TB8-19304

RAD File / Dossier de la SAR : TB8-19304 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision June 15, 2019 Date de la décision Panel Christina Harrison Baird Tribunal Counsel for the person who is the subject of the appeal Ugochukwu Ojukwu Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX is a citizen of Ghana. He appeals a decision of the Refugee Protection Division (RPD), which rejected his claim. He alleges that if he returns to his country, his community will physically assault him, and the police will arrest rather than protect him because he is perceived to be gay. While he is heterosexual, he claims the community believes him to be gay because he has physically intervened in mob attacks against people accused of being homosexual. [2] The determinative issue in this appeal is whether the RPD erred in its assessment of the Appellant's credibility. The RPD found that the Appellant was not a credible witness and that he had adduced insufficient credible evidence to support his claim. The Appellant argues that the RPD erred by making a microscopic analysis; relying on peripheral inconsistencies; holding him to an unreasonable standard of proof; giving little probative value to his witness statements; wrongly relying on an implausibility finding; and rejecting his reasonable explanations for not continuing his support of homosexuals once he was in Canada. [3] The RPD's assessment of the Appellant's credibility, and of the adequacy of the evidence, was correct. The Appellant has not shown that it is more likely than not that he is perceived to be gay, or that he would engender that perception by intervening on behalf of persons accused of being gay if he were to return to Ghana. Therefore I dismiss the appeal. The Appellant is not a Convention refugee or a person in need of protection. ANALYSIS Appellant has not proven the January 2016 incident [4] The RPD found that the Appellant had made a significant omission from his Basis of Claim (BOC) when he neglected to mention that the mob he describes gathering in January 2016, was attacking a young man. Moreover, the RPD found that the Appellant evaded the question when he was asked why he omitted this detail. [5] The Appellant argues that in his BOC, he described the January 2016 incident as similar to the November 2015 incident wherein a young boy was being attacked and the Appellant intervened. He further submits that the detail about the identity of the victim was neither significant nor relevant to the central basis of his claim. As a result, he invites the RAD to find that the RPD's negative inference was due to an unreasonable and microscopic examination of his claim.1 [6] I might have agreed with the Appellant had he simply answered the RPD's question as to why this detail was omitted. If the similarity of the incidents was the true explanation, why did he not give that explanation? Instead the Appellant steadfastly repeated his allegations as if from a script without answering the question. The Appellant's evasion on this point?neither the first nor the last in his testimony?raises the importance of the omission in my view.2 I note that the Appellant speaks some English, has 10 years of public education, and worked as an auto mechanic following an apprenticeship. As such, he is not lacking in skills or sophistication and I find that his responses did not result from a failure to understand. [7] Moreover, while it is not impossible for events to have transpired as the Appellant alleges, I do find his account implausible. The Appellant gave evidence that in November 2015 a small crowd had gathered and was attacking a young boy. He intervened and was injured. In contrast, he testified that the crowd in January 2016 was much larger and more violent, stating its determination to eliminate all homosexuals; and it was armed with various weapons including clubs, knives and wire. Given the Appellant's testimony that popular opinion turned on him only during the January 2016 incident, and that the cumulative effect of his two interventions was a belief in his community that he himself was gay,3 I find it implausible that the large, violent mob allowed him to escape unscathed. This is so especially because members of the community allegedly knew enough about him to reach him with death threats while he was in hiding. I acknowledge the inherent weakness of plausibility findings. Nonetheless, I find that based on the evidence before me, the Appellant's allegations clearly do not make sense. [8] Furthermore, I agree with the RPD that the witness declarations provided to corroborate these allegations warrant little weight. My reasons for this finding differ from those of the RPD. The five witness declarations were clearly prepared as a group, since they are almost exactly the same words, with small variations for the Imam and the Sub-chief. There is nothing to show the unique perspective of each person on the event they allegedly witnessed.4 In light of my misgivings about the Appellant's evasive testimony and the implausibility of his account, these form declarations?unsupported by identification documents from the declarants or any live testimony?do not outweigh my doubts as to the truth of their contents. I do not agree with the RPD and it does not form part of my analysis that the declarants are "not impartial," or that it is "implausible" they would give such declarations.5 [9] Finally, I draw a negative inference from the Appellant's failure to present the documentation from his United States (US) asylum claim, which he testified was based on the same facts he alleges in his Canadian refugee claim.6 Despite an opportunity for post-hearing submissions during the month or more that elapsed between his RPD hearing and the negative decision, the Appellant made no attempt to obtain that documentation from his US lawyer or the US authorities, in order to admit it as evidence. [10] I find that the Appellant has not proven the precipitating event of January 2016 on a balance of probabilities, and I do not believe that he is perceived to be gay in Ghana. I also find it more likely than not that he will not engender a belief that he is gay upon return to Ghana by intervening on behalf of people accused of being gay. Appellant has not proven authorities are seeking him [11] The RPD found that the Appellant did not give a satisfactory answer to this question: how did he know the authorities were looking for him? He provided at least three different responses.7 The most pertinent of these was that when the police came on the scene, they did not ask him anything. Some of his responses were illogical and none answered the question, which the RPD asked and rephrased repeatedly. Counsel at the RPD later commented on the RPD's rare and commendable patience in posing and repeating questions. [12] The Appellant argues that the RPD finding is unreasonable and that the RPD was holding him to a standard of proof beyond a reasonable doubt.8 [13] This argument is not persuasive. The Appellant's answers were all of a vague and general nature, and I agree that they did not address the RPD's question. I conclude that the Appellant was attempting to evade the question. Moreover, the Appellant's BOC contains a statement that "a report was made to police". At the RPD hearing, the Appellant never mentioned this as the reason he believed the authorities were looking for him. Moreover, he did not seize the opportunity to elaborate upon this information as to who made the report, at what time or what police action came of it. Neither does the Appellant present a copy of that report. [14] I conclude on a balance of probabilities that there is no such police report, and that the police are not looking for the Appellant. Appellant has not proven threats to family [15] Near the end of the RPD hearing, the Appellant testified that his family has received threats. This was a new allegation, undetailed, and uncorroborated by the declarations of his family members.9 It also contradicts the Appellant's statement at the outset of the hearing that his BOC was complete, true and correct.10 I find the Appellant has not given sufficient credible evidence to prove this allegation on a balance of probabilities. RPD error not material to my decision [16] The RPD found it material that the Appellant has not taken up any advocacy for homosexuals since he arrived in Canada. Like the Appellant, I disagree.11 I do not find this line of inquiry helpful to my analysis. In my view, the Appellant's description of his behavior is consistent on this point: he claims that he is motivated to intervene when lives are at immediate risk. His alleged defence of homosexuals in Ghana is somewhat akin to running into a burning building to save lives. It does not necessarily follow that one will begin advocating for mandatory fire safety retrofits in housing for vulnerable persons, even though this would also be an important means to save lives. I find that the Appellant's credibility is not diminished on this basis. The RPD finding incorrectly relies on similar logic to the stereotype that expects a person of diverse sexual orientation, gender identity or expression to participate in LGBTIQ+ culture in Canada.12 [17] When I consider the multiple questions that the Appellant evaded, his failure to show that he is sought by the authorities or that his family has been threatened, and the low weight to be afforded to the very similar statutory declarations he has presented, I find that the Appellant has adduced insufficient credible evidence to make out his claim. Chairperson's Guideline 9: Proceedings before the Immigration and Refugee Board of Canada involving Sexual Orientation and Gender Identity and Expression (the SOGIE Guideline) acknowledges the phenomenon of perceived or imputed sexual orientation.13 However, this acknowledgement does not absolve the Appellant of the requirement to prove his allegations on a balance of probabilities. RPD analysis of Appellant's credibility was correct [18] I have conducted my analysis under section 96 of IRPA due to the Appellant's alleged membership in a particular social group (persons perceived to be homosexual in Ghana) and the clear link to the 1951 Convention relating to the Status of Refugees. Since this Appellant has failed to establish the credibility of his allegations, I find there is no serious possibility that he will face persecution in Ghana related to an imputed sexual orientation. [19] The same reasoning also extends to my analysis under section 97 of IRPA. On this record, I cannot conclude that it is more likely than not that the Appellant faces a risk of torture, or a risk to life, or a risk of cruel and unusual treatment under section 97. Since the burden of proof is more onerous under section 97 than that under section 96, the Appellant has not met the section 97 burden either. The RPD was correct. CONCLUSION [20] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) Christina Harrison Baird Christina Harrison Baird June 15, 2019 Date 1 Exhibit P-2, Appellant's Record, Memorandum of Argument, paras. 9?17. 2 Exhibit RPD-1, RPD Record, Audio recording of April 11, 2018 hearing, hour 1:51 to 1:58. 3 Ibid., hearing, hour 1:43. 4 Exhibit RPD-1, RPD Record, Exhibit 7, at pp. 226?230. 5 Exhibit P-2, Appellant's Record, Memorandum of Argument, paras. 29?35 and 36?45. 6 Exhibit RPD-1, RPD Record, Audio recording of April 11, 2018 hearing, hour 1:08. 7 Ibid., hearing, hour 0:22. 8 Exhibit P-2, Appellant's Record, Memorandum of Argument, paras. 18?21. 9 Exhibit RPD-1, RPD Record, Audio recording of April 11, 2018 hearing, hour 2:45. 10 Ibid., hearing, hour 0:10. 11 Exhibit P-2, Appellant's Record, Memorandum of Argument, paras. 22?28. 12 Chairperson's Guideline 9: Proceedings before the Immigration and Refugee Board of Canada involving Sexual Orientation and Gender Identity and Expression (SOGIE Guideline), Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of IRPA, 1 May 2017, paras. 6.1 and 7.2.3. 13 Ibid., para. 8.3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-19304 RAD.25.02 (April 04, 2018) Disponible en français 7 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 04, 2019) Disponible en français