MB6-05914

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. / No de dossier de la SAR : MB6-05914 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 July 24, 2018 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the respondent Me Moriba Alain Koné Conseil de l'intimée Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX, the appellant, a citizen of Togo, is appealing the decision of the Refugee Protection Division (RPD). She is submitting evidence on appeal and is asking that a hearing be held. She is arguing that the RPD erred in finding that she was not credible by applying a higher standard of proof and by excluding all the evidence. She is also submitting that the RPD breached procedural fairness. [2] Under section 111 of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD. I. BACKGROUND A. Summary of alleged facts [3] In her Basis of Claim Form (BOC Form), the appellant states the following: - during her adolescence, she was attracted to women and she was raped by her stepmother's brother, which added to her lack of interest in men; - from XXXX 2008 to XXXX 2011, she had a romantic relationship with a woman, then from XXXX 2011 to XXXX 2015, she had a romantic relationship with another woman, which ended when they were caught making love; - following the death of her father on XXXX XXXX, 2014, her uncle decided to marry her off to a merchant who was around 50 years old, and on XXXX XXXX, 2014, she was forced to go live with him; - he treated her as a sexual object, everything he did disgusted her, but, at the same time, the marriage enabled her to hide her homosexuality; - after being caught making love with a woman, everyone was calling her to curse her or swore to kill her, but one of her aunts helped her hide at the home of a work colleague in Kévé; - while she was in hiding, her aunt contacted some people to help her leave the country; she obtained her visa in XXXX 2015, but could not travel right away because she was pregnant, and on XXXX XXXX, 2015, she gave birth; - as a lesbian, she did not feel ready to raise a child, so she left her child with her aunt; - once in Canada, she was traumatized, did not know what to do, thought only about her son, but when she saw girls kissing in a bus, she approached them and introduced herself as a lesbian; - they told her to go to Arc-en-ciel d'Afrique, where she learned that she had to claim refugee protection so as not to be sent back to Togo, to her death.1 [4] In addition to her BOC Form, the appellant, then referred to as the claimant, submitted several documents into evidence before the RPD.2 B. RPD decision [5] The hearing before the RPD was held on August 17, 2016, and the decision to reject the refugee protection claim was rendered on September 12, 2016. [6] The RPD found that the claimant did not have the profile of a victim of forced marriage in Togo, that no explanation had been given for this and that no official document established that marriage. As for the photographs filed into evidence, the RPD noted that the bride's face was not shown because she wore a veil, and it gave them no probative value. It also found that the claimant had not established the existence of Mr. XXXX, the man she was allegedly forced to marry, when she filed into evidence only one photograph, without it being possible to identify who the person in question was. With regard to her testimony on that man, the RPD found that it was vague and evasive. It therefore did not believe in the existence of that marriage to that man. The RPD also gave no probative value to the extract of the birth certificate of the child that the claimant allegedly had with her husband. While acknowledging its relevance, it noted that it had been handwritten and could have been fabricated by anyone. [7] The RPD found that the claimant's five-month delay in leaving her country and her travels between Togo and Ghana were not consistent with the conduct of someone who fears for their life. It also found that the claimant had contradicted herself about how her aunt had allegedly managed to get her passport and that her explanations regarding how her aunt had apparently managed to obtain all the necessary documents to get her visa were difficult to believe. [8] With respect to the allegation of homosexuality, the RPD did not believe it. In this regard, it noted that the claimant had not asked her girlfriend to testify on her behalf and that her explanation that she had not thought of it was not reasonable. It also noted that there was no evidence of the existence of any of the claimant's female lovers in Togo, but specified that this was not fatal. Lastly, the RPD noted the claimant's lack of interest in lesbian or homosexual sites, while pointing out that this was not fatal, and it found that the mere fact of being a member of Arc-en-ciel Afrique and of participating in some of its activities was not sufficient to establish that the claimant was homosexual. [9] Finally, after taking into account the claimant's conduct, her lack of effort to obtain relevant documents or information, and her vague explanations, the RPD found her credibility to be undermined. [10] Having taken into account all the evidence, the RPD found that the claimant did not discharge her burden of establishing that there is a serious possibility that she would be persecuted in Togo or even that she would be subjected personally to a risk to her life.3 II. EVIDENCE PRESENTED ON APPEAL [11] In her memorandum, the appellant states that she has submitted certain documents that could have changed the RAD's decision, notably: - a report from Me XXXX XXXX, notary, dated October 31, 2016;4 - a copy of Mr. XXXX national identity card;5 - Mr. XXXX income tax clearance;6 - a complete copy of her child's birth certificate;7 - her aunt's business card;8 - two examples of handwritten extracts of Togolese birth certificates;9 - text messages with members of the lesbian community;10 - evidence that she is depressed and that she sees a psychologist;11 - new photographs of her with members of the gay and lesbian community.12 [12] She also stated that the documents concern the essentials, proof of her homosexual identity, the existence of Mr. XXXX, the existence of his business, proof of the genuineness of her child's birth certificate and the role played by her aunt in her fleeing her country. She specified that those documents were made available or became accessible after the rejection of her refugee protection claim and that, even if they had been accessible, she could not have known about the existence of some of those documents in order to provide them in support of her refugee protection claim. She also indicated that it was at her counsel's request that the notary made inquiries to clarify certain grey areas in the RPD's decision. She added that that report and the other documents presented on appeal are relevant and could not have been a consideration when she was satisfied that she had prepared several pieces of evidence of her homosexual identity and her forced marriage.13 [13] In Singh, the Federal Court of Appeal finds that the explicit conditions set out in subsection 110(4) of the IRPA are inescapable, have to be met and leave no room for discretion on the part of the RAD. It also finds that the criteria set out in the case law with respect to the credibility and relevance of evidence arise implicitly from the wording of the subsection in question. In short, there is a clear legislative intention to not authorize any new evidence on appeal before the RAD other than in very specific and carefully defined circumstances. Its role is not to provide the opportunity to complete a deficient record, but to allow errors that the RPD may have made to be corrected.14 [14] In Ilias, the Federal Court reiterates that an appellant cannot offer new evidence every time they are surprised by the RPD's decision. It also notes that the criteria for the admissibility of new evidence set out in subsection 110(4) of the IRPA leave no room for discretion on the part of the RAD and must be narrowly interpreted.15 [15] It is my opinion that the evidence presented on the appellant's record does not meet the criteria set out in subsection 110(4) of the IRPA. Here is why. - The notary's report [16] The notary's report is dated October 31, 2016, and is signed by Me XXXX XXXX, who was mandated by the appellant's counsel to answer a series of specific questions regarding the birth certificate of the appellant's child; the existence of Mr. XXXX; the statements of XXXX XXXX; the customary marriage; and lastly, the appellant herself. [17] The facts generally referred to occurred before the RPD rejected the refugee protection claim. In this respect, the report does not meet the first criterion set out in subsection 110(4) of the IRPA, that is, to present evidence that has arisen since September 12, 2016, the date on which the refugee protection claim was rejected.16 [18] With regard to the notary's findings stemming from the inquiries he made after the RPD's rejection of the refugee protection claim, I am of the opinion that the appellant failed to establish that it had not been possible to make those inquiries prior to the rendering of the RPD's decision or the reasons why she would not reasonably have presented the findings of such inquiries before the RPD. In this respect, the notary's report does not meet the two other criteria specifically set out in subsection 110(4) of the IRPA. In my opinion, the purpose of that report is to complete a deficient record. Yet, as the Federal Court recently pointed out, an appellant cannot offer new evidence every time they are surprised by the RPD's decision.17 Consequently, the report is not admissible as evidence on appeal. - Birth certificates [19] With regard to the birth certificate for the appellant's child, the event in question here occurred before the RPD rejected the refugee protection claim and a birth certificate extract was submitted as evidence before it. In this respect, the complete copy of the child's birth certificate and the two examples of birth certificates do not meet the first criterion set out in subsection 110(4) of the IRPA, that is, to present evidence that has arisen since the rejection of the refugee protection claim. [20] In her memorandum, the appellant explains that the complete copy of her child's birth certificate was obtained only to confirm that the child was registered at the Tové civil registration centre. She also states that the two examples of birth certificates show that it is common practice for birth certificates to be legally handwritten in Togo.18 I find that there is nothing in the appellant's memorandum establishing that it had not been possible to obtain those documents before the RPD rendered its decision or the reason why the appellant would not reasonably have presented that evidence before the RPD. In this respect, those documents do not meet the other two criteria specifically set out in subsection 110(4) of the IRPA. In my opinion, their purpose is essentially to complete a deficient record. Consequently, those documents are not admissible as evidence on appeal. - Mr. XXXX identity card and activities [21] Regarding the identity card issued on May 7, 2013, and the income tax clearance issued on January 30, 2016, in the name of Mr. XXXX, both of those documents existed before the RPD's rejection of the refugee protection claim. In other words, they contain no evidence that has arisen since the rejection. In this respect, those documents do not meet the first criterion set out in subsection 110(4) of the IRPA. [22] In her memorandum, the appellant explains that the investigating notary was provided with those documents by Mr. XXXX himself and that it is clear in light of the notary's report, a genuine notarial certificate, that that person and his business exist.19 Despite her statement that the report is a genuine certificate, in my opinion, the appellant has not established that it is in fact so, as the report and the statements obtained by the notary include no declaration of truthfulness. Regardless, I find that there is nothing in the appellant's memorandum establishing that it had not been possible to obtain Mr. XXXX identity card and income tax clearance before the RPD rendered its decision or the reasons why the appellant would not reasonably have presented that evidence before the RPD. In this respect, those documents do not meet the other two criteria specifically set out in subsection 110(4) of the IRPA. In my opinion, their purpose is essentially to complete a deficient record. Consequently, those documents are not admissible as evidence on appeal. - The aunt's business card [23] With regard to the business card in the name of XXXX XXXX XXXX XXXX XXXX, the photocopy included on the appeal record does not indicate the date on which it was issued. In any case, that document in itself does not concern evidence that has arisen since the rejection of the refugee protection claim, since the existence of the appellant's aunt was a fact established before the RPD. In this respect, that document does not meet the first criterion set out in subsection 110(4) of the IRPA. [24] In her memorandum, the appellant explains that the notary obtained the business card from XXXX XXXX herself and that, for her part, as she was travelling, she was unable to provide the statement that is included in the notary's report prior to the RPD's decision.20 I find that there is nothing in the appellant's memorandum establishing that it had not been possible to obtain that business card before the RPD rendered its decision or the reason why she would not reasonably have presented that evidence before the RPD. In this respect, that document does not meet the two other criteria specifically set out in subsection 110(4) of the IRPA. Consequently, those documents are not admissible as evidence on appeal. - Exchange of messages [25] With regard to the exchanges of messages, having read them, I find that it is not possible to establish the specific dates on which they were sent. The appellant's memorandum includes no information on this matter. In fact, although one can note that some of the messages were sent in October, no year is specified. In this respect, the text messages exchanged do not meet the first criterion set out in subsection 110(4) of the IRPA, that is, to present evidence that has arisen since the rejection of the refugee protection claim. [26] Regardless, even if the appellant had established that those messages were sent in XXXX 2016, that is, after the rejection of her refugee protection claim, I find that they are neither trustworthy nor credible, as they do not establish who sent the texts or the circumstances in which the texts appeared. Consequently, they do not meet the criteria set out in subsection 110(4) of the IRPA.21 - Psychological distress [27] The letter dated October 31, 2016, and signed by a clinical psychologist does not constitute a psychological report. Although the psychologist states in the letter that on that date, namely, after the RPD's rejection of the refugee protection claim, she is concerned by the appellant's distress and anxiety faced with the possibility of returning to her country, I find that the appellant has failed to demonstrate how that statement is relevant. In other words, she has not established how the psychologist's statement is capable of proving or disproving a fact that is relevant to her claim for refugee protection.22 Consequently, that letter is not admissible as evidence on appeal. - Photographs of her with members of the gay and lesbian community [28] With respect to the photographs filed on the appeal record, there is nothing establishing the specific dates on which they were taken. Even assuming that those photographs were taken after the RPD's rejection of the refugee protection claim, I find that the appellant has failed to demonstrate how those photographs are relevant to the RPD's rejection of her refugee protection claim, especially given that the RPD never challenged her taking part in activities with gay or lesbian individuals. Consequently, those photographs are not admissible as evidence on appeal. III. HOLDING OF A HEARING BEFORE THE RAD [29] In her memorandum, the appellant asks that the RAD order that a new hearing be held before it.23 However, she does not explain why the RAD should do so. [30] According to the case law, it is for the RAD to determine whether or not the criteria set out in subsection 110(6) of the IRPA have been met.24 [31] One of the determinative criteria set out in subsection 110(6) of the IRPA is that evidence presented on appeal has been found to be admissible. However, the documents presented by the appellant were not found to be admissible. Consequently, there is no new documentary evidence to analyze as part of a hearing before the RAD.25 IV. GROUNDS OF APPEAL AND DECISION SOUGHT [32] In her memorandum,26 the appellant first states that nothing should allow a court to question her homosexuality and she criticizes the RPD for having erred: - by subjectively assessing her homosexual life in Canada and by excluding all evidence presented to that effect, jumping to a conclusion that indicates a prejudice against her; - by having dwelled on details rather than focused on the essentials; - by finding that she had not established her homosexual identity, notably because she is unfamiliar with gay and lesbian Web sites or active associations in her country; - by conducting a simplistic, astonishing analysis of her situation in a homophobic context; - by asking her to have a new girlfriend testify at the hearing, which constitutes an aberration and a high standard of proof, when she had already provided photographs of that girlfriend and exchanges of text messages; - by giving no probative value to the photographs taken with her girlfriend XXXX; - by failing to acknowledge the existence of XXXX because she was not on social networks; - by conducting an analysis based on stereotypes.27 [33] She then submits that the RPD's finding that she does not have the profile of a victim of forced marriage is ridiculous, given her own testimony and the evidence she provided on that subject. She also criticizes the RPD for: - having required a document to establish her customary marriage; - having relied on the fact that the bride's face was veiled in order to find that there was no photograph of the couple from the customary marriage; - having found that she knows nothing about her husband, despite her having explained the circumstances of her forced marriage, her life at home, the people who lived with her and some of her husband's activities; - having read the documentary evidence in a selective manner in order to reach its negative decision; - having demonstrated incorrect knowledge or a wilful blindness with respect to African reality.28 [34] With respect to the delay in leaving her country, the appellant submits that she and her aunt were not responsible for it, when intermediaries had to be paid before obtaining the passport and visa, not to mention that she had had a difficult pregnancy and subsequent significant abdominal pain.29 [35] With respect to her trip to Accra and her return to Togo, the appellant submits that she had no choice but to travel on the order of her aunt, as she was dependent on her for everything. She also criticizes the RPD for dwelling on details regarding the issuing of her Canadian visa rather than focusing on the core of her refugee protection claim, that is, her homosexual identity.30 [36] In her memorandum, the appellant finally argues that the RPD breached procedural fairness: * by rejecting evidence without having given her the opportunity to demonstrate its truthfulness; * by having failed to take into account the photographs filed into evidence; * by refusing to give any probative value to her child's birth certificate extract, despite its being a genuine foreign certificate; and * by failing to conduct a separate analysis of her claim pursuant to subsection 97(1) of the IRPA.31 [37] To conclude, the appellant is asking the RAD to set aside the RPD's determination, order a new hearing before the RAD or recognize her as a Convention refugee and give any other directions that it considers appropriate.32 V. APPLICABLE STANDARD OF REVIEW [38] In her memorandum, the appellant argues that the RAD should not simply determine whether the RPD rendered its decision in a reasonable manner, when it has the authority to render decisions on the merits of her appeal, and that it must be able to correct palpable and overriding errors so as to avoid needless duplication of proceedings before the Federal Court.33 [39] According to the case law, the RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule pertains to situations in which the RPD enjoys a particular advantage in assessing the credibility or weight to be given to the oral evidence it hears; the RAD may then use the reasonableness standard of review, modified to apply to its own context.34 That said, the RAD's role is not to carry out a de novo consideration of refugee protection claims, but rather, to determine whether, as alleged by the appellants, the RPD did in fact err.35 [40] After conducting my own analysis of the record, notably by listening to the recording of the hearing36 and by making sure to apply the Chairperson's Guideline 9,37 I find that the RPD did not enjoy any particular advantage and that the standard of review to be applied is that of correctness. VI. ANALYSIS OF THE APPEAL [41] Having applied that standard of review, I find that the appellant's arguments must be rejected. In my opinion, the RPD did not err in assessing her credibility and also did not breach the principles of procedural fairness. Here is why. A. The appellant's credibility [42] The gender identity or sexual orientation of a person claiming refugee protection is central to human identity, and that issue must be addressed with sensitivity and awareness. Of course, the RPD may conclude that a person claiming to be homosexual is not credible, but it cannot come to that conclusion without having taken into account all the evidence, including statements made by that person that that is indeed their sexual orientation. At a hearing, perpetuating stereotypes must be avoided, relevant questions should be asked tactfully, and a general understanding should be shown not only toward sexual practices as such, but also toward societal disapproval of appearances, attitudes or behaviour not considered to comply with social norms or cultural values.38 [43] That said, the general principles of refugee protection law still apply. In fact, the onus is on the person seeking refugee protection to establish, on a balance of probabilities, the facts on which they are basing their claim, including their sexual orientation.39 For their part, the RPD and the RAD may make findings based on implausibilities, inconsistencies or omissions, while bearing in mind the unique challenges facing people whose sexual orientation does not comply with socially accepted norms in their country of origin, by using language that is respectful and by avoiding inappropriate stereotyping when making findings of fact.40 It is the entirety of the evidence available on the record that must be assessed, with RPD or RAD members applying common sense and their human experience.41 In short, neither Guideline 9 nor Guideline 442 were developed to serve as a cure for deficiencies in a refugee protection claim, testimony heard or documents filed as evidence.43 [44] Although it is sometimes possible not to believe some of the allegations of a person claiming refugee protection while believing their sexual orientation,44 I find that that is not the case here. On this point, when making his submissions before the RPD, the claimant's counsel himself noted that, although this claim primarily concerns her fear of being persecuted because of the fact that she is a lesbian, it is nevertheless related to forced marriage, as that marriage was a kind of cover for her.45 Consequently, in this case, the RPD did not err by failing to isolate the issue of sexual orientation from all the other allegations made before it.46 - The forced marriage [45] I have carefully listened to the recording of the hearing before the RPD, read the latter's decision and, of course, taken into account the appellant's submissions. With all due respect, in my opinion, the appellant has simply not established that she was in fact forced to marry in her country. [46] First, with regard to the man whom she was allegedly forced to marry, the claimant presented very general information, one piece of information at a time, about his business, and she stated that she does not know his date of birth, that it did not interest her, that she barely knew his family and that she did not know whether he had looked for her after she left him and went into hiding on XXXX XXXX, 2015.47 I find this testimony to be vague and that it was reasonable to expect the claimant to provide more detailed information about the person she was allegedly forced to marry and live with from XXXX 2014 to XXXX 2015. [47] Next, when asked to specify whether she had evidence of this person's existence, she replied that she had his photograph, but nothing official. After that statement, her counsel intervened and referred to the child's birth certificate. When confronted with the fact that it states in that document that she was a student, when in fact she no longer was, the claimant simply explained that she often said that she was a student.48 This, in my opinion, is a contradiction that undermines her credibility, given that in her earlier testimony before the RPD, she clearly stated that she was no longer a student at the time she was forced to marry in XXXX 201449 and that, in immigration form IMM 5669, she states that she has been unemployed since that date.50 [48] Lastly, no photograph was filed as evidence showing the appellant in the company of the man she was allegedly forced to marry and with whom, according to her own testimony, she still lived with for approximately XXXX months. At the hearing, the claimant stated that her aunt had attended the forced marriage and she identified her in one of the photographs next to her husband.51 Yet, nothing in the photograph makes it possible to identify either of those persons as in fact being the appellant's aunt or husband. Failing to file supporting documentation that it is reasonable to expect may have an impact on the credibility of the person claiming refugee protection.52 It is clear from reading rule 11 of the Refugee Protection Division Rules (RPD Rules)53 that the person claiming refugee protection must provide documents and other elements in support of the refugee protection claim. For my part, having conducted my own analysis of the record, I find that the appellant's failure to provide documents, including photographs, clearly identifying the persons concerned and corroborating her statements as to the existence of her forced marriage and her life with the man she was allegedly forced to marry, undermines her credibility. - Sexual orientation or gender identity [49] In this case, it is clear that the RPD had to determine whether or not the claimant was credible with respect to her sexual orientation.54 In my opinion, it did so without erring. [50] Contrary to the appellant's submissions that the RPD simply acted in such a manner so as to be able to reject her claim, in my opinion, the RPD rather questioned the claimant, with sensitivity and in a non-confrontational manner, about her sexual orientation and often sought to understand why she had not provided evidence that could have corroborated her allegations on the matter. For example, the RPD explained to her that it had concerns because she had not provided any recent information about XXXX, the girlfriend with whom she allegedly had a romantic relationship for several years and whose father had caught them making love in XXXX 2015. The claimant then answered that she had not been in contact with her since they were caught. She also initially stated that she had not sought to get in touch with her, but then answered that she had. When asked to explain why she had not provided any evidence regarding the existence of that person, notably through social networks, friends or her family, the claimant replied that she had nothing on her, that they did not have any common friends, and that her family lived in the northern part of the country.55 In my opinion, the RPD's concerns regarding XXXX existence were valid. [51] At the hearing, the RPD also checked whether the claimant was familiar with lesbian social networks, be they in Togo or in Canada, that provide information and that can facilitate networking among lesbians. The claimant then responded that, in Togo, she had personally not used social networks, explaining that there is a fear there of being found out. As for Canada, she replied that she was not familiar with sites specifically intended for lesbians.56 In my opinion, even if the RPD's questions were valid, given the widespread use of social networks by young people, including those in Africa, the fact remains, in my opinion, that the claimant's credibility could not be undermined by the mere fact that she did not use those social networks. [52] However, I find that the RPD was justified in asking her why she had not asked the Colombian person with whom she had had a relationship in Montréal to come and testify on her behalf. The claimant simply replied that she had not thought of it.57 In her memorandum, the appellant submits that it was an aberration to have asked her to have that person testify and that in doing so, the RPD required a high standard of proof, when she had already submitted text messages between her and that person and photographs of them together as evidence.58 In my opinion, those arguments are without merit. First, a person's testimony at a hearing is in itself more helpful to a decision-maker than simply reading the exchanges of text messages or photographs, considering that the credibility of a witness can thus be assessed. Next, the explanation that the claimant had not thought of having that person testify before the RPD is not reasonable. As Guideline 9 states,59 an individual's testimony may be the only evidence of their sexual orientation or gender identity where, in a given case, corroborative evidence is not reasonably available. In this case, no impediment was given and the claimant therefore could have had that person testify. [53] What is more, be it before the RPD or the RAD, the appellant did not file into evidence any document from that person that could have corroborated the fact that they had been in a romantic or other relationship together. Failing to file supporting documentation that it is reasonable to expect may have an impact on the credibility of the person claiming refugee protection.60 It is clear from reading rule 11 of the RPD Rules61 that the person claiming refugee protection must provide documents and other elements in support of the refugee protection claim. For my part, having conducted my own analysis of the record, I find that this situation undermines the appellant's credibility regarding her sexual orientation or gender identity. - Travels between Togo and Ghana [54] In her memorandum, the appellant submits that she and her aunt were not responsible for the delay in leaving her country, as intermediaries had to be paid before obtaining the passport and visa, not to mention the fact that she had had a difficult pregnancy. In fact, nearly two years had passed between the time she was allegedly forced to marry and when she left Togo, that is, between XXXX 2014 and XXXX 2016. More than one year had passed between the time she was reportedly caught making love with another woman and when she left Togo, that is, between XXXX 2015 and XXXX 2016. In addition, the appellant had gone to Ghana three times between XXXX and XXXX 2015, according to the stamps in her passport.62 [55] Staying longer than necessary in a country where one has a fear of persecution, voluntarily returning to that country, staying in other countries without claiming refugee protection or failing to claim refugee protection immediately upon arrival in Canada constitute behaviour that demonstrates a lack of subjective fear63 or that is inconsistent with the behaviour of someone who genuinely fears for his or her life.64 In other words, negative credibility findings made under section 96 may also affect the validity of a refugee protection claim under section 97 of the IRPA, even though subjective fear is not part of the assessment for the latter section.65 [56] In my opinion, the appellant's explanations that she did not stay in Accra because it was her aunt, and not she, who decided, and that, when she travelled between Lomé and Accra, her aunt hid her in her car,66 are not reasonable. In fact, by returning to live in Togo, rather than staying in Ghana, the appellant was closer to the people who, according to her statements, wanted to kill her. Consequently, I find that the fact of having returned to Togo two or three times between XXXX and XXXX 2015 after visiting Ghana, where she could have also claimed asylum, undermines her credibility. B. Principles of procedural fairness [57] When procedural fairness is at issue, the question that arises is whether the principles of natural justice were observed by taking into account the particular circumstances of the case.67 In the context of a claim for refugee protection before the RPD, procedural fairness means ensuring that the person claiming refugee protection understands the proceedings, has a reasonable opportunity to tender evidence in support of their claim, and is given a chance to persuade the RPD that their claim is well-founded.68 [58] In her memorandum, the appellant submits that the RPD breached procedural fairness by rejecting evidence without having given her the opportunity to demonstrate its truthfulness, by failing to take into account the photographs filed as evidence, by refusing to give any probative value to her child's birth certificate extract, which is a genuine foreign certificate, and by failing to conduct a separate analysis of her claim under subsection 97(1) of the IRPA.69 [59] For my part, I find that the RPD's findings addressed both the fear of persecution and the risks set out in subsection 97(1). With respect to the photographs filed as evidence, they alone certainly could not establish the existence of the forced marriage or the appellant's sexual orientation. The RPD took that evidence into account, but it nevertheless concluded that there were credibility issues. In addition, it is well established that no probative value has to be given to evidence that provides information on facts that are not found to be credible.70 [60] Consequently, I conclude that the appellant has not established that the RPD breached any of the principles of natural justice or of procedural fairness. CONCLUSION [61] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX is neither a Convention refugee under section 96 nor a person in need of protection under section 97 of the IRPA. [62] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette July 24, 2018 Date IRB translation Original language: French 1 The appellant's Basis of Claim Form (BOC Form), pages 18 to 31 of the RPD record. 2 The documents filed into evidence by the claimant are reproduced at pages 112 to 261 of the RPD record. 3 RPD's reasons and decision, September 12, 2016, pages 3 to 17 of the RPD record. 4 This document is reproduced at pages 34 to 39 of the appeal record. 5 This document is reproduced at page 40 of the appeal record. 6 This document is reproduced at page 41 of the appeal record. 7 This document is reproduced at page 42 of the appeal record. 8 This document is reproduced at page 43 of the appeal record. 9 These documents are reproduced at pages 44 and 45 of the appeal record. 10 These documents are reproduced at pages 47 to 85 of the appeal record. 11 This document is reproduced at page 86 of the appeal record. 12 These photographs are reproduced at pages 87 to 94 of the appeal record. 13 Appellant's memorandum, paragraphs 118 to 126, pages 110, 111 and 112 of the appeal record. 14 Canada (Citizenship and Immigration) v. Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96. 15 Ilias v. Canada (Minister of Citizenship and Immigration), No. IMM-5152-17, Bell, June 27, 2018; 2018 FC 661, paragraphs 34 and 35. 16 Andrade v. Canada (Minister of Citizenship and Immigration), No. IMM-4988-17, Phelan, May 14, 2018; 2018 FC 505, paragraph 14. 17 Ilias, supra, footnote 15, paragraph 34 thereby referring to three other decisions rendered by the same court. 18 Appellant's memorandum, paragraphs 120 and 121, page 111 of the appeal record. 19 Ibid., paragraph 122, page 111 of the appeal record. 20 Ibid., paragraph 123, page 111 of the appeal record. 21 Singh, supra, footnote 14, paragraphs 38, 43 and 44. Read also about the possibility for the RAD to find evidence inadmissible because it is not credible: Belek v. Canada (Minister of Citizenship and Immigration), No. IMM-3459-16, Diner, February 16, 2017; 2017 FC 196, paragraph 13. Tuncdemir v. Canada (Minister of Citizenship and Immigration), No. IMM-808-16, Gagné, August 31, 2016; 2016 FC 993, paragraph 35. Tota v. Canada (Minister of Citizenship and Immigration), No. IMM-2798-14, Boswell, July 21, 2015; 2015 FC 890, paragraph 44. 22 Singh, supra, footnote 14, paragraphs 38 and 43. 23 Appellant's memorandum, November 2, 2016, pages 96 to 114 of the appeal record. 24 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018; 2018 FC 147, paragraph 18. 25 Borubaev v. Canada (Minister of Citizenship and Immigration), No. IMM-3026-17, Diner, February 5, 2018; 2018 FC 125, paragraph 21. 26 Appellant's memorandum, pages 96 to 114 of the appeal record. 27 Ibid., paragraphs 7 to 32, pages 97 to 100 of the appeal record. 28 Ibid., paragraphs 33 to 52 and 77 to 100, pages 100, 101, 102 and 105 to 108 of the appeal record. 29 Ibid., paragraphs 53 to 58, pages 102 and 103 of the appeal record. 30 Ibid., paragraphs 59 to 76, pages 103, 104 and 105 of the appeal record. 31 Ibid., paragraphs 101 to 117, pages 108, 109 and 110 of the appeal record. 32 Ibid., paragraphs 129 and 130, page 112 of the appeal record. 33 Ibid., paragraphs 20 to 34, pages 19 to 22 of the appeal record. 34 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. X (Re), 2017 CanLII 33034 (CA IRB). 35 Canada (Minister of Citizenship and Immigration) v. Gebrewold, No. IMM-4058-17, LeBlanc, April 6, 2018; 2018 FC 374, paragraph 25. Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. 36 Recording of the hearing held before the RPD on August 17, 2016, 00:01 to 02:55:51. 37 Effective May 1, 2017, Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. This Guideline is accessible on the IRB's site. At the time of the hearing before the RPD, the Guideline was not in effect, but it is in effect today and, for my part, I must ensure it is applied. 38 Office of the United Nations High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/12/09, October 23, 2012, not paginated, paragraphs 5 to 9, 15 and 23. The document is accessible on the UNHCR site. Although these guidelines are not mandatory, I find them to be helpful to the RPD and RAD and worth reviewing. 39 Osikoya v. Canada (Minister of Citizenship and Immigration), No. IMM-5059-17, Norris, July 11, 2018; 2018 FC 720, paragraphs 60 and 61. Arreaga v. Canada (Minister of Citizenship and Immigration), No. IMM-996-13, Noël, September 25, 2013; 2013 FC 977, paragraph 45. 40 Chairperson's Guideline 9, supra, footnote 37, article 1.4. 41 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, paragraphs 22 and 27. 42 Chairperson's Guideline 4 on Women Refugee Claimants Fearing Gender-Related Persecution, effective November 13, 1996. This Guideline is accessible on the IRB's site. 43 Ilias, supra, footnote 15, paragraphs 37 and 38. Read also Manege v. Canada (Minister of Citizenship and Immigration), No. IMM-4966-13, Kane, April 17, 2014; 2014 FC 374, paragraphs 29 to 32. 44 Kandel v. Canada (Minister of Citizenship and Immigration), No. IMM-6752-13, Noël, July 7, 2014; 2014 FC 659, paragraph 29. Read also the decision of my colleague Christina Harrison Baird in No. MB5-03341: X (Re), 2017 CanLII 142605 (CA IRB), paragraph 31. 45 Hearing recording, 02:34:50 to 02:36:00. 46 Ilias, supra, footnote 15, paragraph 37. Read also the decision of my colleague Veena Verma in No. TB7-12847-03341: X (Re), 2018 CanLII 39422 (CA IRB). 47 Hearing recording, 34:00 to 38:00 and 01:16:40 to 01:18:30. 48 Ibid., 01:07:35 to 01:10:40. 49 Ibid., 33:00 to 34:00. 50 Immigration form IMM 5669 is reproduced at pages 47 to 50 of the RPD record. The child's birth certificate is reproduced at page 160 of the RPD record. 51 Hearing recording, 02:08:00 to 02:09:00. 52 Mercado v. Canada (Minister of Citizenship and Immigration), No. IMM-4493-09, Gauthier, March 12, 2010; 2010 FC 289, paragraph 32. 53 Refugee Protection Division Rules, SOR/2012-256. 54 Gbemudu v. Canada (Minister of Citizenship and Immigration), No. IMM-4320-17, Russell, April 26, 2018; 2018 FC 451, paragraph 59. 55 Hearing recording, 14:40 to 20:40. 56 Ibid., 21:00 to 25:30. 57 Ibid., 02:05:10 to 02:07:00. 58 Documents D-15 and D-16 are reproduced at pages 197 to 223 of the RPD record. 59 Chairperson's Guideline 9, supra, footnote 37, article 3.2. 60 Mercado v. Canada (Minister of Citizenship and Immigration), No. IMM-4493-09, Gauthier, March 12, 2010; 2010 FC 289, paragraph 32. 61 Refugee Protection Division Rules, SOR/2012-256. 62 Her passport is reproduced at pages 86 to 91 of the RPD record. 63 Rivera v. Canada (Minister of Citizenship and Immigration), No. IMM-5826-02, Beaudry, November 5, 2003; 2003 FC 1292, paragraphs 29 and 30. 64 El-Khatib v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-15, LeBlanc, April 27, 2016; 2016 FC 471, paragraph 12. 65 Dowansingh v. Canada (Minister of Citizenship and Immigration), No. IMM-6581-14, Diner, July 30, 2015; 2015 FC 933, paragraph 18. 66 Recording of the hearing, 02:12:40 to 02:16:00. 67 Wai Kheong Ching v. Canada (Minister of Citizenship and Immigration), No. IMM-1272-14, Kane, June 9, 2015; 2015 FC 725, paragraph 75. Zheng v. Canada (Minister of Citizenship and Immigration), No. IMM-1998-11, Mosley, November 25, 2011; 2011 FC 1359, paragraph 7. Bokhari v. Canada (Minister of Citizenship and Immigration), No. IMM-3907-10, Harrington, March 22, 2011; 2011 FC 354, paragraph 13. 68 Nemeth v. Canada (Minister of Citizenship and Immigration), No. IMM-2522-02, O'Reilly, May 14, 2003; 2003 FCTD 590, paragraph 10. 69 Appellant's memorandum, paragraphs 101 to 117, pages 108, 109 and 110 of the appeal record. 70 Nijjer v. Canada (Minister of Citizenship and Immigration), No. IMM-340-09, de Montigny, December 9, 2009; 2009 FC 1259, paragraph 27. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-04774 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB6-05914 21