MB7-08801

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 : MB7-08801 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appelant(s) XXXX XXXX Appellant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision June 12, 2019 Date de la décision Panel Normand Leduc Tribunal Counsel for the Appellant(s) Me Dan Bohbot Conseil(s) du (de la/des) Appelant(e)(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX, a citizen of Algeria, is appealing against the decision of the Refugee Protection Division (RPD) to reject his refugee protection claim. [2] He is submitting new evidence on appeal and requesting a hearing before the Refugee Appeal Division (RAD). [3] In making its decision, the RAD took into account the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. DETERMINATION OF THE APPEAL [4] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the RPD decision and substitutes the determination that should have been made, namely that XXXX XXXX is a "Convention refugee" under section 96 of the IRPA. BACKGROUND [5] Before the RPD, the appellant's file was joined to that of his friend, whose first name is XXXX and who is also a citizen of Algeria claiming refugee protection by reason of his sexual orientation. [6] Before the RAD, the files were separated on the grounds that XXXX had married a same-sex partner in Canada and no longer maintained a relationship with the appellant. [7] In his Basis of Claim Form (BOC Form), the appellant alleged a fear with respect to Algeria by reason of his homosexuality. He alleged that he was romantically involved with his male boss from the cybercafé where he worked. [8] The appellant claimed to have started receiving insults and threats from residents of his village and members of XXXX family in September 2016, after rumours about their sexual orientation began to circulate. Around the same time, his relatives tried to force him to marry a woman and told him his behaviour was humiliating them. [9] The appellant left his country on November 6, 2016, and travelled to the United States, where he was joined by XXXX in April 2017. They both came to Canada on April 17, 2017, to claim refugee protection. [10] The RPD rejected the refugee protection claim on the grounds that the allegations made by the appellant and XXXX were not credible. [11] Before the RAD, the appellant submits that the RPD erred in its assessment of his and XXXX credibility for reasons that will be explained in detail in the Analysis section, if necessary. [12] For these reasons, the appellant asks the RAD to set aside the RPD decision and grant him refugee protection or, alternatively, to refer the matter back to the RPD for a rehearing. THE STANDARD OF REVIEW AND THE ROLE OF THE REFUGEE APPEAL DIVISION [13] The role of the RAD is to review the RPD's decisions on a correctness standard after conducting its own analysis of the record in order to determine whether the RPD erred as the appellant claims. The exception to this rule concerns RPD findings regarding the credibility or weight to be given to the oral evidence it hears, in cases where it enjoyed a particular advantage. In such cases, the RAD must show deference to the RPD findings (Canada v. Huruglica, F.C.A., A-470-14). Reasons will be provided in my analysis if I believe that the RPD enjoyed a particular advantage. NEW EVIDENCE [14] On April 8, 2018, the appellant filed a document with the RAD that he submits is new evidence under subsection 110(4) of the IRPA, which states that: On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [15] In addition to the explicit conditions set out in subsection 110(4) of the Act, the RAD must also consider the implicit criteria for the admissibility of new evidence as established by the Federal Court of Appeal in Singh (M.C.I. v. Parminder Singh, 2016 FCA 96) and, in this case in particular, the criteria regarding the credibility and relevance of new evidence. [16] The document he submitted is a certificate of marriage between XXXX and someone named XXXX XXXX XXXX, which was issued by the Quebec government and states that the marriage took place in the city of Laval on XXXX XXXX, 2017. [17] I accept this document in evidence because it postdates the RPD's rejection of the refugee protection claim and is credible and relevant to that claim. [18] In an affidavit attached to this document, XXXX mentions photographs that were also supposed to be filed as new evidence. However, I note that no photographs were filed. HEARING BEFORE THE REFUGEE APPEAL DIVISION [19] Subsection 110(6) of the IRPA states that: The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [20] For the reasons outlined below, I am of the opinion that all of the evidence submitted, including the new evidence, demonstrates that the appellant's allegations are credible. For this reason, it will not be necessary for the RAD to hold a hearing on this case. ANALYSIS [21] I believe that the first issue to be addressed in this case is whether the RPD erred in its assessment of the appellant's credibility. [22] After analyzing all of the evidence, including the transcript of the RPD hearing and the new evidence submitted to the RAD, and taking into account the RPD's reasons and the appellant's submissions, I come to a different conclusion than the RPD, with all due respect, for the following reasons. [23] First, I believe that the RPD did not enjoy a particular advantage in assessing the credibility of the appellant, because I was able to read a transcript of the appellant's testimony before the RPD and therefore have no need to defer to its findings on the credibility of the allegations. [24] The RPD's finding on the appellant's credibility is based on the following points. I. There is a contradiction regarding the date on which the romantic relationship between the appellant and XXXX (the other refugee protection claimant) began. [25] XXXX indicated September 2016 as the date, whereas the appellant is more hesitant, first stating it was [translation] "after I started working at the cybercafé," then saying that he does not know [translation] "because it was something he had within him," and then that it was in 2014. [26] However, as the appellant notes in his memorandum, he and XXXX were not a couple, in that they were not living together and were not common-law partners. They had known each other since 2012, when the appellant started to visit and work at XXXX cybercafé, and the notion of [translation] "when the romantic relationship started" could be open to interpretation. XXXX mentioned September 2016, the date when they had what seems to have been their first sexual interaction, whereas the appellant referred to 2014, the date when he started to feel romantically attracted to XXXX. [27] Furthermore, XXXX stated in an interview with the Canada Border Services Agency officer that his relationship with the appellant began in 2012. That was actually when he first met the appellant. [28] In other words, it seems to me that the different dates they provided can be explained under the circumstances and that these contradictions do not undermine the credibility of the appellant's allegations regarding his sexual orientation, in light of all the evidence submitted. II. XXXX was unaware that the appellant was a non-believer, something that could get him in trouble in Algeria, as the appellant stated in his BOC Form. [29] The RPD finds it is unlikely that XXXX could be unaware of this fact, given that the two were a couple. [30] In my opinion, XXXX lack of knowledge on this point does not undermine the credibility of the appellant's fear by reason of his sexual orientation. As noted above, the claimants were not a couple in the strict sense of the word. I believe it is entirely possible that one of the two might not know certain things about the other, especially something that is not apparent, such as religion. III. The appellant was unaware that XXXX had been engaged to a woman in Algeria. [31] Again, for the reasons given above, I believe that this lack of knowledge does not undermine the credibility of the appellant's fear by reason of his sexual orientation, particularly since XXXX got engaged in XXXX 2017, whereas the appellant had already left Algeria in XXXX 2016. [32] In addition to this evidence submitted to the RPD, there is the evidence submitted to the RAD, namely the marriage certificate mentioned above. There is no evidence that would lead me to doubt the authenticity of this official document issued in Canada, which indicates that XXXX has married a person of the same sex as him, one XXXX. Furthermore, the claimants had already filed an affidavit from XXXX with the RPD confirming the existence of this relationship, dated June 2017 (Exhibit D-20, page 171 of the RPD record). Although the appellant himself did not get married, I still believe that this evidence must be considered in the overall assessment of the appellant's credibility regarding his own sexual orientation. [33] As a result, I am of the opinion that there is no need to doubt the statements made under oath by the appellant and that the evidence submitted establishes, on a balance of probabilities, the appellant's sexual orientation, specifically that he is homosexual. [34] Having established this, I also believe that the evidence demonstrates that, in the appellant's case, he would face a serious possibility of persecution in Algeria by reason of his membership in the particular social group of "homosexuals." [35] First, the documentary evidence abundantly cited by the appellant in his memorandum indicates that homosexuality is punishable under the law by the state in Algeria (see in particular tabs 1.5, 2.1 and 6.3 also included in the National Documentation Package on Algeria dated March 29, 2019) and is not accepted by society. [36] Second, the appellant was directly threatened by his relatives, villagers and members of XXXX family. [37] I also believe that there is nowhere in Algeria where the appellant could be safe from the serious possibility of persecution. The government, which is itself one of the agents of persecution in this case, occupies and controls the entire Algerian territory, and charges could be laid against the appellant in any part of the country. There is also nothing in the evidence to indicate that there is any place in Algeria where homosexuality would be socially acceptable. [38] Lastly, I am also of the opinion that there would be no adequate state protection for the appellant in Algeria. As noted above, the Algerian government itself is an agent of persecution with the power to arrest, charge and convict the appellant by reason of his homosexuality. REMEDY [39] In light of the foregoing, I conclude that the RPD decision is erroneous and that the appellant has established a well-founded fear of persecution by reason of his homosexuality if he had to return to Algeria. [40] Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the RPD decision and substitutes the determination that should have been made, namely that XXXX XXXX is a "Convention refugee" pursuant to section 96 of the IRPA. [41] The appeal is allowed. Normand Leduc Normand Leduc June 12, 2019 Date IRB translation Original language: French 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR: MB7-08801 4