MB8-10358

RAD File No. / No de dossier de la SAR : MB8-10358 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 Montréal, QC Appel instruit / entendu à Date of decision November 20, 2019 Date de la décision Panel Me Isabelle Parizeau Tribunal Counsel for the person who is the subject of the appeal Me Claudette Menghile Conseil de 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] XXXX XXXX XXXX (the appellant), a citizen of the Democratic Republic of Congo (the DRC), is appealing against the decision by the Refugee Protection Division (RPD) rejecting her refugee protection claim due to lack of credibility. [2] The appellant states that she has feared physical violence from her father since she revealed to him in 2013 that she is a lesbian. She also fears name-calling and insults from her friends and family. [3] The Refugee Appeal Division (RAD) is of the opinion that the determinative issues are the appellant's credibility and subjective fear. [4] The RAD agrees with the RPD's conclusion with respect to the appellant's credibility and subjective fear, confirms the RPD's negative determination and dismisses the appeal. BACKGROUND [5] The appellant allegedly arrived in Canada to study on XXXX XXXX XXXX 2012. She filed a refugee protection claim on February 13, 2017. [6] The RPD did not believe the appellant's sexual orientation claim. It did not assign any probative value to the documentation filed to support it. It drew a negative inference from the lack of evidence to corroborate her romantic relationship with a woman she met in Canada. It found her credibility was undermined by the contradiction between her statement that her father stopped paying for her studies after learning of her homosexuality and a letter from him declaring custodianship for her tuition fees. It also found the delay in filing a refugee protection claim to be excessive and concluded that this demonstrated inconsistent behaviour. [7] According to the appellant, the RPD erred: - by drawing an inference from her father's custodianship letter, because it was not authentic; - by speculating that she had his financial support because she had studied at university in the fall 2013 and winter 2014 semesters; - by faulting her for not filing a refugee protection claim when she was unaware that sexual orientation could justify such a claim; - by, for no valid reason, assigning no probative value to a letter from her first sexual partner in the DRC and photographs; and - by faulting her for not having the partner she met in Canada testify. [8] The Minister of Immigration, Refugees and Citizenship (the Minister) intervened before the RPD on the grounds of credibility. He did not provide any submissions. He filed documents relative to study and work permits since 2012, including the appellant's father's custodianship letter dated XXXX XXXX, 2016, and the letter rejecting renewal of the study permit dated XXXX XXXX XXXX 2017. The Minister did not intervene on appeal. [9] Following the RPD's determination, the appellant filed three screenshots from the XXXX XXXX XXXX XXXX (screenshots) as new evidence. The RAD does not accept these screenshots as new evidence for the reasons explained below. ADMISSIBILITY OF NEW EVIDENCE [10] The hearing before the RPD took place on April 6, 2018, and the decision was rendered on April 13, 2018. [11] On the same date she filed her memorandum with the RAD, the appellant submitted an affidavit and accompanying screenshots as new evidence.1 [12] The admissibility of new evidence before the RAD is determined pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and the factors in Raza,2 as adapted in Singh.3 [13] In order for evidence to be admissible under subsection 110(4) of IRPA, the appellant must submit only evidence which has become available since the claim was rejected, which was not reasonably available prior to rejection, or which the appellant could not have been reasonably expected to submit given the circumstances at the time of rejection. [14] The appellant has submitted three screenshots that show she has been an international student, not in good standing, since XXXX XXXX XXXX 2014, and that she owes $XXXX XXXX XXXX XXXX XXXX to the XXXX XXXX XXXX.4 These documents refute the RPD's speculation that she paid her tuition. In her affidavit, the appellant states that, very shortly after the hearing, she requested a letter or statement of account from the university, to no avail. The appellant alleges that she is filing the screenshots as new evidence because it was completely unforeseeable that the question of payment or nonpayment of tuition would become a central factor in the RPD's decision. [15] The RAD concludes that the screenshots do not meet the criteria in subsection 110(4) of IRPA. This evidence did not become available after the refugee protection claim was rejected on April 13, 2018. It was reasonably available prior to that date. The RAD is of the opinion that the appellant can reasonably be expected to have submitted it at the hearing, as the Minister had filed on the RPD record the letter from her father dated XXXX XXXX, 2016, which was provided for her visa extension and in which he declared custodianship of her tuition fees. This letter cast doubt on her statement that she no longer had a relationship with him since she had revealed to him in 2013 that she was a homosexual. The appellant should have expected that the question of payment of tuition fees would be discussed before the RPD. [16] The RAD is of the opinion that the screenshots fail to constitute admissible new evidence. ANALYSIS [17] The RAD conducted an independent analysis of all the evidence, including listening to the recording of the RPD hearing, and it applied the standard of correctness.5 The RAD took into consideration Chairperson's Guideline 9: Proceedings Before the Immigration and Refugee Board of Canada Involving Sexual Orientation and Gender Identity and Expression (the Guideline).6 Credibility [18] The RPD concluded that the appellant had established neither the alleged break with her family as of 2013 nor her sexual orientation in a credible manner. The RAD concurs. Letter from the appellant's father [19] In her memorandum, the appellant claims that, contrary to the RPD's conclusion, the letter from her father dated XXXX XXXX, 2016,7 which confirms custodianship of her expenses in 2016, is not authentic. This letter was intended to secure renewal of her study permit, because she was no longer registered at XXXX XXXX XXXX. The letter had been written by her father for the benefit of her sister who was studying in XXXX, then it was modified by her sister and sent to the appellant so that she could use it in Canada. [20] The RPD drew a negative inference from the fact that in her testimony, the appellant first stated that her sister had simply replaced her name with the appellant's. Then, confronted with the fact the letter included her date of birth and not that of her sister, that the teaching institution was "XXXX XXXX XXXX XXXX XXXX XXXX XXXX" and that her father was making a commitment to the Government of Canada, the appellant offered no explanation, repeating that her sister had changed the letter. The RPD considered the font and font size to be similar throughout the letter. It concluded that this tended to contradict the appellant's claims that the letter had been altered. [21] Having reviewed the copy of the letter, the RAD shares the RPD's opinion. Upon listening to the recording of the hearing, the RAD observed that the appellant's counsel pointed out to the appellant that not only the name had been changed, but the date of birth and the name of the school were as well. The appellant then replied that she had sent her contact information to her sister, who then supposedly modified the letter and sent it back to her.8 The RAD found no indication that could lead one to believe that the letter had been altered. Because the appellant claimed that the letter was not authentic, she had the burden of demonstrating it. The RAD is of the opinion that she failed to do so. It is of the opinion that the RPD's conclusion is correct in this regard. [22] According to the appellant, the RPD erred by concluding that she was changing her testimony. The appellant had stated that her sister was living in XXXX and that the letter was intended for her. When asked about a contradiction with her Basis of Claim form (BOC Form), which states that her sister was living in the XXXX, the appellant explained that when she had completed her BOC Form, her sister was doing an internship in the XXXX, which explains the indication of that country as the country of residence. [23] The RPD noted a contradiction between the statement to the effect that the appellant's sister had completed her studies in XXXX and was in the XXXX doing her final internship, and her need to renew her student visa, and therefore submit a custodianship letter from her father. [24] The RAD questions this RPD conclusion. The RAD is of the opinion that it could be a letter the appellant's sister obtained from her father prior to her internship. In any event, the RAD considers that this contradiction raised by the RPD has no determinative effect on the one related to the authenticity of the custodianship letter signed by the appellant's father for her benefit. [25] The RAD is of the opinion that the RPD's conclusion that the letter from the appellant's father was allegedly not altered is correct. Payment of tuition for two semesters in 2013 and 2014 [26] The appellant considers that the RPD has no expertise relative to tuition fees for foreign students. Its surprise that the appellant had been able to study at the XXXX XXXX XXXX without paying is not supported by fact. The RPD erred by concluding that the tuition fees had been paid and that the appellant continued to receive her father's support. [27] The appellant presented the RAD with two documents that had been shown to the RPD at the hearing but that were not filed on the record. They are a letter dated XXXX XXXX, 2016, that is addressed to her and confirms coverage under the university's group medical insurance plan from XXXX XXXX XXXX 2013, to XXXX XXXX, 2014, and proof of education from the university dated XXXX XXXX XXXX 2015, for the fall 2013 and winter 2014 semesters.9 [28] The RPD noted that the appellant had shown her transcripts at the hearing for two semesters, thereby confirming studies in 2013 and 2014 at the XXXX XXXX XXXX. However, it considered it unlikely that the XXXX XXXX XXXX had allowed her to study without settling her tuition fees. Because the appellant failed to produce an invoice or other documented evidence, the RPD concluded that the appellant had paid her tuition fees. This demonstrated financial support from her father. This, in addition to the letter from him guaranteeing his financial custodianship for the appellant, at least until XXXX 2016, demonstrated that he had not disowned her. [29] The RAD does not agree with the RPD's reasoning. [30] Upon listening to the recording of the hearing, the RAD noted a comment by the RPD to the effect that it would be very surprised if one could study without paying.10 The RPD failed to indicate the evidence on which it based such a conclusion. Therefore, the RAD will not take into consideration the conclusion by the RPD that the appellant would not have been able to study without settling tuition fees. [31] However, the appellant had the obligation to file all documents that could support the establishment of her refugee protection claim.11 Given that she claimed that her father had ceased to pay her tuition fees, while there was a custodianship letter on the record dated in XXXX 2016 that she herself had submitted, the RAD draws a negative inference regarding her credibility from the fact that she did not submit an unpaid invoice from the XXXX XXXX XXXX. [32] The RAD is of the opinion that the RPD erred by stating that the letter from the appellant's father declared custodianship until XXXX 2016 at least. The letter is dated XXXX XXXX XXXX 2016. It makes no reference to the past. It specifies custodianship for the appellant's studies at XXXX XXXX XXXX XXXX XXXX.12 The appellant was initially admitted to that program in 2016.13 However, this error by the RPD has no consequence on the findings regarding the appellant's credibility. [33] The RAD concludes that the appellant failed to demonstrate, on a balance of probabilities, that she did not pay her tuition fees. It considers the RPD's conclusion to be correct, but for different reasons. Sexual orientation [34] The appellant is of the opinion that, in a completely arbitrary manner, the RPD rejected the documentary evidence she submitted that corroborates her sexual orientation. It erred by assigning no value to the letter from her first sexual partner in the DRC, and it failed to challenge the authenticity of the letter or the photographs and gave no reason for not assigning probative value to them. [35] The appellant criticizes the RPD for drawing a negative inference from her not having her sexual partner, whom she met in New Brunswick, testify. She was unaware that this was required, and she does not know where this female friend lives. [36] The appellant is questioning why the RPD did not believe that she is gay. She considers that she bared her soul at the hearing with great humility. She testified about the burden of keeping her secret for so long and wanting to be freed from it at last. [37] The RPD would have liked to question the woman with whom the appellant had a romantic relationship in New Brunswick, given the credibility issues. The RPD does not accept the explanation that the appellant did not know that she needed to have her come to the hearing, given that she was represented by experienced counsel who must know the importance of corroboration, especially since the Minister had intervened on the grounds of credibility. [38] As the RPD did not believe the appellant's story and because it did not believe she is a lesbian, it assigned no probative value to the documents submitted to support her claim that she is a lesbian. The photographs show young people in everyday situations and the letter handwritten by the appellant's female friend from the DRC simply repeats the facts she alleges. [39] The RAD assigns no weight to the photographs and the letter from the appellant's first sexual partner in the DRC. Unlike the RPD, the RAD has reached this conclusion independently of its assessment of the appellant's credibility. Regarding the photographs, it agrees with the RPD's point of view that in no way do they demonstrate the appellant's sexual orientation. They are photographs of the everyday activities of unidentified young people who are walking, seated around a table and on swings. As for the typed letter, which is not handwritten as indicated by the RPD, from the appellant's first sexual partner, the RAD assigns it no weight because it is not signed.14 [40] The RAD rejects the appellant's argument that the RPD erred by criticizing her for failing to have brought the female friend she met in New Brunswick. [41] The appellant, who was born in 1986, explained that the romantic relationship with a female friend with whom she had grown up in the DRC ended when her friend had to begin working at around age 18 or 19.15 In the RAD's opinion, it is surprising that the appellant submitted documents to establish a childhood relationship that ended nearly 15 years ago, but no document related to a much more recent relationship in Canada. [42] Upon listening to the recording of the appellant's testimony, the RAD noted that she is not asked to have her female friend from New Brunswick come testify.16 She later states that she does not know where she is.17 The RAD would expect the appellant to have taken steps to track her down. [43] The RAD is conscious of the fact that the actions and behaviours that contribute to establishing an individual's homosexuality are of a private nature. Therefore, as expressed in the Guideline, sometimes an individual's testimony is the only evidence of their sexual orientation. [44] In this case, the RAD considers that, given the credibility issues undermining the appellant's story, the RPD correctly drew a negative inference from the lack of corroboration of her sexual orientation. [45] Given the circumstances, the RAD considers that, on a balance of probabilities, the appellant failed to establish the alleged facts related to her sexual orientation. [46] The RAD is of the opinion that the RPD's conclusion related to sexual orientation is correct. Subjective fear [47] The appellant submits in her memorandum that the RPD should have taken into account her explanation that she did not file a refugee protection claim because she was unaware that sexual orientation was a valid reason justifying such a claim. She apparently learned it from immigrants she met as part of an immigrant health initiative on which she was working. Had she known, she would have filed a refugee protection claim long before she did. She was misinformed and, in addition, she had submitted her BOC Form without seeking counsel. [48] The RPD agreed that it was understandable that the appellant was unaware of the potential to claim refugee protection. Having qualified her as a young intellectual and university student, the RPD faulted her for failing to seek information from counsel, an advisor or cultural/immigrant associations when she would allegedly be in danger if she returned to the DRC. [49] The RPD acknowledged that a delay in claiming refugee protection is not in itself grounds to reject a claim, but there must be a valid reason for the delay. The RPD concluded that the appellant had no valid reason. The five-year period constituted an excessive delay and was inconsistent with what an individual who senses that their life is in danger would do. [50] The RPD noted that the reasons for applying to extend the student visa on XXXX XXXX XXXX 2016, differed greatly from those the appellant alleges in her refugee protection claim. The appellant had indicated therein that she was depressed because her uncle had died, and she missed her family. When confronted with this statement, the appellant stated that she had lied. [51] The RPD concluded that the appellant's behaviour was inconsistent with that of a person fearing persecution or bring subjecting to a risk to their life or to a risk of cruel and unusual treatment or punishment. [52] The RAD agrees with the RPD. [53] The RAD is of the opinion that the fact that the appellant made no allusion to the break with her family in her letter dated XXXX XXXX XXXX 2016, is determinative, and it draws a negative inference regarding her credibility from her explanation that she had not told the truth.18 This omission contributes to casting doubt upon the break with her family based on her sexual orientation:19 [translation] The death of my uncle XXXX devastated me, saddened me and even discouraged me from continuing that for which I had come to Canada; I no longer felt at home; I was alone far from my entire family, grieving with no family support in Montréal. I questioned everything; my trip, my studies, etc. [54] Moreover, as part of her story the appellant shares the 2013 conversation with her father regarding her sexual orientation:20 [translation] A few days later, I called my father to talk, to explain to him, he told me he was no longer my father and that I am a dishonour and shame to the family. I am a cursed child for having spoken to him of such a thing. He said that if he ever saw me again, he would beat me until I shunned my sexual orientation or until I was dead. From that day forward, he wanted nothing more to do with me, he does not call me anymore, does not send me money anymore. [55] Given the circumstances, the RAD would expect that the appellant, who is fairly educated, would seek information on steps she could take in Canada because her life would be in danger if she were to return to her country. The RAD is unsatisfied with the appellant's explanation that she did not seek information, for she was afraid, she did not know whom to ask for information, she had no family and not many friends in Canada.21 The appellant had taken the required steps to renew her student visa and apply for extensions when necessary. The RAD cannot understand how she was unable to take steps to file a refugee protection claim. [56] The RAD considers the RPD's conclusion related to subjective fear to be correct. [57] In addition, the fact that the appellant was not at risk of being deported because she had a student visa did not hinder her ability to file a refugee protection claim. The RAD draws a negative inference about the appellant's credibility from the fact that she waited until after the visa extension was rejected on XXXX XXXX, 2017, to submit a refugee protection claim on February 13, 2017. [58] The RAD concludes that the RPD's decision is correct. DETERMINATION [59] Pursuant to paragraph 111(1)(a) of IRPA, the RAD dismisses the appeal and confirms the determination that the appellant is neither a Convention refugee nor a person in need of protection. Isabelle Parizeau Me Isabelle Parizeau November 20, 2019 Date IRB translation Original language: French 1 Appellant's record, pp. 20 to 24. 2 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 3 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. 4 Appellant's record, pp. 22 to 24. 5 Canada v. Huruglica, 2016 FCA 93. 6 Guideline 9: Proceedings Before the Immigration and Refugee Board of Canada Involving Sexual Orientation and Gender Identity and Expression, Immigration and Refugee Board of Canada, Ottawa, May 1, 2017. 7 Refugee Protection Division (RPD) record, p. 142. 8 Audio recording of RPD hearing, from about 0:45:48 to 0:46:16. 9 Appellant's memorandum, pp. 25 and 26. 10 Audio recording of RPD hearing, from approximately 0:48:52 to 0:49:01. 11 Refugee Protection Division Rules (SOR/2012-256), rule 11. 12 RPD record, p. 142. 13 Ibid., p. 107. 14 Ibid., p. 92. 15 Audio recording of RPD hearing, from approximately 0:16:04 to 0:17:05. 16 Ibid., from about 0:29:31 to 00:29:37. 17 Ibid., from about 0:44:32 to 0:44:40. 18 Ibid., from about 0:30:39 to 0:31:06. 19 RPD record, pp. 122 and 123. 20 Ibid., p. 13. 21 Audio recording of RPD hearing, from approximately 0:33:12 to 0:33:57. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-10358 RAD.25.02 (April 4, 2019) Disponible en français 11 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 4, 2019) Disponible en français