TB9-35647

RAD File / Dossier de la SAR : TB9-35647 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 Toronto, ON Appel instruit / entendu à Date of decision January 26, 2021 Date de la décision Panel Elana Rose Tribunal Counsel for the person who is the subject of the appeal Patricia Ritter Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX (the 'Appellant') a citizen of Serbia, appeals the negative decision of the Refugee Protection Division (RPD) dated December 12, 2019. [2] The Appellant fears persecution in Serbia due to his imputed sexual orientation and support of the Liberal Democratic Party (LDP). After the Appellant encountered harassment and assaults between 2010 and 2012, he left Serbia and came to Canada in XXXX 2014 on a work permit. The Appellant's work permit was valid until XXXX XXXX, 2016. The Appellant applied for refugee protection in XXXX 2016, five months after the expiration of his work visa, and following a failed Temporary Resident Visa (TRV) application.1 [3] The determinative issues for the RPD were credibility and state protection. The RPD found that the Appellant had not established the events in Serbia with credible evidence and did not establish a profile for a forward-looking risk. In addition, the RPD found that the Appellant had not rebutted the presumption of state protection. [4] The Appellant asks that I grant the appeal and find that the Appellant is either a Convention refugee or a person in need of protection2. [5] No new evidence has been provided by the Appellant pursuant to subsection 110(4) of Immigration and Refugee Protection Act (IRPA)3 and therefore no hearing can be convoked under subsection 110(6) of IRPA. [6] After an independent review of the record on the standard of correctness4, I find that the RPD did not err and the Appellant is neither a Convention refugee nor a person in need of protection. For the purposes of this decision, I find that credibility is determinative. ISSUES IN APPEAL [7] The Appellant sets out numerous legal principles in his Memorandum5 with no specific link drawn to the RPD decision or evidence on the record. Similarly, the Appellant submits that the RPD erred in its credibility determination in several ways6, without clear identification of the specific findings being challenged. [8] It also appears from the Memorandum that the Appellant is conflating the RPD finding, that the Appellant did not establish his profile with sufficient credible evidence due to several adverse credibility findings, with a failure to consider a nexus7. I have considered both arguments below. [9] In the Memorandum, the Appellant also argues that the RPD erred by finding the Appellant was not credible on his establishment of a profile as an advocate for LGBT individuals in Serbia8, and erred by considering subjective fear when it is not applicable to his particular circumstance9. Furthermore, the Appellant advances that there was a failure by the RPD to consider s. 97(1) and any residual profile. ANALYSIS [10] After a review of the entire record, I find that the Appellant has failed to establish his appeal with sufficient credible evidence and the RPD did not err with their conclusions. [11] With respect to the Appellant's argument on nexus, I find there is clear evidence that the RPD considered the Appellant's claim under section 96, and as such, determined that there was a nexus. The Appellant sets out his fear as being based on his perceived sexual orientation due to his support of the LGBT community, and a fear due to his political activities. Both draw a nexus to section 96. Findings on pivotal events 2010 XXXX XXXX [12] The RPD found that the Appellant lacked credibility around the events as relayed. The Appellant testified to an event in a XXXX XXXX that gave rise to a heated discussion with some homophobic customers, who later ambushed and assaulted the Appellant on his way home from XXXX XXXX XXXX [13] According to the Appellant's oral testimony, this occurred in XXXX 2010 and was triggered by the TV coverage of the gay pride parade. The RPD noted the inconsistency with the Appellant's Basis of Claim (BoC) narrative around the timing of the event and around the triggering TV content. In his BoC narrative, the Appellant indicated that the altercation occurred in XXXX 2010, triggered by a TV announcement and discussion around gay pride parade preparations. [14] The RPD considered that a mistake in dates could reasonably be explained by the lengthy passage of time since the event; however, it concluded that the Appellant's failure to consistently remember the triggering TV event that led to the argument and assault, undermined the credibility of the event. [15] The Appellant does not specifically challenge this finding. After my review of the record, I agree with the RPD. It is not the disparity in dates that is significant, but the inconsistent evidence over the triggering content of the disagreement that led to an assault. I find no error in the RPD finding in this area. [16] I note that the RPD supported their finding with the Appellant's inconsistent evidence on his location also. While he testified that the assault precipitated a move from the city to the suburb's, the Appellant's sworn evidence indicates that he resided at the same address in Belgrade from 2006 to 201410. [17] His explanation for the absence of a change of address in his originating documents was that he provided his fathers address as that was where he would get his mail. This was not found reasonable by the RPD. As noted in the decision, the directions on the Background Schedule are clear: 'List all addresses where you have lived since your 18th birthday or the past 10 years, whichever is most recent.' The Background Schedule does not ask for your mailing address, and specifically states no P.O box addresses as well. [18] The RPD did not err in drawing a negative inference from the Appellant's allegation of moving away due to this assault, and I agree that overall, the Appellant has not provided sufficient credible evidence supporting an assault due to his imputed sexual orientation. 2011 XXXX threat and dismissal [19] The RPD found the Appellant not credible around the incident of XXXX XXXX, 2012 where his employer, the owner of the XXXX where he had worked as XXXX XXXX since 2006, threatened him with a knife, fired him and threatened to kill him for allowing a LGBT gathering in the XXXX XXXX where the Appellant worked11. [20] I note that apart from mixing up the year that this event took place, (the Appellant's BoC narrative indicates 2011)12 the RPD drew a negative inference from the Appellant's oral testimony that he reported the threat to the police and they laughed at him; as his BoC omitted mention of any police reporting. The Appellant testified that he intentionally omitted this evidence from his BoC narrative as he had no proof of the allegation of going to the police. The RPD did not accept this as reasonable, and the Appellant challenges this finding. [21] I do not agree with the Appellant that the RPD erred in assessing the Appellant's explanation for the BoC omission. As noted in the decision, the Appellant did not have proof of other allegations which were set out in his narrative13. I agree that the explanation fell short and the adverse finding is therefore supported. [22] The credibility of the Appellant's allegation of threat and dismissal by his employer is also undermined by other evidence contained in the record. His sworn Background Schedule14 indicates that he worked at XXXX XXXX XXXX in Belgrade from XXXX 2006 - XXXX 2014, which coincides with his entry to Canada. It does not reflect an early termination. [23] This Appellant's own sworn written evidence is inconsistent with the Appellant's allegation of being threatened on XXXX XXXX XXXX 2011, which ended employment. He states in his narrative: 'The next day I did not show up for work, and got numerous threatening calls from him, saying he will kill me, or that he would find somebody who would be happy to do this for him. I never worked for this man again'.15 [24] The Appellant's continued employment XXXX XXXX XXXX after the alleged altercation in XXXX 2011 is further supported by the reference letter from one of the other XXXX XXXX.16 [25] I find that the Appellant fabricated this work threat and dismissal for allowing an LGBT gathering to bolster his claim. There is insufficient credible evidence establishing the events as relayed and the RPD did not err in drawing an adverse finding. Liberal Democratic Party (LDP) event 2012 [26] The RPD drew an adverse finding on the Appellant's failure to spontaneously recall the third event contained in his BoC narrative17. It was only after prompting by the RPD panel that the Appellant recalled the incident. [27] While the Appellant explained his memory lapse as a misunderstanding about the question being asked, this is not supported on the record: MEMBER: Okay, alright, so were there any other incidents that occurred in Serbia?18 APPELLANT: Yeah, it was like a daily (inaudible) when I was working at my job, I used to have (inaudible) and then at the street it was, you know people there throwing bad words like (inaudible) pink t-shirt on and you have...you are gay, dirty gay. MEMBER: Alright, so did you have any issues, any other incidents where you were threatened in Serbia? APPELLANT: I told you those two big problems that I had, but there was everyday situation of threatening, but nothing...nothing else.19 [28] The Appellant was given several opportunities to address the third violent event alleged in Serbia, yet he did not spontaneously refer to the third incident set out in his narrative, relating to his political activity. Furthermore, the Appellant specifically stated that he had already mentioned his 'two big problems', which further undermines the credibility20 of his evidence of political activity and harassment while XXXX XXXX XXXX for the LDP, the third allegation. Subjective Fear [29] If I understand the Appellant's argument21, the Appellant argues that a subjective fear is not a condition precedent for a successful refugee claim, as an appellant may lack an appreciation of the objective component, or risks that they face. The Appellant argues that the RPD erred in considering the Appellant's subjective fear. [30] As there is no supporting evidence before the RAD to suggest that the Appellant has any cognitive functioning issues, I cannot conclude that he is blind to danger, or not be able to formulate a subjective fear in the face of danger. [31] In fact, the Appellant presents as a resourceful individual, with an established career in Serbia that led to working in Canada. He has a Canadian ex-wife and a son in Serbia and is currently married to a Canadian in Canada22. He had a desire to leave Serbia and after an unsuccessful application for a work permit in France, he secured a work permit for Canada in 2014. [32] As the Appellant has not established that a subjective fear should not be reasonably held by him in the face of danger, it is a relevant consideration in the assessment of his appeal. [33] The Appellant overall has failed to provide sufficient credible evidence of threats, harassment or assaults for his imputed sexual orientation, LGBT advocacy or his political profile in Serbia, and I find that his credibility is further undermined by a lack of subjective fear. [34] Someone who is truly fearful can reasonably be expected to claim refugee status at the first opportunity23 and a delay points to a lack of subjective fear of persecution. 24 While delay is not a determinative issue in the appeal, it is certainly is a relevant factor, and the RPD was correct to consider it. [35] The Appellant was in Canada for two years before he claimed, and out of status and at risk of deportation for five months. The fact that he had not researched the steps to gain protection as a refugee during that period, undermines his genuine fear of harm in Serbia. [36] As also noted by the RPD, further undermining the pivotal events in Serbia was the Appellants delay in departure from Serbia. He alleged persecution in 2010, 2011 and 2012 and did not leave for Canada until 2014. The Appellant attributed his slow departure to his need to research work permit opportunities outside of Serbia. [37] I agree with the RPD that the Appellants explanation for his delay is not reasonable, and his evidence does not support a need to leave Serbia due to persecution. The Appellant has not established a genuine subjective fear. Residual profile [38] The Appellant has failed to establish any residual profile with sufficient credible evidence. [39] The Appellant did not provide sufficient credible evidence that he would face a serious risk of persecution for his imputed sexual orientation; for his advocacy for the LGBT community or as a LDP supporter. He is not a credible witness for all the reasons listed above and this extends to all his evidence, including his XXXX XXXX on the XXXX XXXX. A claimant's contradictory testimony can cast doubt upon the totality of his oral evidence.25 [40] While the Appellant argues that there is no subjective fear element to a claim under s. 97(1), I note subjective fear may be a relevant factor when assessing the truth of allegations of a person who claims to be a person in need of protection under s. 97(1) also, as it goes to the credibility of the allegations.26 [41] Overall, the Appellant has failed to establish that, on a balance of probabilities, he will face a risk to life, a risk of cruel and unusual treatment or punishment, or face a risk of torture on return to Serbia. This is a higher threshold than under section 96 of Immigration and Refugee Protection Act (IRPA) which he has also not met with sufficient credible evidence. CONCLUSION [42] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Elana Rose Elana Rose January 26, 2021 Date 1 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 40, #6(e). 2 Exhibit P-2, Appellant Record, Appellant Memorandum, at p. 51. 3 Exhibit P-2, Appellant Record, Appellant Memorandum, at p. 13. 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 5 Exhibit P-2, Appellant Memorandum, at pp. 36-38. 6 Ibid., p. 26, para 26. 7 Ibid., p. 38. 8 Exhibit P-2, Appellant Record, Appellant Memorandum, at pp. 41, 42. 9 Exhibit P-2, Appellant Record, Appellant Memorandum, at p. 48. 10 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 42. 11 Transcript of (November 7, 2019) RPD Hearing, at p. 27. 12 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 27, para 9. 13 Exhibit RPD-1, RPD Record, RPD Decision, at p. 7, para 31 14 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 41 15 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 28 16 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 58 17 Exhibit RPD-1, RPD Record, RPD Decision, at pp. 7, 8. 18 Transcript of (November 7, 2019) RPD Hearing, at p. 19. 19 Transcript of (November 7, 2019) RPD Hearing, at p. 19. 20 Chen, Xing Kang v. M.C.I. (F.C.T.D., no. IMM-808-00), Gibson, November 29, 2000. 21 Exhibit P-2, Appellant Record, Appellant Memorandum, at pp. 47-48. 22 Transcript of (November 7, 2019) RPD Hearing, at p. 22. 23 Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003. 24 Castillejos, Joaquin Torres v. M.C.I. (F.C.T.D., no. IMM-1950-94), Cullen, December 20, 1994. 25 Dan-Ash v. Canada (Minister of Employment and Immigration) (1988), 93 N.R. 33 (F.C.A.) at 35. 26 Gomez v. MCI, 2010 FC 1041, para 34. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-35647 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français