TB7-12847

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 / Dossier de la SAR : TB7-12847 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered at Ottawa, ON Appel instruit à Date of decision April 10, 2018 Date de la décision Panel Veena Verma Tribunal Counsel for the person(s) who is(are) the subject of the appeal Kingsley I. Jesuorobo Barrister & Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative Représentant(e) désigné(e) N/A Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the Appellant), a citizen of Jamaica, appeals a decision of the Refugee Protection Division (RPD), dated June 22, 2017, denying her claim for refugee protection. She submits that the RPD erred by finding her not credible. While the RPD made some errors in assessing the credibility of the Appellant's sexual orientation, there are several other negative credibility findings, including findings unchallenged by the Appellant, to support the RPD's conclusion. Therefore, I confirm the RPD decision pursuant to ss. 111(a) of the Immigration and Refugee Protection Act (the Act). The appeal is dismissed. BACKGROUND [2] The Appellant claims that she is bisexual. According to her Basis of Claim (BOC), in XXXX 2014, she was assaulted by two men while visiting her girlfriend in Montego Bay. In XXXX 2014, these same men went to her home in Kingston looking for her. She claims that, as news of her sexual orientation started circulating, she fled to Canada, fearing for her life, on XXXX XXXX, 2014. While in Canada, the Appellant claims that her girlfriend was killed in XXXX 2015. After extending her visitor visa three times, she filed a refugee claim in March 2017. [3] The RPD rejected the Appellant's claim because the panel found her evidence was not credible or trustworthy. In addition to finding that the Appellant did not have subjective fear because of her two year delay in claiming refugee protection, the RPD found she provided evasive, non-responsive, inconsistent, and misleading evidence with respect to her story. [4] The Appellant submits that the RPD erred by finding her story was not credible. In particular, the RPD erred by finding an inconsistency based on her self-identification as both lesbian and bisexual; failing to accept her reasons for delaying to claim; and assuming there was an inconsistency between a written statement made by her son and her evidence relating to the date of an incident that occurred while she was in Canada. SCOPE OF THE RAD REVIEW [5] The determinative issue on appeal is whether or not the RPD erred in assessing the Appellant's credibility. [6] When reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. I may defer to the RPD's credibility assessment of oral testimony, if I find that the RPD had a meaningful advantage in the circumstances. Reasons will be provided in my analysis if I find that the RPD had meaningful advantage.1 ANALYSIS [7] Based on my independent review of the record, and applying the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression ("SOGIE Guidelines"), I find that the RPD erred in impugning the Appellant's credibility based on her self-identification as lesbian and bisexual, and her lack of knowledge of the names of LGBT organizations in Jamaica. Otherwise, I do not find that the RPD erred as submitted by the Appellant. [8] In addition, the RPD made several negative credibility findings which the Appellant does not challenge. Absent any submissions, I see no reason to overturn these findings which accumulatively support the RPD's conclusion that the Appellant and her claim are not credible. RPD's Credibility Findings that Breach the SOGIE Guidelines The Appellant's self-identification as bisexual and lesbian [9] The Appellant identified herself as a lesbian in her BOC. At the hearing, she identified herself as bisexual. The Appellant makes no reference to being bisexual in her BOC. [10] According to the RPD, the Appellant significantly undermined her credibility by giving inconsistent evidence about her sexual orientation, and omitting her bisexual identity in her BOC. The RPD states: "In particular, the Claimant testified that she referred to herself as a lesbian and not as bisexual because she was nervous and rushing to complete her BOC and did so without the help of counsel."2 The RPD found this explanation for the inconsistency or omission further undermined the Appellant's credibility because she confirmed at the outset of the hearing that her BOC was complete, true and correct, and she amended her BOC two months later with the assistance of counsel.3 [11] The Appellant submits that the RPD erred by venturing "into the abyss of technicalities" and impugning her credibility based on a minor discrepancy or omission.4 [12] I find that the RPD mischaracterized and omitted relevant portions of the Appellant's testimony regarding her sexual identity. When the RPD asked the Appellant why she was testifying to being bisexual when her BOC states she is a lesbian, the Appellant said she had had sex with men which is apparent because she has children. The RPD followed up by asking why she referred to herself only as a lesbian in her BOC. She responded that, at the time, she was nervous. Contrary to the RPD's summary of evidence, she did not say she was rushing or that she completed the BOC without the help of counsel. [13] Furthermore, the RPD failed to apply the SOGIE Guidelines when assessing the credibility of this evidence. In particular, the RPD failed to consider that a person's understanding of their sexual orientation may change,5 and refugee claimants may not always be familiar with or identify with different concepts used to describe one's sexual orientation.6 As the SOGIE Guidelines elaborate, an individual's self-awareness and self-acceptance of their SOGIE may present as a non-linear process.7 [14] In other words, expressed sexual identity can be fluid and flexible, and more complicated than neat labels would have it. Therefore, shifts in a claimant's sexual behavior or self-identification should not be viewed conclusively as a misrepresentation. In my view, the Appellant was attempting to fit herself into a label in order to explain to the RPD why she had sex with men in the past, while at the same time alleging persecution based on her most recent relationship with a woman. If sexual identity is viewed as involving a degree of fluidity and flexibility, then I do not see how the Appellant's shifting labels of her sexual identity can be used to impugn her credibility or undermine her sexual identity as either lesbian or bisexual.8 Expectation of the Appellant's knowledge of LGBT organizations in Jamaica [15] The RPD impugned the Appellant's credibility because she was unable to identify any LGBT organizations in Jamaica, despite several references in the National Documentation Package for Jamaica referencing "J-FLAG" as a prominent LGBT organization. The RPD reasoned that J-FLAG was based in the Appellant's hometown of Kingston, and given her basis of claim and sexual orientation, "it is reasonable to expect that she would have and/or ought to have found out and known about organizations in Jamaica that focus on LGBT issues, with minimal effort, such as J-FLAG".9 [16] Again, I find that the RPD failed to apply the SOGIE Guidelines, and therefore, made erroneous assumptions about the Appellant's level of knowledge of LGBT organizations in Jamaica simply because she is allegedly bisexual or lesbian.10 There is no evidentiary basis for the RPD's assumption. [17] Despite these errors, I nevertheless find the RPD's decision to reject the claim was correct in light of the remaining negative credibility findings. I will now turn to review the Appellant's remaining submissions, and the RPD's unchallenged credibility findings. Delay to Claim [18] The Appellant arrived in Canada in XXXX 2014 with a visitor visa, but did not claim refugee protection until March 2017 - over two years later. In the interim, she successfully applied for three extensions of her visa with the assistance of an immigration consultant. When her last visa extension expired in XXXX 2016, she remained in Canada illegally for approximately four months until she filed her refugee claim. [19] The RPD found that the Appellant's delay to claim undermines her fear of persecution, her credibility and her basis of claim. The RPD added that it is reasonable to expect that if she feared for her safety and well-being in Jamaica, she would have sought refugee protection at the first available opportunity, that is, upon arrival in XXXX 2014. [20] The Appellant submits that the RPD's finding was based on erroneous assumptions about her level of knowledge of the refugee protection process. In her submissions, she refers to "her affidavit" in which she supposedly provided additional evidence about the reasons for delaying to claim.11 However, there is no affidavit in the RPD record, and there was no new evidence submitted on appeal.12 Accordingly, I have disregarded her submission about the contents of any affidavit. [21] The Appellant further submits that she had status in Canada and, therefore, she did not fear being returned to her country. She submits that this reasonably explains why she did not make a claim earlier.13 [22] I find that the RPD was correct to find that the Appellant's delay to claim undermines her credibility and subjective fear. The Appellant testified that she did not make a refugee claim upon arrival because she wanted to see if things would calm down in Jamaica "given what was happening with the gay society". She said she wanted to take a break, focus on her kids (who were still in Jamaica), and think about what she would do next. She said she felt safer in Canada. [23] She later added that she continued to extend her visas as opposed to filing a refugee claim because she did not know "a lot about Canada and the whole situation of...the LGBT". She also stated that she had concerns about her friends in Canada finding out and "how they would take it". She said she was still thinking. [24] Having considered the Appellant's evidence, while her reasons may explain some delay to claiming, I do not find she has adequately explained for the length of delay of over two years. While in Canada she was receiving on-going advice and assistance regarding her immigration status from an immigration consultant. Furthermore, contrary to her submissions that her delay was reasonable because she had "proper status", she was in fact in Canada illegally for approximately four months which put her at risk of being returned to Jamaica. And yet, there is no persuasive explanation for why she did not make a refugee claim during this time. [25] In these circumstances, the RPD was correct to find that, on a balance of probabilities, the Appellant's "behavior is indicative of an individual who has exhausted attempts to extend her stay in Canada, rather than an individual who has a genuine fear of persecution", and she "knowingly disregarded and circumvented Canadian law, whereby her refugee claim is a last resort to remain in the country".14 Contradictory Evidence between the Appellant and her Son [26] Before the RPD, the Appellant entered into evidence a written statement from her son.15 It states that on XXXX XXXX, 2016, two men came asking for her whereabouts and threatening her with death if she returns to Jamaica. The Appellant's BOC states: "...around XXXX 2016, I spoke with my son XXXX and he told me that two guys came looking for me."16 The RPD found there was contradictory evidence of when the incident occurred, which undermined the Appellant's credibility. As well, the RPD gave the son's statement little weight. [27] The Appellant submits that the inconsistency in the dates is not real. She argues that her BOC states when she spoke to her son, not when the incident occurred. She submits that she testified about not asking her son when the incident occurred, but rather, assumed it happened in XXXX because this was when she was informed of it. She adds that it is probable that the incident occurred in XXXX, but she was left with the erroneous impression that it occurred in XXXX.17 [28] Having carefully reviewed the evidence, I find that the Appellant's position on appeal contradicts her evidence before the RPD. The Appellant initially testified that her son had "definitely" made an error when he said the incident happened in XXXX. She ventured that he was "mixing it up with his date of birth". She was adamant that the incident occurred in XXXX.18 [29] However, when the Appellant's counsel questioned her about any discussions with her son on the timing or date of the incident, she responded that she did not discuss the date. She testified that she assumed the incident occurred around the same time when her son called, which was in XXXX. Her counsel suggested the possibility that she was the one mistaken in thinking the incident occurred in XXXX. She responded, "Yes, I would think so".19 [30] The RPD subsequently followed up asking if her son told her when the men came looking for her. She testified that he did not give her the exact date.20 I infer from this answer that there were some discussions about the timing of the incident. [31] In general, I find the Appellant's testimony trying to explain the apparent inconsistency in the dates to be in itself contradictory, convoluted, and incoherent. First, she was adamant that her son made an error. Later, she says that she did not discuss the date of the incident with her son, but simply assumed the incident occurred in XXXX. And, then shortly thereafter, her testimony suggests that her son told her when the men came looking for her, but he did not tell her the exact date. Yet, the son's written statement gives an exact date and time of the incident. I find the Appellant failed to give cogent testimony to explain the inconsistencies about the date of the alleged incident. I do not find that the RPD erred. Unchallenged Credibility Findings [32] The RPD made additional adverse credibility findings which were not challenged by the Appellant. They include: - The Appellant gave inconsistent evidence about how she met her girlfriend.21 - The Appellant gave inconsistent evidence about her trips to Montego Bay.22 - The Appellant gave inconsistent evidence about where she was staying in Montego Bay while seeing her girlfriend.23 - The Appellant gave inconsistent evidence about the length of her relationship with her girlfriend.24 - The Appellant gave inconsistent and confusing evidence about her medical treatment after her assault in Montego Bay.25 - The Appellant failed to provide a copy of a medical report or the x-ray taken during the aforementioned visit. She gave inconsistent testimony about her efforts to obtain these documents.26 - The Appellant failed to obtain evidence from individuals who could corroborate her claim, namely, her neighbour and the owner of the guesthouse where she stayed in Montego Bay. She gave inconsistent testimony about her efforts to obtain these documents.27 - The Appellant's attempts to explain all of the above inconsistencies were confusing, and evolved throughout the hearing, which was indicative of a witness who was spontaneously manufacturing a story.28 [33] Based on my independent review of the RPD record, including the audio recording of the RPD hearing, and absent any submissions from the Appellant,29 I find no reason to overturn the above findings. They are all well supported by the evidence and touch on central elements of the claim. When viewed cumulatively, I agree with the RPD that the adverse credibility findings sufficiently undermine the Appellant's overall credibility on a balance of probabilities. CONCLUSION [34] In conclusion, I find that the RPD failed to apply the SOGIE Guidelines with respect to two credibility findings. However, these errors are not fatal to the RPD decision in light of the numerous other adverse credibility findings, many of which are unchallenged. I find that the Appellant failed to provide sufficient credible or trustworthy evidence to establish her sexual identity or her claim, on a balance of probabilities. [35] For these reasons, I confirm the RPD decision that the Appellant is neither a Convention refugee nor a person in need of protection under sections 96 or 97 of the Act. [36] The appeal is dismissed. (signed) Veena Verma April 10, 2018 Date 1 M.C.I. v. Huruglica, 2016 FCA 93, paras 70, 103. 2 RPD Decision, para 29. 3 RPD Decision, paras 26-29. 4 Appellant's Record, Memorandum of Argument, p. 51, paras 20-25. 5 SOGIE Guidelines, para 2.5. 6 Ibid., paras 2.5 - 2.7. 7 SOGIE Guidelines, para 3.1. 8 SOGIE Guidelines, para 7.4.1; Kamau v. M.C.I., 2016 FC 413, paras 54-55. 9 RPD Decision, para 37. 10 SOGIE Guidelines, para 7.2.3. 11 Appellant's Record, Appellant's Memorandum of Argument, p. 47, para 16. 12 Ibid., Statement Pursuant to Rule 3(3) of the RAD Rules, p. 17. 13 Ibid., Appellant's Memorandum of Argument, pp. 47-48, paras 17-19. 14 RPD Decision, para 25. 15 RPD Record, Ex. 7. 16 RPD Record, Ex. 6 (also found in the Appellant's Record, p. 29). 17 Appellant's Record, Appellant's Memorandum of Argument, p. 45, paras 13-14. 18 RPD audio recording, 1:32:00 - 1:32:30. 19 RPD audio recording, 1:57:23 - 1:59:48. 20 Ibid., 2:00:29 - 2:01:29. 21 RPD Decision, paras 30-31. 22 Ibid., para 32. 23 Ibid., para 33. 24 Ibid., para 34-35. 25 Ibid., paras 44-45. 26 Ibid., para 46. 27 Ibid., para 47. 28 Ibid., paras 31, 32, 35, 45. 29 Appellants are required to provide full and detailed submissions regarding errors that are the grounds of the appeal, and where the errors are located in the RPD decision or in the recording of the RPD hearing: Rule 3(3)(g) of the RAD Rules. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-12847 10 RAD.25.02 (March 7, 2018) Disponible en français