TB9-20839

RAD File / Dossier de la SAR : TB9-20839 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 of decision August 10, 2020 Date de la décision Panel E. Bobkin Tribunal Counsel for the person who is the subject of the appeal Hart A. Kaminker Barrister and Solicitor 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 allowing the appeal of XXXX XXXX (the Appellant), a citizen of Turkey. I am substituting a decision that the Appellant is a Convention refugee. [2] The Appellant alleges that he is homosexual. He alleges that he came to Canada as a student but that, while in Canada, his sexual orientation was revealed, and he decided to make a refugee claim. [3] The Refugee Protection Division (RPD) rejected his claim. The RPD concluded that the Appellant had not credibly established his claim because he failed to provide reasonably available corroborating documents, and the evidence he provided was insufficient. The RPD also found the Appellant had been inconsistent in how he got photographs that he provided and in when he used dating applications. [4] The Appellant argues that the RPD erred by failing to apply the SOGIE Guideline1 and by making credibility findings which were microscopic, peripheral and inappropriate plausibility findings. The Appellant submitted new evidence in support of his appeal but did not request a hearing. [5] I agree with the Appellant that the RPD's credibility analysis fails to consider the core of the claim. Reviewing the record independently, I find the Appellant has established his sexual orientation. I find that this is established on the record before the RPD, and therefore I do not need to assess the new evidence. DECISION [6] The appeal is allowed. I substitute a decision that the Appellant is a Convention refugee. THE ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [7] My role is to look at all the evidence and decide if the RPD made the correct decision.2 There is an exception to this, where the RAD defers to the RPD if the RPD had a meaningful advantage in assessing the credibility of oral evidence. I do not find this case falls into the exception. Therefore, I will be looking at whether the RPD's decision was correct. ANALYSIS [8] The Appellant argues that the RPD failed to properly apply the SOGIE Guideline by expecting particular corroborative evidence, disregarding the difficulties in getting corroborative evidence, and by improperly finding inconsistencies. The Appellant argues that the RPD's credibility findings were microscopic, peripheral and based on plausibility. The Appellant argues that there were no significant credibility issues with the core of his claim, and the RPD failed to consider the evidence about the core of his claim. I concur with the Appellant. The RPD's analysis is not sustainable [9] Having reviewed the record, including the audio recording of the hearing, I find that the RPD's analysis is not sustainable, for the reasons argued by the Appellant. [10] The RPD seemed particularly concerned with types of evidence that would be expected in a claim about sexual orientation, including documents from friends in Canada who know about the Appellant's sexual orientation and viewing the Appellant's dating history on his phone. In canvassing these issues, the RPD made statements such as "this is usual for these cases," "this is what I expect;" I see this evidence "all the time" and also stated that she usually looks at peoples' phones and then she can "get a really good idea if they are gay."3 The RPD also stated several times that people fake sexual orientation claims.4 [11] I find that, as the Appellant argues, this ignores the SOGIE Guideline that it may be difficult for people with diverse SOGIEs to corroborate their sexual orientation and that implausibility findings must not be based on stereotypes. The Appellant gave explanations for his failure to provide particular documents, but the RPD found that these were not reasonable because it did not match what had occurred in other cases. I find the explanations were reasonable. The Appellant testified he asked his friends to provide evidence, but they were afraid to do so and that he had deleted his dating applications at the time of the hearing. [12] Moreover, I find that the RPD's credibility findings largely dealt with peripheral matters. These include: (a) whether it was credible that the Appellant deleted his dating apps; (b) whether the Appellant was inconsistent in his evidence about when he last used dating applications; (c) why the Appellant did not provide evidence from his roommates and friends in Canada and his former same-sex partner in Spain; and (d) whether the Appellant was consistent about when he attended the 519. [13] Very few of the findings actually touch on the Appellant's sexual orientation. Only the finding of delay in claiming and perhaps a finding that the Appellant was inconsistent about his mistreatment by a former boyfriend really speak to the core of the claim. In my view, the Appellant reasonably explained his delay in claiming: he only decided to claim when he found out his sexual orientation was exposed. This is in-line with guidance from the SOGIE Guideline. As for the finding of the inconsistency on the mistreatment by the partner, I find this is insufficient to ground a negative credibility finding. [14] For these reasons, I find that the RPD's credibility finding cannot stand. The Appellant has established his sexual orientation, on a balance of probabilities [15] On an independent review of the record, I find that the Appellant has established his sexual orientation, on a balance of probabilities. [16] Reviewing the record, I find that, unfortunately, much of the hearing was spent on who knows the Appellant is gay and what evidence he could have gotten to support his claim. The first hour of the hearing was spent mostly on this topic. However, there was testimony given which was credible and assists in establishing the Appellant's sexual orientation. [17] The Appellant testified about his longest same-sex relationship in Turkey.5 The Appellant gave evidence about when the relationship began and ended. The Appellant provided pictures of his involvement with the LGBTQ community in Canada and gave testimony about the photographs. [18] In his Basis of Claim (BOC), the Appellant also provided a detailed explanation of how he came to understand his sexual orientation, including feeling more propensity towards "girly" activities as a child and being exposed to men and discovering his attraction to them.6 The RPD did not find any significant credibility problems with this evidence, and, reviewing the record, I do not find any. [19] Additionally, there is documentary evidence to corroborate the Appellant's sexual orientation. This included a letter from his neighbour, an affidavit from his roommate, a message from his sister and evidence of participation in the LGBTQ community in Canada.7 While this evidence is not determinative, it supports the Appellant's alleged sexual orientation. The Appellant also testified about his involvement in the LGBTQ community in Canada.8 [20] I do not find that the Appellant's evidence is perfect, and I would have preferred that the RPD and the Appellant's Counsel asked more questions about the core of the claim. However, I am mindful that the standard of proof is a balance of probabilities, and I find that the standard is met, in this case. Therefore, I find the Appellant is gay, on a balance of probabilities. The Appellant meets the test for Convention refugee status [21] I find that the Appellant meets the test for Convention refugee status. I accept that the Appellant is homosexual, on a balance of probabilities. [22] Evidence in the national documentation package (NDP) shows that sexual minorities in Turkey face a serious possibility of persecution. The United States Department of State reports that significant human rights issues in Turkey include violence against LGBTI persons.9 Several governors banned public activities by the LGBTQ community and that legal provisions about public morality, protection of the family and unnatural sexual behavior are sometimes used by police to abuse sexual minorities and by employers to discriminate against sexual minorities.10 LGBTQ individuals faced discrimination, intimidation and violent crimes.11 I find this treatment amounts to persecution and that this persecution is based upon sexual orientation, which is a particular social group, and therefore a Convention ground. [23] As for state protection and internal flight alternative (IFA), the evidence shows that these are not available to the Appellant, on a balance of probabilities. For example, there is evidence that the criminal code does not provide specific protection based on sexual orientation and that police and prosecutors "frequently" fail to pursue cases of violence against sexual minorities.12 Police have been involved in blackmailing transgender persons involved in sex work, and police harassment of LGBTQ persons continues to be common.13 I find this evidence establishes that the Appellant would not have access to adequate state protection, on a balance of probabilities. I further find that the evidence is that these conditions exist throughout Turkey, and therefore the Appellant would not have access to a viable internal flight alternative (IFA). CONCLUSION [24] The appeal is allowed. Pursuant to paragraph 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) Erin Bobkin E. Bobkin August 10, 2020 Date 1 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 IRPA, effective date: May 1, 2017. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 3 Audio Recording of the RPD Hearing. 4 Audio Recording of the RPD Hearing. 5 Audio Recording of the RPD Hearing, starting at 01:13:00. 6 Exhibit RPD-1, RPD Record, at pp. 24-26. 7 Exhibit RPD-1, RPD Record, at pp. 143, 232,139-142. 8 Audio Recording of the RPD Hearing, from 01:39:00 onward. 9 NDP for Turkey (March 31, 2020) item 2.1, United States Department of State, "Turkey: Country Reports on Human Rights Practices for 2019", March 11, 2020, at pp. 1-2. 10 NDP for Turkey (March 31, 2020) item 2.1 (ibid.), at p. 63. 11 NDP for Turkey (March 31, 2020) item 2.1 (ibid.), at p. 64. 12 NDP for Turkey (March 31, 2020) item 2.1 (ibid.), at pp. 63-64. 13 NDP for Turkey (March 31, 2020) item 2.1 (ibid.), at p. 64; and item 1.14, UK Home Office, "Country Policy and Information Note, Turkey: Sexual orientation and gender identity, Version 2.0", June 2017, at p. 13. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-20839 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français