TB8-09135

RAD File / Dossier de la SAR : TB8-09135 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(s) of Hearing October 31, 2019 Date(s) de l'audience Date of decision November 12, 2019 Date de la décision Panel N. Qadeer Tribunal Counsel for the person who is the subject of the appeal John Cintosun 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] These are my reasons for dismissing the appeal of XXXX XXXX (the Appellant) who is a citizen of Gambia. He appeals the decision of the Refugee Protection Division (RPD), denying his claim for refugee protection. The Appellant claims to face persecution, a danger of torture, a risk to life or a risk of cruel and unusual treatment or punishment if he returns to Gambia on account of his sexual identity, as a gay man. [2] The Appellant asks that the Refugee Appeal Division (RAD) substitute a finding that he is a Convention refugee or person in need of protection. In the alternative, the Appellant asks the RAD to refer the matter back to a different member of the RPD for redetermination. [3] The determinative issue is whether the RPD erred in its credibility findings. DETERMINATION [4] The appeal is dismissed. 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 not a Convention refugee nor a person in need of protection. Background and procedural history [5] The Appellant alleges that he is gay and that his sexual identity was revealed to his family, community, and the police in Gambia. [6] The Appellant alleges that he had a two-year relationship with "XXXX XXXX XXXX." in Gambia. This relationship was discovered by his family and as a result he was beaten and his family attempted to poison him. He was detained on two occasions by the police on account of his sexual identity, in XXXX 2014 and again in XXXX 2015. [7] Fearing for his life he applied for and received a visa to attend school in Canada. He left Gambia in XXXX 2016 and initiated a refugee claim in Canada in July 2017. [8] The Appellant's claim for refugee protection was heard by the RPD on February 26,2018 and denied by the RPD based upon the determinative issue of credibility on March 26, 2018. [9] The Appellant made a number of amendments to his Basis of Claim (BOC) narrative prior to his RPD hearing. Below is a brief account of the procedural history: * The Appellant signed his BOC form July 19, 2017. * Updated narrative received September 6, 2017. * Temporary Resident Visa (TRV) application disclosed to the Appellant and his counsel December 13, 2017.1 * Updated narrative on February 7, 2018. * Updated narrative February 7, 2018 (3rd Amendment). * Amendment to BOC February 19, 2018. * RPD hearing held February 26, 2018. Appellant's Arguments on Appeal [10] The Appellant argues that the RPD erred in its credibility assessment. The Appellant also argues that there is new evidence that I should consider. [11] With respect to the RPD errors the Appellant argues: * That the RPD was microscopic in its assessment of the evidence such as the BOC evidence versus the Appellant's testimony; * The RPD applied a Canadian standard when assessing the Appellant's relationship with "XXXX XXXX XXXX."; * The RPD ignored the psychological evidence in assessing the Appellant's testimony; * The RPD was unreasonable when assessing the Appellant's TRV application; and * The RPD erred in placing no weight on the corroborative evidence such as the letter from the XXXX Community Centre. [12] With respect to the new evidence, after the Appellant perfected his appeal on May 11, 2018, the Appellant later submitted a number of pieces of new evidence, pursuant to Rule 29 of the RPD rules. [13] Under Rule 29 the factors to consider as to whether to allow an application include: the document's relevant and probative value; any new evidence the document brings to the appeal; and whether the Appellant could have provided this as part of the appeal record. [14] New evidence was submitted on August 20, 2018,2 January 24, 2019,3 and February 21, 2019. The new evidence consisted of a letter from a friend whom he met in Canada and is aware of his sexual identity4, and evidence that the Appellant began a same-sex relationship in XXXX 2018 (affidavit and photos). The Appellant requested a hearing pursuant to subsection 110(6). RAD Analysis of the Appeal [15] For this assessment, I have applied the standard of correctness as per the Federal Court of Appeal decision in Huruglica.5 Analysis of the new evidence [16] In my review of the new evidence I find that the new evidence does meet the factors in Rule 29. The new evidence, particularly the evidence of a new relationship that began in XXXX 2018, is highly probative and could not have been provided as part of the appeal record. I accept all of the new evidence. [17] The new evidence also meets the requirements as set out in subsection 110(6). I held a hearing on October 31, 2019. the Appellant was instructed to bring his new partner, "XXXX XXXX XXXX XXXX", to the hearing as witness. "XXXX XXXX XXXX XXXX" attended the hearing and I had the opportunity to question both the Appellant and his partner. In the following analysis, I have not only considered the RPD record but have weighed the evidence in the RPD record with the new evidence. [18] I have listened to the RPD hearing, reviewed the RPD record, and have held a hearing. In my view of the totality of the evidence I find the Appellant is lacking in credibility, on a balance of probabilities. [19] I have not addressed all of the Appellant's arguments as I have found that there are a number of highly probative and determinative pieces of evidence to consider. In some cases, I do find the RPD erred but do not find the errors fatal. The Appellant's evidence that his family rejected him, and he was wanted by the police, is contradicted by evidence in his visa (TRV) application [20] The Appellant submits that the RPD erred when it made unreasonable findings related to his TRV application. In my independent review of the evidence I do not find the RPD erred. While it is accepted in the context of refugee determination that Appellants may engage the services of an agent to facilitate their travel out of Canada, and in the course of this may fabricate documents, the evidence contained in the Appellant's visa application undermines central aspects of his refugee claim. [21] Approximately five months after initially filing his BOC form, the Appellant's TRV application to Canada was disclosed to the Board6. According to the Appellant's BOC he travelled to Canada, applying for a visa in 2016. He indicated that an agent by the name of XXXX XXXX7 assisted him. He indicated that his intent was to come to Canada to study for school: "I tried to apply for XXXX 2016 semester at school but I was too late to apply. I was told I could apply for the following semester."8 [22] He also indicated in his BOC narrative that it was his school in Canada that put him in contact with someone to help him find housing and eventually assist in the refugee claim process.9 [23] The Appellant's visa application indicates that his parents were paying for his schooling at XXXX College in Canada (approximately $29,000 CDN)10. There were a significant number of documents that formed his visa application such as: * Numerous education documents related to his study and work in engineering.11 * A sworn affidavit from his mother indicating she is paying for "tuition fees, accommodation, medical facilities." indicating her support for his attendance to XXXX College. 12 * A photocopy of his mother's passport.13 * Extensive documentary evidence of his mother's business and bank accounts.14 * A police document verifying the Appellant's character and no criminal history.15 [24] It would appear, based upon the visa application, that the Appellant's family fully supported his education in Canada. This undermines the Appellant's evidence in his BOC, and amended BOC, that his parents reported him to the police, where he was detained two times, that his family rejected and isolated him, attempted to poison him, and cut contact. [25] When the Appellant was asked about his visa application he testified that the agent assisted him in obtaining fabricated documents such as "bank statements, business documents." The Appellant testified that while the Canadian college admission documents were genuine, and his school documents were genuine, the letter from his mother and the financial statements, were all fabricated. He testified that he paid for the college himself. He also testified that he stole his mother's passport from her room and photocopied it for the purposes of the visa application. [26] I do not find the Appellant's testimony to be credible. He did not initially indicate that any part of his visa application was false. In fact, his BOC refers to an agent assisting him so he could attend school. He also had described to the RPD panel that when his family rejected him he remained "at the end of the compound". He explained how he managed to live on his family compound without contact with his family. "I was living there alone, I was not associated with them, they cut everything between me and them, whatever they are doing is not of my business, for me like I was concentrating on what I was doing only, they don't involve me in anything." I do not find the Appellant provided a credible explanation as to how he managed to steal his mother's passport for the purposes of his visa application, or why he would do so given the risks he alleged he faced. [27] I also find the Appellant's testimony confusing. On one hand the visa application is fabricated but on the other hand it was a real visa application to attend XXXX College, which he did do. It is unreasonable in my view that the Appellant would take the risks that he did in order to bolster a visa application that already contained fabricated documents. [28] The RPD found that the Appellant only admitted to using fraudulent documents after the TRV was disclosed. In my view the timing of the Appellant's testimony and explanation is critical, I agree with the RPD that the Appellant's explanation that he could not remember this detail at the time is not reasonable. The letter from the Appellant's friend [29] The Appellant indicated that the agent who assisted him in obtaining these documents for his TRV was "XXXX XXXX"16. The Appellant also submitted a letter of support from a friend named "XXXX XXXX"17. The Appellant was asked by the RPD whether the friend and the agent are the same person and the Appellant indicated that they are not. [30] While it was the Appellant's testimony that the name is very common in Gambia, I find it highly unlikely that the agent and the friend who wrote a letter of support have the same name in this circumstance. There are other problems associated with the letter from the friend that lead me to this conclusion. [31] The letter from XXXX XXXX indicates throughout that the Appellant is "XXXX" rather than "gay". In an amended letter,18 XXXX XXXX indicates that this was a mistake. The Appellant was asked about his friendship with Lamin and he testified that when XXXX asked him if he was gay he denied it. The Appellant was asked how, then, did XXXX know he was gay and come to write a letter of support. Here I find the Appellant's testimony confusing and does not resolve this question. The Appellant explained that XXXX learned that he was gay through his parents who confirmed it to XXXX. XXXX letter seems to indicate this but goes further to say "he lost my friendship after I personally learned from the parents."19 The Appellant denied ever telling XXXX about his sexual identity. When asked why his friend, who appears not to support him, would write two letters, the Appellant said he and his friend were one time close but that their friendship changed. This does not explain why this friend would write a letter. [32] I find there are numerous credibility concerns related to the letter, how and why it was issued, problems with the letter itself, and the author of the letter sharing the same name with the agent who facilitated his travel. Considering all of this, I find the letter supporting the Appellant's sexual identity and the events that occurred in Gambia to be lacking in credibility on a balance of probabilities. Appellant's relationship with XXXX XXXX XXXX XXXX [33] The Appellant submits that the RPD erred in its assessment of his past serious relationship with XXXX XXXX XXXX XXXX and his testimony regarding his causal relationships in Canada. The Appellant submits that the RPD applied a Canadian standard in assessing his credibility on these aspects of his claim. [34] With respect to the Appellant's relationship with XXXX XXXX XXXX., the Appellant was unable to state the age or date of birth of his partner of two years. The Appellant described that his was his only same-sex relationship in Gambia and at the time of the RPD hearing had had no other serious relationships. The Appellant also could not recall when they first began dating. I agree with the RPD that these elements are reasonably expected and the Appellant's lack of information on basic aspects of his relationship are lacking in credibility in my view. [35] The Appellant submits that that the RPD erred in its assessment of his attempts to make contact with XXXX XXXX XXXX. after learning XXXX XXXX XXXX XXXX had also been detained by the police, both while in Gambia and in Canada. Here I agree with the Appellant and find that the Appellant provided a reasonable explanation as to why he was unable to make contact with his partner; the Appellant indicated that he himself had just been released from detention and there were inherent risks in seeking out his partner. While I agree with the submissions made by the Appellant I do not find this aspect to be determinative in the appeal. [36] With respect to the Appellant's lack of knowledge about his casual sexual encounters in Canada I find, in applying the Sexual Orientation and Gender Identity and Expression (SOGIE) Guidelines, that such a situation is plausible. SOGIE Guideline 6.1 refers to decision-makers not relying on stereotypes or inappropriate assumptions in adjudicating cases involving SOGIE. In this case the fact that the Appellant cannot recall the name of the men he had sexual encounters with (with the exception of one) is plausible, I agree with the Appellant's submission on this point. Again, however, I do not find this particular area to be determinative in this appeal. This matter is peripheral in my view. Errors in the RPD analysis regarding the Appellant's feelings are not fatal nor determinative [37] The Appellant also submits that the RPD failed to consider the Sexual Orientation and Gender Identity and Expression (SOGIE) Guidelines20 in relation to his explanation regarding how he felt about his sexual identity when he first realized he was gay.21 The Appellant described in his BOC narrative that realizing he was gay caused him distress as it was highly unacceptable in Gambian society and in his family. He did not express this, however, when prompted numerous times by the RPD. The RPD found the Appellant did not express any feeling of distress when asked about his feelings of realizing his sexual identity. Here I find that the Appellant's lack of specificity regarding his feelings can be explained by his anxiety that was referred to in the psychiatric assessment, and the fact that the questioning focused on feelings. I do not agree with the RPD that the Appellant's failure to express the distress in his testimony undermines his credibility. However, as I have analyzed, there are other more significant factors that undermine his credibility and are more central in my view. In my view these errors by the RPD are not determinative in the appeal as they relate to peripheral matters. The Appellant's evidence that he is in a new same-sex relationship is not credible [38] On October 31, 2019 the RAD held a hearing in which the Appellant and his same sex partner, XXXX XXXX XXXX XXXX, attended. The Appellant had submitted that this relationship was new since the rejection of his refugee claim and was central. I agree that the Appellant's same-sex relationship in Canada is central to the question of the Appellant's sexual identity, which is determinative. [39] The Appellant was asked numerous questions related to his relationship with XXXX XXXX XXXX XXXX He testified that they met at the XXXX Community Centre "XXXX XXXX" group in XXXX 2018 and they began a relationship in XXXX 2018. The Appellant's partner testified to the same timeline. While there were areas where both the Appellant and his partner were consistent, I find that areas that would reasonably elicit similar responses if the Appellant and XXXX XXXX XXXX XXXX were in a true same-sex sexual relationship were lacking in consistency and therefore credibility. [40] For example, the Appellant testified that he often sees XXXX XXXX XXXX XXXX on weekends and that XXXX XXXX XXXX XXXX normally comes to his house, or they go out to clubs. He testified that XXXX XXXX XXXX XXXX spends the night at his house approximately once every month. When XXXX XXXX XXXX XXXX was questioned on this, XXXX XXXX XXXX XXXX did say he sleeps at the Appellant's on occasion but that "most of the time he (the Appellant) comes to my house." The Appellant testified that XXXX XXXX XXXX. lives with a co-worker, "XXXX" and another man. XXXX XXXX XXXX XXXX indicated that he lived with seven other people, which was not the evidence from the Appellant. [41] In another instance, the Appellant was asked whether any of their mutual friends know of their same-sex relationship. The Appellant listed a number of his friends whom XXXX XXXX XXXX XXXX knows. He testified that only one friend, "XXXX," knows that they are in a same-sex sexual relationship and that no other friends know of their relationship. While XXXX XXXX XXXX XXXX identified XXXX as a friend as well, XXXX XXXX XXXX XXXX was clear that no friends of theirs knew of their same-sex relationship and that they never discuss their relationship with their friends. [42] The Appellant's partner is also Gambian and also a refugee claimant. The Appellant was unaware of whether XXXX XXXX XXXX XXXX had had any same-sex relationships with men in Gambia prior to coming to Canada. XXXX XXXX XXXX XXXX contradicted the Appellant's testimony indicating that he had discussed his past same-sex relationship in Gambia with the Appellant. XXXX XXXX XXXX XXXX indicated that he was in a two-year relationship with a man in Gambia prior to coming to Canada. [43] The Appellant was asked if his relationship with XXXX XXXX XXXX XXXX was exclusive or have they agreed to date or see other people while together. The Appellant indicated that they are exclusive and do not date anyone else. When XXXX XXXX XXXX XXXX was asked this same question, his testimony evolved. I asked him if they only see each other exclusively and XXXX XXXX XXXX XXXX said, "No we are allowed to see other people". When counsel for the Appellant asked XXXX XXXX XXXX XXXX if they have agreed to date others XXXX XXXX XXXX XXXX said, "Yes we are allowed to date other people." When the counsel for the Appellant again asked but this time specifying whether they can have sex with others XXXX XXXX XXXX XXXX XXXX testimony changed and he said "no only each other." [44] In my view the Appellant and XXXX XXXX XXXX XXXX know each other and I accept that they met at an event at the XXXX Community Centre. However, the question as to whether they are in a same-sex sexual relationship is lacking in credibility. They were unable to consistently testify as to whose house they regularly go to, whether any friends know of their relationship, the situation at their respective places of residence, past history of same-sex relationships, and their status in the relationship related to exclusivity. In my view these inconsistences are central and determinative. [45] In considering the new evidence of a same-sex relationship, I find that the relationship is lacking in credibility, on a balance of probabilities. Associated evidence does not overcome the numerous credibility concerns [46] The Appellant submits that the RPD erred in not considering the psychiatric assessment. I disagree with this submission. The RPD specifically demonstrated that it considered it. The Appellant's evidence is a letter from the Canadian Centre for Victims of Torture which was authored by a psychiatrist. The letter indicates that the Appellant is distressed and anxious at times but "does not have a mental health diagnosis."22 It is unclear from the Memorandum what other considerations the RPD was expected to do in such circumstances. [47] The RPD also considered the corroborative evidence from the XXXX Community Centre,23 and photos of the Appellant24. I have also considered these as well as the new photos and new letter from a friend here in Canada.25 While the Appellant submits that these outweigh the credibility findings, I do not agree with this submission. I have considered the totality of the evidence and have heard directly from the Appellant. I find there are numerous credibility concerns that undermine the credibility of the Appellant's claim that he is gay and has had same-sex relationships in Gambia and Canada that have led to his arrest, family rejection, and reason to claim refugee protection in Canada. While I accept that the Appellant attended Lesbian Gay Bisexual Trans and Queer (LGBTQ) organizations in Canada, I do not find that this evidence outweighs the credibility findings I have made. This evidence is based upon the self-reporting of the Appellant to various entities such as the XXXX Community Centre and the psychiatrist. I do not accept that it is more probable than not that the Appellant is gay based upon his self-reporting. Analysis extends to both section 96 and 97(1) [48] The panel acknowledges that members of the LGBTQ community are persecuted in Gambia. However, it has been held that where a claimant has not credibly established a profile belonging to a class of at-risk persons, that risk cannot be based on the basis of general country documentation alone. There is insufficient independent and credible evidence to support a positive decision under sections 96 or 97(1) of the IRPA. The appeal is dismissed. CONCLUSION [49] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "N. Qadeer" N. Qadeer November 12, 2019 Date 1 Exhibit RPD-1, RPD Record, Exhibit 4, pp. 114-191. 2 Exhibit P-3, Rule 29 Application, Received August 20, 2018. 3 Exhibit P-4, Rule 29 Application, Received January 24, 2019. 4 Exhibit P-5, Rule 29 Application, Received February 21, 2019. 5 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 6 Exhibit RPD-1, RPD Record, Exhibit 4, pp. 114-191. 7 Exhibit RPD-1, RPD Record, Exhibit 1, Schedule 12, question 7, at p. 66. 8 Exhibit RPD-1, RPD Record, Exhibit 2, Basis of Claim narrative, at p. 25. 9 Ibid., at p. 26. 10 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 117. 11 Ibid., pp. 129-159. 12 Ibid., at p. 161. 13 Ibid., at p. 163. 14 Ibid., at pp. 164-186. 15 Ibid., at p. 128. 16 Exhibit RPD-1, RPD Record, Exhibit 1, Schedule 12, question 7, at p. 66. 17 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 230, 18 Exhibit RPD-1, RPD Record, Exhibit 9, at p. 266. 19 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 230. 20 Chairperson's Guideline 9: Proceedings Before the Immigration and Refugee Board of Canada Involving Sexual Orientation and Gender Identity and Expression (SOGIE) (1 May 2017). 21 Chairperson's Guideline 9: Proceedings Before the Immigration and Refugee Board of Canada Involving Sexual Orientation and Gender Identity and Expression (SOGIE) (1 May 2017). 22 Exhibit RPD-1, RPD Record, Exhibit 7, at p 257. 23 Exhibit RPD-1, RPD Record, Exhibit 7, at pp. 250-254. 24 Exhibit RPD-1, RPD Record, Exhibit 6, at pp. 235-248. 25 Exhibit P-5, Rule 29 Application, Received February 21, 2019. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-09135 RAD.25.02 (April 04, 2019) Disponible en français 15 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 (April 04, 2019) Disponible en français