VB9-10075

RAD File / Dossier de la SAR : VB9-10075 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision March 24, 2021 Date de la décision Panel Ayanna Roberts Tribunal Counsel for the person who is the subject of the appeal Aidan Connor Campbell 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] I allow this appeal and find that the Appellant, XXXX XXXX XXXX is a Convention refugee. a. The Appellant is a citizen of Côte d'Ivoire whose father has threatened to kill him because he is gay. The Appellant attended a two-year high school exchange program in Canada in 2013-2014. He experienced feelings of attraction to men while at high school in Canada. He returned briefly to Côte d'Ivoire in 2014 where he confided in a cousin that he was gay. It is then that he discovered that his cousin was also gay. He returned to Canada in late XXXX 2014 to pursue his postsecondary studies. In XXXX 2016, his cousin was discovered to be gay and was outed to the family. While being beaten by their male family members, including the Appellant's father, the cousin outed the Appellant. The Appellant's parents confronted him by phone, and his father disowned him. The Appellant lost contact with his family and was cut off financially. For this reason, the Appellant abandoned his studies and began working odd jobs and staying in temporary accommodations. He lost legal immigrant status in Canada since he was no longer a student. In XXXX 2018, he received a letter from his father reiterating the death threat at the address of one of his high school homestay locations. He confided in a friend about his problems, and his friend encouraged him to apply for asylum, which he did in October 2018. b. The Appellant argues that the RPD made the following errors when it found that he had not credibly established the basis of his claim. i. The RPD engaged in impermissibly microscopic reasoning and by violating Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. ii. The RPD discarded his corroborative evidence out of hand by making veiled findings of authenticity that were never put to the Appellant. iii. The RPD failed to account for his reasonable explanations for the Appellant's delay in claiming asylum. c. The determinative issue for the Refugee Appeal Division (RAD) is whether the Appellant faces a serious possibility of persecution in Côte d'Ivoire because he is gay. d. The RPD erred in assessing the Appellant's credibility. He is a gay man, on a balance of probabilities. Both the Appellant's evidence and the objective evidence indicate that as a sexual minority in Côte d'Ivoire, he will face discrimination at the hands of the state and society in accessing housing, employment and health services, and that if his father executes the threats against him, he will not benefit from adequate state protection. The Appellant faces a serious possibility of persecution in Côte d'Ivoire. DECISION [2] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. NEW EVIDENCE The evidence presented by the Appellant is accepted [3] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that the Appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [4] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.2 [5] The statutory declaration from the Appellant's same-sex lover is admitted as new evidence. This new evidence responds directly to the RPD's credibility concerns about his sexual orientation. I accept the Appellant's explanation that while he has not had any enduring same-sex relationships, he did not believe he needed to provide the RPD with evidence of a casual intimate encounter. I find that this evidence is credible. It is relevant to the credibility of whether or not he is gay. [6] The handwritten letter from the Ivorian who teaches French in XXXX, BC is admitted as new evidence because it responds directly to one of the RPD's credibility concerns. In this letter, the Ivorian teacher confirms that he acted as a second family, beyond the Appellant's host family, during the Appellant's high school exchange experience in XXXX, BC. He explains that he received the letter from the Appellant's father at his home, and that it is at that time that he discovered the Appellant's problems with his father as well as the Appellant's sexual orientation. I find the letter to be credible, and it is relevant to establishing how the Appellant received a letter from his father with whom he is no longer in contact. ANALYSIS [7] My role is to look at all the evidence and decide if the RPD made the correct decision.3 The RPD incorrectly considered Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression in its assessment of the Appellant's credibility [8] I agree with the Appellant that the RPD erred by failing to properly apply Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guideline) to its credibility analysis. The SOGIE Guideline sets out a series of principles to consider when assessing an Appellant's credibility about their sexual orientation, gender identity or gender expression (SOGIE). These principles include considering the intersectional factors that make up a person's identity and that may compound a person's risk, avoiding stereotyping when making findings of fact, considering the problems that a person with a diverse SOGIE may have providing corroborative evidence, and considering the impact of experiences with stigmatization and violence on whether a person may conceal or be reluctant to discuss their SOGIE. [9] The SOGIE Guideline also specifies that cases involving diverse SOGIE are no different than any other with respect to drawing negative credibility inferences based upon material omissions, inconsistencies or contradictions in evidence that have no reasonable explanations, or due to vague testimony that is lacking in detail. [10] With respect to assessing one's credibility, as stated by the Federal Court of Appeal in Maldonado,4 when a claimant swears that certain facts are true, this creates a presumption that they are true unless there is valid reason to doubt their truthfulness. The presumption of truth can be rebutted where the evidence is inconsistent with the person's sworn testimony or where there is no satisfactory explanation for the inconsistencies.5 Not all inconsistencies or implausibilities will support a negative finding of credibility, and these findings should not be based on a "microscopic" examination of issues irrelevant to the case or peripheral to the claim.6 Implausibility findings should only be made in the clearest of cases,7 for example, where the alleged occurrence is outside of the realm of what could reasonably be expected, or where the evidence establishes that the events could not have taken place as alleged.8 Credibility inferences should consider the person's age, cultural background and social experiences.9 [11] After conducting an independent analysis of the evidence before me, including listening to the hearing, I do not find that there is a reason to displace the presumption of truth associated with the Appellant's testimony. The RPD failed to carry out an intersectional analysis of the Appellant's credibility. [12] The SOGIE Guideline recognizes that factors such as age, race, ethnicity, religion, and social class can have an impact on how an individual recognizes or expresses their sexual orientation or gender identity. An intersectional analysis should also consider the society in which the person is operating and any barriers that the person may encounter. The RPD failed to consider a serious of relevant factors in its analysis when it drew a negative credibility inference about the fact that the Appellant did not tell anyone in Canada about his sexual orientation, did not engage in same-sex relationships, and did not approach any LGBTIQ+ organisations for support. These factors include: a. The Appellant was a high school exchange student while in Canada, therefore, he was of young age and was living in a foreign cultural context. b. The Appellant lived with two different host families in XXXX, BC. The host families' personal beliefs and openness to sexual diversity were not canvassed during the hearing. c. The Appellant was raised in Côte d'Ivoire in a conservative Muslim polygamous family where any dating was forbidden before marriage. d. The Appellant has never had any relationships, homosexual or otherwise. [13] The RPD concluded that given that the Appellant realized and accepted his sexual orientation in Canada about six years ago, it is problematic that he has not revealed his sexual orientation to any close friends or attempted to enter into any same-sex relationships over this period of time. This conclusion does not take into account the Appellant's own culture, his age, his family's religious beliefs, and his status as a temporary resident in Canada. A consideration of these facts is important to drawing conclusions related to how comfortable the Appellant would or should have been in discussing his sexuality with those around him in Canada. [14] The Appellant explained during the RPD hearing and reiterates on appeal that he comes from a culture where extramarital relationships are frowned upon, which feeds into his reticence to engage in a relationship in Canada. The Appellant also explained that he thought that he would be returning to live in Côte d'Ivoire after his studies in Canada, and therefore he did not intend to ever reveal his sexuality to anyone since he knew that it would not be accepted in that cultural context. He explained that he told only his cousin about his sexual feelings on a trip back to Côte d'Ivoire due to their close relationship. I accept and understand the Appellant's explanation for why he has not engaged in romantic relationships in Canada. The notion that he would engage in multiple relationships in Canada simply because he is gay is a stereotype. This notion does not consider that the Appellant is from a culture where dating is restricted. I note that the evidence before me does not indicate that the Appellant has engaged in any heterosexual relationships either. His relationship status or history is not a reliable indicator of his sexual orientation. [15] The RPD drew a series of conclusions about the Appellant's life and personal relationships that are not grounded in the evidence before it. It concluded that telling a close friend in Canada about his sexuality or going to a gay bar in Vancouver are far less risky steps than telling his cousin about his sexuality while in Côte d'Ivoire. It stated that the Appellant lived in Vancouver, a large cosmopolitan city for four years and had friends who came from a variety of backgrounds. It noted that his family learned about his sexuality at least three years prior to the RPD hearing. Therefore, it concluded that the Appellant had not provided a reasonable explanation for continuing to conceal his sexuality in Canada. The Appellant's evidence indicates that after his family learned of his sexuality, they withdrew their financial support, thus causing him to abandon his studies. The Appellant explained that he lived in a variety of temporary residences, including sleeping on couches, and held a series of precarious jobs in order to support himself. He testified, for example, that he currently lived with two other people in a home where people come and go, and that he does not know the last name of one of his roommates. The Appellant argues that in the years following his outing to his family, he was focused on survival rather than on dating. The Appellant's testimony does not reflect the assumptions that the RPD expressed about his personal situation and does not indicate that he had the context and opportunity necessary to confide his sexual orientation to those around him. I accept the Appellant's explanation that he was focused on concerns other than dating at that time and I acknowledge that he is not required to express his sexual orientation in a particular fashion in order to establish its credibility. The RPD erred by requiring the Appellant to express the discovery of his sexuality in a stereotypical manner. [16] The Appellant testified to first realizing his attraction to men in high school when he was 17, playing soccer in Canada and seeing shirtless men. The RPD questioned the Appellant about whether he had seen shirtless men in Côte d'Ivoire. Given that the Appellant had seen shirtless men in Côte d'Ivoire, the RPD detracted from his credibility about being gay since he did not describe having an attraction to men in those moments. [17] The RPD misrepresented the Appellant's testimony about his attraction to men in its decision. The Appellant's testimony did not shift or evolve with respect to how, when and where he first experienced his attraction to men. The Appellant clearly explained that he could not say that he experienced an attraction to men while at school in Côte d'Ivoire because he could not remember an exact moment where he felt that way, whereas he can recall an exact moment of attraction to a school friend in Canada that he named during the hearing. I find that the RPD erred by assuming that the Appellant should have had feelings of romantic or sexual attraction to anyone, male or female, prior to being 17 years old and living in Canada, simply because he would have already seen shirtless men. In doing so, the RPD stereotyped when and how anyone, whether gay, lesbian, pansexual, heterosexual, or otherwise, would experience feelings of attraction. The RPD engaged in microscopic reasoning when assessing the credibility of his cousin's outing to the family and placed an unreasonably high burden on the Appellant by requiring corroborating evidence from his missing cousin The Appellant's account of the incident where his cousin was discovered to be gay is credible. [18] The RPD used minor and insignificant contradictions between the Appellant's oral and written testimony to detract from his credibility and did not consider the Appellant's explanation about how he learned about that incident when it concluded that his testimony was vague and lacked detail. [19] The Appellant indicated in his narrative and in his testimony that his cousin was discovered at a nightclub in an intimate situation by people who informed their family members. A letter from the Appellant's mother also corroborates that his cousin was discovered at a club.10 In his Basis of Claim form narrative, the Appellant indicated that his cousin was also photographed at the club, when he testified, he did not speak of his cousin being photographed and simply indicated that he was seen in a club being intimate with somebody. His mother's letter indicates that his cousin was surprised coming out of the club by members of the family who then informed the men of the family commune. [20] Prior to being confronted by the RPD with these minor differences in his oral and written testimony, the Appellant explained that over the months and years, he has received pieces of the story, which is why he does not know exactly who discovered or reported the incident to his family members. After the RPD asked him about the differences, the Appellant explained that he was given different accounts of what happened from his aunt, who is his cousin's mother, and his own mother with whom he had lost contact for a period of time after being outed. It is for this reason that his oral testimony differs slightly from the account in his narrative. [21] I agree with the Appellant that the difference between his oral and written testimony is minor. All of the Appellant's evidence indicates that his cousin was discovered at a club, that his cousin's sexual orientation was reported to family members, that his cousin was beaten, and that during that beating, the Appellant's own sexual orientation was revealed to his parents, resulting in his own problems. I accept the Appellant's explanation for why the accounts differ slightly, and I acknowledge his argument that he was not present during the incident. I find that he is credible about this incident. It was incorrect to require the Appellant to provide corroborating evidence from a person that he cannot locate. [22] The RPD found that the absence of evidence or testimony from his cousin undermined the Appellant's credibility. The RPD noted that the Appellant and his cousin are meant to be close and that despite their having mutual friends, the Appellant has not tried to locate his cousin. The Appellant's oral and written testimony, and written testimony from his mother, establish that no one knows where his cousin is. The Appellant lost contact with his mother after being outed in 2016 and re-established contact with her over a year later, in XXXX 2017. His mother's testimony establishes that she was beaten, hospitalized, and shunned because her son is gay. This testimony also establishes that his cousin was last seen being beaten by their male family members because he was outed as gay. His mother's letter indicates that his uncle, his cousin's father, was killed because he helped his son move from the family compound. He testified that his aunt, his cousin's mother, told him to stop calling her for fear that she would be considered his accomplice. In the face of that testimony, I accept the Appellant's explanation that he was concerned about his cousin but stopped trying to think about doing anything because of the situation, because those who were in Côte d'Ivoire could not find him, and because he thought that there was not much that he could do. I find that the RPD placed an unreasonably high burden on the Appellant when it required corroborating evidence from a person who is missing. I find that his existing corroborating evidence, and his testimony, are enough to establish this aspect of his claim. The Appellant has established the credibility of his sexual orientation [23] The evidence before me establishes that the Appellant is a gay man, on a balance of probabilities. I acknowledge that in response to the RPD's credibility concerns, the Appellant provided evidence of a same-sex encounter as new evidence.11 I accept that the new evidence further corroborates the credibility of his sexual orientation. [24] Having found that the Appellant is credible about his sexual orientation, it is not necessary for me to address the delay in claiming protection as this issue is not determinative. The Appellant faces a risk of persecution in Côte d'Ivoire [25] The Appellant asserts that he faces a risk of persecution in Côte d'Ivoire for two reasons: a. His father has threatened to kill him and has the means to do so. b. Ivorian society discriminates against sexual minorities. The Appellant's father has the means and motivation to harm the Appellant [26] The Appellant contends that should he return to Côte d'Ivoire, he will be found and killed by his father. He explains that his father is a member of Côte d'Ivoire's powerful and political XXXX family and that his father is a prominent executive who works for the XXXX XXXX XXXX. He provided a handwritten letter from his father indicating negative sentiments towards the Appellant and that includes a threat to kill him should he return to Côte d'Ivoire.12 He argues that his father has the motivation and resources necessary to carry out his threats. The RPD accepted that this independent evidence provided by the Appellant establishes that he is from a high profile, well-connected family in Côte d'Ivoire and that his uncle died violently. I agree that the Appellant has established that his father has the means to carry out a threat against him. [27] The RPD assigned little weight to the letter from the Appellant's father and drew a negative inference, concluding that it was odd that his father would mail him a letter two years after disowning him merely to repeat what he had already told the Appellant on the phone. The RPD speculated that the letter could have been sent by anyone in Côte d'Ivoire. It noted that the Appellant had provided no evidence to corroborate that the letter was sent to his homestay family in Canada. [28] In response to the RPD's comments about corroborating how the letter was sent to Canada, the Appellant has provided new evidence13 from one of his homestay families corroborating his testimony that the letter was sent to one of his old homestay addresses. In the letter, the Appellant's former Ivorian French teacher communicates that he received the letter at his home and called the Appellant who asked him to read the letter over the phone. The letter writer indicates that it was during this incident that he learned that the Appellant is gay and that he was having problems with is father. [29] The RPD incorrectly considered the letter from the Appellant's father. The RPD failed to draw a clear conclusion as to the letter's credibility. It speculated that anyone could have sent the letter from Côte d'Ivoire without concluding that the letter was fraudulent. I find that there is no basis in the evidence for the inference that the letter would have been sent by someone other than the Appellant's father. It is also unclear what the RPD intended when it assigned little weight to the letter, rendering its reasons for the detraction from the Appellant's credibility unclear. [30] I find that the letter from the Appellant's father is credible. It has weight with regards to the Appellant's assertion that his father wishes to kill him if he returns to Côte d'Ivoire because he is gay. It has probative value with regards to the forward-facing risk that the Appellant faces in Côte d'Ivoire, given his father's position and influence. Sexual minorities in Côte d'Ivoire face discrimination [31] At the RPD hearing, the Appellant explained that homosexuality is not a crime in Côte d'Ivoire, but that it is illegal to express one's homosexuality in public and that people go to jail if they are caught in public. He argues that people in Côte d'Ivoire believe that homosexuality is a sin and goes against nature. He testified that growing up in Côte d'Ivoire, he saw people get verbally abused and physically assaulted just for walking or talking in a certain way. He explained that rather than protect those who are abused, the police participate in their maltreatment. [32] The Appellant submitted three credible articles speaking to how homosexuality is considered in Côte d'Ivoire. The articles indicate that Abidjan, Côte d'Ivoire's largest city and commercial centre, is a relatively tolerant city for lesbian, gay, bisexual, transgender and intersex people in a region where homosexuality is mostly illegal. One article clarifies that Côte d'Ivoire is one of few African countries that does not explicitly criminalize homosexuality, but that there is work to be done to improve Ivorian attitudes towards sexual minorities and so that they are not prey to harassment, abuse and violence, even in Abidjan.14 A second article indicates that in October 2016, two gay men were arbitrarily arrested and detained under the auspices of public indecency in the southwestern area of Côte d'Ivoire.15 Another indicates that in June 2016, several gay men were beaten and forced to flee their homes after the US embassy posted a picture of them identifying them as members of the LGBTI community.16 It details other examples where gay men were jailed and where a prominent gay rights organisation's headquarters was attacked and ransacked during anti-gay protests. The article indicates that people with diverse sexual identities do not feel comfortable expressing their identities in public. [33] The objective evidence available to the RAD confirms the Appellant's assertions about the situation for sexual minorities in Côte d'Ivoire.17 This evidence indicates that the situation for sexual minorities has deteriorated over the years, that they face discrimination in employment, access to health care, and housing, and that they have faced arbitrary detention and continue to suffer from acts of societal violence.18 "Article 360 of the Criminal Code provides for an aggravation of the minimum penalty prescribed for 'gross indecency' when such conduct 'consists of an indecent or unnatural act with an individual of the same sex.''19 "The National Commission for the Human Rights in Côte d'Ivoire underlines that there is no discriminatory legal regime in the Ivorian law, but also that there are neither dispositions providing for specific State protection of sexual minorities nor 'tolerance' of the State towards the issue of sexual orientation."20 [34] Faced with this evidence, I find that the Appellant will face discrimination living as a sexual minority in Côte d'Ivoire. I find that if the Appellant's father follows through on his threats, as he has purported to do, the Appellant will not benefit from adequate state protection as a sexual minority. For these reasons, I find that the Appellant faces a serious possibility of persecution in Côte d'Ivoire. CONCLUSION [35] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) Ayanna Roberts Ayanna Roberts March 24, 2021 Date AR/dd 1 Subsection 110(4) of the IRPA. 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 5 Lawani v. Canada (Citizenship and Immigration), 2018 FC 924. 6 Lawani v. Canada (Citizenship and Immigration), 2018 FC 924; Attakora v Canada (Minister of Employment and Immigration) (1989), 99 NR 168 (FCA). 7 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776. 8 Idem, at note 6. 9 Lubana v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116. 10 RPD Record. Letter from Barry Fatimata. August 12, 2019. Pages 200-210. 11 Appellant's Record. Statutory declaration of XXXX XXXX XXXX. XXXX 2020. Pages 5-8. 12 RPD Record. Letter from XXXX XXXX. Pages 197-199. 13 Appellant's Record. Letter from XXXX XXXX. XXXX 2020. Pages 9-11. 14 RPD Record. Jailing of gay Ivorian man stokes fears in LGBT safe haven. Reuters. March 22, 2017. Pages 81-87. 15 RPD Record. Ivory Coast officials refuse to explain why two gay men were jailed. The Guardian. January 26, 2017. Pages 88-90. 16 RPD Record. Gay Ivory Coast men allegedly attacked over photo of Orlando shooting event. The Guardian. June 29, 2016. Pages 91-92. 17 National Documentation Package, Côte d'Ivoire, 30 November 2020, tab 2.1: ?Côte d'Ivoire. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020; tab 6.1: Treatment of sexual minorities by society and the authorities, including legislation; state protection and support services (2006-February 2014). Immigration and Refugee Board of Canada. 27 February 2014. CIV104784.FE; tab 1.7: ?EASO Country of Origin Information Report. Côte d'Ivoire: Country Focus. European Union. European Asylum Support Office. June 2019. 18 National Documentation Package, Côte d'Ivoire, 30 November 2020, tab 2.4: ?Côte d'Ivoire: A Fragile Human Rights Situation. Amnesty International Submission for the UN Universal Periodic Review, 33rd Session of the UPR Working Group, May 2019. Amnesty International. 1 October 2018. AFR 31/9714/2018. 19 Idem, at page 16. 20 National Documentation Package, Côte d'Ivoire, 30 November 2020, tab 1.7: ?EASO Country of Origin Information Report. Côte d'Ivoire: Country Focus. European Union. European Asylum Support Office. June 2019. Page 79. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-10075 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français