TB7-21590

RAD File / Dossier de la SAR : TB7-21590 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, ON Appel instruit / entendu à Date of decision February 20, 2019 Date de la décision Panel T. Card Tribunal Counsel for the person(s) who is(are) the subject of the appeal Adrienne C. Smith Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (the "Appellant") is a citizen of Uganda. He is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection on the basis that he was found not to be bisexual as claimed. DETERMINATION [2] I am allowing the appeal and refer the matter back to the RPD for redetermination by a differently constituted panel. BACKGROUND [3] The Appellant is a citizen of Uganda and alleges to be bisexual. The Appellant had a long-term same-sex relationship with a man named XXXX in Uganda. The Appellant's stepmother, along with some other family members, found out about the relationship. The Appellant's stepmother was supportive of the relationship. [4] The Appellant was attacked in XXXX 2016 by a mob, and was then arrested and detained by the police. The Appellant was released and went home. Later, the Appellant's father stormed into the Appellant's home with the police and threatened to kill the Appellant for bringing shame on the family due to his sexual orientation. [5] The Appellant and his stepmother left Uganda on XXXX XXXX 2017. The Appellant made his refugee claim. The stepmother is not part of this claim, but is in Toronto. [6] At the RPD hearing, the RPD Member found the Appellant not credible in relation to his claimed sexual orientation and about the events alleged to have taken place in Uganda. At the end of the hearing, the RPD Member suggested that the Appellant's stepmother provide evidence and testify. The Appellant submitted a letter from his stepmother, which included an expression of willingness to testify. The RPD Member refused the request to have another hearing to allow her to give oral testimony. ADMISSIBILITY OF NEW EVIDENCE [7] The Appellant did submit a number of new documents with his Appellant's Record in support of his appeal, as well as a Rule 29 Application. However, as the matter is being referred back to the RPD, I do not need the documents to make this decision, and the documents can be submitted at the new RPD hearing, no further analysis of the admissibility of the documents is required. NO ORAL HEARING [8] As the determinative issue involves evidence that was available before the RPD, which cannot be analysed at a Refugee Appeal Division (RAD) hearing, no oral hearing can be held in this case. ISSUES IN APPEAL Appellant's Arguments [9] The Appellant made a number of arguments in his Memorandum about why he felt the RPD erred in its decision. One of the arguments made was that the RPD erred by making a procedural error in requesting witness testimony, and then refusing the testimony when it was offered. I find this to be the determinative issue in this case. ANALYSIS [10] Of particular interest is Paragraphs 20 and 21 of the RPD decision. In this, the RPD Member sets out how he recommended the Appellant provide an affidavit from his stepmother and/or testify on his behalf. He then confirms that the requested affidavit was provided and that the affidavit contained a willingness by the stepmother to testify. [11] The RPD Member then stated that while he accepted the affidavit as post-hearing evidence, he gave it little weight. He then rejected the request for a further sitting to allow the stepmother to give oral testimony despite recommending she come in and give testimony in the first place. The RPD Member effectively changed the goalposts on the Appellant without warning. [12] I concur with the Appellant's argument that the RPD made a procedural error in specifically requesting testimony, and then when it was offered, rejecting the opportunity to give such testimony. This error is a procedural one, and a breach of natural justice. [13] As the affidavit was accepted as post-hearing evidence before the RPD, it cannot then be considered as new evidence before the RAD, and a RAD hearing therefore cannot be held to hear the stepmother's evidence. [14] The stepmother's evidence is crucial to the issue of the Appellant's alleged sexual orientation and same-sex activities in Uganda, as she is apparently a direct witness to these activities. The only remaining option in this appeal therefore is a new RPD hearing. CONCLUSION [15] Where the RAD is unable to confirm, or set aside and substitute its own decision without hearing evidence presented to the RPD, s.111(2)(b) of the Immigration and Refugee Protection Act (IRPA) allows me to return the case to the RPD for re-determination. I choose to do so in this case. (signed) "T. Card" T. Card February 20, 2019 Date [16] Accordingly, pursuant to s.111(1)(c) of the IRPA, I allow the appeal and refer the matter to the RPD for re-determination by a differently constituted panel. RAD File / Dossier de la SAR : TB7-21590 RAD.25.02 (September 18, 2018) Disponible en français 4 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 (September 18, 2018) Disponible en français