MB8-08060

RAD File No. / No de dossier de la SAR : MB8-08060 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 Montréal, Quebec Appel instruit / entendu à Date of decision October 27, 2020 Date de la décision Panel Marie-Lyne Thibault Tribunal Counsel for the person who is the subject of the appeal Robert Gertler 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] The appellant, XXXX XXXX XXXX, is a citizen of India. [2] He fears persecution by the Indian authorities, society in general and religious extremists if he returns to India because he is homosexual. [3] He is appealing against the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim. He states that the RPD erred when assessing his credibility. [4] For the reasons set out below, the Refugee Appeal Division (RAD) concludes that the RPD's decision is correct. The appellant's credibility was undermined with regard to his written account and his homosexuality. [5] The appeal is dismissed. NEW SUBMISSIONS NOT PREVIOUSLY PROVIDED [6] On June 15, 2020, the RAD sent the appellant a notice that he had 30 days to provide all documents or written submissions in support of his appeal, without having to make an application under the Refugee Appeal Division Rules (the Rules). The notice states that the other requirements of rule 29 and subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) would apply. [7] In this context, the appellant is asking the RAD to allow the new submissions1 not previously provided when the appeal was perfected. [8] When submissions are not provided when the appeal is perfected, which is what happened in this case, the RAD must consider whether the appellant, with reasonable effort, could have provided the written submissions when the appeal was being perfected.2 The Refugee Appeal Division will consider the new submissions [9] The RAD considers that the appellant was not represented by counsel when the appeal was perfected, despite his taking steps in an attempt to obtain representation.3 When his appeal was perfected, he presented submissions as to the reasons why he believes that the RPD erred when assessing his credibility. Although the new submissions also pertain to the RPD's credibility findings, his counsel is presenting some new arguments. The RAD is of the opinion that the appellant, not being counsel, was unable to present these submissions when the appeal was being perfected, even with reasonable effort. [10] Consequently, the RAD will consider them. THERE IS NO CAUSE TO HOLD A HEARING [11] Considering that the appellant is not presenting any new evidence, the RAD cannot hold a hearing, pursuant to subsection 110(6) of the IRPA. ANALYSIS [12] The RAD applied the correctness standard.4 The RAD conducted an independent review of the evidence, including listening to the recording of the hearing. [13] As part of its analysis, the RAD applied Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression5 (Guideline 9). The Refugee Appeal Division finds that the Refugee Protection Division did not err in its assessment of the appellant's credibility [14] The RAD concludes that the RPD did not err by relying on contradictions, an inconsistency, vague and evasive testimony, and the fact that the appellant's written account in his Basis of Claim Form (BOC Form) is similar to the BOC Form of another refugee protection claimant, to find that the appellant's credibility was undermined with regard to his written account. [15] The appellant argues that the RPD erred by failing to consider the oral and documentary evidence. He argues that the RPD engaged in speculation and erred by relying on minor points that are not central to the refugee protection claim. [16] For the reasons below, the RAD does not agree with these arguments. The RPD did not err by relying on the contradictions relating to the dates of the events experienced by the appellant [17] The RAD concludes that the RPD did not err by relying on contradictions between the appellant's testimony and his BOC Form pertaining to the date when he was allegedly attacked and the moment when he allegedly had sexual relations with his lover XXXX for the first time, to make a negative credibility finding. [18] The appellant argues that the RPD's conclusions, which are based on his difficulty remembering the dates, are unreasonable and unfair. He argues that the RPD failed to consider that his testimony was given under enormous pressure and that a number of years have passed since the events. He adds that the RPD should have attributed little weight to these contradictions, rather than conclude that they are events that are central to the refugee protection claim. [19] The RAD does not agree with these arguments. The RAD accepts that the passage of time, nervousness and stress might explain why a refugee protection claimant has difficulty recalling specific dates. However, it is not simply the appellant's difficulty in providing a specific date. The appellant also contradicted himself with regard to the time frame when his relationship with XXXX was developing. As a result, the RAD is of the opinion that the passage of time, nervousness and stress cannot explain, on their own, the contradictions between the appellant's testimony and his BOC Form. Moreover, the RAD considers that the appellant's relationship with XXXX and the attack that they experienced are central to the refugee protection claim. [20] According to his BOC Form,6 the appellant met XXXX in XXXX 2010 and began having sexual relations with him after learning in XXXX 2010 that XXXX is homosexual. He and XXXX then became a couple. However, he testified that, one week after the party where he met XXXX in XXXX 2010, the appellant had sexual relations with him for the first time.7 When asked to explain that contradiction, the appellant gave vague and evasive testimony, stating that XXXX moved close to him in XXXX 2010 and that that was when their relationship began.8 When asked again to explain the contradiction regarding the time when he allegedly had sexual relations with XXXX for the first time, the appellant testified that his romantic relationship with XXXX began in XXXX 2010 and that that is what he meant to say when he mentioned the month of XXXX in his BOC Form.9 This explanation is not satisfactory. The appellant's BOC Form is clear with regard to the moment when he began having sexual relations with XXXX, that is, after XXXX 2010. It also states that, eventually, XXXX became his boyfriend. There is an important distinction between remembering a date and remembering how important events occurred. The appellant's written account indicates that XXXX was his first real lover and that it is because of this relationship that he had had to leave India. Therefore, the way their relationship developed is important. Without a satisfactory explanation, the RAD draws a negative inference from the contradiction pertaining to the moment when the appellant allegedly had sexual relations with XXXX for the first time, that is, either one week or about three months after they met. In light of the other credibility issues discussed below, the RAD, similar to the RPD, finds that the appellant's credibility is undermined with regard to his homosexuality. [21] Moreover, according to his BOC Form,10 XXXX and the appellant were attacked after attending a wedding on XXXX XXXX XXXX 2013. At the hearing, the appellant stated that the incident occurred on XXXX XXXX XXXX 2013.11 When asked to explain the contradiction, the appellant stated that he was unsure of the date because four years had passed. This explanation is not satisfactory. It was open to the appellant, when questioned about the date of the attack, to state that he was unsure of the exact date. However, he stated twice that it was XXXX XXXX before being confronted with his BOC Form. Furthermore, it is the incident that led the appellant to go into hiding elsewhere in India. Consequently, it is not a secondary incident, as the appellant seems to argue. Without a satisfactory explanation, the RAD draws a negative inference from the contradiction relating to the date of the assault. The appellant's credibility is undermined with regard to this attack. [22] The appellant also presented copies of two emails that XXXX wrote.12 The first states that the attack on them occurred on XXXX XXXX XXXX 2013,13 and the second, written a few days later, states that he had made a typographical error, that the incident occurred on XXXX XXXX XXXX 2013, and that he had a telephone conversation with the appellant on XXXX XXXX XXXX 2013.14 [23] The appellant argues that the RPD erred by failing to conclude that it is likely that XXXX could have been unsure of the date of the incident given the time that had passed. He argues, moreover, that it is a minor error. [24] The RAD does not agree with these arguments. On one hand, contrary to what the RPD understood, XXXX explanation in his email15 states that it was a typographical error and not that he was unsure of the date of the attack or that he got confused with the date when he had his conversation with the appellant. Moreover, as mentioned above, it is an incident that is central to the refugee protection claim. Therefore, the error is significant. The RAD accepts that people make typographical errors. However, given that the contradiction relating to the date of the attack in the emails is similar to that between the appellant's testimony and his BOC Form, the RAD concludes that the RPD did not err by finding that XXXX credibility is undermined. For the same reasons, the RPD did not err by not attributing any probative value to XXXX emails. It was open to the RPD to rely on an inconsistency between the appellant's testimony and his BOC Form [25] The RAD concludes that the RPD did not err by relying on an inconsistency between the appellant's testimony and his BOC Form with regard to the moment when he realized he was homosexual to make a negative credibility finding. [26] The appellant argues that the RPD erred by dismissing his explanations. He adds that the RPD failed to apply Guideline 9. [27] According to his BOC Form,16 the appellant only realized he was homosexual when he hit puberty. It was around that time that he allegedly began realizing that he was more attracted to boys and that he had been since he was little. Reportedly, as time passed, he became aware of his homosexuality and he was approximately 19 years old when he had sexual relations for the first time. [28] At the hearing, the appellant gave a different version of this realization. When questioned as to when he began to realize that he might be homosexual, the appellant stated that it was when he was 19 years old.17 When asked to explain what brought him to this conclusion, he stated that he was more attracted to boys while all his friends were interested in girls.18 When asked again to explain what happened for him to become aware, the appellant explained that it was after having sexual relations with his male friend XXXX that he realized that he was more attracted to boys.19 When confronted with his BOC Form stating that he began to realize that he was homosexual at the start of puberty, the appellant gave vague and evasive testimony. He first stated that, when he was 19, his friends at college were interested in girls while he was attracted to boys. He added that no one in India has sexual relations before the age of 18 because it is illegal. The RAD draws a negative inference from the vague and evasive testimony. When the RPD asked again for an explanation, the appellant stated that [translation] "his English is not good."20 He then tried to explain that he could not know that he was homosexual before age 19 because people living in India do not have sexual relations before this approximate age, and consequently do not think about sexuality before that age.21 It was only when he had sexual relations for the first time that he allegedly realized that he was homosexual.22 [29] The RAD accepts that homosexual persons become aware of their sexual orientation at different ages. The RAD also accepts that they do not all act the same way with regard to this realization. The RAD acknowledges that a person's realization of their homosexuality can occur gradually and in a non-linear manner. The issue in this case is that the appellant provided different versions with regard to the moment when and how he became aware, depending on whether one refers to his BOC Form or to his testimony. His explanation that he was unaware that he was homosexual before legally being able to have sexual relations is inconsistent with his BOC Form. When reading his BOC Form,23 it is understood that he began to wonder about his homosexuality at the onset of puberty, that is, well before he had sexual relations for the first time at 19 years old. The fact that his knowledge of English is allegedly not good does not explain the inconsistency. The RAD would have expected the appellant to explain his realization similarly, whether it was in his BOC Form or in his testimony. Moreover, at the start of the hearing, the appellant chose to proceed in English.24 He confirmed that the content of his BOC Form was complete, true and correct.25 He was represented by counsel at the hearing. Without a satisfactory explanation, the RAD draws a negative inference from the inconsistency identified. The appellant's credibility is undermined with regard to the fact that he is allegedly homosexual. The RPD could rely on similarities between the appellant's BOC Form and that of another refugee protection claimant [30] The RAD concludes that the RPD did not err by relying on major similarities between the appellant's BOC Form26 and that of another refugee protection claimant27 to make a negative credibility finding. [31] The appellant argues that the RPD erred by drawing such a conclusion. He argues that the RPD failed to consider that he has no control over the fact that his BOC Form is similar to another BOC Form. He adds that the RPD erred by rejecting his explanations and by speculating that he copied another refugee protection claimant's BOC Form. [32] Contrary to what the appellant states, as mentioned above, he failed to provide direct and credible testimony throughout the hearing before the RPD. It is important to state that the appellant is not disputing the major similarities between his BOC Form and that of another refugee protection claimant. These similarities involve the level of vocabulary used, grammatical errors, the order in which the events occurred and the nature of these events, in particular, the manner in which the person became aware of his homosexuality, the fact that he and his lover met in XXXX 2010, that they had sexual relations for the first time in XXXX 2010 and that they were attacked in 2013, on the same day they attended a wedding. The appellant was unable to explain how someone could have copied his BOC Form.28 As the RPD pointed out, the appellant, in his testimony, did not seem to be very familiar with the information in his BOC Form. In light of the contradictions, the inconsistency and the appellant's vague and evasive testimony, and without a satisfactory explanation, it was open for the RPD to find that the appellant's credibility was undermined due to the similarities between the two BOC Forms. The appellant's credibility was undermined by his delay in claiming refugee protection [33] The appellant is not disputing the RPD's conclusion regarding a lack of a subjective fear in light of the appellant's delay in filing a refugee protection claim. [34] The RAD notes that, at the start of its reasons, the RPD stated that it was a determinative issue, along with credibility. However, in its reasons, the RPD did not address the appellant's explanations as to why he delayed in filing a claim for refugee protection in Canada. This is an error. [35] Nevertheless, the RAD finds that the appellant's credibility is undermined given the delay of about twenty months in filing a refugee protection claim in Canada. [36] At the hearing before the RPD, the appellant stated that, when he arrived in Canada, he thought of staying here for some time, but that, when things were better in India, he would return there.29 That explanation is not satisfactory. According to his BOC Form, the appellant left India because he feared for his safety and he could not even think about returning to India because he was so traumatized by what happened there.30 In such circumstances, the RAD would have expected the appellant to file a refugee protection claim without delay. Without a satisfactory explanation, his credibility is undermined with regard to his written account. The RPD did not err by finding that the documents presented by the appellant are insufficient to render his allegations credible. [37] The RAD concludes that the RPD did not err by finding that the documents presented by the appellant are insufficient to render the allegations credible. [38] The appellant argues that the RPD erred by failing to consider his documentary evidence. [39] With regard to the appellant's photographs31 taken during the gay pride parade in 2015, the RAD accepts that the appellant attended the parade. However, these photographs do not corroborate his homosexuality. Anyone can participate in this parade. Consequently, the RAD does not attribute any probative value to them in terms of corroborating the appellant's homosexuality. [40] The appellant also presented a membership card32 and a letter33 from the "XXXX" LGBT organization. This letter, dated XXXX 2015, confirms that the appellant has been a member of the organization since XXXX 2015 and that he has participated in weekly meetings. There is no evidence to the effect that the appellant would have been unable to get involved in this organization if he were not homosexual. The RAD finds that these documents are insufficient to render credible the appellant's allegations that he is a homosexual. [41] With respect to the documents34 pertaining to the treatment of homosexual people in India, since the appellant's credibility was undermined with regard to his alleged homosexuality, the RPD did not have to analyze the risk to which homosexual individuals are subjected because the appellant failed to establish that he has such a profile. [42] In light of all of the above, the RAD finds that the appellant's credibility was undermined with regard to his profile as a homosexual man and the threats that allegedly resulted from this. [43] Consequently, the RAD concludes that the RPD's decision is correct. The appellant failed to establish a serious possibility of persecution on one of the five Convention grounds, or demonstrate that, on a balance of probabilities, he would be personally subjected to a risk to his life, or to a risk of cruel and unusual treatment or punishment under subsection 97(1) of the IRPA if he had to return to India. DECISION [44] The RAD dismisses the appeal. The RAD confirms the determination of the RPD to the effect that XXXX XXXX XXXX is not a Convention refugee or a person in need of protection. (signed) Marie-Lyne Thibault Marie-Lyne Thibault October 27, 2020 Date IRB translation Original language: French 1 P-3, Submissions not provided when the appeal was perfected, July 15, 2020. 2 Refugee Appeal Division Rules, at paragraph 29(4)(c). 3 P-2, Appellant's record, Letter from the Legal Aid Ontario office, p. 7. 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 5 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Immigration and Refugee Board. 6 SPR-1, Refugee Protection Division (RPD) record, Appellant's Basis of Claim Form (BOC Form), p. 18. 7 SAR-1, Transcript of the hearing held by the RPD on September 20, 2017, pp.64-68. 8 Ibid., p. 69. 9 Ibid., p. 70. 10 Supra, endnote 6, BOC Form, pp. 19-20. 11 SAR-1, Transcript of the hearing held by the RPD on September 20, 2017, pp. 84-85. 12 SPR-1, RPD record, Email from XXXX XXXX XXXX XXXX, 2015, p. 145; Email from XXXX XXXX, XXXX XXXX, 2015, p. 169. 13 Ibid., p. 145. 14 Ibid., p. 169. 15 Supra, endnote 12, Email from XXXX XXXX XXXX XXXX 2015, p. 169. 16 Supra, endnote 6, BOC Form, p. 18. 17 SAR-1, Transcript of the hearing held by the RPD on September 20, 2017, p. 44, pp. 69-70. 18 Ibid., p. 44. 19 Ibid., p. 45. 20 Ibid., pp. 50-51. 21 SAR-1, Transcript of the hearing held by the RPD on September 20, 2017, pp. 50-52. 22 Ibid. 23 Supra, endnote 6, BOC Form, p. 18. 24 SAR-1, Transcript of the hearing held by the RPD on September 20, 2017, p. 19. 25 Ibid., pp. 21-23. 26 Supra, endnote 6, Apellant's BOC Form. 27 SPR-1, RPD record, Minister's intervention, M-2, BOC Form, File No. TB5-05754, pp. 114-125. 28 SAR-1, Transcript of the hearing held by the RPD on September 20, 2017, pp. 34-36. 29 SAR-1, Transcript of the hearing held by the RPD on November 3, 2017, p. 19. 30 Supra, endnote 6, BOC Form, p. 21. 31 SPR-1, RPD record, Appellant's documents, Document # 9, Photographs, pp. 150-154. 32 SPR-1, RPD record, Appellant's documents, Document # 8, "XXXX" Membership card, pp. 141-142. 33 SPR-1, RPD record, Appellant's documents, Document # 8, Letter from XXXX XXXX XXXX, p. 148. 34 SPR-1, RPD record, Appellant's documents, Document # 1-7, Articles, pp. 127-140. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-08060 RAD.25.02 (January 2020) Disponible en français 11 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 (January 2020) Disponible en français