach a conclusion without endorsing or rejecting those findings. If the RAD can identify an error in situations where, for example, a claimant was not found credible because his story was not plausible based on common sense, the RPD may have no real advantage over the RAD. [73] Similarly, there may also be cases where a finding that a witness is not credible was based on discrepancies that could not justify such a conclusion or that simply did not exist. If the assessment of the oral evidence contains an error which the RAD can easily identify, but the weight to be given to this testimony is essential to determine whether the RPD decision should be confirmed or set aside, the RAD may conclude that it is a proper case to refer back to the RPD with specific directions in respect of the error identified in the credibility findings. [74] That said, it is not appropriate to say more about the various scenarios that may arise, for they are not before us. The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.36 C. Independent assessment to correct any errors identified by the appellant [37] Drawing on the Federal Court of Appeal decision, I consider it clear that I must fully exercise the role of the RAD in correcting any errors that, in the appellant's opinion, the RPD may have made37 and rendering the determination that should have been made or must be made in light of the most recent evidence on the record.38 That being said, if required, I must justify whether the circumstances warrant a degree of restraint or a measure of deference to the RPD's findings as to the appellant's credibility based on his testimony. However, similar deference does not apply to procedural fairness.39 VII. ANALYSIS OF THE MERITS OF THE APPEAL [38] Having conducted an independent assessment of the record, I am of the opinion that the principles of procedural fairness have been observed by the RPD and that it did not commit errors in its assessment of the appellant's credibility for the following reasons. A. Principles of procedural fairness [39] Where procedural fairness is at issue, the proper approach is to ask whether the requirements of natural justice have been met considering the particular circumstances of the case.40 [40] In the context of a claim for refugee protection before the RPD, procedural fairness means ensuring that the person claiming refugee protection understands the proceedings, has a reasonable opportunity to tender evidence in support of their claim, and has a chance to persuade the RPD that their claim is well-founded.41 [41] A breach of procedural fairness will not result in relief in each case. In the case law, if it is apparent that the decision-maker would have reached the same decision notwithstanding the breach and no purpose would be achieved by sending it back to the RPD for reconsideration, the decision should stand.42 [42] In his memorandum, the appellant submits that by not contesting the authenticity of the claimant's documentary evidence but simply relying on his lack of credibility, the RPD failed to observe the principles of procedural fairness. He adds that, by not conducting a separate analysis of his claim under subsection 97(1) of the IRPA, the RPD erred in law.43 [43] In my opinion, those arguments must be rejected. [44] The first issue raised by the appellant is related to the analysis or assessment of his credibility. That there is cause to assess whether the RPD's assessment contains errors of fact or law is one thing. However, in my view, this issue is not related to natural justice or procedural fairness. [45] As for the second issue raised by the appellant, it is true that the analysis under section 97 of the IRPA is different from the analysis under section 96 and that claims made under both sections therefore warrant separate treatment.44 However, there is an exception, which I find applies in this case. According to the Federal Court case law, a decision-maker may dispense with a separate section 97 analysis if there is absolutely no evidence that could support a claim that a person is in need of protection.45 In this case, based on the RPD's findings with respect to the appellant's credibility, essentially as to whether or not he is homosexual, I am of the opinion that it did not have to conduct a separate analysis under section 97 of the IRPA. [46] I must now turn to the RPD's assessment of the claimant's credibility in terms of the central aspects of his refugee protection claim that, in my opinion, fall under section 96 of the IRPA. B. UNHCR Guidelines No. 9 [47] The UNHCR's Guidelines No. 946 replace the UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Equality of November 2008. They complement the UNHCR Handbook on Procedures and are intended to provide legal interpretative guidance for governments, legal practitioners, decision-makers and the judiciary, as well as UNHCR staff carrying out refugee status determination under its mandate.47 Relying on Canadian case law, I have no hesitation in consulting these Guidelines, without giving them any binding character.48 - Sexual orientation: a fundamental part of human identity [48] As stipulated in Guidelines No. 9, the gender identity or sexual orientation of a person claiming refugee protection is a fundamental part of human identity, and discrimination on account of a person's sexual orientation is prohibited.49 It is thus an important matter that should be treated in a sensitive and appropriate manner. [49] It should be noted that the appellant may not be a credible witness regarding the allegations of past persecution without this undermining the truthfulness of his allegation that he is homosexual. Federal Court case law on this point is very clear: to disbelieve some of a claimant's allegations is one thing, to disbelieve his or her sexual orientation is another.50 It should be added that a person claiming refugee protection may not have experienced harm in the past sufficient to amount to persecution, particularly because they may have concealed their sexual orientation or because the authorities were not aware of this orientation. Furthermore, the well-foundedness of the refugee protection claim may be established by assessing the consequences that this person would have to face in the future if they had to return to live in their country.51 - Avoiding stereotypes and offensive language [50] Of course, it is up to the decision-maker before whom the claim for refugee protection is presented orally to arrive at the finding as to the credibility of a person who claims to be homosexual. However, that person cannot arrive at such a finding without having taken into account all of the evidence, including the appellant's statements indicating that he or she is in fact a person with that sexual orientation. Moreover, in the context of a hearing, in avoiding the perpetuation of stereotypes or the use of language that could be interpreted as offensive, it is important to be tactful in asking relevant questions and have an overall understanding attitude in facing this issue,52 which is not limited simply to sexual practices: 15. Societal disapproval of varied sexual identities or their expression is usually more than the simple disapproval of sexual practices. It is often underlined by a reaction to non-compliance with expected cultural, gender and/or social norms and values. The societal norms of who men and women are and how they are supposed to behave are commonly based on hetero-normative standards. Both men and women may be subject to violent acts to make them conform to society's gender roles and/or to intimidate others by setting "an example". Such harm can be "sexualized" as a means of further degrading, objectifying or punishing the victim for his/her sexual orientation and/or gender identity, but can also take other forms.53 [51] While mere disapproval from the family does not necessarily amount to persecution, it can still be an important factor in the overall context of the refugee protection claim: 23. Social norms and values, including so-called family "honour", are usually closely intertwined in the refugee claims of LGBTI individuals. While "mere" disapproval from family or community will not amount to persecution, it may be an important factor in the overall context of the claim. Where family or community disapproval, for example, manifests itself in threats of serious physical violence or even murder by family members or the wider community, committed in the name of "honour", it would clearly be classed as persecution. Other forms of persecution include forced or underage marriage, forced pregnancy and/or marital rape.... In the context of sexual orientation and/or gender identity cases, such forms of persecution are often used as a means of denial or "correcting" nonconformity.54 - Respect for human rights [52] Clearly, the work of Immigration and Refugee Board of Canada members is demanding. That being said, they must nonetheless accommodate all participants so that they may participate effectively in a proceeding, take into account social and cultural differences, and respect human rights.55 It is my opinion that, in similar cases, empathy must be shown when someone attempts to explain behaviour that seems inconsistent with that of a person who fears persecution. Once again, as stated in Guidelines No. 9, homosexual individuals may conceal their sexual orientation so well that, for a certain period of time, they manage to avoid the severe consequences of being exposed.56 C. RPD's analysis of the credibility of the appellant's allegations [53] I listened to the recording of the RPD hearing57 and read its reasons for decision. I am of the opinion that the RPD did not rely on stereotypes to make its findings. On the contrary, the member was courteous, empathetic and sensitive when asking the claimant relevant questions and she gave him the opportunity to answer her concerns. [54] It should be noted that, in the context of a refugee protection claim, including a claim based on the sexual orientation of the person claiming refugee protection, it is up to claimants to establish, on a balance of probabilities, the facts on which they based their claim.58 For its part, the RPD is entitled to make findings based on implausibility, common sense and rationality.59 Lack of credibility on an important aspect of the claim can amount to a finding that there is no credible evidence on which the claim can be based.60 [55] During the RPD hearing, the claimant clearly stated that he realized he was gay at the age of 18, after his first sexual encounter with the person he was dating, XXXX XXXX, whom he had met in XXXX 2002. When confronted with the fact that in 2002 he was not 18 years old but rather 25 years old, the claimant did not provide a clear explanation for this contradiction.61 In my opinion, given this contradiction, the RPD was entirely justified to find that the claimant's credibility had been undermined with respect to when and why he realized he was gay. [56] The RPD was also justified in making the same finding when, during the hearing, the claimant was unable to explain why he realized he was homosexual at the age of 18 and not earlier. In fact, although his explanation about his first sexual encounter with XXXX XXXX did not hold up, he still maintained that it was truly at the age of 18 that he knew he was attracted to men and not women. However, according to his BOC Form and his own statements at the hearing, from an early age he played sexual or erotic games only with other boys. I am of the opinion that he was never able to explain what seemed to have changed at the age of 18 to make him realize that he was gay, when during his childhood and adolescence he was attracted to men only and women did not excite him.62 [57] Later in the hearing, the member also tried to find out how the claimant felt when, at the age of 18, he discovered that he was homosexual. The claimant first answered that he was attracted to men only. The member then asked him how he felt, knowing that he was different from other men. He then answered that he was worried, that he had problems and felt alone, and that he prayed that he would find someone to confide in. When asked to specify to whom he had confided, the claimant stated that he had confided in XXXX XXXX.63 However, earlier in his testimony, the claimant stated that he met this man in 2002; he was 25 years old at the time. In my opinion, the claimant's testimony was vague as to how he felt when, at the age of 18, he realized he was gay. The member clearly asked a relevant question about this matter and did so courteously and respectfully. [58] The member did so as well when she asked another relevant question to find out what precautions the claimant and his second lover, XXXX XXXX, took when dating to avoid being caught. The claimant simply answered that when he went to his friend's place, who rented a small home with two rooms and a living room, he acted as if he were simply a friend. When asked again what precautions they took once inside the home, the claimant answered that, once inside, they talked a bit and then they made love.64 After asking who his friend's neighbours were, a question the claimant had a very difficult time answering, the member once again asked what precautions they took when they met at his home and engaged in sexual activities. The claimant then answered that they closed the door and that the curtains were drawn, but that the time they were caught, they had forgotten to lock the door.65 Quite frankly, no one could dispute that the claimant took a surprising amount of time to answer that they locked the door when they met up and made love, given that homosexuality is so taboo in his country and that getting caught could lead to adverse consequences for him and his friend. [59] When he was asked to describe his friend in more detail than simply that he is good looking, the claimant answered that his friend talked to him a great deal, that he gave him advice and gifts, and that they enjoyed each other's company. He also provided the names of his brothers and sisters. When asked to specify at what point his friend XXXX knew that he was gay or even if XXXX had told him when he knew he liked men, the claimant answered that his friend had not told him this. When asked whether XXXX had had other homosexual relationships, the claimant answered that his friend had not told him that. When asked what activities they did together, the claimant first stated that they saw each other at his friend's home, talked and then usually made love. Then, he explained that they sometimes went to the Mosque together or to the market.66 When asked by his counsel to specify what he liked about XXXX, the claimant answered that he was loving, that he talked well and that they sometimes went out together. When asked his friend's age, he took a great deal of time before answering, finally stating that he was younger than him by approximately five or six years. When asked at what age he met XXXX, once again, he took a great deal of time to answer that he was approximately thirty years old.67 As the RPD highlighted in its decision, although he alleges that he maintained a romantic relationship with this person for approximately four or five years, it is quite surprising that the claimant was unable to provide more intimate details about him. [60] During his testimony before the RPD, the claimant took a great deal of time before remembering the exact date on which he and his friend XXXX were caught by XXXX's father.68 [61] Furthermore, when asked whether he had stayed in contact with his friend XXXX after the incident, the claimant first stated that after he fled, he did not hear from him. When asked whether he had tried to call him, he first stated that he had not and then explained that he did not have his telephone number, that he had lost it. When confronted by the member with the fact that for five years he called him at least once a week before going over to his place, the claimant then answered that after he was forced to flee, he was flustered and confused. When confronted with the fact that his friend's number should have been on his telephone, the claimant then answered that he did not dare call him, that he was scared.69 When asked by the member whether he had inquired about his friend XXXX from another Malian friend who had helped him obtain some documents, including his passport, and who knew that he was gay, the claimant also answered that he had not because he was afraid.70 Once again, the claimant's answers strike me as particularly astonishing. It seems to me that not only did he adjust his testimony based on the questions asked but also, more generally, his answers did not match what one would normally expect from a person who had had an intimate relationship with a person for such a long time. Consequently, I entirely agree with the RPD's assessment in this respect. [62] During his testimony about the incident in which his friend XXXX's father caught them making love, the claimant stated that his friend's father yelled for people to come kill them, but that he, himself, managed to flee by exiting his friend's home and jumping over the wall before people came. He also stated that others came and began to hit his friend. When asked to explain how he could have known that, the claimant answered that as he was fleeing, he heard some noise.71 Once again, in my opinion, it strikes me as odd that XXXX's father's first reaction would be to immediately call for the people nearby to come kill his son. It is as if he did not react in a surprised, distraught or questioning manner. Not to mention that the claimant's testimony was inconsistent, to say the least, when he states at one point that he jumped over the wall before people arrived, and then at another point that he heard noise as he was fleeing. In my opinion, there is a big difference between hearing noise and knowing that his friend was beaten by people. Whether this discrepancy is described as implausible or as an inconsistency in his testimony does not seem determinative to me. I am of the opinion that, most importantly, this element is added to the many others that, overall, fundamentally undermine the claimant's principal allegations with respect to the truthfulness of both his homosexual activities and the incidents he alleges he experienced. [63] Moreover, there is also another contradiction in the claimant's testimony before the RPD that he did not explain, even after he was confronted with that contradiction. During his testimony, the claimant first stated that only his brother XXXX knew that he was hiding at his friend XXXX XXXX's home after being caught by his friend XXXX XXXX's father while they were making love. However, barely a minute later, he stated that his father called him at XXXX XXXX's home to tell him he would kill him if he found him. When asked to explain how his father knew that he was at XXXX's place, when he had stated earlier that only XXXX knew that he was hiding there, the claimant answered that XXXX had given his father XXXX's number, saying that it was XXXX's telephone, so his telephone.72 I agree with the RPD's assessment in this respect and am of the opinion as well that this is not a reasonable explanation but rather a mere adjustment to his testimony. In my opinion, the RPD was therefore justified in finding that this contradiction undermined his credibility. [64] I also read the documentary evidence on the RPD record about the claimant's active participation in XXXX XXXX XXXX XXXX XXXX XXXX.73 In my opinion, this documentary evidence is not determinative with respect to his sexual orientation, given that, in a country such as ours, where equality between individuals is a core value, a person may very well belong to an organization like XXXX XXXX XXXX XXXX XXXX XXXX, take part in its activities and socialize with homosexual people without having the same sexual orientation. [65] After conducting an independent assessment of this record, I conclude that the arguments presented in the appeal memorandum must be rejected and that the RPD committed no error in the assessment of the claimant's credibility. VIII. CONCLUSION [66] For these reasons, I confirm the determination of the RPD, that is, that XXXX XXXX is not a "refugee" or a "person in need of protection." [67] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette June 17, 2016 Date IRB translation Original language: French 1 Appellant's BOC Form, pages 3 to 21 of the RPD record. 2 The list of these documents is reproduced at page 99 of the RPD record. The documents themselves, D-1 to D-6, are reproduced at pages 100 to 154 of the RPD record. 3 RPD Reasons and Decision, pages 3 to 8 of the RPD record. 4 Idem, paragraph 10, page 5 of the RPD record. 5 Idem, paragraph 11, page 5 of the RPD record. 6 Idem, paragraphs 12, 13 and 14, pages 5 and 6 of the RPD record. 7 Idem, paragraphs 15, 16 and 17, pages 6 and 7 of the RPD record. 8 Idem, paragraphs 18 to 22, pages 7 and 8 of the RPD record. 9 Appellant's memorandum, November 10, 2015, B - Issues, page 30 of the appeal record. 10 Idem, paragraphs 40 to 50, pages 35 and 36 of the appeal record. 11 Idem, paragraphs 8 to 20, pages 30 and 31 of the appeal record. 12 Idem, page 39 of the appeal record. 13 Idem, paragraphs 51 to 57, pages 36 and 37 of the appeal record. 14 Appellant's written statement, November 10, 2015, paragraph 1, page 23 of the appeal record. 15 The photograph in question is reproduced at page 17 of the appeal record. 16 The two pages in question are reproduced at pages 18 and 19 of the appeal record. 17 RPD Rules, SOR/2012-256, section 43. 18 Minister of Citizenship and Immigration v. Parminder Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, paragraphs 38 to 51. 19 Idem, paragraphs 34 and 35. 20 Idem, paragraph 54. 21 RAD Rules, SOR/2012-257, subrule 3(3). 22 Appellant's memorandum, paragraphs 51 and 52, page 36 of the appeal record. 23 The photograph in question is reproduced at page 17 of the appeal record. 24 Appellant's memorandum, paragraph 53, page 37 of the appeal record. 25 The two pages in question are reproduced at pages 18 and 19 of the appeal record. 26 D-4 and D-5, which are reproduced at pages 114 to 120 of the RPD record. 27 Appellant's written statement, paragraph 2, page 23 of the appeal record. 28 Appellant's memorandum, paragraph 61 and conclusions, page 39 of the appeal record. 29 RAD Rules, SOR/2012-257, subsection 3(3). 30 Zhuo v. Canada (Minister of Citizenship and Immigration), No. IMM-2693-14, O'Reilly, July 27, 2015; 2015 FC 911, paragraph 11. 31 Parminder Singh, supra, footnote 18, paragraph 51: "...the basic rule is that the RAD 'must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division...' (s. 110(3)). The new evidence must meet the admissibility criteria set out in subsection 110(4), and a new hearing can be held only if the new evidence fulfils the conditions set out in subsection 110(6)." 32 Appellant's memorandum, paragraphs 58 to 61, pages 37, 38 and 39 of the appeal record. 33 Minister of Citizenship and Immigration v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93, paragraphs 36 to 103. 34 Idem, paragraph 79. 35 Idem, paragraph 103. 36 Idem, paragraphs 70 to 74. 37 Ghauri v. Canada (Minister of Citizenship and Immigration), No. IMM-3426-15, Gleeson, May 16, 2016; 2016 FC 548, paragraphs 30 to 34. 38 Huruglica, supra, footnote 33, paragraphs 96, 97 and 98. 39 Bouanga v. Canada (Minister of Citizenship and Immigration), No. IMM-1017-14, Martineau, October 30, 2014; 2014 FC 1029, paragraph 8. 40 Wai Kheong Ching v. Canada (Minister of Citizenship and Immigration), No. IMM-1272-14, Kane, June 9, 2015; 2015 FC 725, paragraph 75, citing Baker, [1999] 2 SCR 817, paragraphs 23 to 28, she states: "...the Supreme Court of Canada set out a list factors affecting the duty of procedural fairness and emphasized that the content of the duty must be determined in the specific context of each case. The Court noted that the factors were not exhaustive and reiterated that procedural fairness is based on the principle that individuals affected by decisions should have the opportunity to present their case and to have decisions affecting their rights and interests made in a fair and impartial and open process 'appropriate to the statutory, institutional, and social context of the decision.'? Zheng v. Canada (Minister of Citizenship and Immigration), No. IMM-1998-11, Mosley, November 25, 2011; 2011 FC 1359, paragraph 7. Bokhari v. Canada (Minister of Citizenship and Immigration), No. IMM-3907-10, Harrington, March 22, 2011; 2011 FC 354, paragraph 13. 41 Nemeth v. Canada (Minister of Citizenship and Immigration), No. IMM-2522-02, O'Reilly, May 14, 2003; 2003 FCT 590, paragraph 10: "The Board was aware that the Nemeths had been represented up until just prior to the hearing. It was, or should have been, alive to the risk that the claimants were ill-prepared to represent themselves. Under the circumstances, it had an obligation to ensure that the Nemeths understood the proceedings, had a reasonable opportunity to tender any evidence that supported their claim and were given a chance to persuade the Board that their claims were well-founded." 42 Fei Zheng v. Canada (Minister of Citizenship and Immigration), No. IMM-1998-11, Mosley, November 25, 2011; 2011 FC 1359, paragraph 8. Sumit Roy v. Canada (Minister of Citizenship and Immigration), No. IMM-7106-12, Scott, July 9, 2013; 2013 FC 768, paragraph 34: "While there is no need to establish a prejudice in order to prove a breach of procedural fairness based on inadequate interpretation, the Applicant is required to demonstrate that the breach of procedural fairness was material to the Board's decision in order for this Court to intervene" (citations omitted). Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202. 43 Appellant's memorandum, paragraphs 35 to 43, pages 52 and 53 of the appeal record. 44 Soliman v. Canada (Minister of Citizenship and Immigration), No. IMM-3959-06, Noël, February 13, 2007; 2007 FC 162, paragraph 9, citing his colleague Justice de Montigny in Anthonimethu v. Canada (Minister of Citizenship and Immigration), No. IMM-1854-05, de Montigny, January 28, 2005; 2005 FC 141, paragraph 51. 45 Idem, citing Justice de Montigny in Anthonimuthu at paragraph 52. Read also Soleimanian v. Canada (Minister of Citizenship and Immigration), No. IMM-488-04, Mosley, November 25, 2004; 2004 FC 1660, paragraph 22, referring to several other Federal Court decisions on this point. 46 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, not paginated. This document is available on the UNHCR site: http://www.refworld.org/docid/50348afc2.html. 47 Idem, at the first paragraph, under the title. 48 Office of the United Nations High Commissioner for Refugees (UNHCR) Handbook, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, reissued, Geneva, December 2011, 209 pages, pages 1 to 44. The UNHCR Handbook is an international instrument that defines the term "refugee" and sets out the principles that must guide the determination of refugee status. Canadian jurisprudence recognizes the persuasive authority of the Handbook: Hernandez Utrera v. Canada (Citizenship and Immigration), No. IMM-2254-07, Shore, November 20, 2007; 2007 FC 1212, paragraph 18; Soto v. Canada (Citizenship and Immigration), No. IMM-3734-01, Tremblay-Lamer, July 10, 2002; 2002 FCT 768, paragraph 15; Canada (Attorney General) v. Ward, 1993, [1993] 2 S.C.R. 689, La Forest, at pages 713 and 714. However, neither the UNHCR Guidelines nor the Handbook are binding, although they may be relied on for guidance. Jayasekara v. Canada (Citizenship and Immigration), No. A-140-08, Létourneau, Sharlow, Pelletier, December 17, 2008; 2008 FCA 404, paragraph 39. Islam v. Canada (Minister of Citizenship and Immigration), No. IMM-2777-09, Pinard, January 22, 2010, paragraph 34, referring to a decision of the Federal Court of Appeal in Fernandopulle v. Canada (Minister of Citizenship and Immigration), 2005 FCA 91, paragraph 17. 49 Guidelines No. 9, supra, footnote 46, paragraphs 5 to 9. 50 Kandel v. Canada (Minister of Citizenship and Immigration), No. IMM-6752-13, Noël, July 7, 2014; 2014 FC 659, paragraph 29. 51 Guidelines No. 9, supra, footnote 46, paragraphs 18 and 19. 52 Idem, paragraphs 58 to 66; See also Ogunrinde v. Canada (Minister of Citizenship and Immigration), No. IMM-6711-11, Russell, June 15, 2012; 2012 FC 760, paragraph 46, which indicates that it is inappropriate to rely on stereotypes when evaluating whether or not a person has established their sexual orientation. 53 Idem, paragraph 15. 54 Idem, paragraph 23. 55 Immigration and Refugee Board of Canada (IRB), Code of Conduct for Members of the IRB, December 15, 2012, 4 pages, paragraph 25. This document is available on the IRB website: http://www.irb-cisr.gc.ca/Eng/BoaCom/empl/Pages/MemComCode.aspx. 56 Guidelines No. 9, supra, footnote 46, paragraphs 30 to 33. 57 Recording of the RPD hearing of September 17, 2015, 00:01 to 02:28:14. 58 Arreaga v. Canada (Minister of Citizenship and Immigration), No. IMM-996-13, Noël, September 25, 2013; 2013 FC 977, at paragraph 45. 59 Laszlo v. Canada (Department of Citizenship and Immigration), No. IMM-3507-04, Von Finckenstein, April 6, 2005; 2005 FC 456, at paragraph 10. 60 Hernandez Cortes v. Canada (Minister of Citizenship and Immigration), No. IMM-4645-08, Teitelbaum, June 4, 2009; 2009 FC 583, at paragraph 30. 61 Recording of the RPD hearing of September 17, 2015, 12:06 to 20:10. 62 Idem, 08:50 to 11:20 and 23:35 to 27:10. Read his BOC Form, paragraphs 2, 3 and 4, page 11 of the RPD record. 63 Idem, 45:40 to 48:00. 64 Idem, 56:15 to 01:00:55. 65 Idem, 01:07:27 to 01:10:55. 66 Idem, 01:00:55 to 01:07:26. 67 Idem, 01:43:10 to 01:45:25. 68 Idem, 01:10:55 to 01:18:45. 69 Idem, 01:23:50 to 01:26:45. 70 Idem, 01:30:26 to 01:32:30. 71 Idem, 27:10 to 30:45 and 01:32:32 to 01:37:20. 72 Idem, 35:45 to 38:15. 73 I am referring particularly to documents D1, D2 and D3, which are reproduced at pages 100 to 113 of the RPD record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB5-05110 2