MB7-02536

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 : MB7-02536 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX Appelant(e)(s) Appeal Considered / Heard At Montréal, Quebec Appel instruit à Date of Decision September 7, 2018 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the Appellant(s) Me Vincent Desbiens Conseil(s) du (de la/des) appelant(e)(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX is appealing the decision rendered on February 16, 2017, by the Refugee Protection Division (RPD), rejecting his claim for refugee protection. [2] The appellant is requesting that the Refugee Appeal Division (RAD) set aside the determination and either allow the claim for refugee protection or refer the matter to the RPD for re-determination by a differently constituted panel. [3] The appellant is not asking to present new evidence under subsection 110(4) of the Immigration and Refugee Protection Act1 (IRPA) and is not seeking an oral hearing under subsection 110(6) of the IRPA. [4] The Minister's representative did not intervene in the appeal. DETERMINATION [5] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the RPD's determination, namely, that XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. [6] The appeal is dismissed. ALLEGED FACTS [7] According to his Basis of Claim Form, the appellant is a citizen of Senegal and was born on XXXX XXXX, 1990. [8] He alleges that he is homosexual. He had his first sexual encounter in 2009 at the age of 19. A relationship developed that lasted three years, until he left to pursue his studies in Canada in XXXX 2012. [9] In early 2016, the appellant was unable to renew his study permit. His lover, who had stayed in the country, told him that their relationship was over. [10] An uncle came to Canada in September 2016 to control the family's life. The appellant rebelled against him and admitted to him that he was gay. The uncle was furious and told him that he was going to kill him. He received calls from relatives of his uncle and from other members of the family. [11] His mother and his two sisters fled the house because of the death threats made against them. Finally, the appellant sought protection from Canadian authorities on October 26, 2016, having been without status since XXXX XXXX, 2015. IMPUGNED DECISION [12] The RPD rejected the appellant's refugee protection claim, determining that he was neither a Convention refugee nor a person in need of protection because he lacked credibility. APPELLANT'S ARGUMENTS [13] The appellant submits that the RPD erred because its reasons are insufficient to reject the refugee protection claim. He adds that the analysis does not include the central issue in the claim-his alleged homosexuality. SCOPE OF THE APPEAL [14] For questions of fact, law, and mixed fact and law, the RAD applied the correctness standard, in accordance with Huruglica.2 In assessing issues involving the credibility of the oral testimony, the RAD can apply the reasonableness standard, modified to apply to the RAD context, in situations where it indicates and explains that it is of the opinion that the RPD enjoyed a meaningful advantage in making credibility findings, in accordance with the decision in X (Re).3 [15] I have conducted an independent analysis of all the evidence on the record and have listened carefully to the hearing in order to form my own opinion concerning this refugee protection claim and to determine whether the decision rendered by the RPD is correct. ANALYSIS [16] Having reviewed all the testimonial and documentary evidence on the record, the RAD draws the same conclusion as the RPD, namely, that the appellant is not credible with respect to his alleged homosexuality. [17] In assessing this claim, the panel was careful to apply both the spirit and the content of the IRB's Guideline 9. [18] The appellant is of the opinion that the RPD failed to properly assess his credibility and that it rejected his claim on the basis of three elements. [19] The very essence of this case lies in the appellant's credibility. [20] The memorandum states, starting at paragraph 2.2, that the RPD member rejected the refugee protection claim on the basis of three elements: (1) his mother's whereabouts; (2) a letter from his mother, and (3) his delay in filing a claim. The appellant adds that he provided reasonable explanations for these three elements. [21] With respect to the first point raised-his mother's whereabouts-the RPD stated that it was impossible that his mother had received death threats in September 2016 from a controlling uncle, because she has been in Canada since 2014. The appellant stated that this was an error. [22] The RAD is of the opinion that this major contradiction between the content of his form and his testimony seriously undermines his credibility, considering that he confirmed at the start of the hearing that everything was correct. Were it not for the information obtained from the Minister, the panel would not have been aware of this particular piece of information, which renders the claimant's written and oral statements contradictory. In this case, the panel is of the opinion that the appellant was attempting to mislead the IRB with respect to a key aspect of the family's fear by including it in the file. This greatly undermines his credibility. [23] The second point raised is a letter from the appellant's mother to the appellant to support his statements. The RPD found it improbable, even implausible, that his mother had sent the letter from Dakar when she had been living in XXXX XXXX XXXX with her son for several years. [24] In preparing this file, the panel noted that the appellant's mother and one of his sisters had written him a letter supporting his statements. The envelope filed with the panel is stamped from Dakar and dated December 7, 2016, but the letters are dated December 7, 2017. There is certainly a problem here. In addition, on the back of the letter, it is indicated that it was sent by the appellant's mother. The appellant stated that his mother wrote a letter and faxed it to his sister so that she could send him both letters in the same envelope. As noted above, the appellant's mother has been in XXXX XXXX XXXX since 2014, and they even live in the same home. She could simply have given him her letter by hand. Another piece of questionable information is that the appellant's mother, who wrote from XXXX XXXX XXXX, indicated Dakar, December 7, 2017, at the top of the letter. In addition, both letters, which were written thousands of kilometres apart, have the same handwriting, which is quite surprising. Beyond the similar handwriting, the fact that the appellant and his mother live in the same apartment but that she sent her letter to her daughter in Dakar for her to mail to the appellant in Canada is quite simply unusual and bizarre. Once again, the RAD is of the opinion that the appellant presented evidence to the IRB to make his file credible, but this has not succeeded. [25] The third point raised by the RPD in its decision is his delay in filing a claim. The memorandum indicates that the appellant's responses were completely acceptable. He argues that he was not familiar with the refugee claim procedures and that he did not want to enquire within his community. [26] The RPD questioned the appellant about this. The appellant stated that he has been homosexual since adolescence and that he was in a three-year relationship with someone. He came to Canada in XXXX 2012 to study and had been trying to renew his status in the country for months when the Université XXXX XXXX à XXXX caught up with him and demanded that he pay his tuition fees. The response provided is that he did not know that he could file a refugee protection claim. He is educated, speaks French and had been living in Canada for several years, but made no attempt to find information online regarding a solution to the issue of his alleged homosexuality. Even though he fears his uncle and some members of his family, he did nothing, did not make enquiries with a lawyer or Canadian authorities, even though he was corresponding with them about his visa. Given the appellant's behaviour, the panel finds it hard to believe that he fears for his life on the grounds of homosexuality. [27] Contrary to the appellant's allegation about the failure to address the ground cited, namely homosexuality, a number of questions were put to him during the hearing. The RPD's decision addresses this issue starting at paragraph 36. The RPD concluded that it did not believe that the appellant is homosexual. [28] Also, these concerns are mentioned throughout the decision, in the analysis of the various exhibits submitted. The appellant's testimony is inconclusive with respect to the exhibits and is vague on the matter of his orientation and his gay life in Canada. He testified that he came to Canada for the sole purpose of studying. The panel understands from his testimony that he was in a relationship for three years in Senegal, a country that condemns homosexuality, and although he has been in Canada since 2012, he has had no long-term relationships with men, only some one-night stands, according to him. He did not think to invite witnesses who might have been able to support his case, his dates or his relationships in the country. He filed two documents: a membership letter for the Centre communautaire LGBTQ de Montréal [Montréal LGBTQ community centre] dated October 4, 2016, and a card issued by this centre, undated, but which expired on September 28, 2017.4 Also, a photograph of his boyfriend in Dakar, Mr. X, received later. This photograph shows two people embracing.5 With respect to this photograph, the appellant stated that after their separation, he was angry and destroyed everything he had on his computer hard drive. The RAD sees a major contradiction in his testimony. He stated that he did not keep anything from his ex-boyfriend but eventually filed a photograph of the two of them. However, this photograph does exist. It is quite difficult to associate the appellant with the individual who is on the right in the photograph, according to the testimony. This photograph is not determinative, because one can barely distinguish two individuals, both black, in low light, sitting next to each other. This photograph reveals nothing specific and does not support the account presented. [29] As regards the other two documents that were issued shortly before his refugee protection claim, they do not indicate that he is homosexual. He is simply a member of an organization for gays and lesbians in Montréal. Considering the letters the appellant filed from his mother and his sister, which are questionable at the very least, the RAD is of the opinion that these exhibits to not support the appellant's case. The RPD stated that it granted them no probative value and that they were a fabrication to bolster the story. In conclusion, the RPD stated that it did not believe that the appellant is homosexual. [30] Having carefully analyzed the form submitted, the exhibits presented and, in particular, the testimony, which contradicted in many respects the exhibits submitted by the Minister's representative, the panel ascribes no credibility to the appellant and is of the opinion that his account of his sexual orientation is unsubstantiated. [31] The RAD is therefore of the opinion that the RPD did not err. [32] For the reasons set out above, the RAD is of the opinion that the RPD rendered the correct decision. REMEDY [33] In light of the foregoing, the RAD confirms the determination of the RPD, 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. [34] The appeal is dismissed. Michel Jobin Me Michel Jobin September 7, 2018 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Canada (Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., No. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 X (Re), 2017 CanLII 33034 (CA IRB). 4 Exhibits D-1 and D-2. 5 Exhibit D-12. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB7-02536 6 RAD File No. / N° de dossier de la SAR : MB7-02536 5 RAD File No. / No de dossier de la SAR : MB7-02536 2