MB9-05704

RAD File / Dossier de la SAR : MB9-05704 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 Montreal, QC Appel instruit / entendu à Date of decision March 11, 2021 Date de la décision Panel Me Richard Sheitoyan Tribunal Counsel for the person who is the subject of the appeal Me Jeffrey Platt 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] I dismiss this appeal. XXXX XXXXis a citizen of Haiti alleging persecution based on his bisexuality. He obtained Brazilian permanent residency after moving there in XXXX 2013. Moving to the United States in XXXX 2016, he left for Canada to present his claim on XXXX XXXX XXXX 2017. [2] At the onset, the Refugee Protection Division (RPD) raised the possibility of Mr. XXXX exclusion by the combined effect of Section E of Article 1 ("Article 1E") of the United Nations Convention Relating to the Status of Refugees ("Convention") and s. 98 of the Immigration and Refugee Protection Act (IRPA). The Minister of Immigration, Refugees and Citizenship Canada declined the RPD's invitation to intervene stating it had no information confirming his immigration status in Brazil. Upon analysis, the RPD concluded he was not excluded by the combined effect of Article 1E of the Convention and s. 98 of IRPA. [3] However, it concluded the Appellant is neither a Convention refugee nor a person in need of protection given credibility issues raised by numerous contradictions, omissions and incoherencies identified as: - important facts about his XXXX XXXX XXXX 2013 kidnapping not mentioned in his Basis of Claim form (BOC) and intimately linked to his reason for leaving Haiti; - lack of evidence supporting his claim about his lover being assassinated or his relationship in Haiti; - failure to indicate in his BOC the nature of the threats received in Brazil in relation to his relationship with a fellow male co-worker nor any fears pertaining to his sexual orientation in Brazil. [4] The Appellant's memorandum submits the RPD erred in that: - the substance of the claim of fear of persecution has not been altered by the omission of information pertaining to the police complaint filed by his mother about actions and threats made by a neighbour involved in his kidnapping; - the presumption of truthful testimony cannot be overridden by the absence of evidence; - the failure to indicate fear of persecution in Brazil based on his sexual orientation in his BOC does not fundamentally alter the substance of the claim. [5] Furthermore, the Appellant submits new evidence namely: - A declaration from his sister dated March 18, 2019 and signed the following day; - declarations from his parents and brother dated March 15, 2019; - copy of XXXX XXXX death certificate dated XXXX XXXX, 2012. [6] The determinative issue is credibility. DECISION [7] I dismiss the appeal and confirm the decision of the RPD, for other reasons, that the Appellant is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE The evidence presented by the Appellant is rejected [8] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that could not reasonably have been expected in the circumstances to be brought to the RPD before the decision. [9] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.2 [10] The three statements provided by the Appellant's parents, brother and sister are all dated after the decision was rendered. They do not constitute new evidence as they refer to events which the Appellant testified to without any elements that could be considered new. I cannot accept them. [11] The copy of XXXX XXXX death certificate predates the RPD decision. It was reasonably available at the time of the decision. It would reasonably have been expected to be submitted before the RPD decision principally as it pertains to an important element of the Appellant's claim. I cannot accept it. ANALYSIS [12] My role is to look at all the evidence and decide if the RPD made the correct decision.3 Substance of the claim unaltered by the omitted information a- Kidnapping [13] The RPD notes the Appellant's testimony concerning his kidnapping mentions: - having identified one of his kidnappers as a neighbour; - a police report having been filed by his mother; - having received death threats from the individual for having tarnished his reputation; - having fled Haiti because of these threats. [14] It notes the narrative fails to mention the filing of a police report by his mother and the death threats by the neighbour in question. When pressed as to the reason for this, the Appellant claims having excluded it to limit the narrative's length. Questioned on his failure to mention the incident where the neighbour tried to set fire to their property, he denies this incident, recounted in the police report, as never having happened. [15] The RPD finds these omissions important elements at the essence of the reasons which lead to his departure. It concludes from this it does not believe the Appellant was kidnapped, threatened or that his parent's home was set afire whilst giving no probative value to exhibits P-4 (property sales receipt) and P-5 (police report). [16] The fear of persecution raised by the Appellant is apparently exemplified by the experience he lived. Important elements of the incident in question are not indicated in the narrative and, more importantly, some of the facts contained in the evidence submitted to prove the incident are denied by the Appellant as having occurred. The conclusion reached by the RPD as to the Appellant's credibility considering this incident is correct. b- Sexual orientation [17] The RPD finds the Appellant's testimony concerning his sexual orientation lacking in credibility, noting important contradictions and omissions between his testimony and his narrative. [18] He is unable to provide any documentation evidencing his lover's death nor the relationship which lasted some two years. The RPD concludes the absence of evidencing documents and the lack of efforts to obtain any, negatively impacts the Appellant's credibility concerning the death, their relationship as well as his sexual orientation. [19] It also notes the Appellant's narrative fails to indicate his problems in Brazil resulting from a romantic homosexual relationship with a co-worker. The Appellant's response was that he thought the mention of having been threatened in Brazil was sufficient. [20] The Appellant's memorandum pleads information omitted from the BOC and narrative does not affect the substance of the claim's basis of fear of persecution tied to the Appellant's bisexuality. It is the reason he would have been kidnapped and why he would have encountered difficulties during his stay in Brazil. [21] Now the RPD correctly concluded to the Appellant's lack of credibility concerning the kidnapping. It concluded to his lacking credibility about his sexual orientation for non-exhaustive reasons subsequently exposed. The Appellant's memorandum acknowledges his credibility would have been enhanced had the issues raised by the RPD been set out in the BOC. However, he contends that its omission does not undermine it to the point of being fatal to the claim. [22] The elements set out in the RPD decision and on which its conclusion regarding credibility of the Appellant's sexual orientation is founded is anemic. Although the RPD does indicate the reasons invoked in support of its conclusion are non-exhaustive, I find they are insufficiently laid out in the decision to support the conclusion. [23] Considering the cultural considerations of sexuality in Haiti, absence of proof of a relationship such as pictures or letters between the Appellant and his lover would not strike as uncommon. Furthermore, producing proof of his lover's death would not provide any additional evidence proving their relationship. [24] I do, however, concur with the RPD that failure to indicate difficulties related to a homosexual relationship in Brazil is noteworthy. Claiming a generic phrase in his narrative about bad treatments being sufficient to justify not mentioning incidents directly tied to his sexual orientation is unsatisfactory. [25] Reviewing the hearing, I concur with the RPD's decision concerning, on a balance of probability, the Appellant's lack of credibility. There are numerous issues not specifically addressed in the RPD decision but seemingly encompassed in the allusion stating its reasons are non-exhaustive. The existence of a bisexual sister [26] With regards to his situation in Haiti, the Appellant failed to mention he had a sister who was equally bisexual and who had encountered issues with violence because of this. His sister and he followed a similar path that led them here, arriving shortly one after the other. [27] Confronted as to the reason for not mentioning her prior to the hearing, the Appellant at first indicates it was done to avoid prejudicing her asylum claim. Speaking of his sister near the end of the hearing, he explains she is the eldest and from an early age had spoken of her identity. This gave her parents firsthand experience navigating questions as to their child's sexual identity. When confronted as to why this was not mentioned in the narrative, the Appellant responds that it was not done because it would have taken too much space. [28] The explanation for not having mentioned his sister's issues from the onset, once the Appellant decided to make his amendment to include her, undermines his credibility for several reasons. [29] First, the Appellant choosing to amend his BOC entails putting forth all necessary correlated amendments. That he chose not to do so, at the onset of the hearing, knowing that his sister's story was like his, cannot be explained away by a desire to limit the extent of his narrative. [30] Second, even if the initial motive for not having mentioned her in his forms can be understandable, such a concern ceased being an issue the moment he made his amendment. Furthermore, once the amendment had been carried out, it would have been expected that in addition to mentioning his sister's situation, he would have highlighted this information when testifying to his own experience. [31] For example, when asked about the family's reaction to his sexual identification, no mention was made of their previous experience in such matters with his elder sister. When testifying about the stigma that bisexuals face in Haiti, it would have been expected that his personal experience with someone in his own family would have been mentioned. [32] At numerous times throughout the hearing, the Appellant had the opportunity of mentioning his sister's experiences to complement those he claims to have been subjected to. Having failed to do so, without any logical explanation greatly affects his credibility. [33] Also, notable is the fact that after having amended his BOC to include his sister, he indicated the rest was complete and truthful. It appears from the information gleaned during the hearing that he in fact omitted to mention that his sister lived in Brazil at the time of his relocation and that he actually stayed with her once he arrived. [34] The Appellant's lack of credibility is derived from numerous elements which the RPD did not discuss. To allow for transparency of motives, I consider the RPD decision to be incomplete as it does not provide the Appellant with sufficient understanding of the reasons that lead the RPD to consider a lack of credibility concerning his sexual orientation. [35] Chairperson's Guideline 94 reminds us material omissions from testimony of significant events or details relating to the life of an individual with diverse SOGIE may support a negative credibility assessment if there is no reasonable explanation for the omission. Decision-makers should examine whether there are cultural, psychological, or other barriers that may reasonably explain the omission. [36] In the case at hand, the family had prior experience with the exact issue of sexual identity. Although cultural barriers do exist, I do not consider it a factor in this case given the prior experience. Nothing has been put forth to indicate any psychological barriers. Understandably, great latitude is given to claimants alleging SOGIE issues. In this case, it would appear from his family's experience and the way the news of his identity was received that there is a distinct attitude than that which is culturally believed to be. [37] In this instance, the Appellant's testimony clashes with the personal experiences he claims to have lived. On the one hand, his family has an alleged history of dealing with such a sensitive issue. In this context, the Appellant already has an appreciation of the kind of reactions those around him would have. His assessment that being found out by his family would have destroyed the family clashes substantially with his family experience. [38] Taken as a whole, the Appellant's credibility is greatly undermined. Concerning his kidnapping, his narrative fails to mention an important event such as the filing of a police report, and persistent threats from the neighbour. Furthermore, the police report submitted as evidence mentions an event which the Appellant himself denies as having happened. [39] The Appellant's alleged kidnapping and eventual departure from Haiti would be tied to his bisexuality. Having found the kidnapping's occurrence not credible, the attention turns to the allegation of sexual orientation. [40] The Appellant's failure to mention his sister and subsequently, after having amended his declaration, their shared experience goes to the core of his claim. Having kept it under wraps undermines the credibility of his allegation of bisexuality. The experience of a sibling, known to all as it had been outwardly stated from a young age, changes the context of the Appellant's awareness, the family's reaction, and their position on this issue as such. [41] Keeping silent on these details along with the entire Brazilian experience cannot be simply justified by a desire to limit the length of the narrative, especially when he is clearly asked to mention all necessary details. [42] For these reasons, I concur with the RPD that, on a balance of probabilities, the Appellant lacks credibility concerning his stated sexual orientation and as such is neither a Convention refugee nor a person in need of protection. CONCLUSION [43] I dismiss the appeal and confirm the decision of the RPD, for other reasons, that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Me Richard Sheitoyan Richard Sheitoyan March 11, 2021 Date RS/lp 1 Subsection 110(4) of the IRPA. 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 4 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-05704 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