TB7-16454

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 No. / N° de dossier de la SAR : TB7-16454 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, Ontario Appel instruit à Date of decision September 20, 2018 Date de la décision Panel D. Goff Tribunal Counsel for the person(s) who is(are)the subject of the appeal Anton Brunga Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX, a citizen of Albania, appeals a decision of the Refugee Protection Division (RPD), rejecting his claim for refugee protection. The appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and substitute a positive determination or refer the matter back to the RPD for redetermination. He has not submitted new evidence and has not asked for an oral hearing. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (the "Act"), 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. BACKGROUND [3] In January, 2017, the appellant travelled to Canada with the fraudulent use of an Italian passport containing his photograph in the name of "XXXX XXXX".1 Upon questioning by border officials, the appellant provided a different passport containing his photograph in the name of "XXXX XXXX," citizen of Albania.2 He indicated this was his true identity. He then initiated a claim for refugee protection against Albania based upon his sexual orientation as a gay male. [4] The Minister of Immigration, Refugees and Citizenship Canada ("Minister") intervened in the matter and cited concerns with the appellant's credibility.3 [5] The appellant's hearing before the RPD was held over three days on March 24, 2017; April 10, 2017; and, May 15, 2017. [6] By a decision dated August 2, 2017, the RPD rejected the claim finding that the appellant and his allegations were not credible. [7] The appellant argues the RPD erred in the following ways: a. By drawing a negative inference because the appellant did not produce any documents related to his asylum claim in Germany; b. By discounting the appellant's evidence corroborating his claim because he had used false passports in his attempts to flee to Canada; c. By drawing a negative inference because of some inconsistencies in his documents and failing to consider his explanations for such genuine mistakes; d. And, in its other credibility findings and that the appellant lacked a subjective fear.4 [8] Having carefully reviewed the record, the RAD is not persuaded the RPD erred. The RPD correctly concluded the appellant failed to credibly establish his claim. ANALYSIS The Role of the RAD [9] Pursuant to the Federal Court of Appeal's (FCA) decision in Huruglica,5 the RAD is to review the RPD's findings of law, fact (and mixed fact and law), which raised no issue of credibility of oral evidence, applying the correctness standard. [10] In assessing the credibility of oral evidence, the RPD may have a meaningful advantage. In this regard, the Court has reiterated that "significant deference is due to the findings of a tribunal"6 recognizing that "the role of this Court is a very limited one because the tribunal had the advantage of hearing the witnesses testify, observed their demeanor and is alive to all the factual nuances and contradictions in the evidence".7 [11] The role of the RAD as a specialized appeal tribunal is to review the RPD's credibility findings on a standard of reasonableness that has been modified/expanded to apply to the RAD context. The RAD is to show deference, while also considering both the process and the outcome of the RPD's findings. In other words, the RAD must be satisfied the RPD's credibility findings are a result of a comprehensible reasoning process and based upon the evidence.8 [12] The RAD notes the appellant in his memorandum has resubmitted many of the same submissions he already presented to the RPD. However, the role of the RAD is not a "second chance" to present submissions. Further, the role of the RAD is not to reweigh the evidence in the appellant's favour. The appellant has already enjoyed a full hearing of his claim, which spanned three days before the RPD. The onus is now on the appellant to provide full and complete submissions demonstrating how the RPD erred. He has not done so. The RAD has nevertheless independently reviewed the evidence and addressed the appellant's submissions, as follows. [13] The RAD also notes that, on May 1, 2017, the Chairperson of the Immigration and Refugee Board issued Guideline 9, Proceedings before the IRB involving Sexual Orientation and Gender Identity and Expression ("SOGIE Guideline").9 As elaborated in the SOGIE Guideline, the assessment of credibility in a case involving sexual orientation may be more difficult than in other cases. The RAD is bound by it; consequently, it has informed the RAD's analysis. The RPD Findings [14] The onus is on the appellant to establish his claim for protection. The RPD determined the appellant was not a credible witness and failed to establish with sufficient trustworthy and credible evidence his allegations, including his sexual orientation. The RPD had cumulative credibility concerns and determined the appellant and his allegations were not credible. Lack of Corroborating Documents from Germany [15] In October 2015, the appellant initiated and then abandoned a refugee claim in Germany. [16] Prior to the appellant's hearing, the Board requested that the appellant provide a copy of his German asylum documents. He did not do so. At the hearing, the RPD accordingly asked the appellant why he did not provide any documents from Germany and to explain his efforts to obtain them. The appellant responded that he made no efforts. The RPD asked the appellant to explain why he had not contacted or written any German offices requesting his documents. The appellant responded, "It did not come to my mind"10 and/or "I do not know".11 The RPD did not find the appellant's responses to be reasonable and took a negative inference as to his credibility. [17] The appellant argues the RPD erred because any efforts to obtain documents would have been fruitless because of his "almost untraceable refugee claim".12 He further suggests the Board, as a governmental authority, should have requested the documents itself from Germany. [18] Having independently reviewed the evidence, the RAD does not find the appellant's arguments to be persuasive. The appellant alleges he has had numerous interactions with German authorities. For example, he was allegedly caught by German police on multiple occasions. By his own evidence, he sought refugee protection and was sent to a refugee camp by German authorities. However, he voluntarily left the refugee camp and resided in various hotels. He then acquired a non-genuine Italian passport and boarded a plane from Germany to Canada. He was caught (again), fingerprinted, and deported by German authorities. He was also issued an expulsion order barring him from entering any European Union country for five years.13 [19] The appellant's failure to provide any documents whatsoever from Germany, including documentary evidence of his immigration status, identity or any alias in Germany, and asylum records, as well as his lack of any efforts to do so, added to the RAD's own concerns with the appellant's credibility and that of his allegations of persecution, including the alleged timeline of events. The RAD accordingly finds no error in the RPD's finding. The RAD further notes the onus is on the appellant - not the Board - to establish his claim with trustworthy and credible evidence. The failure to do so is a valid consideration in assessing the credibility of the claim. Repeated Ability and Willingness to Circumvent Immigration Processes [20] The appellant lived and worked in Italy between 2002-2010, inclusive. He resided there without valid status for five years after his work permit expired in 2005. He similarly lived and worked in Montenegro for several years without valid status between 2010-2016. Furthermore, the appellant has had access to and utilized at least four different non-genuine Italian passports. He has also successfully entered various countries in the European Union despite an expulsion Order banning him from doing so. [21] The RPD determined the appellant's lengthy history of circumventing the immigration processes of multiple countries, as well as his repeated use of fraudulent identity documents, negatively affected his credibility and that of his documents. The RPD further acknowledged that while it could be that a refugee claimant's disregard for immigration processes may be because he is desperately trying to flee their home country, this did not make sense in light of the facts of this particular claim i.e., the appellant lived and worked illegally in Montenegro for almost seven years after his many years living and working in Italy. [22] The appellant argues the RPD erred in drawing any negative inference because the false identity documents were used to try to travel to Canada. He therefore argues the RPD should have given his documents more weight. [23] Having independently reviewed the evidence, including the transcripts from the three separate hearing dates, the RAD does not agree with the appellant's argument. The RAD further notes the RPD is presumed to have taken all the evidence into account, and there is nothing that suggests the RPD did not consider the appellant's evidence. Indeed, it is clear to the RAD that the RPD considered and assessed many factors in assessing the credibility of this appellant, his allegations and his documentary evidence. [24] For example, the RPD asked the appellant to explain clear inconsistencies within his testimony, as well as inconsistencies between his testimony, his documents, and his earlier statements made at the port of entry. [25] The RPD similarly asked the appellant to explain the source and circumstances of how he obtained his documents, as well as putting to the appellant to explain how/why the documents and birth certificates from different affiants were issued on the exact same date.14 [26] As such, the RPD clearly considered a number of factors in assessing the credibility of the appellant and his evidence. Accordingly, based upon the particular circumstances of this claim, the RAD finds the appellant's repeated history of circumventing immigration processes and his access to and use of multiple fraudulent identity documents, are valid and relevant considerations in assessing the appellant's credibility, his allegations, and the credibility of his documents purportedly from Albania. [27] Moreover, the RPD's analysis and the minimal weight given to the appellant's documents are in accordance with settled law; particularly that when a general negative credibility finding is made, it is open for the RPD to give low probative value to other documents. As stated by the courts: [C]onsequently, in my opinion, the applicant's assertion that the Board is bound to analyze the documentary evidence "independently from the applicant's testimony" must be examined in the context of the informal proceedings which prevail before the Board. Once a Board, as the present Board did, comes to the conclusion that an applicant is not credible, in most cases, it will necessarily follow that the Board will not give that applicant's documents much probative value, unless the applicant has been able to prove satisfactorily that the documents in question are truly genuine. In the present case, the Board was not satisfied with the applicant's proof and refused to give the documents at issue any probative value. Put another way, where the Board is of the view, like here, that the applicant is not credible, it will not be sufficient for the applicant to file a document and affirm that it is genuine and that the information contained therein is true. Some form of corroboration or independent proof will be required to "offset" the Board's negative conclusion on credibility.15 [28] The RAD further had its own concerns with the appellant's untested documents purportedly from Albania. For example, his alleged letters from XXXX16 and his friend "XXXX"17 were not sworn to, witnessed, nor notarized. Moreover, XXXX's letter and his birth certificateXXXX XXXX birth certificate, and the purported statement from a police station in Albania18 were all dated on the same date: February 17, 2017. A letter purportedly from a LGBT organization in Albania is dated on February 16, 2017. The RAD is unable to verify the authenticity of this untested letter. The RAD does however note concerns with the letterhead, including incorrect spacing and varying capitalizations of its website and email addresses. Accordingly, for all of the above reasons, including the appellant's willingness and ability to obtain a number of fraudulent documents, the RAD finds it was open for the RPD to give little weight to the appellant's documents. The RAD similarly does not find the appellant's orientation documents from the 519 Community Centre newcomer orientation program19 to be persuasive in terms of establishing his allegations, particularly that of his sexual orientation. Mere membership in a community organization does not establish sexual identity nor does it overcome the credibility issues in the appellant's claim. Moreover, the RAD notes the appellant has not provided any letters written by the organization supporting his claim for protection and/or corroborating his sexual orientation. Inconsistencies in Evidence: Statements at Port of Entry vs Basis of Claim form (BOC)20 [29] There were other credibility concerns with the appellant's evidence, including as detailed in the Minister's Notice of Intent to Intervene.21 For example, the appellant's allegations as detailed to immigration officials at the port of entry were inconsistent with his allegations as contained in his BOC narrative. The RPD accordingly asked the appellant to explain the very clear inconsistencies in his evidence, including different dates for the alleged incident in which gunfire was shot outside his residence, different versions of how he acquired the Italian passport he used to travel to Canada, and different versions of whether he was gay or "liked both men and women". The appellant variously responded that the immigration officer, interpreter, and/or that he, himself, made mistakes because he was tired. [30] The RPD did not find the appellant's responses to be reasonable under the circumstances and took a negative inference as to his credibility. [31] The appellant argues the RPD was microscopic and the issues were "small discrepancies".22 He also reiterates he was tired at the port of entry. [32] Having independently reviewed the evidence, including the transcript of proceedings, the RAD does not agree with the appellant's argument. The appellant's evidence was clearly inconsistent. Moreover, these were not minor or "small discrepancies", but rather inconsistencies that went to the heart of his allegations and the circumstances of when and how he acquired his non-genuine Italian passport to travel to Canada. The RAD further does not find persuasive the appellant's explanation that the problems in his evidence were due to his fatigue at the port of entry. The RAD notes the appellant was interviewed by different immigration officials; the interviews were carried out over two days; and, the interviews were spaced apart by three days. The RAD accordingly finds no error in the RPD's negative credibility findings for the clearly inconsistent evidence and the lack of any reasonable nor credible explanation. Inconsistencies in Evidence: Oral Testimony vs BOC Narrative [33] There were other inconsistencies in the appellant's evidence, including his testimony as compared to his BOC. For example, the circumstance of how the appellant's sexual orientation was revealed to his family was different in his BOC versus his testimony. In response to questions from the RPD asking him to explain these issues, the appellant responded he must have been tired. [34] The RPD noted the appellant completed and swore the contents of his BOC to be complete, true and correct two weeks after his arrival to Canada. Accordingly, the RPD did not find the appellant's explanation that he was tired to be reasonable nor credible i.e., that he was so tired when he completed his BOC that he forgot that it was actually a family member rather than "some guys" that discovered his sexual orientation. The RPD concluded the inconsistent evidence undermined the appellant's credibility and the credibility of his allegations. The appellant has not challenged this finding. The RAD sees no error in the RPD's analysis or finding. Apparent Lack of Subjective Fear [35] As outlined above, the appellant travelled to many different countries and resided outside of Albania for significant periods of time. The RPD accordingly asked the appellant to explain why he did not seek protection earlier and elsewhere; why he abandoned his refugee claim in Germany; and, why he re-availed to Albania so many times particularly after living freely as a gay man in Italy for eight years. The appellant responded he was forced to return to Albania and that Albanians are not given protection by countries in Europe. [36] The RPD did not find the appellant's responses to be reasonable and determined his behaviour undermined his subjective fear as well as the trustworthiness of his claim that he is gay. [37] The appellant argues the RPD erred because he was forced to return to Albania and no countries in the European Union provide protection to Albanians. The appellant has simply re-submitted the same submissions made to the RPD. He has not demonstrated how the RPD erred. [38] Nevertheless, having independently reviewed the evidence, the RAD is not persuaded by the appellant's submissions. By his own evidence, the appellant has travelled extensively to many different countries. Yet, he always returned to Albania. He further abandoned his refugee claim in Germany. The appellant's behaviour is a valid consideration in assessing his subjective fear and the credibility of his allegations of persecution. In this regard, the RAD notes the appellant is not unsophisticated. He is very well-travelled. He clearly has family, connections and resources to travel to and reside in different countries outside of Albania. Accordingly, while not determinative on its own, the appellant's behaviour i.e., his failure to seek protection elsewhere, his abandonment of his refugee claim in Germany, and his repeated return to Albania, evidences a lack of subjective fear and adds to the RAD's own concerns with the appellant's credibility and that of his allegations of persecution based upon his sexual orientation. The RAD accordingly finds no error in the RPD's finding. Alleged same-sex relationship with XXXX [39] The RPD found the appellant's testimony about XXXX to be very vague, especially considering they were in love and allegedly in a relationship for approximately seventeen years and having known each other for even longer as high-school classmates. The RPD further noted inconsistencies in the appellant's evidence about XXXX XXXX including his role in procuring the appellant's fraudulent Italian passport(s) and his current whereabouts i.e., he is in hiding and has fled the country vs he is engaged to marry a woman and is settling down in Albania. The RPD concluded the appellant failed to establish with sufficient trustworthy and credible evidence his relationship with XXXX. [40] The appellant argues the RPD erred because the panel member's questions were generic and therefore his responses were generic. He further argues the RPD should have been more sensitive and considered his emotional circumstances and personal characteristics. [41] The RAD is not persuaded by the appellant's arguments. The RPD asked the appellant many questions at his hearing. This questioning extended to three days of testimony. The RPD had the opportunity to test the appellant's credibility and clearly did so. As such, the RPD considered more than simply the appellant's "generic" testimony. Indeed, the appellant's testimony about Fatlum was vague and his evidence inconsistent. [42] The appellant's alleged romantic relationship with XXXX dated back to 2002 and spanned Albania, Italy and Montenegro. The RAD therefore finds it was open to the RPD to impugn the appellant's credibility when he was unable to provide greater detail in his testimony when asked to describe XXXX and their long-term relationship together. [43] Moreover, the RAD did not find the appellant's explanation for the inconsistencies in his evidence about XXXX to be persuasive i.e., that the immigration official and interpreter made mistakes and he was also tired when answering their questions. As noted by the RPD, the relevant interviews between the appellant and immigration officials containing "mistakes" and inconsistencies occurred three days after his arrival to Canada. Further, the immigration official's interview notes are detailed in the appellant's responses and also indicate the appellant acknowledged understanding the interpreter. Accordingly, the RAD finds no error with the RPD's analysis in considering the appellant's vague responses and inconsistent evidence in finding the appellant had failed to credibly establish his alleged romantic relationship with XXXX. [44] Finally, there is no evidence before the RAD that the RPD failed to assess the appellant's allegations with sensitivity and an awareness of the particular obstacles he might face in presenting his claim. For example, there is no evidence the RPD erred in its credibility analysis by relying on stereotypes or that it failed to consider the challenges faced by individuals with diverse SOGIE in establishing their sexual orientation. In this regard, the inconsistencies in the appellant's evidence highlighted by the RPD were not based on stereotypes or inappropriate suggestions. The RPD further provided specific reasons why the appellant's vague testimony and inconsistent evidence supported a negative credibility finding. The RAD also notes the appellant's vague testimony was not about intangible issues, such as in response to questions about his feelings or sexual identity. Rather, the questions being asked of him were to respectfully elicit details about the alleged incidents forming the basis of his claim, as well as about his alleged same-sex relationship with XXXX. CONCLUSION [45] The RPD found the appellant to be generally lacking in credibility. Having independently assessed the evidence, the RAD has reached the same conclusion. The appellant's testimony was vague and inconsistent internally, as well as when compared to his other evidence. The appellant was unable to reasonably explain these issues with his evidence. As such, the RAD does not find the appellant and his allegations of persecution to be credible. [46] Accordingly, based upon its own review of the evidence in its entirety and after accounting for the SOGIE Guideline, the RAD finds that the appellant failed to provide sufficient credible and trustworthy evidence to establish his allegations, including his sexual orientation. [47] The RAD therefore finds that there is not a serious possibility the appellant would be persecuted if he was returned to Albania, pursuant to section 96 of the Act. The panel similarly finds that on a balance of probabilities the appellant would not be personally subjected to a danger of torture, or face a risk to life, or a risk of cruel and unusual treatment or punishment in Albania pursuant to section 97 of the Act. DECISION [48] On the basis of the findings noted above and after its own assessment of all the evidence in the record, the RAD finds that the RPD's refugee determination is correct. [49] Pursuant to paragraph 111(1)(a) of the Act, the RAD confirms the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. [50] The appeal is dismissed. (signed) "D. Goff" D. Goff September 20, 2018 Date 1 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 81. 2 Ibid, at p. 82. 3 Ibid, Exhibit 6, Minister's Notice of Intent to Intervene, at pp. 376-393. 4 Exhibit P-2, Appellant's Record, Memorandum of Arguments, at pp. 259-282. 5 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 6 Rahal v. Canada (Minister of Citizenship and Immigration), 2012 FC 319, at para 22. 7 Ibid, at para 42, as highly cited, including in Hadi v. Canada (Minister of Citizenship and Immigration), 2018 FC 590 at para 12. 8 X (Re), 2017 CanLII 33034 (CA IRB). 9 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, issued by the Chairperson, pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, May 1, 2017 ("SOGIE Guideline"). 10 Exhibit P-2, Appellant's Record, Transcript of RPD Proceedings, at p. 54. 11 Ibid, at p. 135. 12 Ibid, Appellant's Memorandum, at p. 263. 13 Ibid, Transcript, at p. 55. 14 Ibid, at pp. 66-69. 15 Hamid, Iqbal v. M.E.I. (F.C.T.D., no. IMM-2829-94), Nadon, September 20, 1995, at para 21. 16 Exhibit RPD-1, Exhibit 5, at pp. 132-135. 17 Ibid, at pp. 137-139. 18 Ibid, at pp. 141-142. 19 Ibid., at pp. 147-149, Exhibit 10, at p. 402. 20 Ibid, Exhibit 2, at pp. 16-32. 21 Ibid, Exhibit 6, Minister's Notice of Intent to Intervene, at pp. 376-393. 22 Exhibit P-2, Memorandum, at p. 281. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-16454