TB9-15023

RAD File / Dossier de la SAR : TB9-15023 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 August 31, 2020 Date de la décision Panel L. Gamble Tribunal Counsel for the person who is the subject of the appeal Daniel Tilahun Kebede Conseil de la|des 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. XXXX XXXX XXXX (the Appellant), a citizen of Ethiopia, appeals the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant has submitted new evidence and requests that the Refugee Appeal Division (RAD) hold an oral hearing. She submits that the RPD erred in its credibility assessment as it relates to her claim of being bisexual and in relation to her allegation that she is a member of the Blue Party. She asks that the RAD set aside the decision of the RPD and substitute its own determination that she is a Convention refugee or a person in need of protection. DECISION [2] This appeal is allowed. Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act1 (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. BACKGROUND [3] The Appellant fears persecution in Ethiopia due to her imputed political opinion based upon her membership with the Semayawi Party, or Blue Party, in Ethiopia, as well as the fact that she claims to have continued to support the party in Canada. In addition, the Appellant fears persecution in Ethiopia on the basis of her sexual orientation as a bisexual woman. ANALYSIS Role of the RAD [4] My role is to look at all the evidence and decide if the RPD made the correct decision.2 Inadmissibility of evidence submitted on appeal [5] According to the law,3 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [6] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.4 [7] The Appellant has submitted 13 pieces of new evidence which she requests be admitted for this appeal, pursuant to subsection 110(4) of the IRPA. These documents are: * Psychological assessment by XXXX XXXX, dated XXXX XXXX 2019; * Email from Appellant's sister, XXXX XXXX XXXX, dated XXXX XXXX XXXX 2019; * Copy of text messages and missed calls sent from the Appellant's sister, XXXX XXXX, dated XXXX XXXX XXXX 2019 onwards; * Testimonial letter from XXXX XXXX XXXX, dated XXXX XXXX XXXX 2019 with Kebele Identity card received on XXXX XXXX XXXX 2019; * Personal letter from XXXX XXXX XXXX, dated XXXX XXXX XXXX 2019; * Photographs of the appellant and her partner dated XXXX XXXX XXXX 2019 and XXXX XXXX XXXX 2019; * Letter from Metropolitan Church with identity card and attendance sheet, dated XXXX XXXX, 2019; * Photographs and letter, dated XXXX XXXX XXXX 2019; * Letter from Africans in Partnership Against AIDS (APAA), dated June 25, 2019; * Affidavit of XXXX XXXX, dated XXXX XXXX XXXX 2019; * Affidavit of XXXX XXXX, dated XXXX XXXX XXXX 2019; * BBC report, "Ethiopia religious anger over US gay tour plan", dated June 4, 2019; * VOA report, "Ethiopia religious anger over US gar tour plan", dated June 6, 2019. [8] The Appellant submits these items "prove" her sexual identity and that her ex-fiancé is attempting to take custody of the Appellant's son as a result of her bisexuality being discovered by him, but the Appellant does not describe which items support this argument, or how.5 In respect of seeking the new items be admitted as evidence in the present appeal, the Appellant's memorandum does not make any submissions on the proposed new evidence or why the RAD ought to admit it in accordance with subsection 110(4) and the criteria set out in Singh. Instead, it refers summarily to the Appellant's written statement, which does not provide much more information, other than to state that 9 of the items post-date the rejection of the claim, and "the rest of the documents contain information which may not be new. However, it is submitted they meet the statutory conditions."6 The Appellant goes on to indicate her position that whatever documents are not, on their face, new ought still to be admitted as they contradict factual findings of the RPD.7 [9] The RAD finds these submissions are vague and do not assist in setting out how the items which do not clearly post-date the claim are nonetheless admissible. It also does not set out - in the memorandum or the written statement - how these documents relate to the Appellant, or further the position in her appeal, other than to say in a very general sense that they contradict findings of the RPD relating to the Appellant's sexual identity. It is not for the RAD to do the job of the Appellant, who is represented by counsel. The RAD is not in the position to make assumptions on what particular portion of any particular document is relevant and how it is relevant to the Appellant's case. It is the Appellant's job, through counsel, to explain the relevance of the evidence adduced and how the criteria under subsection 110(4) are met. This was not done in this case. [10] Given the insufficient arguments with respect to the admissibility of the new items of evidence submitted and given that the RAD has reviewed the record and can make a determination in this appeal without the new evidence, I decline to admit it. Request for oral hearing rejected [11] The Appellant requests an oral hearing with respect to the new evidence adduced, pursuant to subsection 110(6) of the IRPA. When read together, subsections 110(3), (4) and (6) of the IRPA establish that the RAD must not hold a hearing unless there is new evidence admitted in accordance with the provisions of subsection 110(4) which raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision and that, if accepted, would justify allowing or rejecting the refugee protection claim. As no new evidence has been admitted, the Appellant's request for an oral hearing is denied. Merits of the Appeal [12] The RPD rejected the Appellant's claim on the basis of credibility,8 finding that the Appellant was not a member of the Blue Party, and therefore would not face a risk on that basis; nor was the Appellant credible in her claim to be bisexual. [13] I have reviewed the record, and I agree with the RPD in finding9 that the Appellant was not credible in her allegation that she is or was a member of the Blue Party, and therefore, I also agree with the RPD's finding that she would not face a forward-looking risk in Ethiopia on the basis of her perceived political opinion. The Appellant does not seriously challenge the credibility findings of the RPD in respect of her Blue Party membership and evidence thereof; instead, the Appellant simply alleges that the RPD erred in finding she was not a refugee sur place, as her evidence showed "sur-place activism" according to the Appellant.10 However, I agree with the RPD in finding that the Appellant has not credibly established, on a balance of probabilities, that she is an active or vocal political opponent or that she has a political profile such that she would be a person of interest to Ethiopian authorities if she returns to Ethiopia.11 [14] However, after my own review of the record, I cannot sustain the negative credibility findings of the RPD with respect to the Appellant's claim to be bisexual. For the reasons below, I accept the Appellant's evidence that she is a bisexual woman, and that she would have a well-founded fear of persecution in Ethiopia on this basis. Therefore, I substitute my own finding that the Appellant is a Convention refugee on the basis of being a member of a particular social group, namely, bisexual women. The Appellant has established her sexual orientation as a bisexual woman on a balance of probabilities [15] The RPD found that the Appellant had not credibly established that she had had a relationship with two women, her girlfriend in Ethiopia "M." or her current girlfriend in Canada, "S."12 Ethiopian Girlfriend [16] The RPD found the Appellant's allegation that her ex-fiancé had discovered her relationship with M. in Ethiopia after finding a single photo of the two women kissing was not credible, as the Appellant could not remember when she had taken the photo, nor could she explain why she had taken the photo given the risk she would face if it were discovered, given that homosexuality is illegal in Ethiopia.13 The RPD also drew negative inferences from the fact that the photo of the Appellant and her girlfriend was not in evidence, and rejected the Appellant's explanation that she had deleted it as soon as her ex-fiancé had discovered it. In addition, the RPD also drew a negative credibility inference from the fact that the transcribed audio recording between the Appellant and her ex-fiancé makes no mention of the photo or the Appellant's alleged bisexuality, and found that the Appellant's explanation therefor was evasive.14 [17] The Appellant argues that the RPD erred in its assessment of her evidence by failing to consider her explanation that the single photo of her with M. was left on her phone by accident, and that she had thought she had deleted them all. I accept this explanation as reasonable, and in addition, I find that the RPD's finding that it was unreasonable to have kept a photo of herself kissing her girlfriend in light of the illegality of homosexuality in Ethiopia does not accord with the guidance set out in Guideline 9, which instructs "It may also be plausible that an individual with diverse SOGIE has engaged in activity that might put them at risk in their country of reference." 15 I conclude that the RPD's negative credibility finding is therefore in error, as the RPD unreasonably dismissed the Appellant's explanation for having inadvertently kept the photo. It is in error to fault the Appellant for taking such photo(s) simply on the basis that it would potentially put her at risk due to the illegality of homosexuality in Ethiopia, pursuant to Guideline 9. [18] In a similar vein, the RPD also drew negative credibility inferences from the Appellant's account of two public acts of romantic affection with her girlfriend, M. - one which took place in a gym change room and the other at a bar - finding that these accounts "lacked an air of reality" given the serious consequences of homosexuality in Ethiopia.16 The Appellant argues that the RPD erred in drawing negative credibility findings from these events, as the RPD failed to consider the Appellant's explanations that, with respect to the gym incident, the change room was empty at the time, and with respect to the bar incident, the Appellant stated in her Basis of Claim (BOC) form and in testimony that she and M. were intoxicated at the time, which may have impaired their judgment over what romantic expressions where appropriate in a public place.17 The Appellant rightly notes that Guideline 9 cautions against implausibility findings based on stereotypes, including how an Appellant might be expected to behave, especially with respect to her actions in hiding, or using caution to avoid disclosure, of her same-sex relationship.18 I agree. Considering the Appellant's explanations that she and her girlfriend engaged in romantic expressions with one another in a gym change room which was empty at the time, and again at a bar while under the influence of alcohol, I do not find that these actions lack an air of reality in light of the serious consequences of homosexuality in Ethiopia. In accordance with Guideline 9, it is not unreasonable that the Appellant would risk engaging in homosexual activities in these circumstances simply given the anti-homosexual climate in Ethiopia. I find no major inconsistencies or contradictions in the Appellant's evidence in respect of her allegations about her girlfriend in Ethiopia, and therefore draw no negative inferences from the Appellant's allegations in respect of these events. [19] With respect to the Appellant's allegation that she engaged in a homosexual relationship with M. in Ethiopia, the RPD found the Appellant's reaction of "surprise" when it asked whether she had considered repercussions for her son if her relationship with M. was discovered indicated her account was not credible, as her "surprise" indicated to the RPD that she had not considered her son's safety if she was caught engaging in illegal activity. The RPD found that this perceived reaction of surprise, and the consequent inference that the Appellant had not considered the safety of her son in her public actions with M., undermined the Appellant's credibility overall.19 [20] The Appellant argues that the RPD was overzealous in making an adverse credibility finding from the Appellant's perceived surprise regarding consideration of the impact on her son if her sexual orientation was exposed, and failed to consider the Appellant's psychological assessment in considering her apparent surprise.20 While it is not argued how the psychological assessment would have provided context to assist the Appellant, I do find that the RPD erred in its finding that she was surprised by the panel's question about whether she had considered her son in undertaking her public expressions of affection with her girlfriend, and from that perceived surprise, erred in its conclusion that her perceived reaction indicated she had not considered the impact of exposure of her sexual identity on her son. The RPD found the Appellant's "surprise indicates that she had not considered possible consequences of her bisexuality (and its discovery) for her son. The fact that she had not done so undermines the credibility of [her] account because she could reasonably have been expected to have considered the impact on her child of publicly engaging in illegal activity in Ethiopia, if indeed she had done so."21 It appears as though the RPD's finding that the Appellant ought to have considered the impact of exposure of her sexual identity on her son impacted the RPD's assessment of her credibility, based on the assumption that the Appellant would not have engaged in homosexual expressions or behaviour at all in Ethiopia simply out of concern that it could impact her child. Such a finding would not accord with the instruction in Guideline 9 to avoid making implausibility findings based on stereotypes; it would also mean the erroneous conclusion that the only reasonable course of action for individuals of diverse Sexual Orientation and Gender Identity Expression (SOGIE) with children would be to refrain from any expression of their sexual identity while in a country where such expression would place them or their families at risk. Such a finding is untenable, and I find it was overzealous of the RPD to draw a negative credibility finding against the Appellant's evidence overall simply based on the perceived reaction of surprise to a question posed. [21] Further, a review of the Appellant's hearing indicates she was asked by the panel if her son could face any problems if it was known in Ethiopia that his mom is bisexual. The Appellant replied that bad things could happen to her son in Ethiopia, and even if the government would not have a concern with him over it, other people would ostracize him and he would be shunned by his friends. In the RAD's view, this is a reasonable answer to the question, and does not indicate a sufficient basis to conclude the Appellant was surprised by the thought to the extent that it undermined her credibility generally. I draw no negative credibility finding from the Appellant's answer with respect to whether she had ever considered the impact on her son of her homosexual identity being exposed in Ethiopia. [22] Lastly, the Appellant notes that her relationship with M. in Ethiopia is corroborated by a letter from M., which the RPD found credible.22 I have reviewed the letter23 and there are no reasons to doubt it on its face; as such, I agree with the Appellant that this letter provides corroborating evidence in support of her claim to be bisexual. As such, I accept that the Appellant has provided evidence which credibly establishes, on a balance of probabilities, that she was in a romantic relationship with a woman in Ethiopia, and therefore that she is bisexual. Canadian Girlfriend [23] Given my finding above that the Appellant has established her bisexuality on a balance of probabilities, this is a sufficient basis on which to substitute a positive finding with respect to her appeal and I need not go on to assess the credibility of her allegations that she is currently engaged in a romantic relationship with a woman in Canada. However, after an assessment of the record, I would note that I also accept as credible, on a balance of probabilities, the Appellant's allegation that she is currently in a romantic relationship with a woman in Canada. [24] The RPD found that the relationship between the two women was that of friends and roommates, but not of girlfriends in a romantic relationship;24 although the RPD also found it "more likely than not" that the two women share a bedroom.25 The RPD noted concerns over the inconsistencies between the Appellant's evidence and her girlfriend's evidence regarding on which holidays they exchanged gifts, and what gifts were exchanged, and rejected the Appellant's explanation that her girlfriend was in mourning over the recent death of her father, which is why she "messed up" her testimony.26 It is noteworthy that at the second sitting, the Appellant provided evidence of her girlfriend's father's death for the panel to consider, thus corroborating her explanation for the inconsistencies in their testimony.27 I am prepared to accept as reasonable the Appellant's explanation that her girlfriend made mistakes in her testimony due to her state of mind, in light of the recent death of her father,28 and overall, I accept as credible the Appellant's evidence that she continues to be involved in a romantic relationship with a woman in Canada. Other evidence in support of the Appellant's bisexual orientation [25] The RPD assessed the Appellant's documentary evidence in support of her bisexual identity, finding that the Appellant showed no genuine interest in participating in Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) organizations in Canada, because the Appellant had testified that she had registered online with the 519 Community Centre but had not followed up on opportunities to volunteer.29 The Appellant argues the RPD misstated her evidence, which was that she had signed up online as instructed, and was waiting to volunteer, but had not been called back by the organization as yet.30 I find the RPD erred in drawing a negative credibility finding about the Appellant's sexual orientation from her lack of involvement with LGBTQ groups in Canada, particularly in light of the instruction in Guideline 9, which indicates that an example of an impermissible implausibility finding would be one based on the assumption that "[i]ndividuals with diverse SOGIE would actively participate in LGBTIQ+ culture in Canada, including frequenting LGBTIQ+-predominant areas and social establishments, or be involved in community organizations and groups."31 In light of this guidance, I cannot find that the Appellant's apparent lack of involvement with the 519 in Canada should be counted against her, nor that it indicates a credibility concern with respect to her allegation of being bisexual. [26] Moreover, I find that the RPD erred in fact in this conclusion because, although she had not actively volunteered with the 519 despite registering with them, the Appellant did testify to volunteering with the APAA, which was supported with a letter from the organization attesting to her volunteer involvement, "including Pride LGBTQ parade Toronto, Caribanna, Unity Mosque Iftar at 519 and Afrofest on which she helped in passing safer sex and HIV awareness resources to attendees. In addition, XXXX volunteered in conducting HIV awareness outreach on locations including convenient stores, community health centers and refugee shelters [sic]." 32 [27] The RPD also faulted the Appellant for having used "insensitive language" in describing the Toronto Pride Parade, which the RPD found undermined her credibility as a bisexual woman. The RPD noted that the Appellant testified that the Pride Parade was attended by LGBTQ individuals and "'normal' people", and rejected her explanation which was that the "insensitive" connotation of the word "normal" to describe heterosexual attendees of Pride resulted from issues related to the translation between Amharic, the language in which she testified, and English.33 The Appellant argues the RPD erred by failing to accept this explanation, and for not considering the Appellant's cultural context in providing this testimony. The Appellant points out that the RPD failed to apply Guideline 9 in drawing a negative inference from her use of the term "normal" people, as the Guideline explicitly indicates that people of diverse SOGIE may have experienced internalized homophobia.34 In considering and applying Guideline 9, I draw no negative inference from the Appellant's description of the attendees of Pride Toronto in the terms that she used, and I do not find that this undermines her allegation that she is a bisexual woman. Country Condition Documents: State Protection and internal flight alternative [28] The National Documentation Package (NDP) for Ethiopia indicates that homosexual acts are illegal in Ethiopia and are punishable with up to 15 years' imprisonment. Moreover, there are no laws prohibiting discrimination against lesbian, gay, bisexual, transgender or intersex (LGBTI) people, nor are there specific hate-crime laws. Activists in the LGBTI community in Ethiopia have reported surveillance and feared for their safety.35 Given that the law covers the whole of the country, I find there would be no viable internal flight alternative for the Appellant, nor would she be able to benefit from state protection. [29] In addition, the documents indicate the high prevalence of societal discrimination in Ethiopia against individuals of diverse SOGIE, and LGBTQ+ individuals in Ethiopia often conceal their sexual orientation or gender identity to avoid severe social stigma, including from their families. In addition, there were reports of violence against LGBTI individuals; however, reporting was limited due to fear of retribution, discrimination, or stigmatization, and individuals generally did not identify themselves as LGBTI persons due to severe societal stigma and the illegality of consensual same-sex sexual activity. 36 Therefore, I find the Appellant, as a bisexual woman, has a well-founded fear of persecution should she return to Ethiopia. CONCLUSION [30] I find that the Appellant has established, on a balance of probabilities, the material elements of her claim that she is a bisexual woman. As such, there is sufficient credible evidence on which to make the determination that the Appellant has a well-founded fear of persecution in Ethiopia by reason of her membership in a particular social group, bisexual women, and that she is therefore a Convention refugee. [31] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the IRPA, I substitute my own decision that the Appellant is a Convention refugee. (signed) L. Gamble L. Gamble August 31, 2020 Date 1 Immigration and Refugee Protection Act (S.C. 2001, c. 27), as amended, at para. 111(1)(b). 2 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII). 3 Immigration and Refugee Protection Act (S.C. 2001, c. 27), as amended, at ss. 110(4). 4 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385, as endorsed in Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII), [2016] 4 FCR 230. 5 Exhibit P-2, Appellant's Record, p. 107, para. 70. 6 Ibid., p. 88, paras. 6-7. 7 Ibid., p. 89, paras. 10-11. 8 Exhibit RPD-1, RPD Record, RPD Reasons, p. 4, para. 3. 9 Ibid., pp. 16-17, paras. 57-59. 10 Exhibit P-2, Appellant's Record, pp. 106-107, paras. 66-69. 11 Exhibit RPD-1, RPD Record, RPD Reasons, p. 17, para. 60. 12 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision, pursuant to para. 5.3 of the Chairperson's Guideline 9. 13 Exhibit RPD-1, RPD Record, RPD Reasons, pp. 7-8, paras. 20-21. 14 Ibid., p. 8, paras. 22-23. 15 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Update, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. IRB, Ottawa, Effective date: May 1, 2017, at para. 7.5. [Guideline 9] 16 Exhibit RPD-1, RPD Record, RPD Reasons, p. 8, para. 25. 17 Exhibit P-2, Appellant's Record, p. 99, paras. 40-41. 18 Ibid., p. 101, paras. 45-47. 19 Exhibit RPD-1, RPD Record, RPD Reasons, pp. 8-9, paras. 26-27. 20 Exhibit P-2, Appellant's Record, p. 102, paras. 49-50. 21 Exhibit RPD-1, RPD Record, RPD Reasons, pp. 7-8, paras. 26-27. 22 Exhibit P-2, Appellant's Record, p. 102, para. 51. 23 Exhibit RPD-1, RPD Record, Exhibit 5, p. 98-99. 24 Exhibit RPD-1, RPD Record, RPD Reasons, p. 9, para. 29. 25 Ibid., p. 10, para. 34. 26 Ibid., pp. 9-10, paras. 30-34. 27 Transcript of April 23, 2019, RPD hearing, p. 2, lines 31-47. 28 Exhibit P-2, Appellant's Record, pp. 105-106, paras. 62-65. 29 Exhibit RPD-1, RPD Record, RPD Reasons, p. 11, para. 36. 30 Exhibit P-2, Appellant's Record, p. 103, para. 52. 31 Guideline 9, supra, endnote 14, at paras. 6.1 and 7.2.3. 32 Exhibit RPD-1, RPD Record, Exhibit 5, p. 107. 33 Exhibit RPD-1, RPD Record, RPD Reasons, p. 11. para. 37. 34 Exhibit P-2, Appellant's Record, p. 105, para. 61, citing Guideline 9 at para. 7.5. 35 Exhibit RAD-1, National Documentation Package (NDP) for Ethiopia (June 30, 2020), items 2.1 and 1.4, at pp. 36-37. 36 Item 1.4, op. cit., pp. 36-37. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-15023 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