TB7-23483

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 / Dossier de la SAR : TB7-23483 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 14, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are) the subject of the appeal Iwona Kaniak Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the "Appellant"), a citizen of Ukraine, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of this appeal. The Appellant is requesting an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. BACKGROUND [2] The Appellant alleges that he is gay and has suffered persecution as a result of his sexual orientation and consequently has a well-founded fear of future persecution should he return to Ukraine. Further details may be found in the Appellant's Basis of Claim form1 and the narrative attached thereto, as well as in the audio recording of the hearing. RPD's Reasons [3] In its reasons, the RPD considered that the Appellant is a highly educated man who was practicing criminal law in Ukraine and who testified that he has appeared in criminal court defending clients in legal proceedings. For this reason, the panel found that at least some of the problems associated with the Appellant's testimony stemmed from his evasiveness rather than from nervousness or other physical or mental stressors. Overall, the panel found the Appellant not to be a credible witness. The panel found that the Appellant had failed to establish his sexuality with clear and convincing evidence. [4] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Appellant's Issues [5] The Appellant raises four issues at the RAD: a. Did the RPD err by failing to consider the psychological state of the Appellant's condition of Post-Traumatic Stress Disorder and how that disorder would affect the Appellant's testimony? b. Did the RPD err when it "faulted the Appellant of his testimony and evidence as lacked of creditability?"2 ANALYSIS Determinative Issue [6] The determinative issue in this appeal is the Appellant's credibility. Standard of Review [7] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.3 Admissibility of New Evidence [8] The Appellant gave his statement regarding new evidence in accordance to subsection 110(4) of the IRPA stating that he is depending on evidence in accordance to subsection 110(4). However, there is nothing in the Memorandum of Argument that refers to any "new evidence". [9] RAD Rule 3 deals with subsection 110(4) submissions as follows (I only include the relevant parts and highlight the important parts): (3) The appellant's record must contain the following documents, on consecutively numbered pages, in the following order: (d) a written statement indicating (i) whether the appellant is relying on any evidence referred to in subsection 110(4) of the Act, (ii) whether the appellant is requesting that a hearing be held under subsection 110(6) of the Act, and if they are requesting a hearing, whether they are making an application under rule 66 to change the location of the hearing, and (iii) the language and dialect, if any, to be interpreted, if the Division decides that a hearing is necessary and the appellant needs an interpreter; (e) any documentary evidence that the appellant wants to rely on in the appeal; (f) any law, case law or other legal authority that the appellant wants to rely on in the appeal; and (g) a memorandum that includes full and detailed submissions regarding (i) the errors that are the grounds of the appeal, (ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing, (iii) how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant, (iv) the decision the appellant wants the Division to make, and (v) why the Division should hold a hearing under subsection 110(6) of the Act if the appellant is requesting that a hearing be held. [10] In this particular case, the Appellant has adduced the following documents for my consideration. 1) A letter from XXXX XXXX, dated December 11, 20174 2) A document5 from The 519 community center in Toronto, dated Dec 12, 2017 [11] Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented at the time of the rejection of their refugee claim. [12] If the proposed new evidence does meet the requirements of subsection 110(4), I must then apply the analysis set out in the Federal Court of Appeal's decision in Raza6 as subsequently modified by the same court's decision in Singh;7 effectively, I will assess the credibility and relevance of the evidence in order to determine whether it is admissible. [13] Subsection 110(4) does not provide an opportunity for appellants to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.8 In a recent Federal Court decision,9 the Hon. Justice Annis wrote: I agree with the RAD that the Applicant must put her best foot forward before the RPD, and present all the evidence that is available at the time, whether aware of it or not, unless there is an aspect of injustice arising from unexpected new facts, or old facts that no reasonable amount of due diligence could have turned up. It is not intended to be a tune-up procedure for the RAD that upon learning in (of) deficiencies in the Applicant's case, additional evidence that could have been presented to the RPD may be presented as new evidence before the RAD. [14] In this particular instance, the content of the letter is very old, dating back to 2015. This letter should have been presented to the RPD but was not. The only reason given for failing to present this document on time was that it was an emotional issue for the Appellant and the author. That is not a reasonable explanation for failing to adduce what the counsel claims to be a very important piece of evidence. There is no reasonable explanation as to why it was not presented at the RPD. It certainly could have been made available then as now. The Appellant was served by counsel who should be aware of the necessity to document whenever possible. This document fails the test of subsection 110(4) and will not be admitted into evidence. [15] Regarding the 519 document, it does pass the initial test of subsection 110(4) as it was filled in about six weeks after the decision was signed. The content is new as well. I will allow this document into evidence and will discuss the weight I will give it later. Oral Hearing [16] As the only new evidence admitted in this appeal is the document from 519, I see no reason to hold an oral hearing. There is sufficient evidence before me to enable me to make a decision without an oral hearing. Therefore the request for an oral hearing is dismissed. Arguments [17] Counsel argues that the panel erred when it failed to consider the Appellant's state of mind. Counsel argues that the multiple times during questioning when the panel had to repeat himself and the Appellant's testimony appeared disjointed or incoherent should not have been considered as attempts to deceive the panel. Counsel argues that those issues were indicative of the emotional stress of recounting traumatic and often humiliating experiences. Counsel argues that the panel's judgment that the credibility concerns were not assuaged by the Appellant's alleged psychological condition was a serious error. [18] Counsel argues that the Appellant suffers from Post-Traumatic Stress Disorder (PTSD), even going so far as to say that the Appellant's PTSD is well documented. [19] With all due respect to counsel, there is absolutely no documentation in this file other than counsel's "say so" that even suggests that the Appellant suffers from PTSD. PTSD is a serious disorder and one which should not be lightly claimed. There is no psychological or psychiatric report on file diagnosing the Appellant with PTSD and unless counsel holds a degree in either Psychology or Psychiatry, he certainly is no more qualified than the panel or I am to make such a serious diagnosis. [20] Without a psychological evaluation indicting that this Appellant suffers from PTSD and that PTSD can explain the exceedingly evasive and non-responsive testimony of the Appellant, then I must find that the panel's assessment was reasonable and correct. [21] Counsel seems to base his entire argument on what counsel considers facts, including the alleged PTSD of the Appellant, the Appellant's alleged sexual orientation, and country condition documents which speak to the issues endured by members of the diverse SOGIE community (SOGIE - sexual orientation, gender identity and expression). [22] The panel found that there was insufficient evidence to identify the Appellant as gay. Counsel has failed to adduce sufficient allowable evidence to contradict that finding. The panel had the benefit of being in the hearing room with the Appellant, able to observe the Appellant's demeanour and to hear the testimony first hand. That gives the panel an advantage over the RAD in making the overall credibility assessment regarding the Appellant's sexuality. I defer to the panel on this issue. [23] I have also considered the document from 519, which I have admitted into evidence. The document basically is a record of the Appellant's attendance at certain seminars or meetings to assist members of the LHBTQ+ community in Toronto. There is no evidence adduced to advise that one must be a member of that community (LGBQT+) in order to attend these meetings. The document does not attest to one's sexual orientation but only confirms attendance at the meetings. I can, therefore, give very little weight to this document. It does not overcome the negative credibility issues found by the panel. [24] Having concurred with the panel that the Appellant, on a balance of probabilities, is not gay, I find counsel's arguments regarding treatment of gays in Ukraine to be of little probative value. Summary [25] The Appellant has failed to convince me that he is a gay man who will suffer persecution should he return to Ukraine. [26] The RAD has found that the RPD decision will stand. CONCLUSION [27] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe August 14, 2018 Date 1 Exhibit RPD-1, RPD's Record, at pp. 11-23. 2 Exhibit P-2, Appellant's Record, Appellant's Memorandum of Argument, at p. 1, at para. 1(b). 3 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 4 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at Exhibit A, unpaginated. 5 Ibid, Exhibit B, unpaginated. 6 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385 7 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96 8 Singh, FCA, at para. 54. 9 Abdullahi v. Canada (Citizenship and Immigration), (F.C., no. IMM-3447-15), March 3, 2016, 2016 FC 260. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-23483 RAD.25.02 (August 08, 2018) Disponible en français 8 RAD.25.02 (July 05, 2018) Disponible en français