TB5-06174

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 : TB5-06174 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 XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 19, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ashley Erin Fisch 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] XXXX XXXX (the Appellant), a citizen of Saudi Arabia, is appealing the decision of the Refugee Protection Division (RPD), denying his claim for refugee protection. He has not submitted any new evidence in support of his appeal, nor is he requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellant is, however, asking the RAD to substitute a positive determination, or in the alternative, that the matter be remitted to a newly-constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. Background [3] The Appellant's claim is based on his homosexuality. Due to the strict Islamic religious code in Saudi Arabia, according to the Appellant, homosexual activity is criminalized, and punishment includes flogging, imprisonment and even death. [4] The Appellant was raised in a strict Muslim environment, and although he obeyed his parents, he had long been sceptical about Islam. The Appellant examined other religions, however he concluded that religion was responsible for the intolerance of gays, and he was resolved to become an atheist. For many years, the Appellant, not knowing anyone else who was gay, had no intimate relationships for many years and he maintained the pretence that he was heterosexual. [5] Nevertheless, following his graduation from university, he met a boy from soccer and they had a relationship for XXXXor XXXXmonths, before he moved to another city and they lost touch with each other. Later, the Appellant had a XXXX XXXX relationship with a male, although it was a more casual relationship. However, they had to maintain secrecy, and not even his family knew of his friendships. Then his family put pressure on him to marry, however, he put them off until he decided to divulge his sexual orientation in late XXXX2009. He announced that he was gay and an atheist. While the Appellant continued to live at his parents' home for almost XXXXmore years, the situation changed irrevocably after this announcement. He became an outcast in their minds and he has not spoken to his father since. He also feared that Saudi authorities would learn of his homosexuality. [6] The Appellant began to look for a country where he could live without fear. He was successful in obtaining a student visa for Canada and he arrived in XXXX2011. His family had agreed to support him financially. Although the Appellant did not want to return to Saudi Arabia, he was fearful that if he made a refugee claim that the authorities in Saudi Arabia would learn of it. As a result, the Appellant decided that it was preferable to remain in Canada as a student. However, in spite of the ability to be openly gay in Canada, the Appellant kept a low profile for fear of the consequences if he had to return to Saudi Arabia. [7] The need to be cautious was made clear to the Appellant by an incident that took place in the XXXXof 2012, when another gay individual was reported to an embassy official and he believed that he was doing a service for the country. Fortunately, the Appellant had student status until XXXX XXXX, 2016. Nevertheless, he decided to request refugee protection and told his parents of his decision, who then withdrew their financial support. In early February 2015, the Appellant initiated his refugee claim. ROLE OF THE RAD [8] A recent Federal Court decision in Huruglica1 has provided the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." COUNSEL'S SUBMISSIONS * Did the RPD err in its credibility findings? * Die the RPD err in its lack of consideration of the documentary evidence about the context and illegality of homosexuality in Saudi Arabia? [9] The determinative issue is credibility with respect to his identity as a homosexual man. Credibility and Identity Lack of gay relationships in Canada [10] The RPD noted that the Appellant arrived in Canada in 2011, however, he has not had any relationships with men except anonymous sex at a XXXX XXXX on XXXX Street. Given that the Appellant has been in Canada for four years, and he is free to engage in homosexual relationships, and yet he purportedly had two relationships in Saudi Arabia, the RPD asked the Appellant for an explanation. The Appellant explained that he was concerned that it would become known to Saudi people, the embassy would be so informed, and if he returned to Saudi Arabia, he could be killed. The RPD did not accept this explanation as reasonable. Notwithstanding the Appellant's testimony that for the past XXXX years he is a regular at a well-known XXXX XXXX XXXX on XXXX Street, the RPD found that this is not congruent with a person who is afraid to be seen as gay. Moreover, the RPD found that if this were the case, the Appellant could keep the relationship private as he did in Saudi or he could just limit his public exposure when connecting with other men. In totality, the RPD drew a negative inference regarding the Appellant's credibility in this regard. [11] The Appellant submits that the foregoing finding is unreasonable. The Appellant further argues that in making the findings, the RPD entirely omitted any consideration of the documentary evidence about the context and illegality of homosexuality in Saudi Arabia. The Appellant submits that it was unreasonable for the RPD to denigrate the Appellant's sexuality on the basis of casual intercourse at a XXXX XXXX, since by its very nature it is an inherently homosexual space. It is submitted that the RPD ought not to have imputed its own expectations of what a gay man would do in free and tolerant Canada and then make a negative credibility inference based on such expectations, particularly in light of the extremely repressive society from which the Appellant hails. [12] The RAD concludes that the RPD erred when its conclusion that the Appellant was not a homosexual, was based in part by the fact that he had not been in a homosexual relationship since his arrival in Canada in 2011. In the RAD's opinion, this is plausible and the same would apply to a heterosexual. The RAD also concurs that the homophobic society from which the Appellant came, and the treatment at the hands of his father, could well have contributed to his hesitancy to engage in an open relationship until he was certain of his status in Canada. With respect to the RPD's comments that the Appellant could engage in a relationship privately as he did in Saudi Arabia or just limit his public exposures when connecting with other men, the RAD finds that the RPD erred in suggesting that this was an alternative to a XXXX XXXX, when that was the practice from which he left in Saudi Arabia. Having said this, the RAD's analysis with respect to the Appellant's involvement in the XXXX XXXX is analyzed below. Appellant's attendance at a XXXX XXXX [13] The RPD noted the Appellant's attendance at a XXXX XXXX XXXX on XXXX Street XXXXor XXXXmonthly and his membership after he made his refugee claim. However, the Appellant could not recall the name of the XXXX XXXX. The Appellant showed his membership card, however it was not signed by the Appellant, and contained no personal information. The RPD found that given that the Appellant had been in Canada for four years, understood English, it was reasonable to expect that he would know the name of the XXXX XXXX. Accordingly, the RPD drew a negative inference. [14] The Appellant submits that English is not his first language, and therefore that was a reasonable explanation for not recalling the name of the XXXX XXXX. Further it is submitted that the RPD did not consider that the Appellant provided an acronym, i.e. XXXX XXXX XXXX instead of the actual name, XXXX. In addition to this, the Appellant submits that he was able to describe the interior of the XXXX XXXX, including its layout and the nature of the encounters he had there with ease and without any hesitation or delay. Accordingly, the Appellant submits that the RPD's finding with respect to his inability to articulate the full name of the XXXX correctly is unreasonable. [15] The RAD finds that the RPD was microscopic in its finding, when the Appellant in addition to providing a similar name to the actual name, went on to describe the nature of his activities and the reason he felt comfortable in that environment. Accordingly, the RAD finds that this negative inference is not sustainable. The RAD finds that this is significant, because, as stated above, the RPD made this finding in conjunction with the Appellant's lack of homosexual relationships in Canada. After reviewing the audio recording of the proceedings, the RAD accepts that for XXXXyears the Appellant has been attending a XXXX XXXX and engaging in homosexual activities in relatively private facilities. In fact, he described an environment wherein individuals were not identified and the use of XXXX XXXX virtually precluded any identification. Letters from XXXX [16] The RPD found that the letters from the XXXX did little to establish that the Appellant is gay. Further, it noted that there is no requirement on the part of the 519 that people who use their services are gay. [17] The Appellant submits that there was no evidentiary basis for such a proposition and therefore the finding is unreasonable. [18] The RAD finds that the RPD made this finding after concluding that the Appellant's behaviour was such that it found that he is not a homosexual. In light of the fact that the RAD finds that those conclusions are not sustainable, we also find that there is no evidentiary basis for this proposition and therefore this finding is also unsustainable. Sexual identity [19] The Appellant was asked if anyone in Canada knew of his sexual orientation and he responded "no". However, in his BOC, he states that his friend, XXXX knew that he was gay. When confronted with this contradiction, the Appellant responded that he thought the RPD was referring to people from Saudi Arabia. Given that this was not the question posed by the RPD, the RPD drew a further negative inference. [20] After reviewing the audio recording of the proceedings, the RAD finds that in addition to what was stated in the RPD Reasons, the RPD asked the Appellant why he would not have brought XXXX as a witness to the hearing to attest to his sexuality, since he was the only person, who knew of his sexual orientation. The RAD finds that even if XXXX had come to the hearing, he is someone with whom the Appellant confided, however, he is not in a relationship with the Appellant and therefore, the RPD could not have accorded much weight to his testimony with respect to his sexual orientation. Sexual relationships in Saudi Arabia [21] Although the Appellant spoke fondly about his first relationship with a male named XXXX, he could not recall when their relationship began or when it ended. His testimony was also contradicted when initially he stated that this relationship began after graduation from college in XXXX 2004 when he had more free time. However, later he changed his evidence to graduation in XXXX 2004. The RPD drew a further negative inference as it found it was reasonable to expect the Appellant to remember consistently the dates of this relationship. [22] The Appellant submits that given the time span of XXXX years, it is not unreasonable that he could not recall the exact month. Moreover, it is argued that the psychological report indicates memory problems and it should be noted that the subject of recalling his relationship with XXXX brought him to tears during the hearing. Accordingly, the Appellant submits that the RPD's finding in this regard is unreasonable. [23] The RAD finds that the RPD was microscopic in expecting that the Appellant could provide a specific date, i.e. month or day from eleven years ago, and particularly when Dr. XXXX' report indicates that the Appellant suffers from memory problems. After listening to the audio recording of the proceedings, the RAD concurs with the Appellant that he appeared very distraught when speaking of this relationship, which he holds dear to his heart. Accordingly, the RAD finds that this negative inference is not sustainable. Delay in claiming [24] The Appellant arrived in Canada in XXXX 2011 on a student visa and did not make his claim for refugee protection until February 2015. Initially, he stated the language barrier precluded an earlier claim. Then he stated that when he was comfortable with the language he witnessed a Saudi man report a transsexual Saudi walking along the street in Toronto. The RPD did not accept the fact that the Appellant had come to Toronto to be safe, yet he remained afraid of the Saudi authorities. The RPD considered the fact that the Appellant is well educated and did not accept the Appellant's statement that if someone reported him to the embassy, the embassy would force him to return to Saudi Arabia. Moreover, the RPD noted that there was no evidence before the panel that Saudi embassy officials are interested in their gay citizens in Canada or that they would forcibly return someone to Saudi Arabia because they are gay. In fact, the RPD found that if the Appellant was that afraid, he would have made the refugee claim in a timelier manner. The RPD further considered the fact that by attending XXXX XXXX on a regular basis, the Appellant would risk seeing other Saudis, which would seemingly be as risky as meeting one on the street. The RPD considered the foregoing evidence, and drew a negative inference regarding the Appellant's credibility. [25] It is submitted by the Appellant that he had status in Canada prior to making his refugee claim. Moreover, it is argued that the evidence supports the Appellant's fears even while in Canada, which is supported by the criminalization of homosexuality in Saudi Arabia, and the death penalty which applies in certain situations of same sex activity. Moreover, the Commission for the Promotion of Virtue and Prevention of Vice is considered the most feared law enforcement authority in the country and is responsible for enforcing measures. [26] It is further submitted by the Appellant that although he is educated, it was his overarching fear that caused him to delay until a friend convinced him to take the actual steps to file a refugee claim. [27] The RAD finds that firstly the Appellant was never out of status, but even more importantly, he has status until XXXX 2016, yet he made his refugee claim in February 2015. Accordingly, the RAD does not concur with the RPD that the Appellant's delay in claiming detracts from the Appellant's credibility. RPD'S CONCLUSIONS [28] Given the serious credibility concerns, the RPD found that the Appellant had not established that he is gay. Given this finding, the RPD found that since the Appellant is not gay, his reason for renouncing Islam is also not credible. RAD'S CONCLUSION [29] The RAD concludes that the findings by the RPD with respect to the Appellant's sexual identity both in Canada and Saudi Arabia are not sustainable. Moreover, the delay in claiming is also not sustainable. [30] The RAD concludes that when one removes those credibility findings, there is insufficient persuasive evidence that would detract from the Appellant's credibility with respect to his sexual orientation. On a balance of probabilities, the RAD finds him to be a homosexual. [31] Documentary evidence indicates that many sources report that Saudi Arabia does not have a penal code. However, Sharia law is the law that governs and sexual relations between same sex partners are punishable under Sharia law. Sodomy is considered a crime under Sharia law and the penalties may include stoning, death, a hundred blows of the whip, as well as banishment. As well, there are reports of imprisonment for same sex partners and although there is some difficulty in obtaining statistics from Saudi Arabia as there is a lack of transparency from the Saudi Arabia government and it's not strictly codified, nonetheless, there is evidence of persecution by state authorities against homosexuals, including imprisonment, flogging, indicates that there haven't been any media reports of death since 2002 and cases of imprisonment and flogging receive less media attention.2 [32] The documentary evidence also supports the Appellant's submission and his testimony regarding the Committee for Promotion of Virtue and Prevention of Vice which is a religious committee supported by the government and this committee picks up and looks for openly gay people and they face severe punishments by this committee. Moreover, it provides some examples of people who were arrested at a party that was considered a homosexual party and one man received 7,000 whip lashes as a result of being at this party and being accused of being an openly gay man. [33] The United States Bureau of Democracy Human Rights and Labour Country Report 2013 and 2012 indicates as the National Documentation Package does as well, that Sharia as interpreted in Saudi Arabia, consensual, same sex, sexual conduct is punishable by death or flogging, depending on the perceived seriousness of the case and it also indicates that the Appellant could not live openly as a gay man in Saudi Arabia. CONCLUSION [34] The RAD finds that the Appellant is a homosexual. It further finds in light of all the documentary evidence, that the state is the agent of persecution, and that given the illegality of homosexuality and the consequences, the Appellant is a Convention refugee. [35] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "Roslyn Ahara" Roslyn Ahara August 19, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799). 2 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) Saudi Arabia version 31 October 2014, item 6.2, code: SAU103739.FE. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-06174