TB9-25546

RAD File / Dossier de la SAR: TB9-25546 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 Ottawa, ON Appel instruit / entendu à Date of decision September 1, 2020 Date de la décision Panel Charles A. McDermott Tribunal Counsel for the person who is the subject of the appeal Sol Gombinsky 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 dismiss this appeal. [2] XXXX XXXX XXXX (the Appellant) is citizen of Ghana who fears persecution due to his sexual orientation. The Refugee Appeal Division (RPD) found that the Appellant was generally lacking in credibility and had not established that he identifies as, or would be perceived to be, a bisexual man. The Appellant argues that the RPD did not adequately consider his explanation and expressions of remorse and that the RPD failed to properly apply the sexual orientation and gender identity and expression (SOGIE) Guideline1. The Minister intervened in writing at the RPD but has not intervened here. [3] The Appellant is not relying on any new evidence and has not requested an oral hearing. [4] The determinative issue in the appeal is credibility. DECISION [5] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. ANALYSIS [6] My role is to look at all the evidence and decide if the RPD made the correct decision.2 The RPD did not err in its credibility analysis Misrepresentations in claim [7] The RPD found that the Appellant's credibility was impugned by the fact that he concealed material facts regarding his claim. The Appellant argues that the RPD did not adequately consider his explanations and expressions of remorse. [8] The RPD did not err and the Appellant's argument must fail. The differences between the narrative in his initial Basis of Claim (BOC) form (dated August 14, 2017) and the narrative in his revised BOC form (dated September 19, 2017) are substantial as illustrated below: a. In his initial BOC narrative, the Appellant states he was hiding in a church prior to his departure from Ghana. In his revised BOC narrative, the Appellant does not mention hiding in a church; b. In his initial BOC narrative, the Appellant states he left Ghana on XXXX XXXX, 2015, travelling to XXXX, then to XXXX in XXXX 2015, then to the United States of America (USA) in XXXX 2016, and finally to Canada in XXXX 2017. In his revised BOC, the Appellant states that he arrived in the USA on XXXX XXXX, 2009 on an A2 visa and remained in the USA until XXXX XXXX, 2017 when he crossed into Canada; c. In his initial BOC narrative, the Appellant does not mention being married. In his revised BOC narrative, the Appellant includes information regarding his marriage in the USA and subsequent separation; d. In his initial BOC narrative, the Appellant stated that although he told border officials that he came to Canada after consulting with an attorney who advised him to seek protection in Canada because of President Trump's administration, this was not true and that he had contacted immigration attorneys in the USA but could not afford their fees. In his revised BOC narrative, the Appellant describes arriving in the USA on an A2 visa and his attempts to obtain permanent residence status through marriage. [9] I also note that the Appellant revised his BOC narrative one week after the Minister had disclosed the results of the biometrics query made to officials in the USA. Very little of the Appellant's narrative from his initial BOC narrative survives in his revised narrative and I find that expressing remorse is not sufficient. [10] The Appellant's explanation for his initial BOC narrative was that he was "really scared" and that he put his faith in an attorney in the USA who advised him to make a claim in Canada without disclosing his history in the USA. The Appellant also submits that he subsequently received similar advice when he consulted a lawyer in Canada. In other words, his explanation is that he was afraid and his lawyers advised him to commit perjury. Lawyers in both Canada and the USA are bound by a code of conduct that would subject them to sanctions by their regulatory body if they were found to have advised a client to commit perjury. There is no evidence before me that the Appellant has made a complaint to either lawyers' regulatory body in this regard. The Appellant's first lawyer in Canada is experienced in Canadian refugee law and would know that, as a matter of routine, Canadian officials submit refugee biometric information to their counterparts in the USA and that any false statements about an Appellant's time in the USA would probably come to light and negatively affect an Appellant's claim. For these reasons, I find that the Appellant's assertion that he was advised by his first lawyer in Canada to stick with his original narrative is not plausible and I draw an adverse inference from this assertion. [11] I also find that the Appellant has not adequately explained the changes in his BOC narrative, and I also draw an adverse inference from this. Fraudulent documents obtained in support fraudulent claim [12] The RPD found that documents intercepted by Canada Border Services Agency (CBSA) were fraudulent and made a negative inference regarding the Appellant's credibility for having asked for these fraudulent documents to support his claim. The Appellant argues that the RPD failed to take into account the facts that he has taken personal responsibility and expressed genuine remorse for his actions. [13] The RPD did not err and the Appellant's argument must fail. The intercepted package included four statutory declarations, two letters, a medical certificate, the Appellant's birth certificate and some documents associated with the Appellant's business in Ghana. Of these, only the statutory declarations, letters and medical certificate are relevant to the appeal. [14] The Appellant's first and revised BOC narratives both state that the incident in the family compound involving Mr. XXXX occurred on April 16, 2015. In the first BOC narrative, both Mr. XXXX and the Appellant were attacked and beaten by "guys from the community watch dog" until saved by the police. The Appellant then sought refuge in a church after receiving medical treatment. In the revised BOC narrative, only Mr. XXXX was attacked and beaten until saved by the police. The revised BOC narrative does not mention the Appellant ever being attacked in Ghana, nor does it mention the Appellant seeking medical treatment or refuge in a church. Contrary to the Appellant's assertions, the intercepted documents do not simply revise the timeline of events to match the Appellant's first BOC narrative. There is no evidence before me that the Appellant was ever beaten in Ghana, had to receive medical treatment as a result or that he sought refuge in a church. I find that, on a balance of probabilities, the intercepted statutory declarations, letters and medical certificate are fraudulent. [15] The RPD questioning regarding the intercepted documents started at 0:59:30 of the hearing. The Appellant testified that the package of documents was created to support his first BOC narrative. When asked if he requested the documents, the following exchange took place: RPD: So, did you request these documents? Appellant: No, I didn't request the documents. RPD: So, I don't understand. How did the package come to exist in the world? Appellant: Yeah, I don't... the question again? Did I.... RPD: Did you request, like did you phone someone... or email someone or ask someone and say 'these are the documents I want? Get them'. Appellant: Yeah, I spoke to my brother, cause when I had a, from 2008, I went to the hospital and some places that I went to, so it was mostly the timeline that they changed for everything, so in 2008, and then ah, now I had a claim that said 2015, so. RPD: Okay, so aside from changing the date, did you give your brother any other instruction? Appellant: No, I didn't give him any instruction. RPD: So, did he know what kind of documents you wanted? Appellant: Yeah. The lawyer that (two or three unclear words) give me the list of documents that I needed. I give it to him. RPD: Like. You gave it to him through what method of? Appellant: We spoke and I told him over the phone. [16] The Appellant does state that he is sorry that he listened to former counsel and he is remorseful for his actions. However, I find that, even when confronted, the Appellant was somewhat evasive about his responsibility for the creation of fraudulent documents. I also find that the Appellant's apology and remorsefulness, or his statement that he was "really scared" do not satisfactorily explain why the Appellant was prepared to use fraudulent documents to support a false narrative. I draw an adverse inference from the Appellant asking for these fraudulent documents in support of his claim. Inconsistencies regarding how the Appellant's wife in the USA discovered the relationship with XXXX [17] In his revised BOC narrative, the Appellant states that his wife found some videos of the Appellant and XXXX on his phone. In his testimony before the RPD, the Appellant stated that he and his wife were watching a movie at home in June or July 2013 when XXXX sent a single picture of the Appellant and XXXX kissing. When the RPD confronted the Appellant with this inconsistency, the following exchange took place: Appellant: With the videos, I don't know how she found them, she went into my phone. But that's what she was accusing me of, that she saw me, she found some videos on my phone, me and XXXX." RPD: That's very different from what you just told me. Appellant: Yeah. What I told you was that the one picture that I can, was of significance to me, that's the only one that I know she saw. But these videos, that's something that she said she found all these videos on my phone. I didn't show her, I didn't know how got that, I know she's my wife, she has access to my phone when I'm not around. Maybe she went through it, through my phone to see all these videos, but it's not something I showed to her. The Appellant has not explained why there is no mention of his wife seeing photo while watching a movie in his revised BOC narrative or why his revised BOC narrative would mention videos. I draw a negative inference from this inconsistency. Conclusion on credibility [18] I find that the Appellant is not a credible witness since his narrative story changed substantially between his initial and revised BOC, the implausibility of his first Canadian counsel advising him to stick with his original story, asking for fraudulent documents in support of his claim and the inconsistency of how his wife in the USA discovered the Appellant's relationship with XXXX. Accordingly, the presumption of truth of his sworn evidence3 has been rebutted. Other evidence to support the Appellant's claim [19] The RPD found that the Appellant's testimony regarding his same-sex relationships was vague, inconsistent, evasive, evolving and ultimately not credible. The Appellant argues that the RPD failed to properly apply the SOGIE Guideline. [20] The RPD did not err and the Appellant's argument must fail. The RPD analyzed the Appellant's testimony regarding his same-sex relationships as part of its credibility analysis. Although I have already found the Appellant not to be a credible witness, I can independently analyze the Appellant's testimony regarding his same-sex relationships. [21] Regarding a relationship the Appellant allegedly had with a friend in high school, the Appellant did not volunteer any information and gave minimal responses to the RPD questions. The Appellant stated that they were at boarding school together and he would ask his friend for help with schoolwork. He was attracted to his friend and his friend was attracted to him. The relationship ended when his friend's family moved to Europe. When asked how, given the situation in Ghana where same-sex relationships are not accepted, he felt he could open up to his friend, the Appellant stated: "When it comes to that feeling, I don't... nobody can explain, but... unless you are into, if you are a gay or lesbian, then you understand what the feeling is. But if you're not, no explanation will make sense to you". I find the Appellant's testimony regarding this relationship was vague and is not sufficient to establish his sexual orientation as bisexual. [22] When the Appellant could not say, or estimate, how many same-sex relationships he had had, the RPD asked if there was one relationship that stood out in his mind as the most important of them all. After some thought, the Appellant responded "XXXX". When it appeared that the Appellant was not going to elaborate, the RPD asked: "Why?" The Appellant's response was hesitant and vague, stating that they spent time together and that XXXX understood him. The Appellant did not provide any personal information regarding XXXX. I would have expected that, having been in a relationship for three years, the Appellant would have provided more information regarding XXXX. In addition, the Appellant testified that the relationship ended in 2015, as XXXX was concerned that the Appellant was still meeting with his wife. This is inconsistent with the Appellant's revised BOC narrative. In his revised narrative, the Appellant stated that his wife made a surprise visit on January 24, 2015, and XXXX was present. The Appellant and his wife argued, and his wife became violent and promised to get the Appellant deported. The Appellant filed for spousal abuse in April 2015, and I infer from the narrative and testimony that the Appellant and his wife were no longer trying to work things out after January 2015. Thus, based on the revised BOC narrative, XXXX would have no reason to believe that the Appellant and his wife were planning to reunite, which is inconsistent with the Appellant's testimony for the reason for the end of the relationship. For these reasons, I find that the Appellant's testimony regarding XXXX is vague and inconsistent and does not establish the Appellant's sexual orientation as bisexual. [23] I find that the Appellant has not provided sufficient credible and trustworthy evidence to establish his sexual orientation as bisexual. The RPD properly applied the SOGIE Guideline [24] The Appellant argues that the RPD erred by placing too little emphasis on his testimony and too much emphasis on the fact that he was married twice to women in determining that he was not a bisexual. [25] There is no merit to the Appellant's argument. The SOGIE Guideline does state that stereotypes should not be relied on in adjudicating cases involving sexual orientation. The Appellant argues that by stating that the Appellant was married to women, the RPD relied on a stereotype. I do not agree. The RPD did not use the fact that he has been in heterosexual relationships to impugn the Appellant's credibility. The RPD had already established that the Appellant was not a credible witness and was exploring whether there was any other evidence that supported the claim. The RPD was simply noting that having been married to a woman in the USA and being married to a woman here in Canada do not support his claim. [26] The Appellant argues that the RPD statement that there was no corroborative evidence that supported his claim was contrary to the SOGIE Guideline. I do not agree. In cases where a claimant has been found to be credible, the SOGIE Guideline states that corroborative evidence is often not available, and the claimant's sworn testimony is sufficient to establish sexual orientation. However, in the case at bar, the RPD had found the Appellant not to be a credible witness and was exploring whether there was any other evidence that established the Appellant's claim. The SOGIE Guideline specifically states that decision-makers may draw a negative inference from material inconsistencies or contradictions in the evidence that have no reasonable explanations. This is what the RPD did. [27] In listening to the entire recording of the Appellant's RPD hearings, I find that the RPD questions regarding the Appellant's sexual orientation were appropriate and asked in a sensitive, non-judgmental manner. [28] I find that the RPD applied the SOGIE Guideline appropriately. CONCLUSION [29] I find that the Appellant failed to establish his sexual orientation as bisexual. [30] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) "Charles A. McDermott" Charles A. McDermott September 1, 2020 Date 1 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, IRB, effective date: May 1, 2017. 2Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Maldonado v. Canada (MEI), [1980] 2 FC 302. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR: TB9-25546 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