TC0-05483

RAD File / Dossier de la SAR : TC0-05483 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 30, 2020 Date de la décision Panel Karen McGovern Tribunal Counsel for the person who is|are the subject of the appeal Abdalla Ali Al-Baalawy Conseil de la|des 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. XXXX XXXX XXXX (Appellant) is a citizen of Tanzania. a. The Appellant alleges a fear of persecution based on her sexual orientation. She alleges that she and her female partner were discovered having sexual relations in a hotel in 2006 after her partner's parents called the police. The Appellant managed to escape and lived in hiding in Zanzibar. She alleges she was forced into marriage and became divorced in 2014. In XXXX 2017, she moved to Dar es Salam. In 2018, authorities began to crack down on LGBTQ persons. The Appellant fled to Canada on XXXX XXXX, 2019. b. The RPD found the Appellant's testimony was internally inconsistent and was also inconsistent with her narrative and in interviews with immigration officials on her arrival to Canada. The RPD also found material omissions in the Appellant's narrative. In addition, the RPD found that the Appellant had failed to make reasonable efforts to obtain and provide documents in support of her claim. The Appellant argues that the RPD erred in its negative credibility findings by failing to consider the Appellant's educational level and the fact that she was pregnant at the hearing. The Appellant argues that the RPD did not apply the Ward 1 analysis in assessing her claim. In addition, the Appellant argues she does not have state protection and there is no internal flight alternative. Finally, the Appellant argues that her newborn child is Canadian and that humanitarian and compassionate grounds should be considered. c. The determinative issue is credibility. d. The RPD did not err in finding that the Appellant lacked credibility based on several significant inconsistencies and material omissions that were not reasonably explained. The RPD demonstrated sensitivity to the Appellant's condition and offered to reschedule the hearing, which the Appellant refused. The RPD was correct in determining that the Appellant did not take reasonable steps to obtain documentation in support of her claim. DECISION [2] 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. BACKGROUND [3] The Appellant argues that I should consider humanitarian and compassionate grounds based on the fact that her newborn child is a Canadian citizen. The Appellant cites Baker2 for the proposition that it is in the Appellant's child's best interest for the Appellant to stay in Canada. [4] The Baker case relates to a deportation order against a single mother and whether there were humanitarian and compassionate grounds for staying the deportation order. As the provisions in the Immigration and Refugee Protection Act (IRPA)3 make clear, the RAD's jurisdiction is to determine whether the RPD was correct in finding that the Appellant is a Convention refugee or a person in need of protection. As such, I am unable to consider these grounds as I have no jurisdiction to do so. NEW EVIDENCE [5] According to the law,4 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 you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [6] 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.5 [7] The Appellant has submitted the following as new evidence: (a) Report from Human Rights Watch February 2020," if We Don't Get Services, We Will Die": Tanzania's Anti-LGBT Crackdown and the Right to Health6 (b) Online BBC news article dated February 1, 2020, "Tanzania 'anti-gay' force official Paul Makonda banned from US"7 (c) Online News24 article dated February 3, 2020, "Gay community targeted and cut off from healthcare in Tanzania"8 (d) Online Queerty article dated February 4, 2020, "Tanzania bans lube because it 'promotes homosexuality'"9 (e) Online Human Rights Watch article dated February 13, 2020, "Tanzania: Govt Should Change Its Tune on LGBTIQ Health and Rights"10 (f) Newborn Assess and Discharge Report from XXXX XXXX Hospital dated XXXX XXXX, 2020.11 Items (a) to (e) are admitted [8] The Human Rights Watch report and online news articles are all published in February 2020 and relate to the treatment of LGBTQ persons in Tanzania. Since the articles arose after the date of the RPD decision on January 29, 2020, they meet the subsection 110(4) criteria. The content of the articles is new and relevant generally to the situation of LGBTQ persons in Tanzania. I see no prima facie concerns as to the source or reliability of the documents. The report and news articles are admitted. Item (f) is not admitted [9] The Newborn Report is dated XXXX XXXX, 2020, and its contents confirm the Appellant delivered a baby girl on XXXX XXXX, 2020 in Toronto. The report arose prior to the RPD decision on January 29, 2020. The report was reasonably available at the time of the RPD decision and could have been reasonably expected to be brought to the RPD prior to the decision. In my view, the report does not meet the criteria under subsection 110(4). If I am wrong in that determination, I have considered whether the report is new, credible, and relevant. I find no issue with the credibility of the report, nor that it contains new information. I do not, however, find that the report is relevant. The Appellant's claim is related to her sexual identity as a lesbian and the fact that she has a newborn has no relation to the issues in this matter. While the Appellant has argued that her Canadian born child raises humanitarian and compassionate grounds to be considered in her claim, as I noted above, I have no jurisdiction to consider that argument. The Newborn Report is not admitted. ANALYSIS [10] My role is to look at all the evidence and decide if the RPD made the correct decision.12 RPD did not err in assessment of the Appellant's credibility [11] The Appellant argues that the RPD erred by focusing only on the oral evidence and finding that the Appellant's testimony was internally inconsistent and incoherent. The Appellant notes her low education level, that she is an introvert and that memory changes over time. The Appellant argues that the RPD acknowledged she had difficulties answering questions at the hearing and referenced she may have difficulty testifying about sensitive matters and cross-cultural misunderstandings, yet still made negative inferences as to her credibility. Given the Appellant was pregnant at the hearing, she argues that the RPD should have put more weight on her narrative. She argues that the narrative describes numerous incidents that explain her sexual orientation and that much of it is consistent with the Appellant's interviews with immigration officials. I disagree. [12] I note that the RPD directly addressed the Appellant's physical condition at the beginning of the hearing: MEMBER: ...And so, Counsel, I didn't ask you after the break, but the -- the claimant, is she ready to proceed today? COUNSEL: The claimant's reassured me that she wishes to proceed today. She feels sufficiently well to proceed with the hearing. She, however, indicated that she may have some physical discomfort due to her [inaudible] pregnancy, so may need more frequent breaks. MEMBER: Okay. So, ma'am, can you just confirm for me everything that your counsel just said? I just want to be sure. CLAIMANT: Yes. MEMBER: Okay. All right.... So, as we confirmed, I understand that you are in the later stages of pregnancy. CLAIMANT: Yes. MEMBER: Okay. So, if at any time you need a break, please just let me know. I'd be happy to give you those breaks. So, if you're uncomfortable or anything, please just raise your hand, get my attention, and we'll -- we'll take a break. Okay?13 [13] It is clear the Appellant agreed that she was well enough to testify at the hearing and wished to proceed. The RPD gave the Appellant opportunities to request any breaks she needed in relation to her condition. I also note that the Appellant has incorrectly described paragraph 8 of the decision as the RPD acknowledging the difficulties the Appellant had in answering the RPD's questions. In fact, the RPD is merely summarizing the common difficulties any claimant has in testifying and the discussion noted above in the transcript, with respect to the Appellant in particular: The panel is cognizant of the many difficulties faced by the claimant in establishing a claim, including nervousness, cultural factors, overall health, and the education level of the claimant. As the claimant was nearly nine months pregnant at the time of the hearing, the claimant was afforded the opportunity to adjourn the proceedings. The claimant elected to proceed and indicated that she was in good health at the time of the hearing. The panel instructed the claimant to request and take breaks as needed due to her advanced pregnancy.14 [14] The Appellant argues that her low level of education impacted her ability to testify at the hearing. She has not provided, as required by subsection 3(3)(g) of the RAD rules, full and detailed submissions about the RPD's alleged error in this respect. In my review of the record, I note there is inconsistent information about the Appellant's education. In her Schedule A, the Appellant indicates that she completed XXXX XXXX from XXXX to XXXX and XXXX XXXX XXXX XXXX.15 In her Canadian visa application, the Appellant indicates she completed XXXX XXXX from XXXX to XXXX.16 Based on this information, the Appellant has at least XXXX years of education and may have XXXX years of education. Having reviewed the entirety of the hearing transcript and portions of the audio recording, I see no indication that the Appellant had difficulty understanding questions or lacked capacity to answer them. [15] The Appellant argues the RPD should have considered and relied on consistent incidents in her narrative and interviews with immigration officials, rather than focusing on the Appellant's testimony. I note that the Appellant has not provided full and detailed submissions about which incidents she is referring to, as required by subsection 3(3)(g) of the RAD rules. As such, it is difficult to consider the Appellant's argument. I note that the process of determining whether a claimant is a Convention refugee or a person in need of protection requires the decision maker to decide whether they believe the claimant's evidence and how much weight to give to that evidence. This requires assessing the credibility of the claimant, other witnesses, and documentary evidence. [16] In my view, the RPD carried out its credibility assessment being mindful of the Appellant's circumstances, including her physical condition. The Gender Guidelines17 and the Sexual Orientation guidelines18 were noted and applied appropriately. [17] Although the Appellant has not argued any specific credibility findings that the RPD made are in error, I have independently reviewed the record, transcript and audio recording, and find no error in the RPD's conclusions. Below is a summary of those findings. Credibility concerns rebut the presumption of truthfulness Inconsistencies and omissions relating to the Appellant's sexual partners [18] In her narrative and initial testimony, the Appellant stated that she and her same-sex partner were caught engaging in sexual acts by a friend in XXXX 2006. Some days later, the Appellant and her partner were engaging in sexual acts at a hotel when the police and her partner's parents came to the hotel. After the Appellant escaped from the hotel, she remained in hiding. [19] In two interviews with immigration officials, the Appellant gave information that is inconsistent with her testimony and her narrative. In an interview on April 9, 2019, the Appellant stated that she was caught with her same-sex partner in XXXX 2006 and has not seen her partner since. In the interview on April 6, 2019 she gave the following information: Q: What social group do you belong to? A: I belong to the LGBTQ community and I'm scared of the person that I was involved with and that my partners family is after me. They were looking for me to take me to the police because they saw me with their daughter. Q: When did they see you with their daughter? A: In XXXX 2006 Q: They're harassing you only because they saw you with their daughter 13 years ago? A: Yes Q: Are you still in a relationship with their daughter? A: No after they found out I left and got involved with someone else. Q: What was your partners name and how long were you together? A: XXXX [...] XXXX [...]. We were together from XXXX 2006 until XXXX 2007. Q: So, they saw you the same month you started seeing each other? A: No, they saw us in XXXX 2007 I think Q: You stated earlier it was in 2006? A: Yeah sorry I made a mistake I must remind you that you are required to be truthful during the examination. Q: And your new partner? A: I've been with her since XXXX 2018 Q: How long have they been harassing you? A: Since XXXX 2007 [emphasis added]19 [20] The RPD noted that the information the Appellant gave in the April 6th interview was different in that the Appellant said her relationship with her same-sex partner continued until XXXX 2007. The Appellant testified that the information she gave to immigration was correct. The RPD then asked why she had just testified that it ended in XXXX 2006 and the Appellant testified that she did stop seeing her former partner but then they reconnected again and were found again in 2007.20 When asked why this information was not in her narrative, the Appellant said the immigration officer did not ask her those questions. The RPD again sought clarification: MEMBER: So, again, in your interview with CBSA, I mean, it looks like the officer clearly asked, "Did you ever see XXXX [] after the incident at the hotel?" And -- hold on. And your response was, "After that, I didn't see XXXX [] again." So, again, I'm just kind of confused, because it seems like you didn't see her again, and then you're saying you did continue your relationship, so I'm just trying to understand how -- I'm just trying to understand the timeline of events here. CLAIMANT: I'm sorry, after being caught by the police, I didn't meet her then. [21] The Appellant's testimony about her first same-sex relationship was inconsistent with her narrative and in contradiction with the two interviews with immigration officials. When asked to explain the inconsistency about continuing to see her former partner until 2007, the Appellant's testimony evolved to include that information. The Appellant did not have a reasonable explanation for omitting this information from her narrative. When the RPD indicated the Appellant's information and testimony was confusing as to the timeline of events, the Appellant then contradicted her recent testimony, testifying that she did not see her former partner again after the incident at the hotel. The omission and numerous contradictions are significant and not reasonably explained. [22] In addition, the Appellant omitted mention of another sexual partner in her narrative. In the April 6th interview with immigration officials, the Appellant indicated she had another same-sex relationship that began in XXXX 2018. The RPD questioned the Appellant about the additional sexual partner: MEMBER: Okay. Did you have any other female partners in Tanzania? CLAIMANT: Yes. MEMBER: Who was your other partner? CLAIMANT: A sexual partner? I didn't have, like -- I was just friends [inaudible] female friends, girls. MEMBER: Okay. So -- so, in your interview with CBSA, you mention that you had a new partner in Tanzania. XXXX [] XXXX [] (ph) or XXXX [] (ph)? So, was that -- was that a partner of yours? CLAIMANT: XXXX [] XXXX [], I was -- we were doing -- working in her business, in her shop. MEMBER: Okay. So, did the two of you ever have a relationship? CLAIMANT: Yes. MEMBER: Okay. So, what was the nature of that relationship? Were the two of you sexual partners? CLAIMANT: We were not partners. We would meet and do the act only. MEMBER: Okay. So, are you saying that you weren't in a relationship? The two of you would just have sex together, is that what you're saying? CLAIMANT: Yes. MEMBER: When did the two of you start having sex together? CLAIMANT: 2007. MEMBER: In 2007? CLAIMANT: Yes. MEMBER: And how long did that relationship last? CLAIMANT: 2018. MEMBER: So, how come you didn't mention this 11-year relationship in your Basis of Claim form? CLAIMANT: I didn't mention that because some of these things were not -- they didn't ask me about them. MEMBER: Who didn't ask you about them? CLAIMANT: The day when I was being interviewed. CLAIMANT: But again, you -- you had a lawyer help you fill out your Basis of Claim form, so why would you not tell your lawyer? CLAIMANT: Because the lawyer didn't ask me those questions, so I only talked about other things. MEMBER: So, at the border you told the officer that you had been in a relationship with XXXX since XXXX of 2018. So, can you tell me why now you're saying that you were together for 11 years? CLAIMANT: Yes. So -- because that was a time when I was hiding at my friend's place, and XXXX [] came to visit. That is when we started having the relationship. [emphasis added] [23] The Appellant's explanation for omitting the information from her narrative is not reasonable. The Appellant's claim rests on her allegation that she is a lesbian and has had same-sex relationships. Further, I find the Appellant's explanation about the inconsistency between her testimony and the information she gave to immigration officials is incoherent. The inconsistency is significant - the relationship either began in 2007 and ended in 2018 or the relationship began in 2018. In my view, the RPD did not err in finding the inconsistencies and omissions about the Appellant's same-sex relations were not reasonably explained. I concur in drawing negative inferences on that basis. There is insufficient credible evidence, on a balance of probabilities, to establish the Appellant's allegations regarding her same-sex relationships. Inconsistencies in relation to hiding are not reasonably explained [24] The RPD found that the Appellant provided inconsistent testimony with respect to where she lived while in hiding and when the police were looking for her, which were not reasonably explained. I note, the Appellant has not raised any specific argument about this finding. I have carefully reviewed the RPD record, the transcript and the audio-recording, and find no error in the RPD's conclusion. I concur with the RPD in finding these inconsistencies significantly undermine the Appellant's credibility as it relates to her allegations and rebut the presumption of truthfulness. Failure to take reasonable steps to obtain documentation [25] The RPD also found that the Appellant failed to take reasonable steps to obtain documentation in support of her claim. The Appellant has not raised any argument against this finding. I have carefully reviewed the record in an independent manner and find no error by the RPD. The Appellant's testimony21 22 makes clear that she had recent contact with her mother and with a former same-sex partner and did not request that they provide information or assist her in seeking additional information. In my view, this is not reasonably explained. I agree with the RPD in making an additional inference as to the Appellant's credibility. Insufficient credible evidence to establish allegations [26] The RPD found that the inconsistencies and omissions were significant and relate to the central elements of the Appellant's claim. On a balance of probabilities, the RPD found there was insufficient credible evidence to establish the Appellant's past sexual relationships and her sexual identity. The RPD also found, on a balance of probabilities, that there is insufficient credible evidence to establish the Appellant's allegations that her former partner's parents or the police are pursuing her based on her alleged sexual identity. I find no error in the RPD's conclusion. The Appellant has failed to establish that she faces a serious possibility of persecution or that, on a balance of probabilities, she is a person in need of protection on the basis of her sexual identity. Given that credibility is determinative, there is no need to consider the Appellant's submissions in respect of a forward-looking analysis, state protection and IFA. CONCLUSION [27] 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) Karen McGovern November 30, 2020 Date 1 Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 2 Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817. 3 Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 110, ss. 111, last amended on December 12, 2017. Section 110(4), Immigration and Refugee Protection Act, (S.C. 2001. C. 27). 5 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 6 Exhibit P-2, Appellant Record, at pages 23-142. 7 Ibid, at pages 143-145. 8 Ibid, at pages 146-151. 9 Ibid, at pages 152-156. 10 Ibid, at pages 157-161. 11 Ibid, at pages 162-164. 12Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 13 Transcript of RPD Hearing, at page 6. 14 Exhibit RPD-1, RPD Record, RPD Reasons, at page 4. 15 Exhibit RPD-1, RPD Record, Schedule A, at page 74. 16 Exhibit RPD-1, RPD Record, Exhibit 3, at page 115. 17 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 18 Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression: Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. 19 Exhibit RPD-1, RPD record, Exhibit 1, at pages 97-98. 20 Transcript of RPD Hearing, at page 20. 21 Transcript of RPD Hearing, at pages 6-7, 10. 22 Transcript of RPD Hearing, at pages 25-27. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-05483 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