MB8-14934

RAD File No. / No de dossier de la SAR : MB8-14934 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 Montréal, Quebec Appel instruit / entendu à Date of decision November 7, 2019 Date de la décision Panel Me Isabelle Parizeau Tribunal Counsel for the person who is the subject of the appeal Jean-Marie Hercules 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] XXXX XXXX (the appellant), a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim. [2] The appellant is alleging that he fears persecution on the basis of his sexual orientation. In 2006, he was allegedly subjected to degrading comments, and people who reportedly found out that he was gay after one of his friends came upon him in the company of a man threatened to strike him. [3] The RPD concluded that the number of credibility issues raised at the hearing fatally undermined the appellant's credibility and that he failed to establish, on a balance of probabilities, the fact that he is gay, the mistreatment he was subjected to in Haiti and his subjective fear. [4] The appellant alleges that the RPD erred in concluding that his testimony was not credible. It should have applied the presumption of truthfulness with regard to his allegations. The appellant describes the contradictions in his testimony as minor and attributes them to the stress of testifying. He alleges that the RPD was overzealous in microscopically examining his testimony and placed inordinate emphasis on insignificant factors. [5] Having conducted an independent analysis of the evidence, which included listening to the recording of the RPD hearing, and taken into account the Chairperson's Guideline 9: Proceedings Before the Immigration and Refugee Board of Canada Involving Sexual Orientation and Gender Identity and Expression1 (the Guideline), the Refugee Appeal Division (RAD) concurs with the RPD credibility finding regarding the appellant, confirms the negative determination of the RPD and dismisses the appeal. [6] The Minister of Immigration, Refugees and Citizenship (the Minister) intervened before the RPD. He submitted that the appellant's behaviour raised serious questions with respect to his credibility. He allegedly failed to file a claim for asylum in the two countries that are signatories to the Convention through which he transited after leaving Haiti. He also allegedly failed to report that, while living in the United States, he apparently returned to Haiti, thereby availing himself of the protection of the Haitian state. The Minister did not intervene on appeal. [7] The RAD is of the view that the determinative issues are the appellant's credibility and subjective fear. ROLE OF THE REFUGEE APPEAL DIVISION [8] The role of the RAD is to review RPD decisions by applying the correctness standard after conducting an independent assessment of the evidence before it. The exception to that rule is where the RPD enjoys a meaningful advantage in assessing and weighing the oral evidence it hears, which, in particular cases, may attract deference.2 In this case, the RAD applied the correctness standard. ANALYSIS [9] Although the appellant's memorandum does not include, as per subparagraphs 3(3)(g)(i) and (ii) of the Refugee Appeal Division Rules,3 full and detailed submissions regarding the errors made by the RPD or specify the location of the errors, the RAD conducted its own analysis of the RPD decision and the evidence. Credibility Changes in the appellant's sexual identity [10] In his memorandum, the appellant submits that being gay in Haiti is not a matter that is easy to explain; the country's social and cultural context must be taken into account. Gay people in Haiti feel a sense of shame, and it is somewhat challenging to relate the facts properly. [11] In the RPD's opinion, the appellant's vague and confusing explanations regarding the circumstances of his realizing that he was gay at the age of 18 cast doubt on his sexual orientation. Like the RPD, the RAD considered the explanations to be vague. [12] The claimant allegedly first reported that someone had told him that he walked like a gay person. Apparently, he acknowledged that he was gay and suggested that the person try it. After the RPD rephrased the question, the appellant explained that he had asked a man to dance with him when he was out. That was when he reportedly realized that he was attracted to men rather than women. [13] Upon listening to the recording of the hearing, the RAD did not note that the appellant provided any other details as to his realizing that he was gay. [14] The RAD does not draw a negative inference from the appellant's answer to the RPD's first question, since he may have misunderstood it. However, while acknowledging that it may be difficult for the appellant to discuss his sexual orientation, the RAD would have expected that, after the RPD rephrased its question, he would be able to recount the moment when he realized that he was gay accurately. The RAD comes to this conclusion given the significant impact that the appellant's sexual orientation could have on his life in Haiti and given his testimony at the hearing that he apparently did not feel normal when he realized that he was attracted to men.4 [15] The RAD considers that the RPD was correct in concluding that the appellant was unclear and vague regarding the moment when he reportedly realized that he was gay. First person to whom the appellant allegedly came out [16] The RPD found the appellant's answers unreasonable in response to its questions concerning the first person to whom he had come out. [17] He stated at first that he had never discussed his sexual orientation with anyone, except when he was caught with a man in 2006. The RPD was surprised by that answer because he necessarily had to reveal that he was gay in order to meet the man. The appellant then mentioned a movement from which he had sought support to live. He finally stated that he had come out at the age of 18, but did not remember to whom. [18] Given the appellant's allegations that gay people are mistreated in Haiti and that he feared returning there for that reason, the RPD found it unreasonable that the appellant was unable to state the name of the person whom he had allegedly trusted enough to share his secret. [19] The RAD agrees with the RPD. [20] After listening to the recording, the RAD noted that the appellant provided explanations. He stated that he could not name the first person to whom he had allegedly revealed his sexual orientation because it had happened a long time ago and he had pursued many men.5 [21] In response to question 2(h) in his Basis of Claim Form (BOC Form),6 the appellant indicates that his first gay experiences happened in secret around the age of 18. In his memorandum, he refers to the stigmatization of gay people in Haiti and the danger they face. [22] In light of this, the RAD considers it inconsistent that the appellant cannot recall the name of the person or persons to whom he had revealed his sexual orientation. Revealing the fact that he was gay put him at risk, and the RAD would have expected the appellant to know the people with whom he had taken such a risk. [23] For these same reasons, the RAD does not accept the amount of time that has passed or his number of partners as adequate explanations. [24] The RAD considers that the RPD was correct in concluding that the appellant's inability to identify the person to whom he had come out undermines his credibility. Vagueness of the circumstances of the disclosure of his sexual orientation in 2006 [25] The RPD found the appellant's testimony confusing and lacking in detail regarding the incident that occurred in 2006 during which one of his friends reportedly caught him in the company of a man and revealed his sexual orientation, which had until then been a secret, to his friends. [26] The RPD cited as an example the fact that, in his BOC Form, the appellant provides the name of the person who allegedly came upon him having sex with a man. At the hearing, he testified that it was a friend, but did not know exactly which one because he had a number of them. When asked about this contradiction, the appellant stated that he had many friends in Haiti and was occasionally forgetful in that regard. The RPD found that explanation unreasonable. [27] Upon listening to the recording of the hearing, the RAD noted that the RPD asked the appellant to describe the incident as though it were a movie: where he was, who caught him, how the people reacted and what happened afterwards. The appellant recounted that it was dark, that someone saw him having sex with a man, that he fled the scene and that numerous people went after him because the individual told them what he had seen.7 [28] The RAD would have expected the appellant to provide more details about how the incident had unfolded. It finds the appellant's inability at the hearing to identify the person who had allegedly seen him with another man to be inconsistent. The incident had serious consequences for the appellant given that his sexual orientation had allegedly been revealed in his neighbourhood and to his circle, reportedly causing him to leave his country. In such circumstances and given the fact that the appellant indicates the name of the friend in question in his BOC Form, which was signed less than a year before the hearing, the RAD does not find his explanation that he did not mention the name of the friend who had come upon him because he had forgotten and had many friends to be valid. [29] The RAD considers that the RPD was correct in concluding that the appellant's inability to identify the person who had allegedly learned that he was gay undermines his credibility. Relocation after the 2006 incident [30] The RPD noted a contradiction between the appellant's BOC Form and his testimony at the hearing. At the hearing, he testified that he had left the city where he lived after his friends had learned that he was gay because they had distanced themselves from him.8 He reportedly went to Port-au-Prince for a period of time before leaving Haiti. In response to question 2(d) in his BOC Form, the appellant indicates that he did not relocate to another part of the country to seek refuge, adding that the situation of gay people was the same throughout Haiti.9 [31] When the RPD asked him about this contradiction, the appellant stated that he did not live as a gay person in Port-au-Prince, that he does not have his wits about him when he speaks and that he is occasionally forgetful. The RPD considered his answer to be unreasonable, just as it did the fact that he failed to indicate in his BOC Form something as important as moving. It found that this contradiction undermined the appellant's credibility. [32] Like the RPD, the RAD notes a contradiction between the appellant's BOC Form and his testimony at the hearing. The appellant testified that he had rented a studio in Port-au-Prince, where he stayed for a few months.10 He had to stay there for a while to obtain his passport and purchase his tickets to leave the country.11 Given the length of his stay in Port-au-Prince, the RAD does not consider the explanation that he forgot to mention the detail12 in his BOC Form to be satisfactory. [33] The RAD finds that the RPD was correct in concluding that the appellant's credibility is undermined. Sexuality during his stay in the United States [34] The RPD considered it unreasonable that, after indicating that he had had a number of relationships with other men and frequented several gay bars in New Jersey during his near 10-year stay, the appellant could not name any of the bars. It also noted that the appellant was unable to provide SMS messages, emails and other messages exchanged with these men, given that he had changed telephones and deleted the messages. [35] The RPD considers it inconsistent that the appellant would spend so much time in bars for all those years, but not remember the name of a single one. It does not consider the appellant's statements that it was not an important part of his life, that he was getting older, that he had spent a significant amount of time in the United States to little avail13 and that he always went to bars where he kept company with men14 to be satisfactory explanations. The RAD is of the view that the claimant failed to demonstrate that he frequented gay bars in New Jersey or that he had relationships with other men, on a balance of probabilities. [36] The RAD considers that the RPD was correct in concluding that the appellant failed to demonstrate that he lived as a gay person in the United States. Subjective fear [37] The RPD drew a significant negative inference from the appellant's return to Haiti in 2013, undermining the credibility of his subjective fear. That conclusion was not challenged on appeal. [38] The appellant testified that he was in Haiti for a visit. On a friend's recommendation, he allegedly did not go to his hometown. The RPD asked the appellant why he took the risk of going to his country. He stated that he did not know whether the [translation] "gay movement" still existed, that he was unaware of whether gay people were still being killed and that he had not done any research before his trip to ascertain whether the situation was dangerous for them. The RPD found these explanations to be unreasonable since the appellant had left his country because he feared being mistreated by the people who had learned that he was gay and that he was, according to his BOC Form, aware of the risks of being gay in Haiti. [39] The RAD noted that the RPD did not err in its conclusion regarding subjective fear and found it to be correct. [40] The appellant submitted that, according to Maldonado,15 when a refugee protection claimant swears to the truth of allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness. He described the contradictions in his testimony as minor and attributed them to the fact that a refugee protection claimant is fragile, he found testifying stressful and he was already thinking about a possible return to the country. According to the appellant, the RPD conducted a microscopic analysis of his testimony and placed too much emphasis on factors that were not relevant. [41] The RAD does not share the appellant's view. The contradictions, omissions and inconsistencies in his testimony, or contradictions between his testimony and BOC Form, as previously mentioned in these reasons, are material to facts that are central to establishing his sexual orientation and subjective fear. The RAD therefore rejects the appellant's arguments that the contradictions in his testimony were minor, that the RPD placed emphasis on factors that were not relevant and that it conducted a microscopic analysis of the testimony. [42] With respect to the appellant's argument pertaining to stress, the RAD noted, upon listening to the recording of the hearing, that the RPD wanted to make sure that the appellant fully understood its questions. A number of times, realizing that he had not understood its question, it rephrased the question and explained exactly what information it was seeking. The RAD therefore does not accept the appellant's argument regarding stress to explain contradictions, which, in any event, it does not consider to be minor, as previously set out. [43] The RAD finds that the appellant's credibility was undermined by the number of contradictions, inconsistencies and omissions, and by his return to Haiti while he was living in the United States. The RAD is of the view that the appellant failed to establish that there is a serious possibility of persecution or that, on a balance of probabilities, he would be personally subjected to a danger of torture, to a risk to his life, or to a risk of cruel and unusual treatment or punishment should he return to Haiti. [44] The RAD concludes that the RPD's decision is correct. CONCLUSION [45] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act, the RAD dismisses the appeal and confirms the determination of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. Isabelle Parizeau Me Isabelle Parizeau November 7, 2019 Date IRB translation Original language: French 1 Chairperson's Guideline 9: Proceedings Before the Immigration and Refugee Board of Canada Involving Sexual Orientation and Gender Identity and Expression, Immigration and Refugee Board of Canada, Ottawa, May 1, 2017. 2 Canada v. Huruglica, 2016 FCA 93. 3 Refugee Appeal Division Rules, SOR/2012-257, current to May 22, 2019, last amended on December 15, 2012. 4 Audio recording of the RPD hearing, from approximately 0:44:20 to 0:44:46. 5 Ibid., from approximately 0:49:29 to 0:49:34. 6 Refugee Protection Division (RPD) record, p. 15, question 2(h). 7 Audio recording of the RPD hearing, from approximately 1:04:27 to 1:04:50. 8 Ibid., from approximately 1:17.02 to 1:18:06. 9 RPD record, p. 14, question 2(d). 10 Audio recording of the RPD hearing, from approximately 1:13:23 to 1:14:56. 11 Ibid., from approximately 1:24:15 to 1:25:41. 12 Ibid., from approximately 1:24:15 to 1:25:41. 13 Ibid., from approximately 0:57:23 to 0:58:12. 14 Ibid., from approximately 0:59:21 to 0:59:41. 15 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-14934 RAD.25.02 (April 4, 2019) Disponible en français 10 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 4, 2019) Disponible en français