MC0-03070

RAD File No. / No de dossier de la SAR : MC0-03070 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 April 7, 2021 Date de la décision Panel Me Toni Jedid Tribunal Counsel for the person who is the subject of the appeal Nandiath Folakè Ficara 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 (the appellant) is a citizen of Senegal. He is appealing the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim for lack of credibility. [2] The appellant alleges that he was persecuted by his family because of his sexual orientation. [3] The appellant argues, contrary to the RPD's finding, that he did not testify that he felt an attraction to men from the age of seven, but rather to the chaplain. With respect to the omission pointed out regarding the June 2011 event, he states that the hearing is an opportunity to develop the written account. He states that the contradiction with respect to his marital status, single versus divorced, is merely a clerical error since he indicated that he was married in his application form to change the conditions of his stay. With respect to the delay in claiming refugee protection in Canada, he states that he was not aware that such a procedure existed. He submits that the RPD failed to examine all of the evidence. [4] The RPD found that the appellant was not credible and rejected his claim for refugee protection. [5] The determinative issue for the Refugee Appeal Division (RAD) is whether the RPD erred in its assessment of the appellant's credibility. [6] The Minister intervened in the appellant's refugee protection claim on the grounds of credibility. He did not intervene in the appeal. [7] In my opinion, the RPD did not err; the appellant is not credible and its determination is correct. DETERMINATION [8] I dismiss the appeal. The RPD correctly determined that the appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [9] In his Basis of Claim (BOC Form), the appellant states that he discovered his homosexuality as a teenager and that his problems began around May 2011 when, according to him, his family discovered his homosexuality. He alleges that he went to South Korea in XXXX 2012 to be forgotten. He alleges that he left his country after the events of XXXX 2016, where he allegedly escaped murder attempts. He states that he came to Canada in XXXX 2016 and returned to Senegal in XXXX 2017. He states that he returned to Canada on XXXX XXXX XXXX 2017, but was denied entry at the Montréal airport. He states that he returned to Senegal and went into hiding in Dakar. He arrived in Canada on XXXX XXXX XXXX 2018, and signed his immigration forms in March 2019, with a view to making a refugee protection claim. [10] In his notice of intervention, the Minister indicated that the appellant's BOC Form contains contradictions on key elements of his claim, including his marital status (single versus divorced) his stay in Sweden, his failure to claim refugee protection when he first came to Canada in 2016, and his true intention to settle in Canada. He asked that the appellant's claim for refugee protection be rejected on grounds that he is not credible. Request for an oral hearing before the Refugee Appeal Division [11] In his memorandum of appeal, the appellant did not present new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), but he did request an oral hearing before the RAD under subsection 110(6) of the IRPA. [12] I consider that the request for an oral hearing must be denied as no new evidence has been presented under subsection 110(4) of the IRPA. The RAD must therefore proceed without an oral hearing. ANALYSIS [13] My role is to examine all the evidence and determine whether the RPD's decision is correct.1 In light of Huruglica and Rozas del Solar and after conducting my own analysis of the record, in particular by listening to the audio recording of the hearing and considering the entirety of the evidence, I am of the opinion that the correctness standard of review must be applied. [14] At the outset, I wish to point out that I considered and applied the Chairperson's Guideline on Sexual Orientation and Gender Identity and Expression (SOGIE)2 to these reasons. Contradiction ? the appellant's attraction to men [15] At the hearing, the appellant testified that he felt an attraction to men as a result of abuse by a chaplain. He stated that he was seven years old when he realized he was gay. When confronted with his BOC Form in which he states that he discovered he was attracted to the same sex as a teenager, he claimed that he had only included the salient points in his written account, and that he did not know why he had not stated in this account that he was attracted to men from the age of seven, but that he had tried to write what he experienced. [16] The RPD did not accept the appellant's explanation and found that the difference between childhood and adolescence is not trivial, as it represents an age difference of several years with respect to the subject of attraction to men. It noted that the appellant did not mention his precociousness, especially since it was allegedly related to an incident of abuse. The RPD found that this was an unusual contradiction which undermined the appellant's credibility. [17] In his memorandum of appeal, the appellant submits that he did make reference to having been abused by a chaplain when he was seven years old. He testified at the hearing that he felt an attraction to men, but that does not mean that he discovered his homosexuality at the age of seven. He states that the chaplain's touching, while not consensual, was not painful and that an attraction to the chaplain was born. He argues that his actual awareness of his sexual orientation occurred in adolescence and the fact that he did not include this incident in his BOC Form does not detract from the reality of the incident, nor from the timing of his awareness of his homosexuality. Contrary to the RPD's finding, he did not testify that he felt an attraction to men from the age of seven, but rather that he felt attracted to the chaplain during the touching. He claims that the BOC Form is not supposed to include all the events experienced, but rather, in essence, the facts that he deems relevant to the case. [18] I respectfully disagree with the appellant. The RPD questioned the appellant as to when he discovered his homosexuality, and he responded at age seven.3 While I accept that the appellant stated that he was abused by a chaplain at the age of seven and that he began to feel an attraction to men, the fact remains that he clearly stated that he [translation] "discovered" his sexual orientation at the age of seven. When confronted with the contradiction between his BOC Form and his testimony in this regard, the appellant stated that he had only provided the highlights. I consider the appellant's explanations unsatisfactory since the discovery of his sexual orientation at the age of seven is central to his refugee protection claim. [19] Moreover, at no time during the hearing did the appellant state that he felt an attraction to the chaplain, but rather to men.4 All in all, I am of the opinion that the RPD did not err in its conclusion, which I consider correct. Omission - June 2011 event [20] At the hearing, the appellant testified that in June 2011, he was attacked by one of his brothers, who was angry that he was gay. He alleged that his brother drove an automobile straight at him and that he lost two fingers on his left hand in the incident.5 When asked why he had not previously made this allegation of having been injured by his brother, he replied that he had written about being chased, and that it was a painful incident that he never thought he would have the courage to talk about.6 [21] The RPD found the appellant's explanations unreasonable. It noted that the appellant did not allude in his written account to his brother allegedly hitting him with a car, causing him to lose two fingers on his left hand that had to be surgically reattached in hospital. The RPD was not satisfied with the appellant's explanation that he did not have the courage to include in his written account the allegation that two of his fingers had been severed, yet took the time to detail that his brothers wanted to burn him alive in his apartment when there was no impact on him in that case. The RPD found that this omission was significant and undermined the appellant's credibility. [22] In his memorandum of appeal, the appellant states that the hearing is an opportunity for claimants to elaborate on their allegations and fears of returning to their country of origin. He stated at the hearing that given the sociological context for homosexuals, he never had the courage to speak out. He nonetheless referred to that incident and others in the list of the various persecutions to which he was subjected. He was waiting for the hearing to flesh out the allegations made in his BOC Form. Accordingly, the RPD cannot base its decision on this non-determinative incident. [23] I agree in part with the appellant that claimants have the opportunity to develop their written account during the hearing. However, I am of the opinion that the BOC Form must include all material facts, as indicated in the instructions on the first page of the form.7 In this case, the appellant stated that he lost the use of two fingers on his hand as a result of the abovementioned accident and was admitted to hospital to have them sewn back on. He also stated that he needed surgery within 48 hours to regain the autonomy of his fingers, but that this did not happen because he fled the hospital.8 [24] While I acknowledge that the appellant testified that he escaped two attempts on his life, I note that his written account is silent about the involvement of one of his brothers in the car accident, his admission to hospital and his departure before undergoing surgery. These allegations omitted from the BOC Form are central to the appellant's refugee protection claim. [25] I have considered the appellant's observation about it being difficult for him to talk about such a painful incident, but I note that his written account contains another painful incident, namely the attempt to burn him alive. Accordingly, I am of the opinion that the appellant's explanations do not justify the omission of the allegations concerned from his BOC Form and that the RPD did not err in its adverse credibility finding, which I find to be correct. Contradiction - appellant's marital status [26] At the hearing, the appellant was confronted with his immigration form,9 which shows that he was unmarried, and the evidence presented by the Minister, according to which he was married from XXXX 2014 to XXXX 2016.10 The appellant replied that in all other applications he made in Canada, including his application for a study permit, he always indicated that he was divorced. He stated that he had given all the information to the person who filled out his immigration form (IMM 0008) for him and that he took responsibility for the error because he should have been more careful. When asked why he had not stated at the beginning of the hearing that there was an error in his file, he replied that he was waiting for the RPD to ask him about it to explain himself.11 With respect to his failure to report his trip to and sojourn in Sweden, the appellant stated that he had not taken the time to review all the information. [27] The RPD found the appellant's explanations unreasonable. It pointed out that the appellant was represented by counsel at the hearing and that, but for the Minister's intervention, it would never have been aware that the appellant had apparently left South Korea for Sweden and had married there. It emphasized that the fact that the appellant may have indicated on other forms that he was married does not relieve him of his responsibility to fill out his refugee protection claim forms properly. It noted that the appellant signed his immigration forms stating that the information was true, complete and accurate. The RPD drew a negative inference about the appellant's credibility from these contradictions. [28] In his memorandum of appeal, the appellant submits that the fact that he indicated on the immigration form that he was single is merely a clerical error for which he has provided a convincing explanation. These are circumstances that the RPD has tolerated in many cases. To draw a negative inference from a dual contradiction would be unreasonable in this case, in light of the candid and spontaneous testimony as a whole. With respect to his representation by counsel at the hearing, he cannot be held responsible for her actions. [29] I have taken the SOGIE Guideline into consideration and have recognized the difficulty for claimants to establish their sexual orientation. I acknowledge that the appellant states that he was married in his [translation] "application to change the conditions of his stay." I note, however, that on his immigration form for the refugee protection claim, the appellant states that he was single. The appellant not only indicated on this form that he was single, but also that he had never been married. Nor did the appellant state that he ever lived in Sweden. At the hearing, the appellant stated that he had met a Swedish girl during his time in South Korea. He stated that he left South Korea for Sweden and that he had married the girl there. He testified that he applied for permanent residence as part of getting married and that he stayed there for approximately two years. I note that the appellant's BOC Form does not mention this. When confronted with the inconsistencies between his immigration forms and the Minister's evidence, the appellant testified that he had passed this information on to the person who filled out his forms, and that he was not careful about verifying the information they contained. He stated that he was at fault and did not take the time to reread everything.12 [30] Like the RPD, I would point out that the appellant signed his immigration forms acknowledging that the information provided is true, complete and accurate. The appellant's allegation that he is homosexual does not exempt him from disclosing the fact that he married a woman in Sweden. I consider that the appellant's explanations are not satisfactory and that the RPD's finding is correct in this regard. Contradiction - Notes taken by a Canada Border Services Agency officer [31] The RPD confronted the appellant with notes taken by a Canada Border Services Agency (CBSA) officer on the occasion of the refusal of his entry into Canada in 2017, according to which he stated several times that he was not afraid of returning to Senegal,13 and he replied that he never discussed this matter and never discussed returning to Senegal. When asked why the officer would have written it in his notes, the appellant replied that he had no idea, and that he had done everything he was supposed to do. [32] The RPD did not consider the appellant's explanation reasonable. It noted that it is contradictory for the appellant to tell the CBSA officer that he was not afraid of returning to Senegal, when he wrote in his account that his family had decided to kill him, which allegedly caused him to go to South Korea. He also alleged that he narrowly escaped death in 2016 after his brothers set fire to his home and made the decision to leave the country to save himself. The RPD found that this is a significant contradiction and that the appellant's credibility was undermined. [33] In his memorandum of appeal, the appellant submits that it is odd that the RPD should accept the officer's notes as being true when the case law has repeatedly held that CBSA officers' notes are not evidence beyond a reasonable doubt. He submits that the RPD should have been understanding in this regard. [34] I considered the Chairperson's Guideline regarding inconsistencies between port of entry notes and a claimant's testimony or BOC Form. However, I am of the opinion that the appellant's explanations are not satisfactory. I could have understood the appellant's reluctance to disclose his sexual orientation and discuss it with the CBSA officer, but I note that the appellant denied at the hearing that he had raised the subject of his fear of returning to Senegal with the CBSA officer. The appellant did not, therefore, attribute his statements to the CBSA officer to the fact that he was homosexual. [35] In Gabila, the Court noted that it was understandable that the claimant had lied instead of telling the truth at the port of entry, given that he had been hiding his sexual orientation in his home country and had therefore been afraid to reveal his sexual orientation to authorities upon arrival in Canada.14 In his BOC Form, however, the appellant states that he escaped two murder attempts by family members because of his homosexuality. So the appellant's family was aware of his sexual orientation, and I therefore find that the RPD did not err in its conclusion, which I consider to be correct. Delay in claiming refugee protection [36] At the hearing, the appellant testified that he did not know that he could claim refugee protection in Canada and that when he was getting his extension to stay longer in Canada, a friend arranged for him to meet someone who told him all about how to make a refugee protection claim. [37] The RPD found that the appellant's behaviour was inconsistent with that of a person seeking asylum. It did not accept the appellant's explanations and noted that the appellant is educated and has travelled to many countries including South Korea, Sweden and many times to Canada. The RPD noted the appellant's testimony that he applied for a study permit in Canada through a lawyer. When asked if he told this lawyer about his fears, he stated that he did not, because the lawyer was of Senegalese origin. The RPD did not find the appellant's explanation reasonable, that he would refuse to confide in a lawyer in Canada when, according to his BOC Form, his family in Senegal already knew of his alleged homosexuality and his brothers were prepared to kill him because of it. When asked why he did not discuss his fear of returning to Senegal with his lawyer, he replied that he had not thought about it. The RPD drew a negative inference from the appellant's behaviour, which was inconsistent with that of a person fearing for his life, and found that his credibility was undermined by it. [38] In his memorandum of appeal, the appellant states that he was not sufficiently aware of the possibility of claiming refugee protection in Canada, and this may well be the case, given the virtual non-existence of such procedures in the African context. [39] With all due respect, I do not agree with the appellant. First, I note that the appellant is educated and has travelled to various countries. When asked why he did not apply for asylum when he went to South Korea, he stated that he did not submit a claim there because South Korea is conservative and he did not know if it had passed a law protecting homosexuals. That being said, the appellant knew for a long time that he had the option of seeking asylum in foreign countries. While I accept that the appellant was on a visitor's visa to Canada and that this status gave him the opportunity to reside legally in Canada, the fact remains that his explanations are not satisfactory with respect to his delay in claiming refugee protection, particularly his lack of knowledge of the refugee protection process. I am of the opinion that the RPD's conclusion is correct in this regard. Evidence [40] The RPD gave no weight to exhibits C-3 to C-8 as they are not relevant. It gave no weight to Exhibit C-2,15 as the appellant joined the Montréal LGBTQ+ Community Centre well after he made his refugee protection claim and the information in it was provided by him. [41] In his memorandum of appeal, the appellant states that the RPD excluded evidence fundamental to the refugee protection claim and failed to judge the evidence as a whole. He submits that the RPD did not consider the risks he would face if he returned to Senegal. He argues that the RPD should analyze his personal situation in the light of the documentary evidence regarding the stigmatization and persecution of homosexuals in Senegal and in the light of the case law, which indicates that persecution can be directed against an individual personally or as a member of a particular social group. [42] Respectfully, I do not agree with the appellant. The RPD reviewed all of the evidence submitted in support of the refugee protection claim. In this particular context, I have independently reviewed all of the evidence, while taking into account the SOGIE Guideline. However, given the multiple adverse findings regarding the appellant's credibility, I find that the evidence presented, including the letter from the LGBTQ+ Community Centre, did not establish, on a balance of probabilities, the existence of his sexual orientation. Credibility findings relate to essential elements of the appellant's refugee protection claim and the Guideline in question is not a remedy for such credibility findings. [43] Since he failed to establish, on a balance of probabilities, the truth of his allegations about his homosexuality, I need not consider whether the appellant's fear in this regard is objectively well founded. In short, I find that the appellant is not credible and that the RPD's determination is correct. CONCLUSION [44] I dismiss the appeal and confirm the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Toni Jedid Me Toni Jedid April 7, 2021 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Chairperson of the Refugee Protection Division (RPD) Guideline 9: Sexual Orientation and Gender Identity and Expression: Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. Effective date: May 1, 2017. 3 Audio recording of the hearing of January 15, 2020, 00:21:56. 4 Ibid, 00:19:47. 5 Ibid, 00:29:59. 6 Ibid, 00:33:52. 7 SPR-1, RPD record, Appellant's Basis of Claim Form, section "Why You Are Claiming Refugee Protection," page 2 of 10, at page 15. 8 Supra, endnote 3, 00:36:04. 9 Supra, endnote 7, Immigration form IMM 0008, at page 53. 10 Ibid., Minister's notice of intervention, Exhibit M-2, at page 120. 11 Supra, endnote 3, 00:40:25. 12 Ibid., 00:53:50. 13 Supra, endnote 7, Exhibit M-4, at page 128. 14 Gabila v. Canada (Citizenship and Immigration), 2016 FC 574 (CanLII), at paragraphs 31 and 32. 15 Supra, endnote 7, Exhibit C-2, Letter from LGBTQ+ Community Centre, at page 91. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-03070 RAD.25.02 (January 2020) Disponible en français 12 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