MC0-08813

RAD File No. / No de dossier de la SAR : MC0-08813 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 May 26, 2021 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Serge Khoury 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 XXXX XXXX XXXX,1 a citizen of the Republic of Haiti and the Dominican Republic, alleges a well-founded fear of persecution by reason of her sexual orientation. She also alleges a fear of persecution in the Dominican Republic based on her Haitian origin. [2] She is appealing the decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection on the ground that she was generally not credible and did not meet her burden of establishing the allegations forming the basis of her claim. [3] The appellant is contesting the decision and argues essentially that the RPD breached procedural fairness because the conclusions were not based on the evidence. The RPD also allegedly failed to consider Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression2 [SOGIE Guideline]. [4] The appellant did not present any new evidence on appeal, nor did she request that an oral hearing be held. She is asking the Refugee Appeal Division (RAD) to allow the appeal, to set aside the RPD's determination and to determine that she is a Convention refugee.3 [5] After conducting an independent review of the evidence and listening to the recording of the hearing, I conclude that the decision rendered is correct. I have no reason to believe that the panel did not consider the SOGIE Guideline. Listening to the recording of the hearing, I noted that the panel handled the case with sensitivity and used appropriate and respectful language in reviewing the refugee protection claim. [6] In this case, the appellant has not demonstrated that the RPD breached procedural fairness or that the credibility findings were incorrect. The RPD had valid reasons to doubt the facts as alleged concerning her sexual orientation. [7] Accordingly, the appeal is dismissed. FACTUAL BACKGROUND [8] The appellant entered Canada on XXXX XXXX, 2019. She claimed refugee protection in September 2019. [9] Based on the information in the Basis of Claim Form (BOC Form), the appellant has been aware of her sexual orientation since age 14. She alleges that, in XXXX 2018, she met a young woman whom she invited home in XXXX 2018 and with whom she began a romantic relationship. [10] Her problems began on XXXX XXXX, 2019, when her mother discovered her nude with XXXX in her room. In a state of shock, her mother informed her father about the situation, and he contacted XXXX parents. The appellant states that, following this incident, her friend's father and brother threatened to cut off her head with a machete. [11] Fearing for her life, the appellant shared her problems with her sister, who advised her to come to Canada to ask for protection. Based on the information in the written account, the appellant's parents are not aware of the steps she has taken. Impugned decision [12] The RPD indicated that it had considered the Chairperson's SOGIE Guideline. [13] It determined that the appellant's overall credibility was undermined due to contradictions between her written and oral statements concerning central elements of her claim. The RPD considered that the problems were such that it did not believe her allegations that she is lesbian. Its decision was based on the following elements: * Contradiction between her oral and written statements as to who initiated the romantic relationship she states she had with her friend; * Contradictions as to the nature of the threats made against her by her friend's family; * Omission from the written account of the mention that her sexual orientation was disclosed on social media and that threats were made against her on social media; * Lack of evidence to corroborate her assertions, including the relationship she states she had with another woman in Canada; * The appellant has not established that, in her particular case, she was subjected to persecution in the Dominican Republic based on her Haitian origin or that she could be subjected to persecution if she were to return. Arguments on appeal [14] The appellant argues that the RPD breached procedural fairness. It allegedly exceeded its jurisdiction by determining arbitrarily that she was not a homosexual individual and by conducting a microscopic analysis of her testimony. It allegedly failed to consider Chairperson's Guideline 9 on SOGIE. It erred in law by failing to conduct an analysis in relation to an eventual return to Haiti. SCOPE OF THE APPEAL [15] The RAD must conduct an independent assessment of the evidence and determine whether the RPD's decision is correct. In cases where the credibility of oral testimony is at issue and the RPD has a meaningful advantage, the RAD may show deference.4 If this is the case, I will indicate it in my analysis. ANALYSIS Procedural fairness [16] The appellant argues that the RPD breached procedural fairness because it did not consider all of the evidence and exceeded its jurisdiction in determining that the appellant's sexual orientation was not as stated. [17] With respect, I am satisfied that the RPD did not breach procedural fairness. The reasons are as follows. [18] Procedural fairness pertains to whether the procedure followed to reach a decision was just and fair having regard to the circumstances rather than the merits of the case.5 In the present case, the hearing was held in an atmosphere of calm and respect, and the language used was appropriate in the circumstances. The RPD gave the appellant ample opportunity to present her case via counsel, who questioned her and made submissions in her favour. [19] Regarding the argument that the panel did not consider all of the evidence, I consider that in the case at hand, this issue pertains more to the merits of the claim or to the sufficiency of the evidence to establish the facts as alleged than to procedural fairness. Credibility [20] The RPD's decision may be summarized in a few words. It did not believe that the appellant was of the sexual orientation she had indicated. In its decision, it described the various aspects supporting its findings in this regard. [21] The following was submitted on appeal: [translation] "the panel failed to consider the Ward criteria in the questioning process and indicated that the appellant had not established that there was a serious possibility of persecution on a Convention ground. The burden of proof to be met is lesser than that of balance of probabilities."6 [22] First, the RPD determined correctly that the facts as alleged required analysis under section 96 of the Immigration and Refugee Protection Act (IRPA). I note that the facts must be established on a balance of probabilities but that, with respect to analysis under section 96 of the IRPA, risk is assessed against the criterion for serious or reasonable possibility of persecution. The appellant has not shown that the RPD erred in this regard. [23] Second, I do not agree that the RPD conducted a microscopic examination of the evidence. Making a determination as to a person's sexual orientation is a difficult task.7 Claims based on SOGIE are singular in that establishing credibility relies in large part on the veracity of the claimants' homosexuality. [24] According to the SOGIE Guideline, cases involving SOGIE individuals are no different from other cases before the Immigration and Refugee Board of Canada in that decision-makers may draw a negative inference from material inconsistencies, contradictions or omissions that have no reasonable explanation. That is the case here. Initiator of romantic relationship [25] The RPD noted an initial contradiction in relation to a central element of the claim, namely who initiated the relationship at the origin of the problems alleged. The RPD pointed out correctly that the information in the written account implies that her partner was the initiator of this romantic relationship, whereas at the hearing, the appellant stated, [translation] "one day, I asked her if she wanted to be my novia."8 In response to a question from the member as to who had proposed the relationship, the appellant stated that it was she,9 adding that she had asked to be her novia before she invited her to her home in XXXX 2018. [26] This inconsistency in the statements is not a futile disparity as implied by the appellant but rather an element going to the heart of the claim. However, that is not all. Contradiction concerning the nature of threats [27] In the written account, the appellant states that her novia's father and brother threatened reprisals against her, specifically to cut off her head with a machete. However, when questioned at the hearing regarding the threats made by her partner's father and brother, the appellant did not state that they threatened to decapitate her. [28] On appeal, it is generally argued that the panel erred in its analysis by giving exaggerated importance to a few minor discrepancies between the written account and the testimony. [29] With respect, I do not share this viewpoint. At the hearing, the appellant stated that she had spoken with the appellant's father only once. She testified that they were very close and that XXXX family helped hers by providing goods to her parents, who were merchants. The panel noted correctly that, when it questioned her, the appellant did not state that he threatened her with physical reprisals.10 [30] The appellant continued her testimony by stating that the worst was the brother. He allegedly sent her five or six messages and telephoned her twice. He called her a bitch. He threatened to tell everyone she was lesbian, and stated that he was going to make sure that she did not go to university, that her co-workers knew about her relationship, and that he could physically hurt her. When asked to state whether he had indicated what he might do, the appellant replied in the negative.11 [31] When asked to reconcile her oral statements with the written account, which states, [translation] "They told me 'You dirty little Haitian whore, you're going to pay. Get home or else we're going to cut off your head with a machete.' I was traumatized, stopped even leaving my bedroom and stopped eating," the appellant responded that it was her friend's father who made these threats. [32] The RPD did not err in noting that there was an inconsistency between her oral and written statements and that they are central to the claim. There is more. Omission from written account of her harassment on social media [33] At the hearing, the appellant stated that her sexual orientation was disclosed on social media and that she was harassed by other students or friends. Based on her statements at the hearing, the comments posted on Facebook were [translation] "degrading." That said, the written account is silent in this regard. [34] When asked to explain this omission, the appellant stated that there was no significant reason but that she had not felt comfortable talking about this when she completed her BOC Form.12 [35] On appeal, it is argued that there was no omission and that the appellant was simply providing further explanations concerning the fact that she was threatened on Facebook.13 [36] It is well established that, if incidents that are relevant and important are not documented in the written account and are subsequently disclosed in the course of the refugee protection claim proceeding, the Board may consider that this undermines the claimant's credibility if they cannot provide a valid explanation.14 [37] I do not accept the argument that these are additional explanations or clarifications. The omission is not trivial, as it relates to additional threats from persons other than members of her friend's family. I do not accept the appellant's explanations, particularly since the panel asked her at the start of the hearing whether the form was complete. Her justification that she did not disclose it because it was not what the discussion was specifically about is, in my opinion, insufficient in this case. I note that the appellant stated that she fears Dominican society, which is controlling and intolerant of homosexual individuals, and her classmates who allegedly found out about her story.15 This omission also undermines her credibility. Lack of evidence corroborating her assertions [38] The RPD was right to have concerns regarding the appellant's statements and to seek to determine whether she had any material evidence, such as copies of Facebook messages, to corroborate her statements or a letter from someone familiar with her situation. [39] I do not accept the statements from the appellant, who initially stated that she had closed her Facebook account and then, when asked whether she had a means of finding them, whether by trying to access archived files on her telephone or through some other means, replied evasively that she no longer had access to her Facebook account and that she no longer remembered the password because she had changed email addresses.16 [40] I am aware that the Guideline instructs us that in matters involving SOGIE, some corroborating evidence from the person's family members or friends may not be available, for example, if the person had hidden their SOGIE due to perceived stigma or risk of harm. The evidence before me does not support a conclusion that such is the case here. [41] The appellant testified having met a young woman in Canada but did not deem it necessary to ask her to testify or to file a statement in her favour. Moreover, her sister in Canada is aware of her sexual orientation and problems. I understand from the appellant's testimony that she made no effort to attempt to establish her assertions. [42] In view of the testimony as a whole, the RPD did not err in finding that the appellant was not credible overall. [43] Lastly, and although the RPD did not mention this in its decision, I cannot overlook the fact that I find other statements from the appellant to be inconsistent. I will explain. She testified that she was raised in a religious family in which homosexuality was something dirty and humiliating. She stated further that her parents, particularly her father, forbade her to leave the house for her own protection. That said, I find it surprising that he would contact her friend's parents about the incident on XXXX XXXX, 2019. I am also surprised that the appellant did not attempt to find out what happened to her friend XXXX. Fear of persecution due to her Haitian origin [44] The RPD acknowledged that the documentary evidence indicates that some Haitians encounter discrimination in the Dominican Republic. However, the RPD considered the appellant's particular circumstances, including the fact that she holds Dominican citizenship. [45] Country reports alone are normally not a sufficient basis for concluding that there is a serious possibility of persecution.17 Each refugee protection claimant's personal circumstances must be considered. This is what the RPD did in this case. The appellant has dual Dominican and Haitian citizenship. Apart from the problems raised in relation to the alleged sexual orientation, the appellant did not state that she or her family has encountered any problems in this regard. The RPD did not err in determining that it could not be concluded from the evidence that there is a serious possibility of persecution in the Dominican Republic by reason of her origin. Error in law because it did not conduct any analysis of potential return to Haiti [46] The appellant argues that the RPD erred in law at paragraph 27 of its decision in concluding that it did not have to examine the risk in Haiti by reason of membership in the particular social group of women. [47] In this case, the RPD did not err. It examined the appellant's fear and risk in the Dominican Republic, one of her countries of citizenship, in relation to the grounds alleged, namely sexual orientation and Haitian origin. That said, the RPD determined that the appellant had not met her burden of establishing a serious possibility of persecution on one of the five Convention grounds or a risk to her life in the event of returning. Under the circumstances, it did not err in declining to analyze the alleged fear in the other country of citizenship. CONCLUSION [48] For these reasons, the RAD confirms the RPD's determination that the appellant XXXX XXXX XXXX XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection. [49] The appeal is dismissed. (signed) Maria de Andrade Me Maria De Andrade May 26, 2021 Date IRB translation Original language: French 1 The appellant testified that her passport contains an error. Her first name is XXXX, not XXXX. 2 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Immigration and Refugee Board of Canada. Effective date: May 1, 2017. 3 P-2, Appellant's Record, Appellant's memorandum, at pages 8 and 9. 4 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 5 Paulo v. Canada (Citizenship and Immigration), 2020 FC 990. 6 P-2, Appellant's Record, Appellant's memorandum, at page. 5. 7 Kandel v. Canada (Citizenship and Immigration), 2014 FC 659. 8 Recording of the Refugee Protection Division (RPD) hearing held on March 12, 2020, at approximately 26:35. 9 Recording of the RPD hearing held on March 12, 2020, at approximately 26:50. 10 Recording of the RPD hearing held on March 12, 2020, from 42:43 to 45:40. 11 Recording of the RPD hearing held on March 12, 2020, at approximately 48:48. 12 Recording of the RPD hearing held on March 12, 2020, at approximately 1:01:19. 13 P-2, Appellant's Record, Appellant's memorandum, at page. 5. 14 Bakare v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 31 (F.C.T.D.) (QL), and Akhigbe v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 332 (F.C.T.D.) (QL). 15 Recording of the RPD hearing held on March 12, 2020, at approximately 1:24:29. 16 Recording of the RPD hearing held on March 12, 2020, from 58:05 to 1:01:19. 17 Joseph v. Canada (Citizenship and Immigration), 2018 FC 638. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-08813 RAD.25.02 (January 2020) Disponible en français 10 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