TB9-01396

RAD File / Dossier de la SAR : TB9-01396 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 Toronto, ON Appel instruit / entendu à Date of decision November 5, 2020 Date de la décision Panel John Helis Tribunal Counsel for the person who is the subject of the appeal Laurence Cohen 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] The Appellant, XXXX XXXX XXXX, a citizen of Kenya, alleges that he is homosexual and that he fears persecution on the basis of his sexual orientation. The Refugee Protection Division (RPD) found that the Appellant was not credible and rejected his claim in a decision dated December 3, 2018. [2] The Appellant appeals to the Appeal Division (RAD) and requests that the RPD's decision be set aside and substituted with a determination that he is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be referred back to a different panel of the RPD for redetermination.1 DETERMINATION [3] The appeal is dismissed. I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection.2 SUMMARY OF THE FACTS [4] The Appellant, a 43-year-old man from Kenya, purportedly fears persecution as a gay man. He alleges that he first experienced problems in high school after being caught in a same-sex relationship. This resulted in his expulsion from school and his parents also kicked him out of the family home. [5] The second alleged incident occurred after the Appellant moved to the city of Emali and met his second same-sex partner. His brother approached him in September 2016 to inform him that his father had died, and attempted to blackmail him out of his inheritance by threatening to reveal his sexual orientation. His brother returned the following day with a group of men who assaulted him and his partner. The Appellant was injured in the ordeal but managed to escape to Nairobi, where he subsequently learned that his partner had died from his injuries. [6] The Appellant entered Canada on XXXX XXXX XXXX 2017, and filed his claim for refugee protection on August 25, 2017. THE RPD DECISION [7] The RPD found that the Appellant was not credible and did not establish his sexual orientation as a gay man on a balance of probabilities. The RPD based its credibility assessment on inconsistencies in the evidence, omissions from the Basis of Claim form (BOC), and because it found that the Appellant relied upon a document that was not genuine. THE ISSUES [8] The determinative issue in this appeal is the Appellant's credibility. [9] The Appellant has not submitted new evidence and is not requesting an oral hearing before the RAD. STANDARD OF REVIEW [10] The standard of correctness applies to this appeal as set out by the Federal Court of Appeal in Huruglica.3 This requires an independent assessment of the refugee claim to determine whether the RPD was correct in its findings and determinations.4 While deference can be afforded to the RPD on specific issues when it enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, such an advantage does not arise in the present case. ANALYSIS [11] After considering the Appellant's arguments and conducting an independent review of the entire record, including listening to the recording of the proceeding before the RPD, I agree with the RPD that the Appellant is not credible and has not established his sexual orientation as a gay man on a balance of probabilities. As will be displayed below, the inconsistencies in the Appellant's evidence and the omissions from his BOC concern information that is central to his claim, including the names of his two same-sex partners and the circumstances surrounding his second partner's alleged death, and therefore undermine his overall credibility. Credibility The names of the Appellant's two same-sex partners [12] The name of the Appellant's second same-sex partner is inconsistent in the evidence. The Appellant spelled his late partner's name as "XXXX XXXX," in both his testimony and in his BOC. In contrast, the certificate of death lists the deceased person's name as "XXXX XXXX XXXX." The Appellant asserted that "XXXX" was how he always spelled his partner's name when the inconsistency was raised by the RPD member, but suggested that the death certificate may in fact be the correct spelling. He also speculated that "XXXX" was a last name that he was unaware of prior to reviewing the death certificate. [13] The Appellant's inability to provide a reasonable explanation for the inconsistencies surrounding his late partner's name, and his acknowledgement that he may have been unaware of his partner's last name, is contrary to the importance that he attributed to the relationship. The Appellant states in his BOC that "we became involved in a serious relationship." He even alleges that he lived with his partner from March 2016 until his death in September 2016. When viewed in this context, his inability to provide a reasonable explanation for the inconsistent spelling of his partner's name and the uncertainty he expressed over his partner's last name undermines his credibility. [14] The Appellant also failed to include the name of his first same-sex partner in his BOC, and only provided his name in testimony when questioned by the RPD member. When the omission was raised by the RPD member, the Appellant stated that "I did not want to explain a lot in detail." [15] I acknowledge the Appellant's point that this was a high school partner from several years ago, although this does not diminish the significance of the relationship and the alleged incidents he experienced during that relationship to his claim. This was the Appellant's first same-sex partner, and he allegedly experienced significant homophobic incidents with long-term consequences as a result of being caught in that relationship, including being expelled from school, losing his family and home, and having to move to a different city. I therefore do not accept the suggestion that the name of his first same-sex partner is a minor detail, or the argument that drawing an adverse credibility finding based on the omission from his BOC is "unfair and capricious." Instead, I find that this was a material omission. Inconsistencies regarding the place of death of the Appellant's second partner [16] The Appellant provided inconsistent evidence about his second partner's place of death. According to the Appellant's testimony and the information in his BOC, the attack occurred in Emali in September 2016, where his partner had lived for approximately two years since 2014. The Appellant was harmed but managed to escape to Nairobi, although his partner was allegedly "killed in the beating." Contrary to this account, the certificate of death lists Rongai as the deceased's place of death and Kajiado as his place of residence. When the RPD pointed out these inconsistencies the Appellant asserted that Rongai was his late partner's hometown, and Kajiado "is a big area." [17] The Appellant's explanation for the inconsistencies is not reasonable. According to his testimony, his partner moved to Emali in 2014, and had been living there for approximately two years when he died in that city in September 2016. Even if Rongai was his partner's hometown, this does not reasonably explain why officials in Emali would list Rongai as his place of death if he in fact died in Emali. Nor does it explain why the town of Kajiado is listed as the deceased's place of residence since it is far removed from both Emali and Rongai. [18] The circumstances surrounding the homophobic attack and the death of the Appellant's second same-sex partner are central to his claim, and the inconsistencies therefore undermine his credibility. Omissions about the Appellant's second relationship [19] The Appellant provided important information about his second same-sex relationship in testimony that is not included in his BOC. According to his testimony, he met his second same-sex partner in Emali between 2014 and 2015. The relationship developed gradually, they became intimate in December 2015, and they moved in together in March 2016. [20] The RPD correctly rejected the Appellant's explanation that he did not include this information because he was "not accurate with dates." I recognize that his narrative spans a lengthy period of time, however this is not a reasonable explanation for the omission of this information from his BOC because he readily provided the specific dates in oral testimony. I therefore do not accept the argument that "the member's reliance on specific times and dates does not consider both country specific and personal circumstances," and I find that the lack of these details in the BOC undermine his credibility. [21] There is no merit to the argument that the RPD "member's own personal bias influenced [her] assessment of credibility," simply because she relied on these omissions in the assessment of the Appellant's credibility. One of the primary methods of testing credibility is to compare testimony with the BOC.5 Inconsistencies between the two or omissions from the BOC can result in a negative inference when there is no reasonable explanation.6 [22] I do not accept the submission that the RPD failed to apply the Chairperson's Guideline: Proceeedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE) when assessing the Appellant's credibility. The RPD's credibility findings were not based on stereotypes or inappropriate assumptions about sexual minorities, but rather on inconsistencies and omissions in the Appellant's own evidence regarding central elements of his claim. I acknowledge the Appellant's point that he was homeless in Kenya, but this fact does not constitute a cultural, psychological, or other barrier as outlined in the SOGIE Guideline which may reasonably explain the inconsistencies and omissions in the evidence. I do not find that any such barriers existed in this case. [23] I do not need to assess the RPD's credibility findings related to the Appellant's late father's will, as I find that the credibility concerns outlined above, for which the Appellant did not provide reasonable explanations, fully rebut the presumption of his truthfulness.7 These credibility findings concern central elements to his claim, including the names of his two partners and the alleged homophobic attack in September 2016, and therefore undermine his overall credibility. The documentary evidence [24] The documentary evidence does not help resolve the credibility findings outlined above or independently establish the Appellant's claim. I have considered the Appellant's membership in "The 519," his participation at the XXXX XXXX XXXX XXXX in Etobicoke, and the two pictures of himself. At most, the probative value of this evidence is that it establishes the Appellant's engagement with an organization that supports refugees and the LGBTQ community in Canada. I agree with the Appellant that engagement with The 519 is consistent with the actions of a gay man, although it does not help resolve or otherwise outweigh the significant credibility concerns surrounding his alleged sexual orientation. Credibility findings based on inconsistencies between the BOC narrative and the oral testimony are dispositive of a claim unless they are resolved by the documentary evidence.8 [25] Lastly, since I find that the Appellant is not credible regarding his sexual orientation, I do not need to assess whether he faces a serious possibility of persecution based on the overall treatment of sexual minorities in Kenya. CONCLUSION [26] For the reasons outlined above, I agree with the RPD that the Appellant was not credible and has not established his sexual orientation as a gay man on a balance of probabilities. The Appellant therefore does not face a serious possibility of persecution in Kenya, nor, on a balance of probabilities, a danger of torture, a risk to his life, or a risk of cruel and unusual treatment or punishment in Kenya. [27] The decision of the RPD is confirmed and the appeal is dismissed.9 (signed) John Helis John Helis November 5, 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 111(1)(b) & 111(1)(c) [IRPA]. 2 IRPA s. 111(1)(a). 3 Canada v. Huruglica (Citizenship and Immigration), 2016 FCA 93. 4 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 5 Shulha v. Canada (Minister of Citizenship and Immigration), 2004 FC 1191 at paras. 26 - 27. 6 Ibid. at para. 27. 7 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776 at para. 6, citing Maldonado v. M.E.I., [1980] 2 FC 302 at 305. 8 Gougoushvili v. Canada (Citizenship and Immigration), 2013 FC 1214 at paras. 28 - 29. 9 IRPA s. 111(1)(a). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-01396 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