TB6-08112

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 : TB6-08112 Private Proceeding / Huis clos 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 of decision September 21, 2016 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Olivia Mann-Foster 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 N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant) appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal and requests an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to grant his appeal. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 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 alleged before the RPD that, upon return to India, he will be harmed or killed because it was revealed that he is homosexual and because he is a member of a political party that opposes the ruling party. [4] The Appellant's application for refugee protection was heard on March 3, 2016 and March 24, 2016. By a decision of May 19, 2016, the RPD rejected the claim finding that the Appellant was not a credible witness. The RPD found that the Appellant had not established, with sufficient credible evidence, that he is a prominent member of the Social Democratic Party of India (XXXX), that he would face harm because of his political affiliation and activism, or that he is gay and faces persecution or a risk to his life on that ground. [5] The Appellant submits that the RPD made a number of errors in its reasoning for its decision to dismiss his refugee claim. He submits that the RPD erred in its assessment of his homosexuality and in its assessment of his evidence by holding it to an impossible standard. ANALYSIS Role of the RAD [6] The Appellant notes that the Federal Court, in Huruglica,1 concluded that the RAD is not limited to overturn decisions where the RPD commits a palpable or overriding error; and the RAD must respect the conclusions of the RPD in areas where the RPD enjoys a particular advantage over the RAD but must come to its own conclusion on the facts before it based on the evidence filed before the RAD. The Appellant submits that the reasoning in Huruglica should be followed because the Court in that decision engaged in a detailed assessment of the principles of statutory interpretation to come to its conclusion as to the proper standard of review. He notes that the Federal Court in Huruglica benefited from far more extensive submissions than the Court in prior decisions and Huruglica has been approved by numerous other decisions of the Federal Court. [7] The RAD acknowledges the decision of the Federal Court in Hurgulica. More recently, however, in the same case, the Federal Court of Appeal indicated that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law; and this translates into an application of the correctness standard of review.2 The Court held that, with respect to findings of fact (and mixed fact and law), which raises no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. It went on to indicate that after carefully considering the RPD decision, the RAD is to carry out its own analysis of the record to determine whether the RPD erred. The Court also stated that having done the above, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination.3 [8] Considering the recent jurisprudence, the RAD will conduct its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. Where no issue of credibility of oral evidence was raised, the RAD will apply a standard of correctness when assessing RPD findings of fact or of mixed fact and law. Where the credibility of oral evidence was raised, 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 the RAD's own analysis of the record as a whole. In addition, the standard of correctness will be used for any error of law including a breach of natural justice or procedural fairness found in the RPD decision on appeal to the RAD. Admissibility of evidence submitted on appeal [9] Subsection 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in his Memorandum of Argument about how any proposed new evidence meets the requirements of subsection 110(4) and how that evidence relates to him.4 [10] Where a document meets the test in subsection 110(4), the RAD will conduct a further assessment of that evidence. In Singh,5 the Federal Court of Appeal held that there is no valid reason the RAD cannot apply the criteria set out in Raza6 to the assessment of new evidence. While Raza predates the introduction of subsection 110(4) of the IRPA, it is based on nearly identical wording of subsection 113(a). In Raza, the Federal Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.7 In Singh, the Court found that three of the criteria from Raza are necessarily implied in the wording of subsection 110(4).8 The Court has also found materiality to be redundant, as it is also found in subsection 110(6) of the IRPA, which describes when the RAD may hold an oral hearing.9 Newness is implicitly incorporated into subsection 110(4) and does not require additional analysis. [11] For these reasons, the RAD will apply the following factors to considering the Appellant's proposed new evidence. It will first consider whether the evidence passes the test in subsection 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of subsection 110(4), the RAD will apply the Raza factors, minus the "materiality" factor, as this is to be assessed in light of subsection 110(6) only. [12] The Appellant tendered the following documents as proposed new evidence in support of his appeal. (a) Membership card from The XXXX XXXX XXXX XXXXCentre (XXXX XXXX) and XXXX Services: XXXX XXXX XXXX Record from XXXX XXXX dated April 5, 2016;10 (b) Photographs;11 and, (c) The affidavit of XXXX XXXX XXXX XXXX.12 [13] The Appellant submits that the affidavit evidence regarding his new relationship, along with the registration confirmation and the photographs attached to his affidavit constitute new evidence pursuant to subsection 110(4) as it is evidence that was not reasonably available prior to the rejection of his claim or, in the alternative, evidence that he could not reasonably have been expected in the circumstances to have presented at the time of the rejection. He submits that his relationship is very new and he was not in this relationship at the time of his refugee claim. He submits that the information is directly relevant to one of the central issues of the claim, namely, whether he is a gay man. He argues that if the RPD had found that he was, in fact, a gay man, the analysis of his risk in India would be dramatically different. He also argues that if the new evidence had been available at the time of the hearing, the decision could have been dramatically different. [14] The Appellant argues that he should be granted a fresh risk assessment based on the fact that the new evidence, in combination with the evidence submitted in the context of his original refugee claim, provides evidence that he is in fact gay. He notes that since the RPD did not believe that he was gay, the risk of returning to India based on his sexual orientation was not assessed. He further notes that gay men face a risk throughout India. Item (a) [15] Item (a) contains a membership card for XXXX XXXX. The card does not contain new information. The Appellant submitted confirmation13 of his membership with XXXX XXXX to the RPD and the RPD acknowledged that the Appellant was a member of XXXX XXXX in its reasons.14 The RAD notes that the training record from XXXX XXXX is dated April 5, 2016. This date is subsequent to the Appellant's hearing but prior to the rejection of his claim. At his hearing the Appellant was questioned about his activities at XXXX XXXX and the RPD expressed concern about his membership and activities at XXXX XXXX; therefore, the Appellant ought to have known that it was a relevant consideration for the RPD. The Appellant fails to explain why the membership card and training record could not have been submitted to the RPD post hearing, prior to the rejection of his claim. The RAD finds that the Appellant has failed to establish that XXXX XXXX membership card and training record were not reasonably available at the time his claim was rejected or that he could not reasonably have been expected in the circumstances to have presented them at the time of the rejection. Since item (a) does not meet the statutory requirements of subsection 110(4), it will not be accepted as new evidence in this appeal. Items (b) and (c) [16] The Appellant indicates in his affidavit that he met a man named XXXX XXXX XXXX XXXX (XXXX XXXX) on or around June 13, 2016, that XXXX XXXX is gay; that XXXX XXXX moved into his house on July 5, 2016 and they share a bedroom; and that they have both expressed their desires to have a romantic relationship with each other.15 XXXX XXXX indicates in his affidavit (item (c)) that he is a gay man; that he met the Appellant on or around June 13, 2016; that he and the Appellant attended the Pride festival on July 2, 2016 and July 3, 2016; that he moved in to the Appellant's house on July 5, 2016 and they share a bedroom; and, while he and the Appellant have not established a physical or sexual relationship, they have expressed their desires to do so. Although the 24 photographs in item (b) are undated and without description, the Appellant maintains that the photographs are evidence of his relationship with XXXX XXXX.16 Since the Appellant met XXXX XXXX after the rejection of his claim, the RAD finds that items (b) and (c) contain evidence that arose after the rejection of the Appellant's claim. Since they meet the statutory requirements of subsection 110(4), items (b) and (c) will be accepted as new evidence in this appeal. [17] The RAD's assessment of this new evidence, including the application of the Raza factors, is found below under the headings New evidence and Request for an oral hearing. MERITS OF THE APPEAL Credibility Sexual orientation [18] The Appellant submits that the RPD erred in its assessment of his sexual orientation by relying on stereotypical "markers" of sexual orientation, by holding his corroborating evidence to an unreasonably high standard and by subjecting his claim to a discriminatory determination procedure. He maintains that the RPD found his claims about persecution based on his sexual orientation implausible. He argues that a review of the evidence indicates that the RPD's findings of implausibility cannot stand as they are based on stereotypes and were made in a perverse and capricious manner. He notes that the Federal Court, on many occasions, has rejected the practice of measuring credibility in relation to superficial personal or behavioural "markers" of sexual orientation. [19] The Appellant submits that the RPD erred in its credibility assessment when it came to his discovery of his sexuality, his failure to mention his sexual orientation at the port of entry and his lack of involvement in the gay community in Canada. He maintains that the RPD made credibility findings based on stereotypes of what the RPD inferred that he should or should not have done as a homosexual male. Significant omission at port of entry [20] The RPD noted that the Appellant did not mention to CBSA officers at the port of entry anything about being gay and having been abused by the police in India as a result of his sexual orientation. It also noted that the Appellant failed to indicate to CBSA officers at the port of entry that he feared homophobic persecution should he return to India. The RPD did not accept the Appellant's explanation - that he was shy and not comfortable discussing this subject with a female officer. The RPD noted that the Appellant did not elaborate as to why he was not comfortable discussing the subject with a female officer. It also noted that the Appellant was interviewed by a number of CBSA officers and was given multiple opportunities to add to, or clarify, his previous statement; however, he failed to do so. The RPD found that the omission and the Appellant's unreasonable explanation for the omission raised a serious doubt as to whether the Appellant is homosexual, and whether his life was, or is, in danger in India because of his sexual orientation. [21] The Appellant maintains that he had a completely reasonable explanation for failing to mention that he was gay at the port of entry. He maintains that case law in this area has held that the fact that an Appellant does not disclose such information to officers who are strangers to them is not determinative of credibility. He notes that the Federal Court, in Sobhesedgh,17 disagreed with the Board's findings in this area and submits that the RPD erred by attributing adverse credibility findings to his failure to disclose his sexual orientation at the port of entry. [22] The RAD distinguishes the case at hand from Sobhesedgh. In Sobhesedgh, the refugee claimant was a citizen of Iran and, in his port of entry interview, he claimed to be a member of the Mujahedeen, a terrorist organization. In his Personal Information Form (PIF) he claimed to be a victim of persecution as a Sunni Muslim in a Shia-majority country. Two years after arriving in Canada, the claimant submitted a second PIF in which he claimed to be a gay man at risk of execution. The RPD found the claimant was not gay. The RPD found it inconsistent for someone who had lived openly as a gay man in Japan for seven years to not trust his first lawyer with knowledge of his sexual orientation for fear that his religious uncle would find out. In the Court's view, this statement was an apparent acceptance of the claimant's sexual orientation and to ultimately find otherwise was a manifest contradiction in the making of critical findings. [23] The facts in the case at hand differ significantly from Sobhesedgh. Although the refugee claimant in each case failed to disclose at the port of entry that he feared persecution due to his sexual orientation, all the other facts are so unique to each case that analogies cannot be drawn between the two cases. In Sobhesedgh the Court held that the RPD's finding regarding an inconsistency was an apparent acceptance of the refugee claimant's sexual orientation and to ultimately find otherwise was a manifest contradiction in the making of critical findings. In the case at hand, the RPD made no findings that are an apparent acceptance of the Appellant's sexual orientation. The RAD finds that the Appellant cannot rely on Sobhesedgh to support his arguments. [24] The RPD was not wrong to draw negative credibility conclusions from the Appellant's failure to indicate to immigration officials at the port of entry that he is homosexual, that he had been abused by the police in India as a result of his sexual orientation or that he feared homophobic persecution should he return to India. The RAD notes that the Board has been upheld when rejecting major evidence which has been omitted in the port of entry notes.18 [25] Even if the Appellant was shy and not comfortable discussing his sexual orientation with a female officer, one would expect him to overcome these feelings considering the seriousness of the harm he alleges he would face if he were to return to India due to his purported sexual orientation. The Appellant's assertion that he did not disclose his sexual orientation when first making a refugee claim because he was shy and not comfortable discussing his sexual orientation with a female officer is counterintuitive. If one travels a great distance to seek refugee protection due to one's sexual orientation, it does not make sense that he would be reluctant to disclose his sexual orientation to those who would assist him in claiming protection. Considering that the Appellant was refused entry into Canada in 2015 because he attempted to enter on a work permit when his true intention was to establish a business, one would expect that he would not fail to reveal the true nature of his refugee claim when he arrived in 2016. The RAD finds that the anomalies in the Appellant's evidence noted above, and the Appellant's actions upon entering Canada, undermine his credibility, including the credibility of his alleged sexual orientation. Further anomalies in the Appellant's evidence [26] The RPD found that the Appellant's evidence with regards to how his purported sexual orientation was revealed to others was not trustworthy or in harmony with what a practical person would readily recognize as reasonable, considering the location and conditions. The RPD noted an inconsistency in the Appellant's evidence regarding how police discovered him and his same-sex partner engaged in a sexual act. It noted that, in his Basis of Claim Form (BoC) narrative, the Appellant indicated that police attended his restaurant after receiving a complaint from someone and a "watcher" at the front door let them into the building, whereupon he was found having sexual relations with his partner; whereas at his hearing, the Appellant indicated that police came to see him about a complaint that he had made earlier, officers entered into the house through an open door and came down a hallway into a back room where they caught him in the midst of having anal sex with his partner. The RPD noted that the Appellant failed to provide an explanation for the inconsistency, merely stating that the second version was correct. [27] The RPD noted an omission in the Appellant's BoC. It noted that the Appellant testified at his hearing that, after police discovered him having homosexual sex, they dragged him and his partner outside and publically shamed him in front of a crowd of neighbours; police threatened to arrest him if he was caught again; and he was eventually expelled from his mosque when the leadership found out what had happened. The RPD noted that this information was omitted from the Appellant's BoC and that the Appellant failed to reasonably explain the inconsistency. [28] The RPD found it improbable that the police would go to some effort to shame and publically humiliate the Appellant while allowing him to escape judicial punishment simply because he begged and pleaded with them. [29] The Appellant submits that it was an error in law for the RPD to find his credibility undermined by his written and oral testimony about his same-sex attraction and experiences; and that it was an error for the RPD to find that his evidence with regards to how his purported homosexuality was revealed to others was not trustworthy or in harmony with what a practical and informed person would readily recognize as reasonable in that place and in those conditions. He notes decisions of the Federal Court that did not support findings of the Board based on stereotypes of LGBT individuals. [30] The RPD's findings were not based on stereotypes. In fact, the RPD, in its reasons, acknowledged that human sexuality may be manifested in many different ways. It acknowledged that a person may not come to certain realizations and self-acknowledgements until well into adulthood. It acknowledged that those known or perceived to be homosexual in certain religious or cultural communities could be subject to persecution. This suggests that the RPD was reluctant to base its findings on stereotypes. Furthermore, the RAD notes no influence of stereotypes in the RPD reasoning or findings. [31] The RPD's findings in relation to the Appellant's allegations of harmful or persecutory incidents in India related to his purported sexual orientation were based on inconsistencies, omissions or other anomalies in his evidence. The Appellant's evidence regarding how police discovered him and his same-sex partner engaged in a sexual act was inconsistent, including the reason why police attended his restaurant and how police made their way to the room where he was engaged in same-sex sexual activity. The Appellant omitted from his BoC his allegation that police dragged him and his partner outside and publically shamed him in front of a crowd of neighbours. He omitted from his BoC his allegation that police threatened to arrest him if he was caught again. He omitted from his BoC that he was expelled from his mosque when the leadership found out what had happened. [32] The incident in which the Appellant alleges he was caught by police engaged in same-sex sexual activity is a significant element of his story, particularly because he alleges it is what caused him to flee India in XXXX 2016. It is reasonable to expect the Appellant to give consistent evidence about this incident without significant omissions, and his failure to do so seriously damages his credibility, including the credibility of his alleged sexual orientation. [33] The RPD was not wrong to find that it was improbable that the police would go to some effort to shame and publically humiliate the Appellant while allowing him to escape judicial punishment simply because he begged and pleaded with them. The RAD notes that homosexual sex is a criminal offence in India and those who violate the law face 10 years imprisonment.19 Considering that the Appellant alleges police caught him and his same-sex partner engaged in a homosexual sex act, it would be reasonable to expect police to arrest and charge the Appellant and his partner with violating the law on homosexual sex. It does not make sense that police would release the Appellant simply because he begged and pleaded with them, considering that police witnessed the Appellant engaged in homosexual sex and had strong evidence to charge him. The RAD finds, on a balance of probabilities, that police did not catch the Appellant engaged in homosexual sex. Photographs [34] The Appellant notes that the RPD placed no weight on the photographs he presented due to the fact that there was no indication in the photos of where or when they were taken, nor was there anything about them to suggest that he and the man identified were in a physical or romantic relationship. He notes that the Federal Court in Charles20 found it unreasonable to expect the refugee claimant to remember exact dates of his homosexual relationships, to belong to a homosexual organisation in Canada, or to produce corroborative evidence of homosexual relationships such as letters or photos in order to establish his sexuality. [35] The RAD acknowledges that it would be unreasonable to expect a refugee claimant to produce corroborative evidence of homosexual relationships such as letters or photos in order to establish his sexuality. However, considering the credibility concerns in this case that are noted above, the RPD was not wrong to ask the Appellant if he had such evidence. The credibility of the Appellant's alleged sexual orientation had been undermined by anomalies in his evidence. The photographs the Appellant presented have little probative value. They merely show a number of men gathered around a cake. The RPD was not wrong to give no weight to the photos. XXXX XXXX [36] The Appellant notes that the RPD took issue with his timing in attending and registering at XXXX XXXX. He notes case law on findings regarding the use of unacceptable stereotypes. He also notes the decision of the Federal Court in Leke21 that found the Board's determination with respect to membership with XXXX XXXX was unreasonable, in the context of the entirety of the evidence. [37] The RAD accepts that XXXX XXXX evidence must be taken in the context of the entirety of the evidence as noted in Leke. As noted above, there are serious credibility concerns regarding the Appellant's alleged sexual orientation that were not based on stereotypes. Furthermore, the RAD notes that XXXX XXXX is a community centre which provides support to the general community, including the large LGBTQ community in downtown Toronto. The documents22 from XXXX XXXX do not confirm that the Appellant is homosexual. This evidence solely indicates that the Appellant reached out to the centre, made a donation, and became a member. The RAD gives no weight to the evidence from XXXX XXXX in support of the Appellant's identity as a homosexual and the allegations of persecution or harm in India. Risk based on Appellant's political activities Omission regarding reporting threats to police [38] The RPD noted that the Appellant, at his hearing, indicated that he reported to police the threatening telephone calls he had received but the police refused to assist him and instead laughed at him; however, there is no indication in his Basis of Claim Form narrative that he reported the threats to police and police refused to help him. The RPD did not accept the Appellant's explanation for the omission. [39] The Appellant submits that the RPD erred in its credibility findings regarding the threatening phone calls he received because he had not mentioned the phone calls in his Basis of Claim form. He notes that the Federal Court in Cao23 found that inferences drawn from omissions in the claimant's PIF were unreasonable because the omissions did not go to the heart of the claim and some were added through an amendment. He also notes that in Weng,24 the Court found that there was in fact no omission and that in any event it was marginal to the issues before it. The Appellant's argument has no merit. The RAD distinguishes the case at hand from Cao and Weng as there was an omission in this case regarding the Appellant reporting to police the threatening telephone he received; the omission was not added through an amendment to his BoC; the omission was not marginal; and the omission goes to the heart of the Appellant's claim for refugee protection. [40] The Appellant indicated in his Basis of Claim Form narrative that, after he joined the XXXX, he received telephone calls from unknown individuals threatening to kill him;25 however, there is no indication that he reported the threats to police. At his hearing, the Appellant indicated that he reported the threats to police and the reason he did not mention that he reported the threats to police in his BoC was because there were things he did not mention and he was focusing on the threatening calls themselves when he was completing his BoC. The RPD was not wrong to reject the Appellant's explanation for the omission. The Basis of Claim Form specifically instructs refugee claimants to indicate if they asked any authorities such as the police in their country to protect or assist them; and if so, to indicate who they approached for help, what steps they took and what happened as a result. It would be reasonable to expect the Appellant to focus on completing his BoC as instructed on the form. The reporting of the threatening telephone calls to police is significant since it is a relevant consideration in the assessment of state protection and credibility. Furthermore, it is related to the Appellant's allegation that he was targeted for harm because he joined the XXXX which goes to the heart of the Appellant's claim for refugee protection. It would be reasonable to expect the Appellant to provide consistent information, without significant omissions, about reporting the threats to police and the response of police to his report of threats, especially since he was instructed to do so in his BoC. The RAD finds that the omission, without a reasonable explanation, further undermines the Appellant's credibility. Political activities [41] The RPD noted the Appellant's testimony that he was only one in the local branch of the XXXX who had received threatening telephone calls or who had been threatened It noted that the Appellant indicated he was targeted because he was getting recognition. The RPD noted that the Appellant was neither a high-profile XXXX leader nor a candidate, and had only provided behind-the-scenes logistical support to the party. The RPD found the Appellant's explanation for being targeted unreasonable. It found it improbable that the Appellant, who had no real public profile as an XXXX activist or as a person able to change party policy, would be the only party member targeted with a series of anonymous death threats. The RPD found, on a balance of probabilities, that the Appellant had not established with sufficient and credible evidence that the anonymous calls occurred; it found that he fabricated the story to embellish his claim. [42] The Appellant submits that the RPD erred in its assessment of his risk based on his political activities. He notes that the RPD found that it was not plausible that he would be the only person in the community that was threatened with phone calls because he was not a "leader" of sorts. He argues that he clearly testified that his photograph was next to the leader's photograph on banners and the fact that his photograph was on posters next to the Party's leader is sufficient to find that his profile rose above that of an average member of the Party. [43] The Appellant's argument has no merit. The RPD did not find it implausible that the Appellant would be targeted; it found it improbable that the Appellant, considering his low political profile, would be the only XXXX party member targeted with a series of anonymous death threats. As noted in Sung, a tribunal may also conclude that a refugee claimant's evidence is implausible, or improbable, or dubious, or untenable, or unreliable, or absurd, or unconvincing.26 The RPD finding is logical and based on the evidence. Even if the Appellant's image was seen on banners, this does not explain why the local party leader, who had a significantly higher political profile than the Appellant and who was also depicted on the banners, was not targeted for threats or harm. Considering that the Appellant was not well-known in his community (one of the reasons the Appellant became a member of the XXXX), that he was not a prominent member of the political party, that he had only provided behind-the-scenes logistical support to the party, and that notable members of the party were not targeted for threats or harm, it is not logical that the Appellant would be targeted for threats and harm for his political involvement in the XXXX. The RPD was not wrong to find, on a balance of probabilities, that the Appellant had not established with sufficient and credible evidence that the threatening telephone calls occurred. The RPD was also not wrong to find that the Appellant fabricated the story to embellish his claim. The RAD finds, on a balance of probabilities, that the Appellant was not targeted for threats and harm by political opponents in India, considering the anomalies in his evidence regarding these allegations. Failure to claim refugee protection previously [44] The RPD noted that the Appellant travelled to Canada in XXXX 2014 because, as a result of the death threats, he was stressed and fearful and needed to leave India for his own safety. It noted that the Appellant returned to India after four months. It noted the Appellant's explanation for voluntarily returning to India and not claiming refugee protection in Canada was because he had not wanted to stay in Canada permanently and instead had wished to return to helping the XXXX prepare for the next general election. The RPD found it unreasonable, given the purported threats faced by the Appellant and his self-described fear for his life, that he would not have sought protection in Canada. The RPD found that the Appellant's re-availment to India negated any subjective fear he had at the time and, when coupled with its findings relating to the alleged anonymous calls, significantly undermined the Appellant's overall credibility as a witness. [45] The RAD finds that the Appellant's failure to claim refugee protection when he was previously in Canada (from XXXX to XXXX 2014), without a reasonable explanation, undermines his credibility, especially the credibility of his allegations surrounding his political activities in India and the incidents of threats and harm as a result of these activities. His re-availment to India in XXXX 2014, without a reasonable explanation, further undermines his credibility, especially the credibility of his allegations surrounding his political activities in India and the incidents of threats and harm as a result of these activities. If the Appellant actually received the death threats in India in or about XXXX 2014 due to his political affiliation or activities, it would be reasonable that he claim refugee protection in Canada when he arrived in XXXX 2014. He also should have feared returning to India in XXXX 2014. His explanations that he had not wanted to stay in Canada permanently and wished to return to India to help the XXXX are unreasonable considering his alleged circumstances. On the one hand he indicates that he experienced significant problems due to his political activities or affiliation since XXXX 2014 and on the other hand he indicates that the problems were not significant enough to file a claim for refugee protection, until he returned to Canada in 2016. [46] The RAD relies on case law,27 which suggests that a negative inference may be drawn in instances where a refugee claimant takes sojourns outside of the country of alleged persecution and fails to take advantage of the opportunity to seek asylum elsewhere, and then re-avails him or herself. The Appellant failed to take advantage of the opportunity to seek protection in Canada in 2014. He then re-availed himself to the protection of India after he alleged that he had experienced problems in India due to his political activities or affiliation and had been fearful. In this instance the RAD draws a negative inference as noted in case law and finds that the Appellant's actions are not consistent with a subjective fear of persecution. The RAD finds that the Appellant's failure to claim previously in Canada (between XXXX and XXXX 2014) and his re-availment to India in XXXX 2014 further undermines his credibility, especially the credibility of the incidents involving his political activities or affiliation. [47] The RAD also notes that the Appellant travelled to Canada in XXXX 2015 however was not admitted because he came on a work permit and it was determined at the port of entry that his intention in Canada was not to work but to establish a business in Canada. The Appellant indicates in his BoC that it was to expand his business. The RAD notes that the Appellant did not file a claim for refugee protection when he arrived in Canada in XXXX 2015 but returned to India "because he did not want to break any rules". The RAD finds that the Appellant ought to have learned that his failure to reveal the true intention of his travel to Canada, before he travelled to Canada in XXXX 2015, impacted his ability to enter and remain in Canada. Therefore, his failure to reveal to immigration officials at the port of entry in January 2016 his sexual orientation and his allegations of harm and persecution in India due to his sexual orientation, considering the lesson he ought to have learned when he was refused entry in XXXX 2015, further undermines the credibility of those allegations. He ought to have known that his failure to disclose this information would impact his ability to remain in Canada, by means of his refugee claim. Medical documentation [48] The RPD drew a negative inference from the Appellant's failure to try to obtain a replacement medical report regarding an incident that occurred on XXXX XXXX XXXX 2015. [49] The Appellant submits that the RPD erred in its credibility findings when it came to his failure to provide a medical report from the XXXX XXXX, 2015 attack for which he did seek medical attention. He argues that he did not make a First Information Report (FIR) to police and therefore did not obtain a copy of the medical report or keep a copy of his prescription because he did not think it would be of any assistance in the future as no FIR had been made. He maintains that the RPD's findings with respect to his failure to produce this medical report are not in line with case law on this issue. He refers to the decision of the Federal Court in Kornienko,28 which held that the refugee claimant's failure to travel with medical records is so common, and this is such a microscopic detail, that it should not be used as a basis for an adverse credibility finding. The Appellant submits that his failure to bring medical evidence of the XXXX XXXX 2015 incident did not warrant and adverse credibility finding. [50] The Appellant's argument has no merit. The RPD did not draw a negative credibility inference from the Appellant's failure to travel with his medical report from the XXXX XXXX XXXX 2015 incident; it drew a negative credibility inference from the Appellant's lack of effort to obtain a copy of a medical report that he alleges he had obtained but was no longer in his possession. The Federal Court has established that the burden of proof to establish a claim lies with the refugee claimant. A claimant must come to a hearing with all of the evidence that they have to offer and believe necessary to prove the claim.29 The Board may draw a negative inference from a refugee claimant's lack of effort in acquiring evidence to corroborate central elements of a claim since Rule 11 of the Refugee Protection Division Rules clearly states that the refugee claimant must provide such documents. It is entirely reasonable for the Board to attach great importance to documentation which would have supported the allegations.30 [51] The Appellant indicated that he had a medical report for the injuries he sustained in the XXXX XXXX, 2015 incident however it was no longer in his possession. It would be reasonable to expect him to try to get a copy of the medical report to corroborate his allegations. The RAD attaches great importance to documentation that would have supported the Appellant's allegations. The RPD was not wrong to draw a negative inference from the Appellant's failure to try to obtain a replacement medical report regarding an incident that occurred on XXXX XXXX XXXX 2015. The RAD finds that the Appellant's lack of effort to obtain a replacement medical report further undermines his credibility. Other corroborating documentation [52] The RPD found that the Appellant's XXXX membership card does not provide any significant corroboration that he was a high-profile member of the XXXX; one that would attract violence and death threats. [53] The RPD noted an inconsistency in the written statement the Appellant made to police regarding the XXXX XXXX, 2015 incident. It also noted that this type of document is essentially a product of self-reporting and not the result of independent investigation. The RPD found that it could not rely on the written statement to police to corroborate the allegations of being attacked by political rivals on XXXX XXXX XXXX 2015. The RPD also noted an inconsistency in the written statement the Appellant made to police regarding the XXXX XXXX, 2015 incident. The RPD found that the statement had little probative value in corroborating the Appellant's claim considering the fact that a crucial element of the Appellant's allegations was not mentioned. The RPD gave no weight to the XXXX XXXX XXXX 2015 document. [54] The Appellant submits that the RPD held his evidence, particularly his personal documentation which corroborated his BoC narrative and testimony at the hearing, to an unfair standard; which resulted in the RPD assigning no weight to documentation he submitted. He notes that the personal documentation corroborating his claim includes his XXXX membership card, two complaint letters to the police, the police FIR, confirmation of medical treatment he received, confirmation of his involvement with XXXX XXXX, and photographs of him and XXXX. [55] The RPD was not wrong to give little or no weight to the documents noted above. Anomalies were found in the statements the Appellant made to police. Furthermore the FIRs are simply the Appellant's statements to police and is not evidence confirming a material fact in the matter. Furthermore, the Appellant's allegations have been found to lack credibility and his corroborating documents do not make his allegations credible. As noted in Gomez, corroboration does not make an incredible story credible.31 Furthermore, fraudulent documents are widespread in India. Documentary evidence indicates that fraudulent medical records, school records and police records are prevalent in India; and political party cards are totally fraudulent as most parties do not have any documentation of their members and generally do not issue membership cards. Although some local units may provide one to their local members, there is little authenticity of these.32 Considering the above, the RAD gives no weight to the other corroborating documents noted above with respect to corroborating the Appellant's allegations or in repairing his credibility. New evidence [56] As noted above, the Appellant submits that the fact that the new evidence, in combination with the evidence submitted in the context of his original refugee claim, provides evidence that he is in fact gay (and that he should be granted a fresh risk assessment based on this). [57] The RAD disagrees. As noted above, items (b) and (c) have been accepted as new evidence in this appeal as they meet the statutory requirements of subsection 110(4). However, upon a review of this new evidence the RAD finds that it does not establish the Appellant's allegations, including his alleged sexual orientation. [58] The Appellant indicates in his affidavit that he met a man named XXXX XXXX on or around June 13, 2016; that XXXX XXXX is gay; that XXXX XXXX moved into his house on July 5, 2016 and they share a bedroom; and that they have both expressed their desires to have a romantic relationship with each other.33 XXXX XXXX indicates in his affidavit (item (c)) that he is a gay man; that he met the Appellant on or around June 13, 2016; that he and the Appellant attended the Pride festival on July 2, 2016 and July 3, 2016; that he moved into the Appellant's house on July 5, 2016 and they share a bedroom; and, while he and the Appellant have not established a physical or sexual relationship, they have expressed their desires to do so. The 24 photographs in item (b) are undated and without annotations. They depict individuals, including the Appellant, at various locations and engaged in various activities. Although the Appellant maintains that item (b) is evidence of his relationship with XXXX XXXX, it is unclear how the photographs prove this relationship or what type of relationship the photographs are intended to prove. [59] Nonetheless, even if the RAD were to accept that the Appellant met XXXX XXXX on or around June 13, 2016, that XXXX XXXX is gay, that XXXX XXXX moved into the Appellant's house on July 5, 2016, that the Appellant and XXXX XXXX share a bedroom, that they attended the Pride festival together, and that they have both expressed their desires to have a romantic, physical and sexual relationship with each other, the fact remains that the Appellant and XXXX XXXX have not established a romantic, physical or sexual relationship with each other. The Appellant and XXXX XXXX have each indicated that while they have spoken of such a relationship, they have not entered into one with each other. Therefore items (b) (c) are not evidence that the Appellant is gay. It is merely evidence that the Appellant befriended a gay man, the gay man now lives in the Appellant's house and they share a bedroom, the Appellant and the gay man attended a gay Pride event together, and the Appellant and the gay man have discussed having a romantic, physical and sexual relationship but have not entered into one with each other. The RAD gives the new evidence no weight in establishing the Appellant's allegations, including his alleged sexual orientation. Request for an oral hearing [60] The Appellant requests that a hearing be held pursuant to subsection 110(6) of the IRPA as he has presented evidence referred to in subsection 110(4) and the RPD's decision was based primarily on credibility findings.34 [61] Subsection 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to subsection 110(4), present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [62] According to subsection 110(6) of the IRPA, which the Appellant relies on, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no further evidence from or in response to the Minister, the documentary evidence referred to in subsection 110(3) must be understood in relation to subsection 110(4). [63] When read together, subsections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new 110(4) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [64] The RAD has considered the new 110(4) evidence in this appeal. As noted above, the new evidence does not prove that the Appellant is homosexual; therefore, the new evidence is immaterial and does not justify allowing the Appellant's refugee protection claim. Since the new evidence does not meet the criteria for a hearing before the RAD, the Appellant's request for an oral hearing is denied. Disposition [65] As a cumulative result of the above-noted anomalies, the RAD finds that the Appellant lacks credibility. The RAD does not accept, on a balance of probabilities, that the events, as described by the Appellant in his Basis of Claim Form and at his hearing with the RPD, occurred as described. The RAD also finds the Appellant's evidence lacking in credibility with respect to the events material to his refugee claim. [66] On the basis of the findings noted above and after its own assessment of all the evidence in the record, including the transcript of the RPD hearing, the RAD finds that the Appellant has not established, on a balance of probabilities, that he is homosexual. The RAD further finds that the Appellant has not established, on a balance of probabilities, that he was harmed or threatened with harm by individuals in India because of his sexual orientation or political affiliation. The Appellant did not establish, on a balance of probabilities, that he was, or is, involved in a romantic, physical or sexual same-sex relationship in Canada. [67] Therefore, the RAD finds that there is not a serious possibility of persecution should the Appellant return to India. The RAD, therefore, concludes that the Appellant has failed to establish a well-founded fear of persecution under section 96 of the IRPA, and, for these same reasons - the lack of credibility - the RAD finds that the Appellant is not a person in need of protection or at a risk to life, or at risk of cruel and unusual treatment or punishment, or in danger of torture as set out in section 97 of the IRPA. CONCLUSION [68] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the decision of the Refugee Protection Division and dismisses the appeal. (signed) "M. Pettinella" M. Pettinella September 21, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016; 2016 FCA 93, para. 78. 3 M.C.I. v. Huruglica, para. 103. 4 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 5 M.C.I. v. Singh, Parminder (F.C.A., No. A-512-14), Nadon, Gauthier, De Montigny, March 29, 2016; 2016 FCA 96. (F.C., No. IMM-6711-13), Gagné, October 28, 2014; 2014 FC 1022. 6 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 7 Raza, 2007 FCA 385, paras. 13-15. 8 M.C.I. v. Singh, Parminder, 2016 FCA 96, para. 64. 9 Singh, 2016 FCA 96, para. 48. 10 Exhibit P-2, Appellant's Record, at pp. 363-365. 11 Exhibit P-2, Appellant's Record, at pp. 367-390. 12 Exhibit P-2, Appellant's Record, at pp. 391-392. 13 Exhibit RPD-1, RPD Record, at pp. 271-272. 14 Exhibit RPD-1, RPD Record, at pp. 10-11. 15 Exhibit P-2, Appellant's Record, at pp. 360-361. 16 Exhibit P-2, Appellant's Record, at p. 70 17 Sobhesedgh, Mehrdad v. M.C.I. (F.C.T.D., no. IMM-5573-02), Campbell, May 8, 2003, 2003 FCT 570. 18 Bozsolik, Ferenc v. M.C.I. (F.C., no. IMM-5301-11), Rennie, April 13, 2012, 2012 FC 432. 19 Exhibit RPD-1, RPD Record, at pp. 196-198. 20 Charles, Derick T. v. M.C.I. (F.C., no. IMM-9915-03), Kelen, December 16, 2004; 2004 FC 1748. 21 Leke, Tunji Diran v. M.C.I. (F.C., no. IMM-4191-06), Lagacé, August 22, 2007, 2007 FC 848. 22 Exhibit RPD-1, RPD Record, at pp. 271-272. 23 Cao, Ze Tong v. M.C.I. (F.C., no. IMM-8396-11), Mactavish, June 5, 2012, 2012 FC 694. 24 Weng, Jian Hui v. M.C.I. (F.C., no. IMM-4640-10), Rennie, April 6, 2011, 2011 FC 422. 25 Exhibit RPD-1, RPD Record, at p. 27, paras. 7, 8. 26 Sung, Wei Hao v. M.C.I. (F.C.T.D., no. T-3070-92), Joyal, February 6, 1996 as reported in X (Re), 2005 CanLII 77801 (IRB). 27 Caballero, Fausto Ramon Reyes v. M.E.I., (F.C.A., no. A-266-91), Marceau, (dissenting) Desjardins, Létourneau, May 13, 1993. 28 Kornienko, Terentiy v. M.C.I., (F.C., no. IMM-2944-12), Barnes, December 4, 2012, 2012 FC 1419. 29 Kante, Abdoulaye v. Canada (Minister of Employment and Immigration), (F.C.T.D., no. IMM-2585-93), Nadon, March 23, 1994. 30 Luzi, Tshongo Ngongo v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-4183-03), Pinard, June 28, 2004; 2004 FC 916. 31 Gomez, Hector Cisneros v. M.C.I. (F.C., no. IMM-5741-04), Harrington, June 16, 2005, 2005 FC 859. 32 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) India, 17 July 2015, item 1.14, at p. 31. 33 Exhibit P-2, Appellant's Record, at pp. 360-361. 34 Exhibit P-2, Appellant's Record, at pp. 71, 423. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-08112