TB5-04528

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB5-04528 Private Proceeding / Huis clos Redetermination of the Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date(s) of hearing November 9, 2016 Date(s) de l'audience Date of decision November 23, 2016 Date de la décision Panel Anthony da Silva Tribunal Counsel for the person(s) who is(are)the subject of the appeal Solomon Orjiwuru 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 Catherine Bond Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant) is a citizen of Cameroon. She appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and substitute a decision with its own determination that she is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. BACKGROUND [3] The Appellant alleges that she was arrested, detained, and mistreated by the authorities in Cameroon as a result of her efforts to organize an educational forum on the importance of girls and LGBT education. She fears that she will face persecution as a result of her activities were she to be returned to Cameroon [4] The Appellant's application for refugee protection was heard on March 12, 2015. [5] In a decision of April 15, 2015, the RPD rejected the claim. The RPD found that the Appellant failed to provide sufficient credible and trustworthy evidence to establish, on a balance or probabilities, that the events that she alleges and which form the basis of her claim actually took place. The RPD decision was appealed to the RAD on May 5, 2015. After filing written submissions on May 26, 2015, the Appellant subsequently applied to the RAD, pursuant to RAD Rules 37 and 29, to admit new evidence. The Appellant also requested that an oral hearing be held pursuant to section 110(6) of the IRPA. In a decision of July 10, 2015, the RAD confirmed the RPD decision and dismissed the Appellant's appeal. [6] The Appellant sought judicial review of the RAD decision and on March 18, 2016, the Federal Court ruled that the RAD decision be set aside and that the matter be sent back to a different panel for redetermination. THE ISSUES [7] The Appellant submits the following issues1 as grounds for appealing: [8] Did the RPD err in its credibility findings? ROLE OF THE RAD [9] On March 29, 2016, the Federal Court of Appeal (FCA) in Huruglica2 provided guidance on how the RAD is to properly approach its review of the RPD's findings of fact or of mixed fact and law. Justice Gauthier found that in Huruglica, where the credibility of the oral evidence before the RPD was not a determinative issue, a standard of correctness should be applied by the RAD when assessing RPD findings of fact or of mixed fact and law. [10] In light of the Court's ruling, when conducting an appeal of a determination by the RPD, the RAD will carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. Where the credibility of the oral evidence before the RPD was not a determinative issue, the RAD will apply a standard of correctness when assessing RPD findings of fact or of mixed fact and law. Where the credibility of the oral evidence before the RPD was a determinative issue, the RAD will defer to certain findings of the RPD where the RPD enjoyed an advantage over the RAD in assessing the oral evidence of witnesses who appeared before it. The extent of this deference will be assessed on a case-by-case basis dependent upon the particular circumstances of the matter and in conjunction with an analysis of the record as a whole. ANALYSIS Admissibility of Evidence Submitted on Appeal [11] Section 110(4) of the IRPA3 provides that 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 expected in the circumstances to have presented, at the time of the rejection. [12] 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. Application of Section 110(4) [13] In her Appeal of the RPD decision, new evidence4 was provided by the Appellant to the RAD on July 3, 2015. The Appellant submitted that the evidence submitted on July 3, 2015 was not readily available to her at the time of the RPD hearing and therefore met the test as outlined in section 110(4). The RAD has reviewed the evidence submitted on July 3, 2015 and finds that it meets the requirements of section 110(4). [14] On August 15, 2016,5 the Appellant submitted additional evidence to the RAD. The RAD has reviewed this evidence and finds that it meets the requirements of section 110(4). Hearing [15] Section 110(6) of the IRPA provides that the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3): (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and, (c) that, if accepted, would justify allowing or rejecting the refugee protection claim.6 [16] In its ruling of March 18, 2016,7 the Federal Court found that it was unreasonable in the circumstances of this case for the RAD not to have convened an oral hearing so as to provide the Appellant with the opportunity to address its concerns regarding the authenticity of the new documents that had been submitted on July 3, 2015. The RAD concurred with the Federal Court and presented to the Appellant some of the concerns with the documents highlighted in the RAD decision of July 10, 2015. [17] The RAD found that the new evidence met the criteria of Section 110(6), and a hearing was scheduled. The RAD informed the Appellant that it wished to conduct a hearing, focusing on the content of the documents8 submitted as new evidence on July 3, 2015 and on August 15, 2016. The RAD further indicated to the Appellant that it wished to question her spouse, XXXX XXXX XXXX. A hearing was held on November 9, 2016. Appellant's Documents [18] The RAD questioned the Appellant only on documents with which it had concerns. The RAD asked the Appellant to comment on the concerns with the hospital document from XXXX XXXX.9 In its decision of July 10, 2015, the RAD had found that information in the document had been entered after the seals were in place. The RAD found that since the purpose of a seal or stamp is to "seal" the document, to attest to its genuineness and that it has not been tampered with or altered, the presence of data written over the seal undermines the integrity of the stamp and as such, the credibility of the document. [19] The Appellant responded that initially the hospital did not want to provide a medical record, but that she then had contacted her lawyer in Cameroon who was able to obtain the document which was subsequently sent to her by her ex-fiancé. She testified that she had no explanation as to why there was information over the seals/stamps on the document. In his oral submissions at the hearing, the Appellant's counsel submitted that the document was "stamped" not "sealed" and if the procedure for stamping a document in Canada is different than in other countries, it does mean that a document is not authentic. He also indicated that some of the standard information on the document would have been pre-printed. [20] The RAD finds that there is insufficient evidence to determine that the document is not authentic. Nonetheless, it does not find that the information provided in the hospital document is sufficient to support her allegation that she was beaten by the Cameroonian police. [21] The RAD, in its July 10, 2015, also found that there was "remarkable similarity" between the handwriting in the hospital document with that found in the document, "An undertaking by Mr. XXXX XXXX."10 [22] As indicated at the hearing, the RAD does not find sufficient evidence to indicate that both the hospital document and Mr. XXXX "Undertaking" were written by the same person as was suggested in the RAD decision. The RAD also notes that panel in the first RAD appeal indicated in its decision that it is not a handwriting expert. [23] The RAD, in its July 10, 2015 decision, also gave little weight to the three copies of the photographs which purport to show the Appellant in a hospital bed. The Appellant provided the originals of the three photographs that had been initially submitted to the RAD. The originals are still of poor quality, but it would appear that the individual in the most distinct and clear of the three photographs is the Appellant. The originals also contain dates which correspond to the dates given in her Basis of Claim (BoC) narrative as the period she had been hospitalized. The RAD finds that there is insufficient information in the photographs to indicate that the Appellant was actually in a bed located within the hospital. [24] As indicated earlier, the Appellant submitted additional new evidence on August 15, 2016.11 This new evidence is significant and introduces a sur place element to the claim, not previously present. The Appellant alleges that she is a lesbian and is currently married to a woman, XXXX XXXX XXXX. In light of this completely new issue, the RAD was required to conduct an extensive hearing related to this new evidence introduced only recently. The Appellant's Sexual Orientation [25] The Appellant testified that when she attended a conference in Canada she had learned a great deal about the people and found that the country treated people equally and accepted diversity. As such, when she looked for a place to flee to, she decided on Canada. [26] The Appellant testified that she is a lesbian and has married XXXX XXXX XXXX, a woman she had met in XXXX 2015 at a party. As evidence of her marriage, she provided an Ontario Marriage Licence12 and a Certificate of Marriage13 which indicate that the Appellant and XXXX XXXX XXXX were married on XXXX XXXX, 2015. [27] The RAD accepts that the Appellant is married to another woman, but given the timing of the marriage, following a negative decision by the RAD, questions whether this is a marriage of convenience. [28] The Appellant testified that she first became aware of her sexual orientation in 2008 when she was 17 years of age. For the next several years, following her first sexual experience with a woman named XXXX, she was secretly involved with two or three other women. To cover up her relationships with women, given the legal and social restrictions against homosexuality in Cameroon, she entered into a relationship with XXXX XXXX (XXXX) in 2011. She indicated that she entered into the relationship with XXXX because her parents, who were Christians, would never agree to a marriage between her and XXXX who is a Muslim man, and therefore she would not have to marry a man, contrary to her sexual orientation as a lesbian. [29] The RAD asked the Appellant if she and XXXX had lived together as man and wife, given that she identified him in her BoC as her common-law spouse.14 The Appellant indicated that they never lived together, but just dated. When questioned as to why she would refer to XXXX as a "common-law spouse" if they did not co-habit, she indicated that when he left for another city, she had visited and stayed with him. Initially, she stated that they had stayed together for a month, but then changed her testimony and said that she stayed with him for "a couple of days." The RAD notes that she referred to XXXX, throughout her testimony as her fiancé and in her documentary evidence as her "ex-common-law spouse"15 and as her "former common-law spouse."16 The RAD also notes that in her Generic Application Form for Canada, when asked in Question 14: "Have you ever been married or in a common-law relationship?" she stated that she entered into a common-law relationship with XXXX XXXX in 2011-XXXX XXXX XXXX.17. The RAD is left wondering whether she was in fact involved in a common-law relationship with XXXX, which she now denies and describes as only dating, perhaps since it would not seem to support her allegation that she is a lesbian. [30] The RAD also questioned the Appellant about her exchange of e-mails with XXXX between XXXX XXXX and XXXX XXXX, 2015.18 [31] In an e-mail of XXXX XXXX, 2015 to XXXX, the Appellant wrote: "I am so worried about your silence. ...You know I miss and love you."19 [32] XXXX responded to her in an e-mail of XXXX XXXX, 2015: "...You pretended to me you loved me meanwhile you are a lesbian. ... Avoid contacting me coz you are a devil in person."20 [33] The Appellant then wrote back on XXXX XXXX, 2015: "...I am not a lesbian. The person who is feeding you with this information wants to break off our relationship. ...If my parents were not against this relationship, we could have been married by now. But I believe one day, they will come to understand that our religious differences is [sic] not a problem for us being together happily and forever."21 [34] The RAD found the exchange between the Appellant and her "ex-common-law spouse, curious." Her initial e-mail was sent on XXXX XXXX, 2015, almost a month after she had been married in Canada and about a week after she had informed her uncle/foster father about the marriage. She testified and has indicated in her written evidence that her relationship with XXXX was one of convenience to allow her to hide her sexual orientation. As she stated in a letter dated XXXX XXXX, 2015: "Being in a relationship with XXXX as far as he was a male, was an ideal umbrella for me to hide my sexual orientation from the public."22 [35] The RAD asked the Appellant why in her e-mail to XXXX on XXXX XXXX, 2015, she appears to be concerned about him and professes her love for him, when, according to her, theirs was merely a relationship of convenience. She replied that "he's a nice person." The RAD notes that the Appellant was now in Canada, was married to a woman, and had already disclosed her sexual orientation to her uncle/foster father. It therefore found her response unconvincing. [36] The RAD notes that in his response to her e-mail of XXXX XXXX, 2015, XXXX reveals to her that he is aware of her sexual orientation: "You pretended to me you loved me meanwhile you are lesbian." He goes on to write: "Avoid contacting me coz you are a devil in person."23 The Appellant, in her response to his e-mail denies that she is a lesbian and talks about "being together happily and forever."24Again, the RAD found her response curious given that she is now married in Canada and her family is aware of her sexual orientation. [37] The Appellant was asked as to when she was planning on telling XXXX about being a lesbian. She replied that she had no plan as to when, but wanted to inform her family first. When it was pointed to her that she had already informed her uncle/foster father, she replied that she wanted to tell him (XXXX) in her own way and that she wanted to tell him the same way she had told her family. Her responses do not make sense and the RAD questions the motivation behind these e-mails. [38] The RAD notes that there were several other e-mail exchanges between the Appellant and XXXX - even though he continued to tell her that he didn't want to hear from her again. In an email of XXXX XXXX, 2015, XXXX informed the Appellant that he has gone to the police and "narrated everything to them."25 When they did not believe him, as proof he printed out her emails and showed them her marriage photos which her uncle/foster father had sent to his phone when he was trying to have XXXX convince her to end her lesbian relationship. In light of her responses, the RAD found the e-mails contrived and created solely to bolster her claim. [39] The Appellant was asked why she did not disclose her sexual orientation during the RPD hearing, especially since her claim was based on having been accused of promoting homosexuality in Cameroon. She replied that she did not feel comfortable talking about her sexual orientation. [40] The Appellant was then asked why she did not disclose her sexual orientation when she appealed the RPD's negative decision to the RAD in May 2015 or later when she submitted new evidence to the RAD in July 2015. She replied that she still was unable to speak openly about her sexual orientation. [41] The RAD finds the Appellant's explanation unpersuasive as to why she had not disclosed her sexual orientation, first at her RPD hearing and then later in her appeal to the RAD. The Appellant has fled to Canada because, as she explained, it is a country that treats people equally and accepts diversity. She also alleges that she fears, if returned to Cameron, arrest, torture and imprisonment - and this was just for "promoting homosexuality." Were she truly afraid, it would be reasonable to expect her to reveal her sexual orientation and even ask her partner to appear as a witness, who though not yet her spouse, was living with her at the time. [42] The RAD also notes that in her testimony at the RPD hearing, she was asked why LGBTI issues were not mentioned as parts of her goals in an interview she gave. She testified that she only started to get interested in LGBTI issues after she had returned from New York in 2013. The RAD notes that this was a perfect opportunity to disclose her sexual orientation to the RPD, but instead testified that was just a recent interest - which given her current evidence that she has been a lesbian since 2008 is misleading. [43] The Appellant's counsel submits that the issue before the RPD was whether she had been an advocate for the LBGT community. Further, that many Africans have difficulty talking about their sexual orientation and that indeed many Canadians do not reveal their true sexuality. As well, he submits that at the time of the RAD Appeal, the Appellant was only starting her relationship with her current spouse and that later when her appeal was before the Federal Court she could not provide evidence. [44] The RAD has considered counsel's submissions, but finds that the Appellant's failure to disclose her sexual orientation earlier indicates a lack of subjective fear which undermines her credibility. [45] The Appellant was asked about her relationship with her spouse in Canada. Among other questions, she was asked if they had pet names for each other and replied, "No." When asked what they call each other she replied, "XXXX" (the spouse) and "XXXX" (the Appellant). The RAD notes, however, that when her spouse was asked what she called the Appellant she replied, "Baby" and "Sweetie." She also indicated she calls the Appellant "XXXX" when she's angry. [46] The Appellant's counsel submitted that they were asked many questions, to which most of their answers agreed, and that this one discrepancy is not serious given the totality of their testimony. The RAD finds that although the discrepancy in their responses regarding their names would appear may, on the surface, appear to be minor and innocuous, it is quite significant, given their allegation that they have been inseparable since February 2015 when they claim to have moved in together. Names and what individuals call each other in a close and loving relationship are an extremely personal and intimate element of a relationship. The differences in the responses by the Appellant and her spouse to the question as to what they call each other, does not support the kind of relationship the Appellant alleges to be involved in and erodes her contention that she is in a bona fide same-sex marriage. [47] The Appellant's spouse was also questioned about her sexual orientation. She testified that she is 26 years old and identifies as a lesbian. She also indicated that she had never had any same-sex relationships or even any feelings of attraction to other women until she met the Appellant. She indicated she had had several relationships with men before meeting the Appellant approximately one and half years ago. She typified her relationships with men as having been "treated poorly by guys." The RAD finds nothing in her testimony that would support her allegation that she is a lesbian. Indeed, the absence of any feelings of attraction towards women before she was 25 seems unlikely if in fact she is a lesbian as she professes. Criminal Record Check [48] The Appellant's spouse, who is now a protected person in Canada following the RPD's acceptance of her claim, has initiated an application for permanent residence and had included the spouse in her application. Canadian Immigration requested a police certificate/police record check for the Appellant from Cameroon. The RAD asked the Appellant if she has had any difficulty obtaining the record check from the police. She indicated that she asked her uncle, XXXX XXXX, to get the police document but that he had not mentioned any problems. [49] Her counsel, who has also been involved with the permanent residence application, indicated that the police document only confirms that she has not been convicted of any crime. He submits that in Cameroon, the police process may be different from Canada and that there is no evidence to indicate that the Cameroonian police has a central data base, which presumably would bring up the Appellant's name. Following the hearing, the Appellant's counsel provided a copy of the Cameroonian Crime Record.26 [50] The RAD acknowledges the comments in counsel's cover letter to the Cameroonian Crime Record. He has indicated that upon closer examination of the document and after confirming with the Appellant's uncle, XXXX XXXX, who obtained the document for the Appellant, the document was issued by the courts in Cameroon and not the police. The RAD notes that under the columns where convictions would have been indicated, the French word "NEANT" appears, which translates into English as "NOT APPLICABLE." The RAD is mindful of counsel's comments and of assigning Canadian standards and processes to legal processes in Cameroon. Further, the RAD also recognizes that the Cameroonian Crime Record list only convictions and not charges. [51] The RAD has also examined the Warrant of Arrest27 for the Appellant and the letter from her lawyer,28 both previously submitted in evidence. The Warrant of Arrest indicates she was charged under Articles 154 and 347 of the Penal Code and the lawyer's letter states that there is "an active warrant of arrest" for the Appellant "anywhere she is found in Cameroon for escaping detention and planning to host an illegal forum on education on homosexuality."29 [52] The RAD notes that the Appellant allegedly escaped from custody in XXXX 2014 and having been out of the country for nearly two years now, it would be reasonable to expect that there would have been some record of charges and possibly even a conviction, in absentia, for having escaped from police detention. The absence of any record and the apparent ease with which her uncle was able to obtain a criminal record check seem inconsistent with the police's extreme response to her plan to hold a seminar on LGBTI issues. [53] The RAD finds that there is insufficient trustworthy evidence to support the Appellant's allegations of persecution and that her marriage is not one of convenience. CONCLUSION [54] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Anthony da Silva" Anthony da Silva November 23, 2016 Date 1 Exhibit P-2, Appellant's Record, Memorandum of Appeal, at p. 96. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Section 110(4), Immigration and Refugee Protection Act, (S.C. 2001. C. 27). 4 Exhibit P-3, at pp. 1-24. 5 Exhibit P-4. 6 Section 110(6), Immigration and Refugee Protection Act, (S.C. 2001. C. 27). 7 Exhibit P-5, at pp. 7-8, paras. 17-18. 8 Exhibit P-3, at pp. 1-24; Exhibit P-4, at pp.1A-110. 9 Exhibit P-3, at p. 12. 10 Exhibit P-3, at p. 7. 11 Exhibit P-4, at pp. 1A-110. 12 Exhibit P-4, at p. 24. 13 Exhibit P-4, at p. 23. 14 Exhibit RPD-1, RPD's Record, BoC, p. 19, q. 5. 15 Exhibit P-4, at p. 46. 16 Exhibit P-4, at p. 1. 17 Exhibit RPD-1, RPD's Record, at p. 32. 18 Exhibit P-4, pp. 1A- 4. 19 Exhibit P-4, p. 1A. 20 Ibid. 21 Exhibit P-4, p. 2. 22 Exhibit P-4, at p. 44. 23 Supra, footnote 18. 24 Supra, footnote 20. 25 Exhibit P-4, at p. 3. 26 Exhibit P-6, at p. 4. 27 Exhibit P-3, at p. 9. 28 Exhibit P-3, at pp. 10-11. 29 Exhibit P-3, at p. 11. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June 2, 2015) RAD File No. / N° de dossier de la SAR : TB5-04528