TB4-07344

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. / N° de dossier de la SAR : TB4-07344 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 26, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Robin Edoh Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX a citizen of Jamaica, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has submitted new evidence in support of his appeal, and he is requesting an oral hearing. He is also requesting that the RAD substitute a positive determination or, in the alternative, refer the matter back to the RPD for re-determination, giving directions to accept the claim. DETERMINATION [2] Pursuant to ss. 111(1)(a) of IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. Background: [3] The Appellant's claim is based on his sexual orientation, namely, homosexual. In secondary school, the Appellant realized that he was gay. He had a relationship with XXXX XXXX, whom he met at school. Their relationship continued following completion of secondary school. They hid their intimacy from family, friends and the community. When his mother would ask him about girls, the Appellant would respond that he had not yet met the right one. However, when the Appellant began to see XXXX more frequently, she warned both of them as their relationship was becoming suspicious. XXXX then became fearful of coming to the Appellant's home, however the Appellant would frequent XXXX home. [4] The Appellant had first come to Canada in 2012, however knowing that his sexual preference had not yet been discovered, he returned to Jamaica after a few months. [5] On XXXX XXXX, 2013 the Appellant and XXXX were attending a party at a neighbour's home, when they went outside for some intimacy. However, they were discovered by a passerby, who then raised an alarm, causing attendees at the party to come out and give them both beatings. XXXX parents discovered this and dragged them to XXXX room, locking the door with a promise to parade them naked the next morning. [6] The Appellant and XXXX managed to escape before dawn through the window to the home of a gay friend. The Appellant applied for a visa in XXXX XXXX 2013 and it was granted on XXXX XXXX, 2013. He arrived in Canada on XXXX XXXX XXXX 2013. Upon his arrival, fearing deportation, he told the authorities at the airport that he was in Canada to work. He attempted to extend his visa, without success. However, he confided in XXXX XXXX XXXX XXXX XXXX XXXX who advised him to seek advice from an Immigration counsel. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL EXPRESS STATUTORY CONDITIONS [7] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [8] The following evidence was submitted by the Appellant to the RAD and must meet the test described above in order to be admissible: [9] Documentary evidence, which includes the following:- * Wikipedia with respect to a XXXX XXXX XXXX XXXX XXXX; * Mail Online - "XXXX XXXX XXXX XXXX XXXX". [10] The RAD notes that the RPD decision is dated July 21, 2014, and the Wikipedia page was "last modified" on July 20, 2014. The Mail online article is from August 2014, post-dating the rejection of the claim. The RAD finds that the foregoing documentary evidence could reasonably have been available prior to the rejection of the claim. It makes this finding based on ample evidence in the National Documentation package with respect to the situation of homosexuals in Jamaica. The RAD also notes that XXXX XXXX XXXX XXXX XXXX, which is referred to in both pieces of the foregoing evidence, occurred in XXXX 2013. [11] Notwithstanding the above, if the RAD were to accept this "new" evidence, pursuant to ss. 110(4) of IRPA, the RAD has concurred with the RPD that the Appellant has not established himself, on a balance of probabilities, that he is a homosexual, or that he is at risk for that reason. Accordingly, this evidence is not relevant. The RAD also notes that the Appellant has not provided an explanation as to why it is relevant to meet the statutory test in 110(4) of IRPA. [12] Oral hearings are only granted under ss 110(6) of IRPA when the following applies: o that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; o (b) that is central to the decision with respect to the refugee protection claim; and o (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [13] Accordingly, the RAD rejects the Appellant's request for an oral hearing. ROLE OF THE RAD [14] A recent Federal Court decision in Huruglica1 has provided the RAD with guidance, which the RAD will follow. Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [15] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau in Alyafi2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. SUBMISSIONS BY COUNSEL [16] Counsel submits that the RPD's decision is replete with errors of law and fact. [17] Counsel submits that the RPD failed to take into consideration reasonable explanations offered by the Appellant in describing his sexual preference and his encounters with XXXX XXXX and the incident of XXXX XXXX XXXX 2013. [18] Counsel submits that the RPD failed to properly consider the documentary evidence when it failed to place weight on it. [19] The RAD must consider the RPD's decision with respect to the Appellant's homosexuality and, as such, if he faces a serious possibility of harm if returned to Jamaica. Credibility Findings: [20] The RPD found the XXXX XXXX, 2013 incident to be lacking in credibility. The Appellant had testified that he had been severely beaten to the point where he almost died. However, at the same time when asked about medical intervention in this regard, the Appellant responded that he had not sought treatment out of fear that his homosexuality would be exposed. [21] The RPD found that there was no persuasive evidence that individuals in Jamaica are refused medical treatment, or that the doctor-patient confidentiality is breached because of an individual's sexual orientation. Accordingly, the RPD did not accept the Appellant's explanation for the failure to seek medical treatment for serious, even life-threatening injuries, and drew a negative inference as a result. [22] The Appellant submits that he did not seek medical intervention, as this would further expose him as a homosexual and, as a consequence, increase his risk as he may not trust the doctor who would treat him. He further submits that the RPD was unfair to conclude that there is no persuasive evidence that individuals are refused medical treatment, or may have their expectation of doctor/patient confidentiality breached on the basis of their sexual orientation in Jamaica. [23] The RAD finds, in light of the Appellant's testimony, that his injuries allegedly sustained in the foregoing incident were life threatening, and that the RPD's negative inference in this regard was justified. Moreover, the RAD concurs with the RPD that there is no persuasive evidence with respect to the Appellant's assertions that he would not be treated or he would be exposed. Omission from Basis of Claim Form (BOC): [24] The Appellant testified that he had called his mother to apologize, but she indicated that his father and brothers had disowned him and they would only forgive him if he married or "changed his ways". According to the Appellant, his family had learned of the incident of XXXX XXXX, 2013, however the Appellant's BOC does not indicate this. He did not know why this information had not been included, except to say that his counsel told him that he could provide more information on the day of the hearing. [25] The RPD considered the earlier testimony by the Appellant about the importance of his family relationship and the fact that he now fears his family members due to their homophobic views. The RPD found the Appellant's inadequate explanation of this omission lead it to draw a further negative inference with respect to the Appellant's credibility. [26] The RPD concluded, in light of the negative inferences described in the foregoing, in the absence of reasonable explanations, that the incident of XXXX XXXX XXXX 2013 did not, in fact, occur. [27] The Appellant offered a further explanation for this omission, namely, his state of mind upon his arrival in Canada. However, when questioned by the RPD as to whether he had sought any medical or psychological intervention, he responded in the negative. The Appellant further submits that the RPD erred in its finding that the incident of XXXX XXXX, 2013 did not, in fact, occur. [28] The RAD concurs with the RPD that this omission is a material aspect of the Appellant's claim. This is particularly significant since the Appellant alleges the importance of his family and his only contact with family, since his arrival in Canada, was with his mother. However, the RAD also concludes that the RPD did not make this finding in isolation. It did so, along with the evidence with respect to the alleged serious injuries which occurred during this incident. Accordingly, the RAD finds that the RPD's conclusions are absent of any error. The Appellant's Relationship with XXXX XXXX: [29] The RPD found that the Appellant had not provided sufficient credible testimony or corroborative evidence to establish his long-term relationship with XXXX XXXX. The Appellant alleged that XXXX had fled to the Cayman Islands XXXX XXXX and he has not had any contact since. Moreover, the Appellant indicated that he had lost his contact information, when he lost his phone. He further alleged that any photographs of himself and XXXX were on that telephone. [30] The RPD did not believe that the Appellant would not have any other letters, photos, or other mementoes of this relationship if it was as important to the Appellant as he had testified. The Appellant had described XXXX as "the love of my life," and his only boyfriend. The RPD also noted that this loss of telephone was not contained in the Basis of Claim form. Moreover, the Appellant testified that he had not even attempted to contact XXXX. The audio recording reveals that this relationship was a XXXX to XXXX-year relationship and the Appellant's only homosexual relationship. [31] The RPD also noted that the Appellant had provided little information both in testimony and in his BOC with respect to details surrounding this relationship, i.e. activities, etc. Based on the foregoing, the RPD made a finding that the Appellant did not, in fact, have a same-sex long-term relationship with XXXX XXXX in Jamaica. [32] The Appellant makes no submissions with respect to the existence of this alleged long-term relationship. [33] The RAD finds, after listening to the audio recording, that the Appellant did, in fact, testify that he and XXXX met in secret places, and the RAD finds that, since they were trying to hide their relationship, the RPD's comments, with respect to their activities, are not justifiable. However, having said this, the RAD concurs with the RPD that the lack of any supporting evidence with respect to such a significant and lengthy relationship lead to the correct conclusion by the RPD that this long-term relationship did not exist. Even if we accept that the Appellant had photographs only on his telephone, which he lost, it is not reasonable, given the alleged length of their relationship, that the Appellant would only recall his mother's telephone number and not XXXX. Moreover, in the absence of a reasonable explanation, the RPD noted that the loss of this cell phone is not indicated in the Appellant's BOC, further casting doubt on the veracity of this portion of his evidence. Appellant's lack of subjective fear and other evidence: [34] The RPD found that the Appellant's behaviour in Canada did not corroborate his alleged homosexual orientation or credibly show that he has a subjective fear of persecution in Jamaica on this account. According to the Appellant, he had not taken note of the situation of homosexuals in Canada during his visit in 2012, as his relationship with XXXX was not yet known in Jamaica. Nevertheless, he expressed fears in general at the hands of society where individuals had died as a consequence of being homosexual. Given that he was aware of these homophobic attitudes in Jamaica, the RPD found that it made little sense that the Appellant, during his visit in 2012, had not looked into the situation of homosexuals in Canada at that time. The RPD then made a finding that, when the Appellant returned to Jamaica in 2012, he did not have a subjective fear of being exposed as a homosexual. [35] The RAD finds that the audio recording of the proceedings made it clear that the Appellant had no fears of returning to Jamaica at that time in 2012. [36] The RAD finds that the Appellant's fears of society in general fly in the face of the Appellant's testimony in this regard, with respect to homophobic attitudes in Jamaica, and the Appellant's knowledge from television and newspaper reports in this regard. This further supports the conclusion that the Appellant is not a homosexual. Delay in Claiming [37] The RPD noted that the Appellant had waited almost XXXX XXXX after his arrival in Canada before submitting his refugee claim. He had not attempted to make contact with the gay community in Toronto or to make gay friends. The RPD found that the Appellant's lack of interest and efforts to learn about the gay community, given his education, lead it to draw a negative inference towards the credibility of the Appellant's subjective fear of persecution and alleged sexual orientation as a gay man. [38] The RPD noted, in its Reasons, the letter from the Appellant's pastor, which does not mention the Appellant's homosexuality.3 The Appellant had also submitted a membership card and letter from XXXX and he testified that he had participated in this group. However, in the absence of a name on the card, the RPD assigned no weight to either of these letters. [39] The Appellant submits that the XXXX letter, the support letter from XXXX XXXX XXXX XXXX, as well as the letter from XXXX XXXX XXXX, were credible and trustworthy corroborative documents to support the Appellant's assertion that he is homosexual. [40] After listening to the audio recording of the proceedings, the RAD finds that the Appellant acknowledged and testified that he had never heard of XXXX XXXX XXXX XXXX He testified that he had attended XXXX on approximately XXXX occasions, however his membership card does not bear his name. Finally, with respect to the letter from the Appellant's Pastor, although we may accept that he is providing assistance and counselling to the Appellant, this letter does not corroborate the Appellant's sexual orientation and the Appellant could not provide a response as to why it did not contain this information. In totality, the RAD concurs with the RPD that little, if any, weight can be accorded to the foregoing documents in terms of establishing the Appellant's sexual orientation, as a homosexual. [41] After listening to the audio recording, the RAD finds the delay in claiming issue was not satisfactorily explained to the RPD. According to the Appellant's testimony, he had not reached out to anyone in the community, except for his Pastor. His testimony revealed that he feared Jamaicans here in Canada and, therefore, made no effort to inquire about organizations who could assist him. The RAD finds this portion of the Appellant's testimony to be implausible; as if anyone would understand the homophobic attitudes in Jamaica, it would be the homosexuals of Jamaican origin. The Appellant relied on extending his work permit to allow him to remain in Canada and, from there, he was anticipating permanent residency. In spite of his education and his ability to communicate in English, the RAD concurs with the RPD that it was unreasonable that the Appellant did not reach out to the Canadian community and, in doing so, would have filed a refugee claim in a more timely manner. [42] As stated in Marcela Ximena Guarin Caicedo,4 a person fleeing persecution is expected to seek protection in the first safe place, which reaffirms the Bobic5 decision of the Federal Court, where the Honourable Judge wrote: If the applicant had truly feared for his life, he would have applied at the first available opportunity, rather than relying on what others told him. His actions were inconsistent with a subjective fear of persecution and it was reasonable for the Board to find that he did not have a subjective fear of persecution based on his delay in seeking refugee status. (Emphasis added). [43] This aspect of the claimant's conduct is inconsistent with a person living in fear of persecution in their country. It is to be expected that genuine Convention refugees would seek protection as soon as is practical, once out of reach of their oppressors. The Board is mindful, then, that one of the significant factors which speaks to subjective fear and credibility is the element of delay. Delay, in and of itself, is not normally a decisive factor in refugee determination.6 However, it can be relevant and a potentially important consideration to the Board,7 where the claimant has delayed in making a claim upon their arrival to Canada and failed to offer a reasonable explanation for the delay. In certain circumstances, however, delay can be a determinative and decisive factor.8 The Appellant concurs with the RPD that the Appellant failed to provide reasonable explanations for this behaviour. As a consequence, the RAD concurs with the RPD that this behaviour undermines the Appellant's credibility. CONCLUSION [44] After examining the entire record, including the RPD reasons, the RAD finds that the RPD made credibility findings which are sustainable. The RAD concurs specifically with the findings that there was insufficient credible evidence to establish that the Appellant had a long standing relationship with XXXX and that the alleged incident of XXXX 2013 did, in fact, occur. Moreover, the RAD concurs that the RPD correctly assessed the documents from Canada and its findings that they did not support the Appellant's sexual orientation, which were absent of any error. Accordingly, the RAD finds that the Appellant is not a Convention refugee or a person in need of protection. [45] Pursuant to ss. 111(1)(a) of IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. (signed) 'Roslyn Ahara' Roslyn Ahara November 26, 2014 Date 1Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 2 Alyafi, Aghiad v. M.C.I (F.C. No. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952 3 RPD Record, Exhibit 4 4 Caicedo, Marcela Ximena Guarin v. M.C.I. (F.C., no. IMM-722-10), Near, November 4, 2010, 2010 FC 1092 5 Bobic, Petru v. M.C.I. (F.C., no. IMM-2225-04), Pinard, November 5, 2004, 2004 FC 1488 6 Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.). 7 Heer, Karnail Singh v. M.E.I. (F.C.A., no. A-474-87), Heald, Marceau, Lacombe, April 13, 1988. 8 Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003, 2003 FC 1324; Ghasemian, Marjan v. M.C.I. (F.C., no. IMM-5462-02), Gauthier, October 30, 2003, 2003 FC 1266; Bhandal, Surjit Kaur v. M.C.I. (F.C., no. IMM-4277-05), Teitelbaum, April 3, 2006, 2006 FC 426. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-07344