MB5-00727

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: MB5-00727 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 at Montréal, Quebec Appel instruit à Date of decision May 19, 2015 Date de la décision Panel Stephen J. Gallagher Tribunal Counsel for the person who is the subject of the appeal Me Nico Breed Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION [1] The Appellant is Mr. XXXX XXXX XXXX, who is a 23-year-old citizen of Cameroon, who is appealing a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant has presented new evidence and has requested an oral hearing. DETERMINATION OF THE APPEAL [2] Pursuant to Section 111(1)(a) of Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD, namely, that Mr. XXXX XXXX XXXX is not a Convention Refugee pursuant to section 96 of the IRPA and/or a person in need of protection pursuant to section 97 of the IRPA. BACKGROUND [3] The Appellant sets out that he lived in XXXX neighbourhood, XXXX Quartier, Douala, which is a city of more than two million, in the Littoral Region of Cameroon. The Appellant alleges he is at risk of being assaulted, 'tortured' and perhaps killed because he alleges that he is a homosexual. [4] The Appellant alleges that he had a relationship with his employer, identified as Mr. XXXX XXXX, which lasted four years. The Appellant alleges that he would generally go to Mr. XXXX's home, but that one time in 2014 the Appellant met Mr. XXXX at a hotel. Coming out of the room with Mr. XXXX, the Appellant alleges that he was spotted by a "hotel service officer" who reported to a local citizen's committee or organization that the Appellant and Mr. XXXX were homosexual. [5] The Appellant, believing that he would be tortured and killed, alleges that he escaped to XXXX where he stayed until his family could organize his transit to Canada. The Appellant alleges that he arrived in Canada in June 2014, and he submitted a refugee claim in July 2014. The RPD, which heard and decided the Appellant's protection claim on October 9, 2014, denied the claim. With respect to the RPD's credibility assessment, which is the determinative issue in this claim, for a number of reasons the RPD did not believe that the Appellant was at risk of persecution or at risk for a IRPA section 97 reason because it concluded that the Appellant did not meet his burden of establishing that his story was true on a balance of probability. The Appellant appealed this decision by submitting a Notice of Appeal, which was received by the RAD on November 18, 2014. SUBMISSIONS [6] The Appellant submits that the RPD erred in its overall adverse credibility conclusion, which involved the RPD making individual errors on important elements of the Appellant's claim. The core concern is that the RPD did not effectively question the Appellant, given the Appellant's education, background and culture, to 'explore' the Appellant allegations. The RPD did not also recognize that the Appellant's homosexuality was not open, which would be an expected response to the Appellant's environment. The Appellant also notes that the RPD did not effectively understand or analyze the documentation to recognize the severity of the homophobic laws and treatment which characterizes life in Cameroon. [7] The Appellant also argues that the RPD 'ignored relevant' evidence to reach a conclusion that "the discrimination did not reach the level of persecution". [8] With respect to an outcome to this appeal, the Appellant seeks to have the RPD decision 'set aside' and presumably the Appellant should be recognized as a Convention refugee. Alternatively, the Appellant seeks to have the file returned to the RPD for reconsideration by a different panel. ROLE AND FUNCTION OF THE RAD [9] I note that the RAD has now received Federal Court guidance on the role of the RAD vis-à-vis RPD decisions. Justice Phellan in Huruglica1 states that the RAD "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". He also indicates that there is no need for the RAD to enunciate a 'standard of review' and suggests that while the RAD might show some deference on a credibility assessment and/or where the RPD enjoys a particular advantage in reaching such a conclusion, in other areas, such as an assessment of country conditions evidence, the RAD need not be deferential. [10] In Njeukam,2 Justice Locke references Huruglica and suggests that "Except in cases where the credibility of a witness is critical or determinative or when the RPD has a particular benefit from the RAD to draw a specific conclusion, the RAD must not give any deference to the analysis of the evidence made by the RPD". [11] Following Huruglica and Njeukam, I conclude that in this appeal, which turns on questions of fact, although I may show a degree of deference to the RPD with respect to its credibility assessment, I must provide my own assessment of the evidence to reach my own conclusion on this appeal. ON THE REQUEST TO PRESENT NEW EVIDENCE AND A REQUEST FOR A HEARING [12] The Appellant provides new evidence in the form of a 'statutory declaration' (Appellant's Record, pp. 11-12). Based on section 110(4) of IRPA, I am accepting this evidence because it dates from after the RPD decision and it is relevant to the issues of the claim. [13] Although I am accepting this evidence, given the entirety of the evidence, as noted below, I do not find that this material is sufficient to justify allowing the refugee claim. This request for a hearing is therefore denied. ANALYSIS OF THE MERITS OF THE APPEAL Core Issue: Did the Board err in its credibility findings? [14] The basic argument of the Appellant is that the RPD erred in its evaluation of the Appellant's testimony and corroborative evidence. The basic logic of the RPD is that the RPD asked numerous questions across a range of issues and with respect to all aspects of the Appellant's allegations and the RPD reaches a conclusion that the Appellant's responses are not authentic in the sense that all aspects of the allegations are a story. [15] This conclusion is reached based on an assessment of the responses as being vague, at times confused and lacking in detail. The RPD, having read the Appellant's short narrative (RPD Record, pp. 20-21), finds that the Appellant is basically sticking to a script and can bring little if anything to expand on the allegations set out in the BOC. [16] The Appellant disputes this analysis by arguing that the RPD did not effectively question the Appellant to elicit the background and details which do exist (Appellant's Memorandum, paragraph 17). I must conclude that the RPD asked every important/relevant question and it is simply the case that the Appellant could not expand on anything. To take an example, the RPD asked the Appellant if he had ever talked to Mr. XXXX about homosexuality or anything related to the risk they might face as homosexuals in Cameroon. Even though the Appellant alleges that his relationship with Mr. XXXX lasted four years and that they saw each other nearly every day, the Appellant states that they "didn't talk" (Oral hearing at minute 49). The Appellant also knows nothing of what became of Mr. XXXX or his business after the incident in the hotel (Oral hearing at minute 1:09). [17] The Appellant also clearly knows little to nothing about homosexual life in Cameroon, which is exemplified by the Appellant's reference, when asked about his knowledge of the risk to homosexuals in Cameroon, to "someone was killed" in 2012. When asked who this person was the Appellant responded that this was not someone he knew, it was just someone in the news (Oral hearing at minute 47). This possibly refers to the torture and killing of Mr. Eric Ohena Lembembe, a prominent gay rights activist, in Yaoundé, in July 2013, or Jean-Claude Roger Mbede, a homosexual who died after release from prison in 2014. The point is that there is much coverage and activity surrounding gay rights in Cameroon and with respect Douala, this is where Ms. Alice Nkom, a prominent lawyer and advocate for gay rights, has defended numerous individuals against charges of homosexuality (RPD Record, p. 84). [18] Regardless, the Appellant has little if any knowledge of anything related to being gay in Cameroon. The Appellant knows nothing about gay life in Douala and knows little if anything about the law or enforcement of rules against homosexuals. This can be seen from the Appellant's alleged concern about a vaguely described Quartier oversight group (Oral hearing at minute 20-23) as opposed to the police and court system. I conclude that on this issue I must show deference with respect to the RPD's conclusion on a lack of credibility given its analysis of the Appellant's evidence. [19] The Appellant also argues that the RPD is using "North American logic" to assess the Appellant's lack of knowledge and homosexual activity. The Appellant argues that instead the RPD should recognize and take into consideration the Appellant's "age, cultural background and previous social experiences" (Appellant's Memorandum, paragraph 18). I note that the Appellant speaks English and French, can read and write, has five years of secondary school, was allegedly employed for four years and was 22 or 23 when these events occurred (RPD Record, p. 31). The Appellant must be expected to be able to fully understand this process and answer with details if required. I must conclude that this is an extension of the Appellant's previous concern about the RPD's analysis. In listening to the hearing, the Appellant exhibits a lack of spontaneity, detail and knowledge, which is such that it is simply within that area of 'advantage' where I must show deference to the RPD's conclusion that this is a story and not events which were lived by the Appellant. I would also agree with this conclusion. [20] In this appeal there is a new piece of evidence which is a 'statutory declaration' which in terms of the substance/allegation sets out that the Appellant has now gone to a bar in Calgary which is frequented by homosexuals. According to the Appellant: Since my hearing I once attempted to go to a gay bar, but was refused entry as they did not want to accept my identity. They wanted an official Canadian ID. I did go back after several weeks and they allowed in. This was my first exprience of being free in public and not hide or be scared about my sexual orientation. I was surprised how happy everybody were (Appellant's Record, p. 12). [21] I must conclude that the fact that the Appellant has provided a Statutory Declaration stating that he went to a 'gay bar' in Calgary is not sufficiently probative in the context of the existing evidence in the file and the answers provided by the Appellant during the hearing to set aside the RPD's conclusion that, on a balance of probability, the Appellant's alleged homosexual "identity and your allegations" lack credibility (RPD Decision, p. 5). This is especially the case given that the Appellant was specifically questioned on social activities in Calgary for the approximately four months after arrival there and the Appellant responded that he did not have a chance to go out and that he does not know anyone (Oral hearing at minute 1:07). I must conclude that this declaration has no probative value. [22] There is also an argument that RPD ignored relevant evidence to conclude that "the discrimination did not reach the level of persecution". I do not find this relevant because essentially the RPD is concluding that the situation faced by homosexuals in Cameroon does not affect the Appellant. [23] On the final argument of the Appellant, that the RPD did not fully reflect on the documentation on the treatment of homosexuals in Cameroon to fully appreciate the risk that the Appellant faces, if he were to return to Cameroon (Appellant's Memorandum, Paragraph 19), I must conclude that this is not necessary because the RPD is concluding that the Appellant has not, on a balance of probability, established that he has a homosexual 'identity'. From this perspective, the RPD need not consider the specifics of the documentation related to the treatment of homosexuals in Cameroon. I note the RPD's overall determinative conclusion is that the Appellant has not met his burden of establishing the truth of his allegations on a balance of probability. In reviewing the evidence, I agree with the RPD's conclusions. CONCLUSION [24] For all these reasons, I confirm the determination of the RPD, namely, that Mr. XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection". [25] Therefore, his appeal is dismissed. Stephen J. Gallagher Stephen J. Gallagher May 19, 2015 Date /cl 1 Huruglica v. M.C.I. 2014 FC 799. 2 Njeukam v. M.C.I. 2014 FC 859, paragraph 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR: MB5-00727 7