MB8-09999

RAD File / Dossier de la SAR : MB8-09999 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 February 12, 2021 Date de la décision Panel Christina Harrison Baird Tribunal Counsel for the person who is the subject of the appeal Jessica Lipes 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] I allow this appeal. I substitute my own decision that the Appellant is a Convention refugee and a person in need of protection. XXXX XXXX XXXX (the Principal Appellant) is a citizen of Ghana. He appeals a decision of the Refugee Protection Division (RPD), which rejected his claim for refugee protection. He alleges that if he must return to Ghana, he may be assaulted by members of his family and community, or arrested and arbitrarily detained, because he is a bisexual man. [2] The determinative issue in this appeal is whether the RPD erred in assessing the Appellant's credibility with respect to his sexual orientation. The RPD was considering the claim after it was returned from the Refugee Appeal Division (RAD) for redetermination. The second panel of the RPD found that the Appellant was not credible because he omitted details from his Basis of Claim (BOC) form, and because he gave oral testimony that was inconsistent with other aspects of his evidence. The corroborative evidence he submitted did not overcome the RPD's concerns. The RPD also found the Appellant had delayed before claiming refugee protection, without reasonable explanation. [3] The Appellant submits that he did not omit any material facts from his BOC. He argues that he elaborated details with respect to the BOC when he gave oral testimony. As to any inconsistencies, contradictions, or delay in claiming, the Appellant submits that the RPD should have found his reasonable explanations to be satisfactory. The Appellant argues that the RPD placed undue weight on minor peripheral inconsistencies and failed to conduct a proper analysis of his sexual orientation in accordance with Chairperson's Guideline 9 on sexual orientation and gender identity and expression.1 [4] I find that the RPD made errors in its assessment of the Appellant's credibility. There was insufficient reason to doubt the truthfulness of the Appellant's claims about his sexual orientation. ANALYSIS The standard of review for this appeal is correctness [5] The standard of review for the RAD when reviewing an RPD decision is correctness unless an exception applies.2 I have reviewed the audio recording and transcript of the Appellant's hearings before both panels of the RPD. I find that the RPD did not enjoy a meaningful advantage to assess the credibility of the Appellant; therefore, I am reviewing the RPD decision on the standard of correctness. The RPD incorrectly impugned the Appellant's credibility about his sexual orientation [6] I find that the RPD was wrong to conclude that the Appellant was not a bisexual man because he failed to disclose details of his first same-sex relationship in his BOC. The Appellant did mention that his first same-sex experiences took place at boarding school.3 He testified that his first male partner was a student in a position of authority-analogous perhaps to a prefect-from his class.4,5 I find reasonable6 his explanations that: his first counsel told him to be brief in the BOC; he chose to place greater emphasis in the BOC on the relationship that led to the public disclosure of his sexual orientation; and he intended to-and did-elaborate on his first experiences in his oral testimony. This was not an omission, much less a material omission that would impugn the Appellant's credibility about his sexual orientation. [7] I find that the RPD gave undue weight to peripheral matters, such as the Appellant's difficulty to give a detailed and consistent chronological account of his sexual relationships. The Appellant admitted and explained that he was bad at remembering dates. This difficulty resulted in several inconsistencies in his evidence with respect to dates, school terms, and time frames. The Federal Court has said that a refugee claim should not be determined based on a memory test,7 and I find this caution pertinent in this case. The Appellant also gave the names of two neighbourhoods in the Greater Accra region when asked where he met his second partner. However, the Appellant had explained that his first partner introduced him to his second partner by telephone because they would be attending the same university. In these circumstances, I find the Appellant's explanation for the inconsistency reasonable. To disbelieve some of an Appellant's allegations is one thing, but to disbelieve his sexual orientation based on dates and locations is quite another.8 Moreover, the SOGIE Guideline cautions decision makers to examine whether inappropriate assumptions underlie their concerns, or whether cultural or psychological barriers may reasonably explain the inconsistency.9 I find that Canadian cultural assumptions about the importance of dates and addresses informed the RPD's assessment of the importance of this evidence. I agree with the Appellant that these matters were not central to the claim. The Appellant has shown he is perceived to be bisexual in Ghana [8] I find that the Appellant has given sufficient credible evidence for me to find he has established his sexual orientation on a balance of probabilities. I give substantial weight to the Appellant's consistent testimony in his BOC and during two RPD hearings that establishes the central elements of the claim, and to the corroborative letter10 from his first partner. I am not persuaded that his imperfect testimony impugns his credibility.11 The evidence indicates: * The Appellant discovered that he was bisexual after experiencing same-sex relations at boarding school; * He was forced to hide his sexual orientation; * Rumours were circulating about his sexual orientation before he left Ghana to study in Canada; * His family shared the negative societal view of same-sex relations and was concerned about risk to their reputation because of the rumours; * His mother suspected his sexual orientation and beat him, but his uncle did not believe the rumours and dismissed her concerns; * His uncle supported his education financially and morally; * A former partner revealed the Appellant's sexual orientation under torture; * The uncle ended his support once the Appellant's sexual orientation was revealed; and * As soon as he was at-risk and became aware of the possibility to seek Canada's protection, the Appellant applied for refugee status. [9] I disagree with the RPD that delay to claim is material in this case. While delay may be a relevant factor in the evaluation of subjective fear, it is not determinative. The Appellant in this case had a valid student status in Canada until his uncle withdrew the financial support for his education. Feeling safe as a result of holding legal status can be a reasonable explanation for the failure to apply for refugee status immediately upon arrival. I find it is a reasonable explanation in this case. Where a refugee claimant enjoyed legal status, the Federal Court has found it unreasonable for the RPD to draw a negative inference.12 After his uncle withdrew his financial support and the Appellant fared poorly in his university studies, he moved cities, became homeless, and was found sleeping at a bus station. Once he had engaged with social services and been advised of the opportunity to apply for refugee protection, he made a timely application. The Appellant is at risk of harm in Ghana [10] The criminalization of same-sex relationships between men, and the persecution of men who are perceived to be gay, in Ghana is well documented. As a bisexual man, the Appellant is at risk of harm amounting to persecution by his family, his community, and the authorities. He has a well-founded fear of persecution due to his membership in a particular social group: bisexual men. Moreover, his removal to Ghana would subject the Appellant personally to a risk to his life or to a risk of cruel and unusual treatment or punishment. There is no adequate state protection nor any safe and reasonable internal flight alternative. CONCLUSION [11] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee and a person in need of protection. (signed) Christina Harrison Baird Christina Harrison Baird February 12, 2021 Date 1 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (May 1, 2017) (SOGIE Guideline). 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, at paras. 37, 48, 70, 78 and 103. 3 RPD-1, RPD Record, Exhibit 1, Basis of Claim narrative, p. 19. 4 RPD-1, RPD Record, Transcript of the RPD hearing on October 6, 2016, p. 20. 5 RPD-1, RPD Record, Transcript of the RPD hearing on February 2018, p. 41. 6 SOGIE Guideline, supra note 1, para. 7.7. 7 Sheikh v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 15200 (FC), para. 28. 8 Kandel v. Canada (Minister of Citizenship and Immigration), 2014 FC 659, para. 29. 9 SOGIE Guideline, supra note 1, para. 7.4. 10 RPD-1, RPD Record, Exhibit 7, Letter and photo identification, pp. 193-194. 11 RPD-1, RPD Record, Transcript of the RPD hearing on October 6, 2016, Counsel's submissions, p. 69. 12 Gyawali v. Canada (Minister of Citizenship and Immigration), 2003 FC 1122 (CanLII), paras. 16-19. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-09999 RAD.25.02 (January, 2020) Disponible en français 2 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