TB6-01297

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 : TB6-01297 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 XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 18, 2016 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Adrienne C Smith 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) is a citizen of Jamaica. She appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The RPD found, on a balance of probability that the Appellant had not established her identity as a bisexual woman, finding that the documentation presented was not persuasive in establishing this allegation. The RPD also found that there was no serious possibility that the Appellant will be persecuted in Jamaica, or that on a balance of probabilities, the Appellant will be subjected personally to a danger of torture or face a risk to life or risk of cruel and unusual treatment or punishment in Jamaica. The RPD concluded that the claimant is not a Convention refugee under section 96 of the Immigration and Refugee Protection Act (IRPA or Act) and that she is not a person in need of protection within the meaning of section 97(1) of the Act. [2] The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and find that the Appellant is a Convention refugee or person in need of protection. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD for redetermination where her sexual orientation can be assessed. Determination [3] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. Memorandum of appeal a) What is the standard of review? b) Does the new evidence submitted by the Appellant meet the criteria pursuant to section 110(4) of the IRPA? c) Did the RPD err in its assessment of the Appellant's sexual orientation? Background [4] The Appellant, while attending an all-girls high school, started having an attraction for girls. During this time she became attracted to one of her classmates, and after having several exploratory sessions, began an intimate relationship. In order to divert any attention that this relationship might cause, they began dating boys from the nearby high schools. At the same time, the Appellant had intimate relationships with a boy, and was attracted to an older male teacher. [5] After leaving high school she began to work in a XXXX, and began an intimate relationship with an older man. This relationship last for several years. After joining a church in her nearby community, she began a three-year relationship with another male. In spite of these relationships with men, the Appellant's desire for a same-sex relationship had not diminished. Prior to coming to Canada as a student, she began an intimate relationship with a female in Jamaica. Unfortunately, this relationship cooled, and the female began to slander her with her friends, calling her a lesbian, and saying that she had caught her having sex with another female. As a result of this person's disclosure, the Appellant fears that her life and livelihood would be negatively affected should she return to Jamaica. [6] The Appellant has personally witnessed persons being violently attacked because of their sexuality, and is afraid that such attacks could affect her life if she returned. The Appellant fears she could not go to the police for assistance, as the laws are not supportive of people who identify themselves as being from the LGBT community. [7] The Appellant has been negatively affected by the situation. She is trying to put the situation behind her by socializing, including online dating. As a result of continuing depression because of this situation, she talked to a lawyer, and filed a claim for refugee protection. [8] The Appellant's refugee hearing was held on December 4, 2015, and in an oral decision on the same day, the RPD held that there is not a serious possibility that the Appellant will be persecuted in Jamaica, or on a balance of probabilities, the Appellant will be subject personally to a danger of torture or face a risk to life or risk of cruel and unusual treatment or punishment in Jamaica. The RPD also found that the Appellant was not a Convention refugee under section 96 of the Act, and not a person in need of protection within the meaning of section 97(1) of the Act. Admissibility of Evidence Submitted on Appeal [9] Section 110(4) of the IRPA provides that the Appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected1 in the circumstances to have presented, at the time of the rejection. [10] It is for the Appellants to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellants.2 Application of Section 110(4) [11] Section 110(4) establishes a disjunctive test.3 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claims. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claims. If it was not reasonably available at that time, it meets the requirements of section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellants could reasonably have been expected, in their circumstances, to have presented the evidence to the RPD prior to the rejection of their claims. If they could not have been expected to do so, the evidence meets the requirements of the section. [12] If the evidence did not arise after the rejection of the claims, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claims, the evidence does not meet the test in section 110(4). The RAD does not have discretion to admit such evidence.4 [13] As the RAD understands it, section 110(4) provides the Appellants with an opportunity to present evidence that could not have been submitted to the RPD-either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellants could not have been expected to present it to the RPD. [14] Section 110(4) does not provide an opportunity for Appellants to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.5 [15] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.6 Old evidence remains old evidence, even if it is placed in a new document with a recent date. Assessment of Evidence that Meets the Requirements of Section 110(4) [16] Where a document meets the test in section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, it would make little sense to admit such document even if it meets the test in section 110(4). [17] In Singh,7 the Federal Court of Appeal held that there is no valid reason the RAD cannot apply the criteria set out in Raza8 to the assessment of new evidence. While Raza predates the introduction of the IRPA section 110(4), it is based on the nearly-identical wording of section 113(a). In that case, the Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.9 In Singh, the Court found that the criteria from Raza are necessarily implied in the wording of section 110(4).10 [18] Where evidence meets the test in section 110(4), the RAD will go on to assess it for credibility. While this is a factor set out in Raza, there are also other reasons to apply to it. Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances." This provision makes it clear that, in addition to the factors in section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [19] Relevance is a basic condition for the admissibility of any piece of evidence.11 RAD Rule (3)(3)(g)(iii) requires the Appellant's Memorandum to include full and detailed submissions about how any proposed new evidence "relates to the Appellant." It would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to section 162(2) of the IRPA, which requires all divisions of the IRB to "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [20] In addition to credibility and relevance, the factors in Raza include "newness" and "materiality." Newness is implicitly incorporated into section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in section 110(6) of the IRPA, which describes when the RAD may hold an oral hearing.12 [21] For these reasons, the RAD will apply the following factors to considering the Appellant's proposed new evidence. It will first consider whether the evidence that passes the test in section 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of section 110(4), the RAD will assess its credibility and relevance in order to determine whether it is admissible. [22] The Appellant references a Federal Court Decision13 to support her submission that the documents presented as new evidence should be accepted by the RAD. The Appellant states that she has provided reasons why the documentation submitted with the Memorandum of Appeal could not have been provided earlier. The RAD will deal with the documentation submitted below. The RAD will also deal with the documentation as it relates to her submission that they confirm her identity as a bisexual female. [23] The Appellant submits that the documentation from various organizations that support LGBT deals with the RPD's issue of limited involvement with the organizations. The issue of limited involvement raised by the RPD will be dealt with below in the RAD decision. The issue raised by the Appellant of limited involvement, and involvement at the time of making her Refugee claim remains the same. Each item will be dealt with as it relates to her alleged identity as a bisexual female. [24] The Appellant submitted a letter, dated February 18, 2016, from XXXX XXXX XXXX XXXX of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.14 A similar letter, dated November 23, 2015, was before the RPD.15 There is no new information included in this letter regarding the Appellant's sexuality, only information that she is continuing to be involved with the organization. The RAD rejects this letter as new evidence in that the material presented was before the RPD and considered in its decision. [25] The Appellant submitted a Website printout of information on the date website called "Match.com".16 Information on the Appellant's involvement with this website was submitted in documentation before the RPD.17 The RAD finds that this information was reasonably available on the website prior to the RPD hearing, and could have been presented at that time. The RAD rejects this document as new evidence according to section 110(4) of the IRPA. The RAD rejects the Appellant's submission that she could not reasonably have been expected to provide such information for the hearing. The Appellant was represented by experienced counsel at the RPD hearing, and such a piece of information, given its potential implications with regard to the sexual identity of the Appellant, would reasonably have been presented. [26] The Appellant submitted a letter, dated February 17, 2016, from XXXX XXXX XXXX XXXX, Manager, Direct Services, XXXX XXXX Community Center.18 A letter, dated November 20, 2015, from the same individual, gave almost identical information and was before the RPD at the hearing.19 This document provides no new relevant information with regards to the main determinative issue in this claim, that the Appellant is a bisexual woman fearing return to Jamaica. The RAD rejects this letter as new evidence. [27] The Appellant submitted a letter, dated February 11, 2016, from an acquaintance. This letter outlines their personal relationship and indicates that the Appellant is going through trauma. The letter also indicates that they began their friendship in October, 2015. This letter could reasonably have been made available to the RPD prior to the Refugee hearing. No reason was given why this person could not have submitted this document before the RPD hearing. According to section 110(4) of the IRPA, the RAD rejects this letter as new evidence. [28] A letter dated February 11, 2016, was submitted from XXXX XXXX, Community Health Worker of XXXX XXXX.20 A letter, dated November 19, 2015, from the same individual was submitted in documentation for the RPD hearing.21 The letters are similar, the only major difference being in updating of the events that the Appellant participated in at XXXX XXXX. No further information regarding the determinative issue of the claim, that the Appellant is a bisexual female, was evidenced in the letter. Although the letter updates the Appellant's activities, the RAD finds that the letter is not relevant to the determinative issue in the claim. [29] The Appellant submitted a letter, dated February 12, 2016, from the student who is a XXXX XXXX XXXX XXXX XXXX at XXXX University. The letter describes her involvement with the Appellant at XXXX XXXX. The letter goes on to describe her opinion of the Appellant in her current circumstance. However, the letter does not add any new information regarding the determinative issue in the claim, that the Appellant is a bisexual female. The letter states that the Appellant has self-identified as a bisexual female to the author of the letter, but makes no probative judgment or gives any information that would support this self-identification. The RAD does not accept this letter as new evidence in that it contains no probative information or documentation regarding the Appellant's self-identification as a bisexual female. [30] The Appellant submitted an affidavit, dated February 18, 2016.22 The affidavit outlines four circumstances in Jamaica, relates a number of issues that were addressed during the hearing, and talks about her involvement with various organizations since arrival in Canada. The issues addressed by the Appellant in this affidavit will be addressed by the RAD in its response to the submissions presented in the Memorandum of Appeal. [31] The Appellant presented a UNHCR document, Guidelines On International Protection No. 9, dated October 23, 2012. This document was reasonably available to be presented to the RPD at its hearing. According to section 110(4) of the IRPA, the RAD rejects this document as new evidence. Application to File New Documents [32] The Appellant applies under Rule 29 to provide a new document. Relevance of New Evidence-110(4)-29(4) [33] The Appellants submitted new evidence under RAD Rule 29(4). Under such an application, in addition to 110(4), the rule requires that you consider the factors set out in Rule 29(4). In deciding whether to allow an application, the Division must consider any relevant factors, including: a) the documents relevance and probative value; b) any new evidence the document brings to the appeal; and c) whether the person who is subject of the appeal, with reasonable effort, could have provided the document or written submissions with the Appellant's record, respondents record, or reply record. [34] The Appellant submitted an affidavit explaining why the new documents are being provided. She explained that she had asked for a letter from the XXXX XXXX Church of Toronto, and this letter had not been received prior to the RPD hearing. The letter, dated February 21, 2016, from XXXX XXXX, Executive Pastor, affirms support for the Appellant, and makes reference to previous letters submitted on November 19, 2015. The RAD finds that the information given in this letter is consistent with information given to the RPD prior to the refugee hearing. There is no new relevant information given in this letter that was not before the RPD. [35] As none of the new evidence submitted was accepted by the RAD, an oral hearing will not be held in that the new evidence did not comply with section 110(4) and (6) of the IRPA. Role of the RAD [36] The Appellant supports the Federal Court decision of Huruglica. The decision of the Federal Court of Appeal in Huruglica23 provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD, to decisions of the first level administrative tribunal. [37] The Court stated that with respect to findings of fact (and mixed fact and law) which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions by applying the correctness standard. Pursuant to subsection 111(2)(b) of the IRPA, the RAD may refer the matter back to the RPD for redetermination if it is "of the opinion" that it cannot make a decision confirming or setting aside the RPD decision without hearing the evidence presented before the RPD. This recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD that in making findings of fact or mixed fact and law, because those cases require an assessment of credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. [38] Accordingly, the RAD will conduct its assessment of the RPD's decision on the basis of the principles outlined above. Merits of the Appeal Standard of Review [39] This issue is addressed the above in the "Role of the RAD". Admissibility of New Evidence [40] The issue of the new evidence and the RAD's decision are addressed above in this decision. The RPD erred in its Assessment of Sexual Orientation Relationship in Canada [41] The RPD drew a negative inference from the Appellant's testimony regarding her relationship, in Canada, with a XXXX XXXX (phonetic). The RPD noted that the Appellant initially testified that the relationship was open and said that they were affectionate with each in public, yet later denied that people at school were aware of the relationship. [42] The Appellant submits that the RPD failed to consider how LGBT persons may be "open" in one area of their life and "private" in another. Quoting case law,24 the Appellant stated that the RPD was not sensitive to the fact that it is not uncommon for LGBT persons to express public manifestations of their sexual orientation differently in different environments, depending on their comfort level. She also submits that she came from one of the most homophobic countries in the world. [43] The Appellant submits that the RPD was incorrect in finding that her testimony about her level of openness and her sexual orientation in Canada was inconsistent. [44] The RPD drew a negative inference with regards to the Appellant's testimony regarding her relationship with a student while attending college in Canada. The RAD, in examining the transcript of the hearing, makes the following findings.25 The questioning by the RPD was extensive regarding the Appellant's response, "yes" to the RPDs question, "Have you been openly displaying your bisexuality?"26 In continuing questioning, the Appellant explained that when they went out they were quite openly affectionate with each other doing things such as hugging and kissing. The Appellant explained that people at school did not know that, "you and XXXX were an item?" (Comment by the RPD member). She explained their separation at school because of different practicums, and that they were open outside of school, not at school, because of the lack of contact. [45] With respect, the RAD finds, given the texture and nature of the questioning, that the RPD's negative inference cannot stand. The Appellant explained the apparent inconsistency during further questioning. The RAD does not make a finding on this issue but comments on the lack of clear and consistent responses by the Appellant, who according to documentation presented, is a graduate in social work of the University of the XXXX XXXX.27 It would be reasonable to expect clear and immediate responses to the RPD's questioning, and not to have further probing by the RPD in order to elaborate on the initial consistent responses. With respect to the Appellant's submission and case law quoted, the Appellant clearly has the right, given her background, to choose how to express her sexuality. However, the RAD finds that the Appellant was not been clear and consistent in her testimony when originally asked questions. Further questioning and probing were necessary by the RPD in order to gather information that should reasonably be given when the question was first posed. Beginning Relationship [46] The RPD found that the Appellant was inconsistent when she testified about beginning of her relationship with the female at school in Jamaica. The Appellant stated that she first began this relationship in 1990, and in further questioning changed that response to 1991, when this inconsistency was put to her by the RPD. [47] The Appellant submits in her appeal Affidavit that it was difficult for her to recall the year that her original relationship began, because of the length of time between that date and the hearing. The Appellant states that the RPD did not ask for an explanation and used this minor inconsistency to impugn the Appellant's credibility. The Appellant quoted Federal Court jurisprudence28 to support the submission on the RPD's negative credibility finding. [48] The RAD, in examining the transcript29 agrees that the Appellant did alter her testimony from 1990 to 1991 regarding the relationship with the female when she was at school Jamaica. The RAD agrees that the Appellant was inconsistent with the date when this relationship began, but does not find that this finding, by itself, determines the Appellant's sexual identity. However, given the educational background of the Appellant mentioned elsewhere in this decision, as well as the significance of her first sexual experience with a member of the same-sex, the RAD finds that the Appellant would have a clear remembrance of this relationship. Communication with her Brother [49] The RPD noted that the Appellant testified that she became aware of her ex-partner telling people in the community that she had witnessed the Appellant sleeping with another woman. The Appellant testified that her brother had communicated this information to her, and that he received the information through a message system called, "What's Up." After inquiring about obtaining the original of this document, as well as copies of the particular messages between her brother and her ex-partner, the Appellant changed her testimony and said that the particular conversation was on the telephone, not through the previously named message system. As a result, and given other concerns regarding the Appellant's credibility, the RPD gave little weight to the undated, unsworn affidavit30 of her brother, as well as her mother.31 [50] The Appellant submits that the Federal Court has repeatedly cautioned against making a finding about an Appellant's credibility on the peripheral issue, in particular when it is unrelated to the central issue of the claim. She submits that the finding concerning her brother's discovery of her sexual identity, and the matter in which he discovered this, was misconstrued by the RPD. The Appellant submits that the word, "talk" indicates a telephone conversation not communication through an online text messaging service called, "What's Up". In addition, the Appellant submits even if she had mistakenly identified the method of communication, she was not privy to the conversation as it was third-party information and therefore a minor discrepancy. She also submits that the method of communication that her brother used is not central to determining her sexual orientation. The Appellant also submits that the letter from her brother corroborates that the conversation happened by telephone and therefore clarifies any perceived discrepancy in the evidence. [51] The RAD, in reviewing the testimony in the transcript,32 finds that the Appellant testified that her brother and her ex-partner communicated through the system called, "What's Up". She testified that they usually communicated once a week. The RAD does not find that the submission by the Appellant regarding the word, "talk", is valid. The Appellant used this word while testifying about the communication system between her brother and her ex-partner. The Appellant testified that one day her ex-partner told her brother that she saw the Appellant having sex with another girl. When asked to get a copy of the message, the Appellant testified that it was not on her phone, it was between her brother and her ex-partner. Later in testimony, the Appellant changed her testimony after being asked by the RPD to produce a copy of the message. The Appellant testified that she believed that her ex-partner called her brother for this particular conversation. After the RPD disclosed this inconsistency, she said that they would always communicate through the messaging system but in this case she actually called him on the phone. The RAD does not accept this inconsistency in testimony as credible, and draws a negative inference. It was not until the Appellant was asked to produce documentation that she changed her testimony. The RAD disagrees with the Appellant's submissions regarding the issue being peripheral. Credibility is always an issue in a Refugee claim. Testimony and documentation that are found not to be credible are integral parts regarding the determination in a Refugee claim. [52] In addition, in reviewing the affidavit of her brother, XXXX XXXX, noted above, the RAD finds that it is unsworn, and undated. In addition, document is not the original, but a copy. The Appellant stated that the original should be coming; as of the writing of this decision, some four months after the original RPD decision, no documentation has been produced. The RAD gives no probative value to this document, in that no documentation has been presented to substantiate the familial relationship of the alleged author, nor has the information contained been documented in any fashion. The RAD has the same reservation concerning the letter, allegedly from the Appellant's mother. The letter is a copy, not an original. No date is evident, nor has any documentation has been produced to substantiate the claims made in the letter, nor has the alleged author of this letter been sworn. The RAD finds, on a balance of probabilities, that the Appellant has not been a credible witness on this issue, and has not produced any probative documentation to support her allegations that she is a bisexual female. Online dating [53] The RPD drew a negative inference from the Appellant's inconsistency and contradictions in her testimony regarding her online dating involvement. The Appellant stated that she started using Match.com sometime in 2014, but could not precisely remember when she started. The RPD noted that the documentation presented was somewhat abridged.33 The RPD noted that the Appellant indicated she was seeking either a man or a woman. The Appellant was not able to provide the Board a copy of when she commenced a profile, and/or the general heading which may show what she was seeking in terms of the relationship. When questioned about responses she received, she originally testified that they were from both men and women, but was unable to produce any of the correspondence. In further questioning, the Appellant indicated that all correspondence were from men. [54] The Appellant submits that the RPD microscopically examined her testimony when she was asked what responses she received. She maintains that she has no control over whether she received inquiries from females versus males, but that she had been matched with a few women. [55] The RAD, in reviewing the testimony34 of the Appellant regarding her online dating, makes the following observations and findings. The profile from the online dating service, noted above, is barely legible, and certain information appears not to have been included in the document. Counsel for the Appellant at the RPD hearing stated that he was not giving evidence but that he saw the information on the Appellant's cell phone, but wasn't able to print a clear copy. The counsel for the Appellant stated that he would try and produce a clear copy at the break during the hearing. This event did not happen, and no documentation has been submitted in the Memorandum of Appeal regarding this potentially missing information. [56] There is insufficient information in the profile to indicate who the Appellant was interested in dating. In spite of repeated questioning by the RPD, no such information was forthcoming. The document only indicated that she was interested in meeting a, "male or female who is easy to talk to, loves God, and is respectful to others." Nowhere in her profile is there an indication of her bisexual identity. [57] When asked if she was dating men and women, the Appellant said "yes". In continuing testimony, she stated that she had not had any dates from the online dating profile. When asked about correspondence, she stated that she had gotten quite a few but couldn't give the exact number. The Appellant stated that she received a number of correspondences, but that she had nothing at the hearing. When asked who the correspondences were from, she said it was mainly male. She then affirmed that she had received correspondences from both male and female. When questioned again by the RPD, she changed her testimony and said she had no correspondences from women. The RAD draws a negative inference from the Appellant's inconsistency and contradictions made regarding her online dating profile and the correspondences that she allegedly received. The RAD finds that the Appellant has not been a credible witness regarding this issue. [58] Giving the Appellant's lack of credibility regarding key issues in establishing her sexual identity, the RAD finds, on a balance of probabilities, that the Appellant has not proved her sexual identity as a bisexual female. Documentation [59] The RPD noted that the Appellant had provided a number of letters from organizations such as: XXXX XXXX,35 the XXXX XXXX XXXX XXXX XXXX,36 a letter from the XXXX XXXX Church,37 and the supporting letter from a friend that she met at the XXXX XXXX Church.38 The RPD noted that her involvement with these organizations was recent. The RPD found that these documents were not persuasive in establishing the Appellant's allegations, including her sexual orientation as a bisexual woman. [60] The Appellant submits that she only found out about these organizations in September 2015 and therefore had approximately three months of involvement in LGBT organizations in Toronto. The Appellant felt that she needed support at that point in time, and finds the RPD's statement, that she had only been a member for a limited time, is in error. The Appellant quoted Federal Court jurisprudence to substantiate this submission.39 The Appellant submits that the RPD stated that support letters were not helpful in establishing her sexual orientation, entirely based on the amount of time that she had been involved in the organizations. She submits that the documentation supports that she is an active member of these organizations and identifies as a sexual minority. The Appellant also states that her fears of risk in Jamaica are based on being outed by her ex-partner, and are credible. [61] The Appellant submits that the letters noted above from her brother and mother should be given weight in corroborating her risk in Jamaica, because they provide a firsthand account of the threats that she faces in her community. In light of the errors that the RPD made regarding the Appellant's sexual orientation, the Appellant submits that the entire RPD's decision is rendered incorrect, and that the Appellant is a Convention refugee or a person in need of protection. [62] In addition, the Appellant provided a letter from the XXXX XXXX XXXXCommunity Center, that, speaks to her her ongoing involvement in the organization. The Appellant submits that her, "basic human rights will be violated by her inability to be open about sexual orientation, given the treatment of sexual minorities in Jamaica."40 The Appellant supports this by quoting US country reports on human rights practices for Jamaica, and the UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity. The RAD notes that the Appellant came to Canada in XXXX 2014, and did not join any LGBT organizations until September 2015. The RAD does not accept the Appellant's explanation that she relied upon her friend to talk about her situation in Jamaica, and eventually thought she needed more support. Given the Appellant's alleged profile, it would be reasonable to assume that she would seek support from the LGBT community soon after arrival in Canada. Given the allegation that she was informed in June 2015 of the alleged outing by her alleged ex-partner, one would expect that she would seek support from the community at that point, and not wait until September 2015 when she filed her refugee claim. This lack of action on her part further emphasizes the RAD's finding that the Appellant is not a bisexual woman. [63] The support letters from the Appellant's brother and mother have been addressed earlier in this decision. In the documentation quoted regarding the treatment of sexual minorities in Jamaica, the RAD is in agreement. However, the RAD has found that the claimant is not a bisexual woman, and having made that determination, the submissions regarding the treatment of sexual minorities in Jamaica is moot. [64] The RAD finds, on a balance of probabilities, that the Appellant could return to Jamaica without fear of persecution, and also that she is not a Convention refugee under section 96 of the IRPA, in that she has not provided credible documentation or information that she is bisexual woman. Disposition [65] The RAD dismisses the appeal under subsection 111(1)(a) of the IRPA, and upholds the RPD's decision. (signed) "Robert S. Garner" Robert S. Garner May 18, 2016 Date 1 In the French version of IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh v. Canada (Citizenship and Immigration), 2014 FC 1022, para 51. 2 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 3 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, October 29, 2014, 2015 FC 895, para. 19. 4 Deri, Samuel v. M.C.I. (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 55; Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96, para. 63. 5 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96, para. 54. 6 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, para. 16. 7 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96, para. 64. 8 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 9 Ibid., Raza, paras. 13-15. 10 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96, para. 64. 11 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96, para. 45. Also: "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence:" Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, loose-leaf ed. (Toronto: Carswell, 2004) at17-6.12; Re Bortolloti and Ministery of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33 at para. 64. 12 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96, para. 48. 13 Singh v Minister of Citizenship and Immigration Canada, 2014 FC 1022. 14 Exhibit P-2, Memorandum of Appeal, pp. 181-183. 15 Exhibit RPD-1, RPD's Record, at pp. 112-113. 16 Exhibit P-2, Memorandum of Appeal, pp. 150-158. 17 Exhibit RPD-1, RPD's Record, at pp. 108-110. 18 Exhibit P-2, Memorandum of Appeal, p. 159. 19 Exhibit RPD-1, RPD's Record, at p. 106. 20 Exhibit P-2, Memorandum of Appeal, p. 160. 21 Exhibit RPD-1, RPD's Record, at p. 93. 22 Exhibit P-2, Memorandum of Appeal, pp. 6-10. 23 M.C.I. v. Huruglica, Bujar (F.C.A.., no. A-470-14), Gauthier, Webb, Near, March 29, 2016; 2016 FCA 93. 24 Buwu, Anesu v. M.C.I. (F.C., no. IMM-6791-12), Russell, August 9, 2013, 2013 FC 850; Essa, Mohammad v. M.C.I. (F.C., no. IMM-2111-11), Boivin, December 20, 2011, 2011 FC 1493, at para. 32. 25 Exhibit P-2, Memorandum of Appeal, pp. 12-91. 26 Exhibit RPD-2, Transcript of the RPD hearing, at p. 39. 27 Exhibit RPD-1, RPD's Record, at p. 118. 28 Charles, Derick T. v. M.C.I. (.F.C., no. IMM-9915-03), Kelen, December 16, 2004, 2004 FC 1784; Kandel, Waleed v. M.C.I. (F.C., no. IMM-6752-13), Noël, July 7, 2014, 2014 FC 659. 29 Exhibit RPD-2, Transcript of the RPD hearing, at p 22. 30 Exhibit RPD-1, RPD's Record, p. 117. 31 Ibid., p. 119. 32 Ibid., p. 25-28. 33 Ibid., pp. 108-110. 34 Exhibit RPD-2, Transcript of the RPD hearing, pp. 40-47. 35 Exhibit RPD-1, RPD's Record, at p. 111. 36 Ibid., p. 112-113. 37 Ibid., p. 110. 38 Ibid., p. 125. 39 Ogunrinde, Francis Ojo v. M.C.I. (F.C., no. IMM-6711-11), Russell, June 15, 2012, 2012 FC 760. 40 Exhibit P-2, Memorandum of Appeal, p. 205. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :