TC0-03328

RAD File / Dossier de la SAR : TC0-03328 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 January 26, 2021 Date de la décision Panel Karen McGovern Tribunal Counsel for the person who is the subject of the appeal Jacqueline M Lewis 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 allow this appeal. XXXX XXXX XXXX (Appellant) is a citizen of Tanzania. a. The Appellant claims refugee protection on the basis of his bisexual identity. He alleges he had three previous same-sex relationships in Tanzania. In 2016, the Appellant and his partner MM were called to the local government office and asked about the nature of their relationship; both denied it was of a sexual nature. In XXXX 2018, MM was arrested for having same-sex relations. The Appellant went into hiding until he was able to obtain a US visa, following which he flew to the US in XXXX 2018. In XXXX 2019, he crossed into Canada and filed for asylum. b. The Refugee Protection Division (RPD) found that material aspects of the Appellant's testimony was not credible based on inconsistencies and omissions. The RPD also found that the Appellant failed to gather credible and trustworthy evidence to support his claim without reasonable explanation. The Appellant argues that the RPD erred by misconstruing evidence, finding microscopic omissions in his narrative and by rejecting evidence that was not notarized. The Appellant further argues that the RPD did not follow the Sexual Orientation Guideline1 (SOGIE) when it drew negative inferences based on the Appellant's failure to obtain corroborative evidence and rejected his reasonable explanations. Finally, the Appellant argues the RPD rejected a summons document based on speculation and without an evidentiary basis. c. The determinative issue is credibility. d. The RPD made numerous errors in assessing credibility. By finding the Appellant failed to make reasonable efforts to obtain relevant evidence without considering the SOGIE Guideline, the RPD effectively required the Appellant to provide corroborative documentation and drew negative inferences as to the Appellant's credibility in error. The RPD also erred by finding the Appellant omitted material information from his narrative and in finding some evidence was not credible based on irrelevant factors. I am returning the matter to the RPD to be redetermined by a differently constituted panel as insufficient questions were asked to allow me to substitute my own determination. DECISION [2] The appeal is allowed. I send this matter back to the RPD to be redetermined. NEW EVIDENCE [3] The Appellant submits the following as new evidence: * Warrant of arrest dated XXXX XXXX XXXX 2018; and * Letter from HS dated XXXX XXXX XXXX 2020. [4] Given my conclusion that the matter is to be sent to back to the RPD for a redetermination, there is no need for me to consider whether the submitted evidence is admissible. ANALYSIS [5] My role is to look at all the evidence and decide if the RPD made the correct decision.2 Omissions from narrative are not material [6] The RPD found that the Appellant omitted details of the school incident after he and AF were caught engaging in sexual relations. Specifically, the Appellant testified that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX students at the school and he also suffered injuries from the punishment he received from the school. The RPD drew a negative inference and found there was no sexual relationship between the Appellant and AF. The Appellant argues the RPD engaged in a microscopic analysis and that a narrative is not meant to be an encyclopedic recitation of all the details of the claim. I agree. [7] The key elements of the Appellant's claim is that he is bisexual and has had several bisexual relationships in Tanzania. Whether he detailed the extent of any injuries he suffered from school punishment that occurred twenty years ago is not a material element of his claim. Similarly, whether he was XXXX XXXX XXXX XXXX XXXX is also not material to his claim. What is material to his claim is that he engaged in a relationship with AF. The lack of detail regarding injury and the particulars of the school assembly are an insufficient basis on which to conclude the Appellant did not have a sexual relationship with AF. The RPD erred in drawing a negative inference in this regard. [8] The same analysis applies to the RPD's conclusion that the Appellant omitted from his narrative that he deleted photos from his phone while in his relationship with MM. This detail is not material and its omission from the Appellant's narrative is not a sufficient basis for drawing a negative inference. The RPD erred in this regard. Failure to apply the SOGIE Guideline [9] The RPD found that the Appellant did not make reasonable efforts to access relevant evidence with respect to AF and the school incident and drew a negative credibility inference on this basis. The Appellant argues the RPD erred by failing to consider that the Appellant's explanation was reasonable and by failing to apply the SOGIE Guideline. Specifically, the Appellant notes that the guideline indicates that testimony may be the only available evidence and the RPD erred by requiring corroborative evidence. I agree. [10] The Appellant provided reasonable explanations about the efforts he made to obtain evidence from AF and the school - he had lost contact with AF and his mother did not keep the school letter. The Appellant also noted that the relationship was over 20 years ago. The RPD clearly erred in finding that the school incident did not occur and the Appellant did not have a same-sex relationship with AF based on a lack of corroborative evidence and rejecting the Appellant's reasonable explanation: ln the absence of credible corroborating evidence and the lack of reasonable efforts to access relevant evidence important to the claimant's allegation establishing his alleged homosexuality, I draw a negative credibility inference. [11] In a similar vein, the RPD erred in concluding that the Appellant's relationship with D did not exist. The Appellant explained that his relationship with D was casual, that he did not know his last name and no longer had his contact information. He further explained that he no longer had contact information for his friend B, who had introduced him to D. The RPD concluded that no serious efforts were made by the Appellant to obtain evidence related to D and because there was no corroborating evidence about the "casual" relationship the Appellant had with D, the relationship did not exist. Again, the RPD did not consider and apply the SOGIE Guideline - the Appellant's explanation was reasonable and his testimony was the only reasonably available evidence as to his same-sex relationship with D. The RPD erred by requiring the Appellant to provide corroborating evidence. Letter from Appellant's mother rejected in error [12] The Appellant argues that the RPD erred in giving the letter from the Appellant's mother little weight because it was not notarized or an affidavit. I agree. [13] The RPD rejected the letter for improper reasons as is clear when one considers the following from the RPD reasons: "I consider this letter, which is neither notarized nor is an affidavit, as self-serving, and give little weight to it. [emphasis added]" It is well-established in case law that a decision-maker cannot reject the credibility of evidence merely because it comes from a relative of the claimant.3 The RPD's conclusion cannot stand. CONCLUSION [14] Cumulatively, these errors are significant. In my review of the record, I find that insufficient questions have been asked that would allow me to substitute my own decision. [15] The appeal is allowed. I send this matter back to the RPD to be redetermined by a differently constituted panel. (signed) Karen McGovern Karen McGovern January 26, 2021 Date 1 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. 2Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 3 Tabatadze v. Canada (Citizenship and Immigration), 2016 FC 24 (CanLII), para. 4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-03328 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