TB7-11434

RAD File / Dossier de la SAR : TB7-11434 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 Toronto, ON Appel instruit / entendu à Date of decision February 6, 2020 Date de la décision Panel Nadra Qadeer Tribunal Counsel for the person who is the subject of the appeal Max Berger 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 dismiss the appeal of XXXX XXXX XXXX (the Appellant), who is a citizen of Kenya. The Appellant alleges that he is gay and fears persecution in Kenya on account of his sexual orientation. [2] He appeals the decision of the Refugee Protection Division (RPD), denying his claim for refugee protection and asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own decision that he is a Convention refugee or person in need of protection, or, in the alternative, refer his claim back to the RPD for redetermination. The determinative issue before the RPD was credibility. [3] The Appellant submits new evidence as part of his appeal. Decision [4] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee, nor a person in need of protection. Procedural History [5] The Appellant had his claim for refugee protection heard by the RPD on April 11, 2017 and denied in a written decision dated May 8, 2017. [6] A first RAD panel dismissed the Appellant's appeal in a decision dated April 5, 2018. The Appellant applied for judicial review of the RAD decision, which was allowed by the Federal Court. This decision constitutes the second RAD decision. Background [7] The Appellant alleges that he is gay. The Appellant had a number of same sex relationships in Kenya. He alleges that his relationships were discovered while he was in school and he was expelled twice for having same sex relationships. He also alleges that when his family discovered that he is gay, they had him arrested by the police and performed a cleansing ritual. [8] The Appellant also alleges that he was forced to marry a woman, who had a child from a previous relationship, in 2011. [9] The Appellant later travelled to Canada to study in XXXX 2016. He was in a same sex relationship with a man while in Canada and at the time of his RPD hearing. He also became involved in the Lesbian, Gay Bisexual Trans and Queer (LGBTQ) community in Canada. [10] The Appellant was found to be lacking in credibility before the RPD and his claim was rejected. Appellants Arguments [11] The Appellant argues that the RPD erred in its credibility assessment. Specifically, the Appellant argues that the RPD erred on three aspects related to his claim: * The RPD failed to consider the two letters documenting his school expulsion1; * The RPD impugned the Appellant for an omission in his original Basis of Claim (BOC) form regarding the rituals he had to undergo without considering his explanation provided during oral testimony; and, * The RPD failed to engage with the content of the letter from XXXX XXXX XXXX2. Rule 29 new evidence [12] The Appellant did not submit new evidence with his perfected appeal, however, he made a Rule 29 application, requesting the admission of documents after the perfection of his appeal. These include: * Letter by XXXX XXXX XXXX XXXX undated, with Kenyan ID3. The letter is from the Appellant's sister and refers to both events that led the Appellant to make a refugee claim, and events that have taken place since the Appellant has come to Canada; and, * Death Certificate of XXXX XXXX XXXX XXXX dated XXXX XXXX 20174. [13] The Appellant submits that the new evidence is relevant, probative and brings new evidence to the appeal. The Appellant also submits that it arose after the RPD decision from May 8, 2017 and was only received by the Appellant on August 28, 2017. RAD review of the Appeal Analysis of the new evidence [14] The Appellant submits new evidence subject to Rule 29 of the RAD rules. Under Rule 29, the factors to consider as to whether to allow an application include: the document's relevant and probative value; any new evidence the document brings to the appeal; and whether the Appellant could have provided this as part of the appeal record. [15] The Appellant submits that both the letter from his sister and the death certificate for his grandmother arose after the RPD decision. In my review of the new evidence, I find much of the content of the Appellant's sister's letter, which is undated, refers to events that took place in the Appellant's personal history and events he relies upon in his original refugee claim. The Appellant provides no explanation as to why this letter, mostly corroborating the events that occurred in Kenya before he even left the country, was not available as part of his original appeal record (much less his RPD record). [16] The letter also refers to other events that took place since the perfection of the appeal, namely the death of his grandmother and the subsequent problems in the family that have ensued. In my view, while the letter may be relevant, only where it refers to recent events is it probative and could not have formed part of his appeal record. I find that the death certificate and aspects of the letter from the Appellant's sister referring to the new events are admissible at this stage. Even if I were to accept the remainder of the letter from the Appellant's sister, which I do not, I find it does not meet the test as set out in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). [17] Subsection 110(4) of the IRPA provides that Appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [18] In this case, the Appellant's refugee claim was denied in a written decision dated May 8, 2017. I find that that the evidence related to the Appellant's grandmother's death and the Appellant's sister's description of the events that took place as a result of the grandmother's death, meet the statutory test as they took place after the rejection of the claim. [19] The second step in the analysis for new evidence is to consider it in relation to the adapted Raza factors endorsed in Singh.5 In Singh, the Federal Court of Appeal (FCA) held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. The RAD will apply the Raza factors, minus the "materiality" factor, as this is to be assessed in light of subsection 110(6) of the IRPA only. [20] I find the new evidence accepted meets the admissibility test as set out in the jurisprudence. The death of the Appellant's grandmother, the seizing of her properties, as well as the enquiries made about the sexual identity of the Appellant are all relevant, probative, and new. I will accept this evidence and will consider it in relation to the appeal as a whole. [21] I find that the evidence described above is admissible. However, I find that the test under subsection 110(6) of the IRPA is not met and, as such, I am not holding an oral hearing. The Appellant was not a credible witness [22] I have reviewed the RPD hearing, and RPD record. Having conducted my own independent assessment of the record, I find that the Appellant is lacking in credibility. There were numerous contradictions, inconsistencies, and omissions in his evidence before the RPD. His testimony did not resolve many of the problems. Overall, he was not a credible witness. [23] For example, the Appellant alleged in his Basis of Claim (BOC) form that his family forced him to marry a woman. He indicated that it took place in XXXX 2011 and he was legally married.6 He also indicated that the woman he had to marry had a child from a previous relationship7. However, according to his visa application he lists the child from this relationship as his "daughter", and the birth certificate filed with his visa application lists him as the father.8 The RPD found the Appellant's explanation for inconsistencies in his evidence regarding his marriage and relationship to the child unreasonable. I find no error in the RPD analysis and this finding is not challenged by the Appellant. The inconsistencies in the Appellant's account of being forced to marry a woman due to his family's knowledge of his sexual identity is undermined by this evidence in my view. [24] Another example I found is with respect to the Appellant's mother. According to the Appellant's BOC his mother had been very involved in the persecution he suffered in Kenya on account of his sexual identity. She allegedly participated in beating him after his first school expulsion in 2007, rejected him after his second school expulsion in 2008, and was even driven out of the village with him, blamed for giving birth to a gay man. The Appellant alleges his mother also was involved in his forced marriage in 2011. He indicated that his mother died in 2015 and he attended her funeral. [25] However, according to the Appellant's original visa application his mother died before his father, whose death certificate indicates that he died in 2006.9 When asked about this inconsistency in his evidence, the Appellant blamed his grandmother who may have created the document for his visa. The RPD found the explanation unreasonable, given the evidence was that his uncle became his legal guardian after his mother's death and therefore, raises the question as to why his grandmother would be fabricating documents on his behalf. He was unable to provide an explanation aside from speculation. [26] Again, the Appellant does not challenge the RPD's findings on this aspect of his claim. Having reviewed the Appellant's testimony and evidence, I find that his testimony did not resolve inconsistencies and contradictions in his evidence. The Appellant's mother is a central figure in his narrative; at once trying to change him and also involved in his persecution. The inconsistences surrounding her death, prior to 2006 or in 2015, is a central matter in his claim. The RPD's finding that this issue was lacking in credibility undermines many aspects of his claim. [27] The RPD made other uncontested credibility findings that the Appellant does not challenge. In my view, unless I have explicitly addressed it in my analysis (which I do below), I find the RPD's findings are correct. The Appellant is not a credible witness. The RPD erred in failing to consider the two letters of expulsion [28] With respect to the two letters of expulsion from school, the Appellant argues that these are central to his claim and are evidence of his sexual identity causing him problems in Kenya. I agree that the RPD erred in failing to deal with them directly in the decision. This is corroborative evidence that needs to be specifically considered, which the RPD did not demonstrate in its reasons that it did. However, after having reviewed the RPD hearing, I find that the RPD did specifically ask the Appellant questions on these documents. I found there were numerous credibility problems in the Appellant's testimony and the content of the documents vis-à-vis his testimony. [29] The Appellant testified to the RPD that he was expelled from his first high school, XXXX XXXX XXXX XXXX in 2007. He testified that he was "expelled because I was in a homosexual relationship". He described being called by his teacher to the staff room where he was confronted. RPD Member: Did they call your mother at the time or inform your mother of this? Appellant: No RPD Member: At any time did they phone or speak to your mother or did she come to the school? Appellant: No [30] The letter of expulsion states "you as the parents were involved in disciplining him." [31] When the Appellant was asked about the content of the letter and this particular aspect he said he could not explain this. [32] He also testified that following this expulsion his family reported him to the police who arrested and detained him for three days. However, according to the forms he completed as part of his refugee claim, he did not indicate that he was ever arrested or detained in Kenya.10 Here the RPD made findings in its decision, stating that the Appellant could not recall the date of his detention and explained that he was confused and did not realize he forgot to include the police detention in his Canadian immigration forms. The RPD found this to be unreasonable. This finding was not challenged by the Appellant. [33] In my view the first school expulsion is linked to the events that occurred immediately afterwards, including the police detention. The Appellant's inability to provide a consistent account of when this occurred, and the problems with the expulsion letter itself, undermines the Appellant's credibility. Consequently, I place no weight on the expulsion letter. [34] The RPD also asked the Appellant about the second letter of expulsion from XXXX XXXX XXXX.11 The Appellant was asked by the RPD why he was expelled a second time and he testified that he was washing clothes late at night with a friend, "XXXX XXXX XXXX XXXX reported that he had just broken up with a romantic partner and the Appellant then gave XXXX a hug. "I think somebody saw us and reported it but we were not in any kind of relationship or anything." According to the expulsion letter, however, it states that the Appellant was "reported by fellow student and later found with other three boys engaging in funny sexual behavior (otherwise called homosexuality)." The RPD asked the Appellant about contradictions in his evidence and the Appellant alleged that the deputy principal who wrote the letter lied in his letter. This was not the evidence in the Appellant's BOC or affidavit filed with the RPD after his BOC. In my view, the Appellant provided inconsistent testimony about why he was expelled from his second school and the evidence contained in the letter is contradicted by the Appellant's testimony regarding the reasons for the expulsion. I find the letter and the Appellant lacking in credibility. Ritual cleansing [35] The Appellant argues that the RPD erred in its evaluation of the ritual cleansing he had to endure. The RPD found the Appellant's oral testimony and BOC affidavit were different than what he described in his original BOC. Here I agree with Appellant that the omission of the details in the original BOC were rectified with the further details in the BOC affidavit filed later. While I see no omission or inconsistency as the RPD did, I also do not find this issue to be determinative. The Appellant recounted numerous incidences of persecution that were contradicted by his own evidence. I do not find the omission of this incident to have any impact on the overall credibility assessment of the Appellant. Assessment of LGBTQ organizations [36] The Appellant argues that the RPD erred in failing to engage with the content of the letters from LGBTQ organizations, particularly the XXXX XXXX XXXX12. The content of the XXXX XXXX letter refers to the Appellant's self-reporting of his sexual identity to the organization and the steps the organization took to support him. I do not agree with the Appellant's submission that this letter's endorsement of his sexual identity establishes it to be the case, on a balance of probabilities. [37] In my review of the evidence the Appellant was not a credible witness and his testimony, written evidence, and corroborating documents contained numerous inconsistencies and contradictions. The RPD was correct to weigh the support letters from LGBTQ organizations in Canada and find it insufficient to overcome the credibility problems in the claim. I find no error in the RPD analysis and, having conducted my own assessment, I find the letters also insufficient to overcome the credibility problems I have analyzed. The new evidence is insufficient [38] I have considered the new evidence that I have accepted as part of the appeal. The new evidence refers to the death of the Appellant's grandmother and the problems that have ensued. While I accept, on a balance of probabilities, that his grandmother may have died, the evidence that enquiries have been made about his sexual identity I do not find to be credible, on a balance of probabilities. I have taken into consideration the Appellant's overall credibility and the evidence he presented to the RPD. I do not find that this new evidence overcomes the credibility concerns I have raised in my analysis of the appeal. The Appellant was lacking in credibility regarding his family make-up, the critical piece of evidence being when his mother died. He has also been lacking in credibility regarding his expulsions from schools due to his homosexual identity, and his police detention. I do not find the new evidence overcomes all of these findings. Conclusion [39] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee, nor a person in need of protection. The appeal is dismissed. (signed) "Nadra Qadeer" Nadra Qadeer February 6, 2020 Date 1 Exhibit RPD-1, RPD Record, at pp. 214-215. 2 Ibid., at p. 224. 3 Exhibit P-3, Rule 29. 4 Ibid. 5 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in Singh, 2016 FCA 96, at para. 64. 6 Exhibit RPD-1, RPD Record, Appellant's Affidavit, at p.36, at paragraph 40. 7 Ibid., at paragraph 41. 8 Exhibit RPD-1, RPD Record, Exhibit 5. 9 Exhibit RPD-1, RPD Record, Exhibit 4, at p.131. 10 Exhibit RPD-1, RPD Record, Exhibit 1, Schedule 12. 11 Exhibit RPD-1, RPD Record, at p.215. 12 Exhibit RPD-1, RPD Record, at p.224. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-11434 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