MB8-20490

RAD File / Dossier de la SAR : MB8-20490 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 Ottawa, Ontario Appel instruit / entendu à Date of decision April 30, 2019 Date de la décision Panel Christina Harrison Baird Tribunal Counsel for the person(s) who is(are) the subject of the appeal Anne Castagner 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 OVERVIEW [1] XXXX XXXX is a citizen of Ghana. He appeals the decision of the Refugee Protection Division (RPD), which rejected his claim. He alleges that if he returns to his country he will be physically harmed because he is a gay man. He fears young men in his community, as well as the Ghana Police, who are said to be investigating his same sex relationship. [2] The determinative issue in this appeal is whether the RPD erred in its assessment of the Appellant's credibility. The RPD found that the Appellant was generally not credible and consequently did not believe any of the allegations in the Basis of Claim. The Appellant argues that the RPD was overzealous in faulting him for leaving an event out of his narrative, and that the evidence he filed should be given greater weight than his silence in the narrative. He also submits that the RPD was wrong to dismiss his supporting letters and medical evidence. The Appellant asserts that his testimony was spontaneous, direct and credible on every central aspect of the claim, and that the RPD's findings were based on peripheral facts. [3] The RPD was wrong in its evaluation of the Appellant's credibility. Therefore the Refugee Appeal Division (RAD) allows the appeal, sets aside the determination of the RPD, and substitutes its own determination that the Appellant is a Convention refugee. ANALYSIS RPD evaluated the Appellant's crediblity incorrectly Appellant did not make a material omission [4] The RPD found that the Appellant omitted a material event from his Basis of Claim when he failed to include the alleged attack on his uncle in his narrative.1 [5] The Appellant testified that anti-gay youth from his neighbourhood came looking for him and attacked his family's home on XXXX XXXX, 2016. He claims that as a result, his uncle was injured.2 The Appellant argues that the RPD was overzealous in faulting him for leaving this event out of his narrative. He explained that the assault on his uncle occurred after he had fled Ghana, and that therefore it did not seem central to his narrative about the reasons for his departure. Moreover, he noted that he provided documentary evidence to corroborate this event. Counsel argues that the RPD should have accorded greater weight to the evidence filed than to the Appellant's silence in the narrative, and that the RPD had insufficient grounds to set aside his allegation. [6] I find that the perceived omission was more apparent than real. Given the corroborative documentation of this event that the Appellant provided in advance of the hearing, it was hardly a last-minute embellishment. While I agree that this information is relevant to the Appellant's prospective risk, I do not find that its omission from the narrative diminishes the Appellant's credibility. RPD was wrong to dismiss certain supporting evidence [7] The RPD found that a police report dated XXXX XXXX, 2016, submitted as corroborative evidence of the assault on the Appellant's uncle, was contradictory to the Appellant's testimony and other corroborative evidence.3 Counsel for the Appellant admits that the police report seems to discuss both the attack on the Appellant's same sex partner ?which occurred in November 2015? and the June 2016 assault, without mentioning the Appellant's uncle.4 I agree with the RPD that the police report seems to "inexplicably conflate" the two attacks, which raises doubts about either the comprehension of the officer taking the report, or the authenticity of the report. In the first case, the report deserves little probative value. In the second, the submission of the report could seriously damage the credibility of the Appellant. On a balance of probabilities, I find it plausible that the Appellant's mother ?who is not educated? received an erroneous report without understanding the problem. Although I find it careless of the Appellant to submit it without himself understanding it, I am not prepared to conclude that the police report or the underlying event is a complete fabrication. [8] The RPD also considered and rejected the Voter Identification Cards provided as support for the corroborative statements from the Appellant's friends and family. The RPD found that their formatting was markedly different from one another, although they purported to be issued around the same time in 2012.5 As to the medical report for the Appellant's uncle following the assault, the RPD mentioned it without making a clear finding about the weight to be accorded it. 6 [9] The Appellant submits that the RPD was wrong to dismiss his supporting letters and medical evidence, and that it was unreasonable to expect him to explain why the Voter Identification cards seemed different from one another.7 I find that the appearance of the Voter Identification belonging to the Appellant's mother is altered by the angle at which the copy was taken. Therefore, I find it is not fair to judge the authenticity of this identification, or the letter appended to it, based on that appearance. In addition, I find that the most current independent evidence on Voter Cards gives no direct support the RPD's conclusion that the appearance of these cards should not vary.8 As to the medical report concerning the Appellant's uncle, I give it weight as corroboration of the testimony from the Appellant and the letter from his mother that the uncle was seriously injured in an attack on XXXX XXXX, 2016. RPD based some credibility findings on peripheral facts [10] The RPD found that the Appellant's credibility was undermined by an inconsistency about how straight men got into his partner's party, by his inability to recite his partner's street address and by an inconsistency about the dates of his participation in an LGBTQ secret society.9 [11] The Appellant asserts that his testimony was spontaneous, direct and credible on every central aspect of the claim, and that the RPD's findings were based on peripheral facts.10 [12] I agree with the Appellant. With respect to the guests at the party hosted by the Appellant's partner, I find reasonable the Appellant's explanation that extra people tagged along uninvited. Furthermore, I find it plausible that in his neighbourhood in Ghana, no strong emphasis is placed on street addresses. Moreover, any middle aged person casting their memory back to a place they knew when they were 15, and attended almost daily for the next 20 years, might find it challenging to give a full street address. I find this was not a valid indicator of the Appellant's credibility. Finally, I acknowledge that the 8-year gap between the Appellant's statements about his participation in the secret organization is strange. Though his explanation may not be entirely satisfactory, it is also not implausible that a person's role within such a group would evolve over time, especially considering the Appellant's youth at the initiation of his same sex activity. Moreover, simply because an Appellant may not be a credible witness regarding all of their allegations of past persecution, does not necessarily undermine the truthfulness of their allegation about their sexual orientation.11 I do not find that the gap negates his testimony that he was a member of this group. RAD finds the Appellant credible [13] Several of the RPD's credibility findings were in error. The Appellant benefits from a presumption that his allegations are true, unless there is good reason to doubt them. I find that there is no good reason to doubt the Appellant's sworn testimony about his sexual orientation.12 I find that the Appellant is generally credible and that he has demonstrated, on a balance of probabilities, that he is gay. Appellant is at risk of harm in Ghana [14] It is clear that to be perceived as a homosexual in Ghana can be humiliating, financially costly, and quite dangerous. Homosexual activity is criminalized and the stigma against diverse SOGIE is strong and deep. The law does not prohibit discrimination based on sexual orientation and gender identity. People in Ghana reportedly are often arrested on the basis of conduct relating to their sexual orientation although they are not violating other laws, and though the arrest often does not result in conviction. Several authoritative sources have reported assaults against gay men and those perceived to be gay, by strangers or by their families, and moreover have reported that such assaults are commonplace and increasing. Extortion is a documented problem. Police are reportedly reluctant to investigate reports of violence against persons of diverse SOGIE.13 [15] I find that, as a gay man and one who has been outed to his neighbours, the Appellant faces a serious possibility of persecution in the form of assault. Since the Appellant is unlikely to be protected by the national police?and may, in fact, be arrested due to his sexual orientation?there is not adequate state protection in Ghana. Given that these conditions prevail throughout the territory of Ghana, there is no internal flight alternative. CONCLUSION [16] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) Christina Harrison Baird Christina Harrison Baird April 30, 2019 Date 1 RPD Reasons, paras. 14?19. 2 Transcript of the RPD hearing on July 18, 2018, pages 4?5, 11?12, and 21?23. 3 RPD Reasons, paras. 20?26. 4 Appellant's Record, Memorandum of Argument, paras. 18?20. 5 RPD Reasons, paras. 27?31. 6 RPD Reasons, paras. 18, 21, 22. 7 Appellant's Record, Memorandum of Argument, paras. 21?25. 8 National Documentation Package for Ghana, March 29, 2019, Tab 3.10. 9 RPD Reasons, paras. 32?42. 10 Appellant's Record, Memorandum of Argument, paras. 26?31. 11 X (Re), 2015 CanLII 43723 (CA IRB), <http://canlii.ca/t/gk9vv>, para. 33. 12 Kandel v. Canada (Minister of Citizenship and Immigration), 2014 FC 659, para. 29. 13 National Documentation Package (NDP) for Ghana, April 30, 2018, Tabs 2.1, 6.1 and 6.5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-20490 6 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 (September 18, 2018) Disponible en français