TB8-21656

RAD File / Dossier de la SAR : TB8-21656 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 January 28, 2020 Date de la décision Panel T. Card Tribunal Counsel for the person who is the subject of the appeal Oluwakemi Oduwole Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Katherine Whitelock Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (the "Appellant") is a citizen of Kenya and is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. DETERMINATION [2] The Appeal is dismissed. BACKGROUND AND ALLEGATIONS [3] The Appellant is a citizen of Kenya and alleges that he is bisexual. [4] In March 2016, the Appellant was caught having sex with his long-time same-sex partner, XXXX by XXXX wife. The Appellant had already applied for a Temporary Residence Visa (TRV) to Canada, which he received in April 2016. [5] The Appellant travelled to Canada and made his refugee claim. This claim was refused by the RPD on the basis he was found not to be bisexual as claimed. [6] The Minister of Immigration, Refugees and Citizenship Canada (the "Respondent") intervened at the RPD stage and continues at the Refugee Appeal Division (RAD) stage as respondent to this appeal. ADMISSIBILITY OF APPELLANT EVIDENCE SUBMITTED ON APPEAL [7] In support of this appeal, the Appellant proposed the admission of the following documents as new evidence: a. Email from XXXX to the Appellant dated 5 December 2016;1 and, b. An affidavit from the Appellant's Aunt dated 15 June 2018 with an accompanying police arrest warrant dated 10 May 2018.2 [8] S.110(4) of the Immigration and Refugee Protection Act (IRPA) provides that the Appellants may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected3 in the circumstances to have presented, at the time of the rejection. It is for the Appellants to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of s.110(4) and how that evidence relates to the Appellants.4 [9] In addition, if the new evidence meets one of the explicit legislative factors in s.110(4), then the second step of the analysis is for the RAD to apply the adapted Raza factors endorsed in Singh.5 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. The RAD is not to consider the fourth Raza factor of materiality to the admission of new evidence, which is a consideration for s.110(6) and the request for an oral hearing.6 Email rejected [10] In relation to the email, this was a document discussed at the RPD Hearing and at which time the Appellant said that he did not think he could get the email as he had shut down the email address. [11] In his Memorandum, the Appellant then says that he was "able to re-access the email correspondence which came up during the questioning"7 and was able to produce the proposed document. [12] The Appellant also says that previously he was unable to access this email account, but now says he was able to do so.8 I note that there is nothing in the Memorandum to explain why the account was not accessible prior to the RPD decision, but was accessible afterwards. I also note, following Rule 3(3)(g) of the RAD Rules that it is for the Appellant to explain how the new evidence criteria are met, including s.110(4) on why the document was not reasonably available. [13] I further note in the Appellant's accompanying affidavit that the Appellant says "...I had shut down the email and was of the impression that this would not be retrievable [emphasis added]."9 This indicates that in fact the Appellant had never tried to access this email account prior to the RPD decision and did not try until after he received the decision, at which point he then actually made an attempt to access the account which worked. [14] I am not satisfied that the email was not reasonably available and therefore find the proposed document does not meet the requirements of s.110(4) of the IRPA. [15] Furthermore, even if the document did meet the requirements of s.110(4), I am also not satisfied that it would meet the credibility factor of Singh and Raza. Assessing credibility of a document in this context includes the circumstances in which a document arises. In this case, I find that the document arising after the RPD decision after numerous protests that the document was not available to cast doubt on the provenance of the document. Furthermore, the email is simply typed text with no letterhead or other features indicating it comes from a yahoo account as indicated by the Appellant's email address, nor are there any other security features. [16] When taking these factors into account, even if the document did pass the s.110(4) requirements, I am not satisfied that it would pass the credibility Singh and Raza factor. [17] The proposed document is rejected. Letter and Arrest Warrant rejected [18] In terms of the Letter and Arrest Warrant, I note that while the documents post-date the hearing, they pre-date the RPD Decision. The Appellant has argued that although he was aware of the documents prior to the RPD decision, he "...did not seek guidance from his counsel as he thought the window to prove his case had ended at the hearing."10 [19] I am not satisfied with the explanation provided by the Appellant. The onus lies with the Appellant to establish his case and had the benefit of paid Counsel who would have informed the Appellant to keep him updated with any developments back in Kenya. I therefore find that the documents were reasonably available and do not satisfy the requirements of s.110(4) of the IRPA. The proposed documents are rejected. NO ORAL HEARING [20] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) of the IRPA that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.11 [21] I note the presence of the new evidence submitted by the Respondent which is allowed under s.110(5) of the IRPA. However, I note that this evidence, if accepted, does not justify allowing or rejecting the claim on its own, and therefore the requirements of s.110(6) are not met. An oral hearing therefore cannot be held. ISSUES IN APPEAL Appellant's Arguments [22] The Appellant argued the following issues in his appeal: a. The RPD erred in its assessment of the Appellant's evidence, subsequent negative credibility findings and resulting finding that the Appellant is not bisexual as claimed. b. The RPD did not consider adequately the Chairperson's Guidelines on Sexual Orientation and Gender Identity and Expression12 (the SOGIE Guidelines) when making its analysis and decision. c. The RPD did not consider adequately the documents13 from the Lesbian Gay Bisexual Transgender Queer (LGBTQ) community in Toronto when making its analysis and decision. d. The RPD did not consider adequately the psychological report14 when making its analysis and decision. Respondent's Arguments [23] The Respondent noted that a number of documents that were seized when the Appellant's refugee claim was originally made but then became misplaced within the Respondent's office. These documents were never put before the RPD. It was not until a routine cleanup exercise revealed the documents which are now being disclosed. [24] Further to this, the Respondent has also made the following arguments: a. That the documents that were newly rediscovered have fabricated evidence which undermines the Appellant's credibility. b. That included in the seized documents are several sheets of blank police stationary pre-stamped with police stamps.15 The Respondent argues that this demonstrates these documents were to be used to create fraudulent documents and further undermines the Appellant's credibility. c. That the psychological report16 provided be given low or no weight due to bias exhibited by the author. [25] The Appellant was given a copy of the intervention but did not respond to it. [26] I find that the determinative issues in this case are: a. Credibility b. Sexual orientation identity ANALYSIS [27] I have conducted an independent analysis of the evidence concerned, including reviewing the RPD hearing, as well as considering the Appellant's Memorandum,17 the RPD Decision,18 the Appellant's Basis of Claim (BOC) form19 as amended20 and the Respondent's Memorandum21 amongst other documents. [28] I also bear in mind the SOGIE Guidelines. Relationship with XXXX did not take place [29] The Appellant alleges that he had two major same-sex relationships in Kenya. The first of these was with XXXX. [30] The RPD noted that initially, the Appellant stated that he dated XXXX for about 3 to 3.5 years. The relationship ended when XXXX agreed to get married to a woman. The Appellant then stated he did not communicate with XXXX from about a year after XXXX got married. [31] Later in testimony, the Appellant stated he had communicated with XXXX later asking for pictures of their relationship. The RPD Member asked why XXXX would be willing to do this after almost 14 years of a lack of communication. The Appellant then said in fact he had been in communication with XXXX with events such as meeting at soccer and saying hi. The Appellant said he thought that the RPD Member meant "love communication." [32] The RPD Member did not accept the explanation, noting that the Appellant had been asked several times about when he last communicated with XXXX, and it was not until later when challenged with this inconsistency that his testimony changed. [33] The Appellant has argued that his testimony "...evolved as he had a better grasp of what the panel was asking."22 I do not accept this argument. Firstly, the Appellant was specifically told that if he did not understand a question, he should ask for it to be rephrased. I note that in reviewing the RPD Hearing audio, the Appellant in fact did this, and so knows what should happen when not understanding a question. [34] Secondly, I find that the RPD Member's questions were clear and unambiguous that what was being asked was whether there was any communication of any kind with XXXX more than a year after XXXX got married. In fact, the Appellant even stated "I just wanted to keep off and stay on my own and I did not want to talk to him because of a lot of being busy and doing different activities."23 This answer does not indicate that the Appellant was thinking purely of "love communication." He explicitly says he did not want to talk to XXXX and does not qualify this with reference to love communication. I find that the RPD was correct in finding this undermines the Appellant's credibility about this relationship. [35] The Appellant has also argued that the RPD Member has not taken adequate consideration of the SOGIE Guidelines when considering the Appellant's testimony. However, I find that the questions about communication were perfectly clear, and that a holistic view of LGBTQ relationships does not cure the credibility inconsistencies identified. [36] Overall, I find the RPD did not err in its assessment of the Appellant's evidence on his alleged relationship with XXXX, and its finding that this relationship did not take place as claimed. I uphold the RPD's findings on these issues. Relationship with XXXX did not take place [37] The second major same-sex relationship the Appellant alleges took place in Kenya was with XXXX XXXX It was from allegedly being caught having sex with XXXX by XXXX wife that led the Appellant to flee Kenya. [38] The RPD Member found that the Appellant was very vague with details about the relationship with XXXX, despite the fact this relationship lasted 12 years. [39] The Appellant has argued that his answers have been broadly consistent, and that the RPD Member has failed to consider that there are cultural and other barriers, as set out in the SOGIE Guidelines, in relation to his testimony. [40] The Appellant also argues that the RPD erred by expecting other documentary evidence about the relationship given that homosexuality is illegal in Kenya. [41] I note that it is for the Appellant to prove his case, including that he, on a balance of probabilities, was in a same sex relationship with XXXX. It is not for the RPD Member to disprove this allegation. In this case, I concur with the RPD Member that there simply is not enough evidence, given the length of the relationship, to establish that such a relationship existed with XXXX. The answers given were extremely brief and vague and lacks the expected details. The SOGIE Guidelines do not provide a blanket excuse for vague testimony. [42] On the subject of documentary evidence, it is true that such evidence may not be available. However, again it is for the Appellant to establish his case. Furthermore, the Appellant's argument is inconsistent with his evidence. The implication in the Memorandum is that the appellant was trying to hide a paper trail. However, this goes against the appellant also saying that he was in regular text communication and used emails with XXXX. [43] This then brings us to another reason the RPD Member found the Appellant not credible. The Appellant did not reply to XXXX email, but his answers as to why evolved during the hearing. The Appellant originally stated that he did not reply because of stress, then because he did not know how, then because he could not find a good time, and then because of personal reasons. [44] The Appellant has argued that the psychological report24 confirms the stress the Appellant was undergoing and that this is consistent with his answer. I do not concur. Firstly, the Appellant did not give one answer of stress, but several different ones changing each time. [45] Secondly, I bear in mind the Respondent's argument that the psychological report should be given little to no weight because of bias exhibited by the author. The Respondent makes reference to the case of Moffat25in which the same author (Dr. Gerald Devins) is shown to be in fact exhibiting adversarial bias in his psychological report. [46] I note that in Moffat one of the reasons Dr. Devins was found to exhibit bias was the use of directive language in the report provided in that case. In reading the report in this case, the language does not appear to be directive. [47] Nevertheless, I do find the psychological report to carry little weight as it is not confusion being exhibited in the Appellant's answers. It is evasiveness when challenged. Furthermore, a psychological report does not provide a blanket excuse from the Appellant's burden in establishing his case. [48] I also note that the report does not show that the Appellant is incapable of testifying in his own case. There is reference to taking breaks, and I note that there was nothing raised in the Memorandum showing a lack of accommodation for the Appellant's health needs during the RPD Hearing. [49] Overall in reviewing the evidence before me, I find that the RPD Member did not err in finding the Appellant has failed to establish that the relationship with XXXX genuinely happened and that the Appellant was not credible on this ground. I uphold the RPD's findings on this issue. LGBTQ Organisation documents do not rebut adverse credibility issues [50] The Appellant has argued that while letters from Toronto LGBTQ groups do not establish sexual orientation, they should establish he is a member of that community. [51] I find that the Appellant is rather trying to deflect away from the central issue, which is establishing his sexual orientation identity. As the RPD Member stated, and with whom I concur, the documents provided just prove attendance with these organisations, and nothing more. The documents are therefore incapable of overturning the adverse credibility findings already made. Respondent's arguments and documents [52] I have also considered the documents and arguments provided by the Respondent. Of particular interest is the interception of blank stamped police forms which the Respondent has argued demonstrates that the Appellant intended to manufacture fraudulent police documents. I note the Appellant has done nothing to refute this, and I cannot think of another reason the documents were being sent to the Appellant. I concur with the Respondent that this undermines the Appellant's overall credibility. [53] In relation to the affidavits from XXXX, I take note and concur with the Respondent's argument that different signatures have been used on different affidavits all coming from XXXX, and in one case, a completely unsigned affidavit was included. Again, I note that there is nothing from the Appellant to explain these issues. [54] Accordingly, I find that all of the affidavits from XXXX be given no weight due to unreliability. CONCLUSION [55] Having reviewed the RPD record, Appellant and Respondent's arguments and documents and all other evidence available, I find the RPD did not err in finding the Appellant not credible and not bisexual as claimed. [56] Pursuant to s.111(1)(a) of the IRPA, the RPD's decision that the Appellant is neither a refugee nor a person in need of protection is confirmed. [57] The appeal is dismissed. (signed) "T. Card" T. Card January 28, 2020 Date 1 Exhibit P-2, Appellant's Record, Page 8. 2 Ibid., Pages 10-11. 3 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, Paragraph 51. 4 Rule 3(3)(g)(iii), Immigration and Refugee Board of Canada, Refugee Appeal Division Rules, SOR/2012-257. 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 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 6 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 7 Exhibit P-2, Appellant's Record, Page 15, Paragraph 5. 8 Ibid., Page 19, Paragraph 21. 9 Ibid., Page 4, Paragraph 8. 10 Ibid., Page 19, Paragraph 20. 11 Immigration and Refugee Protection Act, S.C. 2001, c. 27, subsection 110(6). 12 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective Date: 1 May 2017. 13 Exhibit RPD-1, RPD Record, Exhibits 8, 9 and 17, at Pages 257-258, 266-267, 339-365. 14 Exhibit RPD-1, RPD Record, Exhibit 7, Pages 252-255. 15 Exhibit M-1, Respondent's Record, Pages 20-21. 16 Exhibit RPD-1, RPD Record, Exhibit 7, Pages 252-255. 17 Exhibit P-2, Appellants' Record, Pages 14-29. 18 Exhibit RPD-1, RPD Record, RPD Reasons, Pages 3-11. 19 Ibid., Exhibit 2, Pages 12-24. 20 Ibid., Exhibit 11, Pages 25-26. 21 Exhibit M-1, Respondent's Record, Pages 34-40. 22 Exhibit P-2, Appellant's Record, Page 21, Paragraph 28. 23 RPD Hearing Record, 24 January 2018 at 0:37:09-0:37:20. 24 Exhibit RPD-1, RPD Record, Exhibit 7, Pages 252-255. 25 Moffat v. Canada (M.C.I.), 2019 FC 896. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-21656 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français