MB5-03230

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 : MB5-03230 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 April 6, 2016 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Sangaré Salif Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX, is claiming that he is a citizen of Guinea. He is appealing against the decision of the Refugee Protection Division (RPD), which rejected his refugee protection claim by determining that he is not a "Convention refugee" or a "person in need of protection" under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant is requesting that the Refugee Appeal Division (RAD) allow the appeal, set aside the RPD determination and refer the matter to the RPD for re-determination of his refugee protection claim by a differently constituted panel. [3] The appellant attached to his memorandum of appeal four [translation] "new pieces of documentary evidence since the RPD rejected the refugee protection claim."1 Their admissibility will be analyzed later, in light of the provisions of subsection 110(4) of the IRPA. [4] He is requesting a hearing before the RAD. [5] The Minister did not intervene on appeal. DETERMINATION OF THE APPEAL [6] Under subsection 111(1) of the IRPA, the RAD sets aside the RPD determination, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" in accordance with section 97 of the IRPA. The RAD refers the matter to the RPD for re-determination by a differently constituted panel. [7] The appeal is allowed. FACTUAL BACKGROUND [8] The appellant stated that he is XXXX XXXX XXXX, a citizen of Guinea. Although he has been married since XXXX XXXX, 2011, and is the father of a little girl, he alleges that he is homosexual and is claiming refugee protection in Canada for this reason. In his Basis of Claim Form (BOC Form), the claimant alleges the following facts. [9] In Guinea, he had gone to bars from the age of 17. On XXXX XXXX, 2006, he discussed with XXXX, a man that he would see at the bar, topics of current events and homosexuality. They exchanged telephone numbers and, from time to time, they would meet. Gradually, they developed trust and began to discuss their sexual orientation openly and became lovers. They would see each other at XXXX home, who lived alone in the XXXX neighbourhood in XXXX. [10] In XXXX 2007, while he was going to the bar with XXXX, they were holding hands. En route, they were attacked by four men who threatened to kill them, saying that they were homosexuals. The claimant recognized XXXX, who lived near his lover. Following this attack, the claimant and XXXX feared for their safety. XXXX stated that he knew someone who could help them flee from Guinea to the United States. XXXX was waiting to obtain a French passport that would allow him to travel with the claimant. [11] On XXXX XXXX, 2007, the claimant applied for a visa for the United States, under the name of XXXX XXXX; unfortunately, he was refused the visa. He returned the passport to the person who helped him. Since then, he has had no news from XXXX. The claimant believes that XXXX obtained a French passport and that he travelled. [12] In XXXX 2010, while he was playing soccer, he met XXXX XXXX. They went out to a bar in XXXX 2010; they discussed homosexuality and love. The following month, they became lovers. [13] XXXX XXXX XXXX, 2011, his family forced him to marry XXXX, the daughter of his father's friend. They had a religious and customary wedding. In XXXX 2011, they contracted a civil marriage. His wife gave birth to a daughter on XXXX XXXX, 2012. Although he disagreed with this union, having a wife allowed him to hide his homosexuality and continue to see his boyfriend. They would sometimes see each other at XXXX home and, at other times, they went to the XXXX XXXX in XXXX. [14] On XXXX XXXX, 2014, two young people from a Muslim association (XXXX) caught them in the midst of lovemaking in the hotel room. The claimant and his boyfriend were jeered at, and the people in the neighbourhood and police officers were called. Since XXXX was not able to escape, he was hit. Later, his cousin XXXX XXXX told him that the young people and police officers killed XXXX and that his parents were looking for the claimant to kill him. Informed of the facts, the claimant's parents also threatened to kill him. His wife contacted him, crying, and from then on she went to live with her parents. [15] Following these events, the claimant hid at his friend XXXX home. While there, he was informed that his father had been summoned by the imam in the neighbourhood, who required that the claimant present himself at the mosque to be chastised. Fearing death, he asked his younger brother to take the savings from his shop; in this way, and with the help of his friend XXXX, he went to Mali. [16] In Mali, he met a businessman who agreed to help him travel to Canada under a false identity. The appellant entered Canada on XXXX XXXX XXXX 2014, under the identity of XXXX XXXX. He handed the passport that he used to travel to a person from Mali who was waiting for him at the airport. The claimant was allegedly housed at the home of a fellow Guinean, but he was afraid of talking about his homosexuality because his father is also an imam in Guinea. [17] On December 19, 2014, he met some people from the XXXX XXXX XXXX XXXX XXXX XXXX organization who told him about [translation] "what they are doing to help homosexuals feel comfortable in Montréal." [18] The claimant claimed refugee protection on December 23, 2014. Notice of intervention before the RPD [19] On March 6, 2015, the representative of the Minister of Citizenship and Immigration sent to the RPD a notice of intervention2 and submitted exhibits M-1 to M-5. In her notice of intervention, the Minister's representative submits that [translation] "the information in the evidence raises doubts about several of the claimant's allegations, namely regarding his identity, his family, his personal situation, his alleged fear and the circumstances preceding his arrival in Canada."3 [20] The hearing of this refugee protection claim required two sessions. On March 30, 2015, the Minister's representative questioned the claimant as to how he obtained the documents to come to Canada. At the end of the hearing, she stated that the claimant had responded to her concerns and that she was satisfied as to the claimant's identity. On June 2, 2015, the RPD questioned the claimant on the alleged fear of persecution by reason of his alleged sexual orientation. Impugned decision [21] On June 19, 2015, the RPD stated that it was satisfied as to the claimant's identity. However, it rejected the refugee protection claim, finding that the claimant's credibility was the determinative issue. The RPD noted the following elements: - The claimant did not give spontaneous and direct testimony. - The claimant was not able to provide basic information on his alleged lovers; however, his second relationship allegedly lasted nearly four years. - The RPD stated that it did not find the claimant's testimony credible when he was questioned about the address of XXXX, his first lover. Indeed, before the recess, when questioned by the member, he offered vague, uncertain, even incomprehensible testimony; however, when examined by his counsel after the recess, he was able to give details. - The RPD found it inconsistent that in the context of Guinea the claimant and his lover had taken the risk to walk arm in arm. - Considering the climate of homophobia, the RPD found that it was not credible that he had had a conversation about homosexuality with a man that he was meeting for the first time. - The panel found it implausible, given the alleged family situation, that the claimant, a minor, left his home to go to bars and drink alcohol without his family noticing or criticizing him. - The panel did not call into question the fact that he volunteered for the XXXX XXXX XXXX XXXX XXXX XXXX organization and that he is a member of the organization. However, as it did not believe the essential elements of the story, it did not believe that the claimant would be perceived as homosexual in the event that he were to return to Guinea. - Itt found that the photographs submitted under D-74 do not establish the facts alleged. GROUNDS OF APPEAL AND REMEDY SOUGHT [22] The appellant argues that [translation] "the findings of the Refugee Protection Division are clearly capricious, arbitrary and unreasonable."5 Specifically, he argues the following: - The RPD rejected his testimony without providing any evidence to the contrary. - The RPD did not consider all of the evidence. The decision is contrary to the objectives of the IRPA. He submits that the RPD erred by not giving any probative value to the appellant's documentary evidence, specifically to that relating to his membership in the XXXX XXXX XXXX XXXX XXXX XXXX organization. - The RPD did not explicitly analyze the appellant's fear of persecution if he were to return to Guinea. - By committing several errors, the RPD did not comply with the principles of fairness. - Finally, he argues that the RPD's reasons are insufficient because they are not explicit and lack clarity. ADMISSIBILITY OF NEW EVIDENCE [23] The appellant attached to his memorandum four new documents and the documents submitted before the RPD. [24] The documents in evidence before the RPD do not constitute new evidence within the meaning of subsection 110(4) of the IRPA. As they are part of the RAD record, they will be considered during the analysis of the merits of the decision. [25] The four new documents are the following: 1. A letter from the XXXX XXXX XXXX XXXX XXXX XXXX organization dated July 31, 2015;6 2. A letter from XXXX XXXX confirming that he met the appellant on February 24, 2015, at the lesbian and gay community center;7 3. Internet article entitled Société : Un homosexuel battu à mort [society: a homosexual beaten to death];8 4. Three photographs of the claimant with another man.9 [26] In an affidavit attached to his memorandum, the appellant states [translation] "I attach to this application evidence that has arisen since the rejection of my refugee protection claim or that was not reasonably available, or that I could not reasonably have been expected in the circumstances to have presented, at the time of rejection."10 [27] Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may 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. With respect to this provision, Justice Shore states in Iyamuremye11 that it consists of evidence "that might have affected the outcome of the RPD hearing if that evidence had been presented to it." [28] In Canada (Citizenship and Immigration) v. Singh,12 the Federal Court of Appeal states: To determine the admissibility of evidence under subsection 110(4) of the IRPA, the RAD must always ensure compliance with the explicit requirements set out in this provision. It was also reasonable for the RAD to be guided, subject to the necessary adaptations, by the considerations made by this Court in Raza. [29] According to Justice de Montigny, "There is no doubt that the explicit conditions set out in subsection 110(4) have to be met. Accordingly, only the following evidence is admissible: [34] • Evidence that arose after the rejection of the claim; • Evidence that was not reasonably available; or • Evidence that was reasonably available, but that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [30] The Court continues and states: [35] These conditions appear to me to be inescapable and would leave no room for discretion on the part of the RAD. In the first place, the very wording of subsection 110(4) specifies that the person who is the subject of the appeal "may present only" (" ne peut présenter ") evidence that falls into one of these three categories, thereby excluding any other evidence. Second, one should not lose sight of the fact that this provision departs from the general principle according to which the RAD proceeds without a hearing, on the basis of the RPD's record (s. 110(3)) and must for that reason be narrowly interpreted. (Emphasis by the RAD) Document 1. Letter from the XXXX XXXX XXXX XXXX XXXX organization [31] Although this letter is dated after the rejection of the refugee protection claim, it essentially refers to facts that arose before the rejection of the refugee protection claim. Indeed, this letter states that the appellant participated in discussions organized by the XXXX-XXXX XXXX XXXX XXXX organization and that he is volunteering with the organization. Moreover, Exhibit D-2 in evidence before the RPD confirms this information.13 A reading of the decision reveals that the RPD considered this information when it made the decision. Document 2. Letter from XXXX XXXX dated July 31, 201514 [32] The RPD rejected the refugee protection claim on June 19, 2015. Although this letter is dated after the rejection of the refugee protection claim, it indicates that the person who signed it met the claimant in February 2015 and that they have been good friends since. In his memorandum, the appellant does not provide detailed submissions explaining why such a letter or a similar letter was not reasonably available before the rejection of his refugee protection claim, or why he could not have presented it in the circumstances. Document 3. Internet article15 [33] The appellant submitted an Internet article, dated August 6, 2013, entitled Un homosexuel battu à mort. I am of the view that it is not new evidence within the meaning of the IRPA. First, it appears on its face that this document existed well before the refugee protection claim was rejected. The appellant does not explain in his memorandum why he did not file it before the RPD. Also, its content does not shed new light on his case. At most, it helps establish that in Guinea homosexuals are at risk. However, the situation of homosexuals in Guinea was not called into question by the RPD. Document 4. Three photographs in a bundle [34] Finally, the appellant attached three photographs in which he appears with a young man. In his memorandum, the appellant does not specify when these photographs were taken, or who is the person appearing with him in the photographs. [35] Also, I am of the view that these photographs are of the same type as the nineteen other photographs submitted in evidence before the RPD under D-3.16 Their purpose is to establish the same fact, his sexual orientation. Considering the statements of the Supreme Court in Palmer, I am of the view that these photographs do not qualify as new evidence within the meaning of subsection 110(4) of the IRPA. [36] For these reasons, I am of the view that the four documents attached to the appellant's memorandum do not meet the criteria of subsection 110(4) of the IRPA. Therefore, they are not admissible as new evidence. Conduct of a hearing [37] In Singh,17 the Federal Court of Appeal reiterates the principle that the RAD proceeds without a hearing. According to the Court, this principle "is subject to an exception only where the documentary evidence (a) [...] raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) [...] is central to the decision with respect to the refugee protection claim; and (c) [...] if accepted, would justify allowing or rejecting the refugee protection claim." [38] As it is of the view that the documents filed do not meet the statutory criteria, the RAD cannot conduct a hearing. ROLE AND FUNCTIONS OF THE RAD [39] On March 9, 2016, the Federal Court of Appeal ruled in Huruglica18 on the standard of review applicable when the RAD reviews an RPD decision. The answer to this question had given rise to separate opinions, hence the question certified by Justice Phelan in Huruglica.19 The Federal Court of Appeal reiterates the question at paragraph 2 of its decision. It reads: What is the scope of the Refugee Appeal Division's review when considering an appeal of a decision of the Refugee Protection Division? [40] With respect to the certified question, Justice Gauthier states: With respect to the certified question, which is set out at paragraph 2, I will simply answer the question that is determinative to this appeal, for this is the only question that should have been properly certified under section 74(d) of the IRPA. [41] In making its decision, the Court of Appeal rephrases the question in the following way: Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD's findings of fact (or mixed fact and law), which involved no issue of credibility? [42] The Court of Appeal, interpreting the statutory provisions and pointing out the reasons for the establishment of the RAD, also states: [44] I agree with the position advanced by Dr. Paul Daly that the very nature of the question (that is, what role did the legislator intend the RAD to play) implies that it cannot have many answers. ... In fact, as will be explained, it is my view that the legislative intent is not ambiguous. [98] The RAD was essentially viewed as the safety net that would catch all mistakes made by the RPE, be it on the law or the facts". This confirms my prior conclusion that the legislator intended the RAD to review the RPD decisions on the standard of correctness. [43] In the Court of Appeal decision, Justice Gauthier describes the similarities and differences between the powers of the RPD and the RAD, including pointing out that the RAD rarely conducts hearings. [44] Dealing with the provisions at subsection 111(2) of the IRPA, the Court of Appeal points out that the RAD may refer a decision for re-determination that is wrong in law, in fact or in mixed law and fact. According to the Court: [61] The applicable standard of review remained the same regardless of whether the appellate body confirmed or reversed the decision under appeal.... [45] Moreover, the Court acknowledges: [70] That there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of credibility or weight to be given to the oral evidence it here. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [46] After pointing out examples of such situations the Court states: [74] The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is no need for me to pigeon-hole the RAD to the level of deference owed in each case. [47] In response to the certified question rephrased by the Court of Appeal, the Honourable Justice Gauthier states: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility or oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final 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. No other interpretation of the relevant statutory provisions is reasonable. [48] In Singh,20 a decision of the Court of Appeal made shortly after, Justice de Montigny on behalf of the Court notes that the RAD has a broad mandate. It "may intervene to correct any error of fact, of law, or of mixed fact and law." He also states, "The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected." ANALYSIS [49] The RPD determined that the claimant's credibility was the determinative issue. The appellant submits that the errors committed by the RPD are so numerous that it breached procedural fairness. The appeal raises two questions. - Are the credibility findings wrong or not based on the evidence? - Considering the objective situation of homosexuals in Guinea, are the RPD's findings sufficient to justify the rejection of the appellant's refugee protection claim for the alleged reasons? Credibility [50] Credibility is a complex question of fact for which the RPD is generally in an advantageous position compared to the RAD because it sees and hears the refugee protection claimants and witnesses. In this context, and considering the statements of the Court of Appeal in Huruglica and Singh, the RAD may show deference to the RPD's credibility findings; however, the RAD "may intervene to correct any error of fact, of law, or of mixed fact and law." [51] After reviewing all of the evidence and listening carefully to the recording of the hearings, I am of the view that this refugee protection claim must be re-determined by another RPD panel. Although I share the RPD's point of view on some of the findings, they are insufficient to confirm the determination made because other findings appear to me to be taken from a microscopic analysis of the evidence or implausibilities. [52] The RPD found that it did not believe that the claimant had the homosexual relationships that he alleged, nor did he experience the alleged incidents of violence. XXXX address [53] With respect to the relationship with XXXX, the RPD considered the fact that the claimant was not able to state whether XXXX had brothers or sisters, or his birth date. Furthermore, he allegedly did not provide spontaneous and direct testimony regarding the duration of his relationship. According to the RPD, his testimony was vague and unclear, even incomprehensible, when he testified regarding XXXX address. The RPD found that it is not credible that he had discussed homosexuality with XXXX the first time that he met him and found it implausible that in Guinea two men would walk arm in arm. [54] Although several elements contributed to the claimant's lack of credibility regarding his relationship with XXXX, I am of the view that the RPD erred in its assessment of some points of the appellant's testimony. [55] First, with respect to the XXXX address, I noted that the appellant, from the first day of the hearing, stated that in Guinea addresses are not like those in Canada. People use the neighbourhood, the commune, sometimes there are street names, but there is no house number. When asked to give XXXX address, he reiterated that in Guinea it is complicated but he stated that XXXX lived in XXXX XXXX. Pressed to give a street name, his testimony was imprecise; however, in response to counsel's question, he gave the name of XXXX Street.21 [56] It appears to me from listening to the recording of the hearing and the member's insistence on finding out XXXX address that the context that the claimant was trying to explain was not sufficiently considered. Date of the discussion with XXXX [57] Then, the RPD found it not credible in the homophobic context in Guinea that the claimant discussed homosexuality the first time that he spoke with XXXX. Here is a summary of the exchange between the parties when the appellant was questioned regarding the date he met XXXX and the alleged discussion.22 Member: When did you meet him and in what circumstances? Claimant: I met him at the XXXX XXXX bar, we met in the intervening six months; we would drink together. Member: Do you remember the date when you met him? Claimant: It was on XXXX XXXX, 2006, that I had a real discussion with him. On that day, we spoke, we had had drinks. He told me, ok, I want to tell you something. Can we go outside? I want to tell you something, will you promise not to tell anyone? He told me that he loved me and I told him that I did too. He spoke about homosexuality, current events, and afterwards we exchanged numbers. Member: You went outside? Claimant: Yes, because inside we would have gotten killed. Member: How did you take it, having such a conversation with someone with whom you were speaking for the first time? Claimant: We were used to drinking together. I would see him and he is more experienced than me. He is 25 years old. And since I am homosexual it did not bother me. Counsel: On XXXX XXXX, was it the first time that you spoke to him? Or had you already spoken with him before? Claimant: No, we would see each other, but it was on XXXX XXXX that we spoke about that. [58] From this exchange, I am not persuaded that the claimant stated that he discussed homosexuality the first time he spoke with XXXX. Implausibility that two men would walk arm in arm [59] The RPD found it implausible that in Guinea two men would walk arm in arm. The assessment of credibility must consider the cultural context of the claimant. In Valtchev, Justice Muldoon advises caution in finding that a claimant is not credible based on the implausibility of alleged facts, because "refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu."23 [60] In this case, it would have been appropriate to question the claimant to find out whether, in African culture, it is unusual for a man to walk arm in arm with another man. I am not persuaded that this action would be perceived as a sign of homosexuality in his country. [61] I would like to point out that although I share some of the RPD's findings, I am of the view that when a decision-maker considers an accumulation of factors to make a finding that a witness lacks credibility, errors made with respect to some elements undermine the assessment of the evidence. My statements are supported by the statements of the Court of Appeal in Bruno v. Filippi.24 According to the Court [translation] "There may be cases in which a palpable and overriding error results from a series of errors, the accumulation of which creates a distortion such that the trial judgment cannot stand given the evidence." Given the errors pointed out, I am of the view that the assessment of other evidence, namely exhibits D-1, D-2, D-3 and D-7, may have been undermined by the RPD's findings. [62] Finally, I note that reviewing the evidence and listening to the recordings of the hearing revealed significant inconsistencies and contradictions between the appellant's verbal and written statements. Given that they were not addressed by the RPD at the hearing and that the RAD cannot hold a hearing, it cannot confront the claimant with the inconsistencies in his statements, which concern elements central to his refugee protection claim. CONCLUSION [63] For these reasons, I set aside the RPD determination, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. The matter is referred to the RPD for re-determination of this refugee protection claim by a differently constituted panel. [64] The appeal is allowed. Maria De Andrade Me Maria De Andrade April 6, 2016 Date IRB translation Original language: French 1 Appellant's memorandum, pages 17 to 22. 2 RPD record, pages 85 to 180. 3 RPD record, page 88. 4 RPD record, pages 201 and 202, photographs of the appellant with his lovers. 5 Appellant's memorandum, page 71. 6 Appellant's memorandum, pages 18 and 19. 7 Idem, page 20. 8 Idem, page 21. 9 Idem, page 22. 10 Idem, page 14. 11 Iyamuremye v. Canada (Minister of Citizenship and Immigration), 2014 FC 494. 12 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96. 13 RPD record, page 184. 14 Appellant's memorandum, page 20. 15 Idem, page 21. 16 RPD record, pages 185 to 194. 17 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96. 18 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 19 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 20 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96. 21 CD of the hearing, 1:05 et seq. 22 CD of the hearing, 47:06 et seq. 23 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776. 24 Bruno v. Filippi, 2013 QCCA 1751. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-03230 16 RAD.25.02 (2014.09.11) Disponible en français