VB9-06173

RAD File / Dossier de la SAR : VB9-06173 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 August 5, 2020 Date de la décision Panel Alison Kennedy Tribunal Counsel for the person who is the subject of the appeal Amado Alexis Garcia Claros 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 this appeal. XXXX XXXX XXXX (Appellant) is a citizen of Ghana. He is appealing a decision of the Refugee Protection Division (RPD) that he is not a Convention refugee or a person in need of protection. BACKGROUND [2] The Appellant alleges that he is bisexual and that he fled Ghana after he and his partner were attacked after leaving a gay club in Accra. The Appellant alleges that he managed to escape the attack, but that his partner was killed. The Appellant also alleges that he fears Land Guards who attempted to illegally appropriate land that the Appellant inherited from his father. [3] The RPD found that the Appellant failed to prove that he is bisexual as alleged. The RPD also found that the Appellant had not proven that he would be at risk by the Land Guards whom he alleges were attempting to take his land before he left Ghana. The RPD also determined that the Appellant's failure to seek protection in Canada at an earlier time showed a lack of subjective fear. [4] The Appellant alleges that the RPD erred in determining that he has not proven that he is bisexual. The Appellant made no arguments with regard to the RPD's findings regarding the risk he would face as a result of the Land Guards if he returns to Ghana, or its finding regarding the Appellant lacking subjective fear. As such, I will not consider these issues further. DETERMINATION [5] I find that the Appellant has failed to prove that he is bisexual, on a balance of probabilities, and that he would, therefore, face a serious possibility of persecution or a risk to his life if he returns to Ghana. In rendering this decision, I have considered and applied the Chairperson's SOGIE Guidelines.1 ANALYSIS Appellant's sexuality RPD's findings [6] The RPD found that the Appellant's testimony with regard to his sexuality was vague, evasive, and inconsistent. For instance, the RPD noted that his evidence was inconsistent about when he first became intimate with his same-sex partner in Ghana. The RPD also found that the Appellant failed to describe the emotional or psychological process of being a gay man in a homophobic society. It also expressed concern that the Appellant failed to provide supporting evidence from family members who were directly aware of his sexuality. [7] While the RPD considered the evidence provided by LGBTQ organizations and individuals in Winnipeg, it found that these letters deserved little weight because these individuals did not have first-hand evidence of the Appellant's sexual orientation. The RPD also found that, while these letters show the Appellant is supportive of TLGBTQ+ issues in Canada and Ghana, that they did not corroborate his allegation that he is gay or bisexual. Appellant's arguments [8] The Appellant submits that his participation in the gay community in Canada is evidence of his sexuality, and that the RPD erred in giving this evidence little weight.2 The Appellant further argues that there is no definitive way to identify someone as being gay or bisexual. As such, the RPD erred when it found the Appellant's description of his sexuality to be lacking.3 [9] Furthermore, the Appellant argues that the RPD erred in finding a contradiction in his evidence about his same-sex relationship. He argues that it was not a contradiction for him to state that he was attracted to men since childhood, and also that he did not have same-sex relations with someone until he was 25.4 The Appellant further argues that the RPD erred in impugning his credibility because he had not been in a same-sex relationship since arriving in Canada.5 Finally, the Appellant argues that the RPD erred in finding that its credibility findings were sufficient to overcome the presumption of truthfulness.6 RAD findings [10] I have considered the SOGIE Guidelines and their guidance, including that relationships among sexual minorities may be quite different than heterosexual relationships, may not evolve along the same trajectory as non-SOGIE relationships, and are often hidden.7 However, I nonetheless find that a strong negative inference regarding the credibility of the Appellant and his allegations results from the inconsistencies in the Appellant's evidence about his sexuality and previous relationships, as well as his failure to provide any personalized evidence about his sexuality. [11] For instance, the Appellant testified during the RPD hearing that he realized he was attracted to men and women at the age of 25. The Appellant later testified that he realized he was attracted to his male friend when they were children in school, thereby contradicting his earlier testimony about realizing his attraction to males at the age of 25. [12] Similarly, the Appellant failed to provide consistent evidence about the relationships he alleges having in Ghana. The Appellant first explained that he was in a relationship with a female in Ghana when he was fifteen. The Appellant then testified that he and his male childhood friend were dating each other at this same time. When asked to clarify if he was in two relationships simultaneously, the Appellant explained that he was dating his male friend at this time and was simply friends with the female. However, this response contradicted his initial testimony about being in a relationship with a female when he was 15. Furthermore, I note that the Appellant's evidence that he dated both men and women at a young age is also not consistent with his evidence that he realized his attraction to men and women at the age of 25. [13] Moreover, the Appellant testified at the start of the hearing that he began his relationship with his friend when he was 25. Later he testified that the relationship began when they were school aged. When asked to clarify when this relationship began, the Appellant stated that he and his friend started dating when they were younger but that they got more serious at the age of 25. I do not accept the Appellant's explanation on this point, given that the question being answered was when the relationship began, rather than when it became more serious. Furthermore, I note that this is but one inconsistency in the Appellant's varying and inconsistent evidence about whom he dated and when. As a result of these inconsistencies, I do not find that the Appellant's evidence regarding his alleged relationships to be reliable or credible. [14] The Appellant also failed to provide any evidence about how he realized he was bisexual and his feelings about his bisexuality. When asked what his bisexuality meant to him, the Appellant explained that it meant he liked both men and women, without providing any personalized or contextual information in response to this question. Although both the RPD and his counsel asked him many questions about his sexuality in order to give him the opportunity to express his feelings on the subject, the Appellant failed to provide any in-depth evidence to describe his feelings regarding his sexuality or information about how he came to learn of his sexuality. Indeed, the Appellant's description of his sexuality was fundamentally limited to him recounting the existence of his alleged relationships, while failing to provide any other personalized evidence regarding his knowledge or feelings about his sexuality. [15] While the Appellant's testimony is subject to a presumption of truth, I find that this presumption is rebutted as a result of the inconsistencies in the Appellant's evidence about his sexuality and relationships, as well as his failure to provide any personalized evidence about his sexuality and what it means to him. [16] I am cognizant of the supporting evidence in this instance, including the Appellant's evidence from LGBT community members in Winnipeg and the letter from his friend XXXX XXXX. However, I find that this evidence does not outweigh the credibility concerns noted above. Furthermore, while the evidence provided by the Appellant regarding his participation in the LGBT community within Winnipeg shows that he is supportive of TLGBTQ+ issues in Canada and Ghana, I find that this evidence does not prove that he is gay or bisexual, especially where his own testimony on his sexuality has been found to lack credibility. [17] As a result of the multiple inconsistencies in the Appellant's evidence regarding his sexuality and his failure to provide any personalized evidence about his sexuality, I do not find that the Appellant has proven, on a balance of probabilities, that he is bisexual as alleged. As such, I do not find that he has proven there is a serious possibility of persecution if he returns to Ghana or, on a balance of probabilities, a risk to his life, a risk of torture, or a risk of cruel and unusual treatment or punishment. CONCLUSION [18] 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. (signed) Alison Kennedy Alison Kennedy August 5, 2020 Date 1 Chairperson's Guideline 9: Proceedings before the IRB involving Sexual Orientation and Gender Identity and Expression (SOGIE Guidelines). 2 Exhibit P-2, Appellant's Record, Memorandum at p. 8. 3 Memorandum, ibid. at p. 8-9. 4 Memorandum, ibid. at p. 9. 5 Memorandum, ibid. at p. 11. 6 Memorandum, ibid. at p. 12, see Maldonado v. Canada (MEI), [1980] 2 F.C. 302 (C.A,); 31 N.R. 34 (F.C.A.). 7 SOGIE Guidelines, supra note 1 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-06173 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