TB9-14786

RAD File / Dossier de la SAR : TB9-14786 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 July 31, 2020 Date de la décision Panel Kimberley Foreman Tribunal Counsel for the person who is the subject of the appeal Ali A. Naqvi 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] XXXX XXXX XXXX (the Appellant), citizen of Pakistan, appealed a decision of the Refugee Protection Division (RPD), dated May 14, 2019, rejecting his claim for refugee protection. [2] The Appellant submits that the RPD made erroneous conclusions in its analysis of his credibility. The Appellant makes a further submission that the RPD failed to consider the totality of the evidence. The Appellant asks the Refugee Appeal Division (RAD) to overturn the RPD's decision and either substitute a finding that he is a Convention refugee or person in need of protection, or in the alternative, to send the matter back to the RPD for re-determination. DETERMINATION OF THE APPEAL [3] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and dismisses the appeal. Background of the Claim [4] The Appellant alleges that he is at risk of persecution in Pakistan because of his sexual orientation as a gay man. [5] The Appellant alleges that he realized that he was homosexual during his teenage years. Because his sexuality was not acceptable in Pakistan, he tried to convince himself his feelings were abnormal. At some point, he began a relationship with a man from his sports club. Soon after, he was attacked by four armed men. After this incident, the opportunity to XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, the Appellant left Pakistan to work. [6] The Appellant kept his sexuality hidden and in XXXX, his family arranged a marriage to his wife and XXXX XXXX XXXX XXXX XXXX XXXX XXXX. They had a child the following XXXX. The Appellant met a man, XXXX, at a relative's wedding and they began a relationship. In XXXX XXXX XXXX XXXX the men were discovered XXXX XXXX XXXX XXXX. The men fled to XXXX XXXX XXXX XXXX XXXX XXXX XXXX. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and the Appellant left XXXX XXXX XXXX XXXX XXXX. Two days later, XXXX XXXX XXXX XXXX XXXX. [7] After the fire, the Appellant's XXXX XXXX XXXX XXXX XXXX called him and told him to never contact his wife or daughter again, or he would be killed. Since he already had a XXXX XXXX XXXX, the Appellant left for Canada XXXX XXXX XXXX XXXX XXXX. A month later, the Appellant's brother informed him that the local leader of XXXX XXXX XXXX XXXX XXXX has ordered that he meet with them. He was told that the family had two days to publicly disown the Appellant. [8] The Appellant fears that, if he returns to Pakistan, his life would be in danger and he would not be able to live freely and openly as a gay man. Role of the RAD [9] When reviewing the RPD's decision, the Panel is required to independently assess all the evidence and determine whether the RPD erred in relation to each error of law, fact or mixed fact and law. For this assessment, the Panel has applied the standard of correctness as per the Federal Court of Appeal decision in Huruglica.1 Appellant's Argument on Appeal [10] The Appellant submits that the RPD made the following errors: (a) The RPD mistook the evidence which lead to an erroneous conclusion regarding the Appellant's credibility; and (b) The RPD failed to consider the totality of the evidence. [11] The Appellant has submitted eight pieces of new evidence2 for the purpose of this appeal and has requested a hearing before the RAD. [12] The new pieces of evidence submitted by the Appellant are as follows: (1) printout of the Appellant's chats from June 4-6, 2019; (2) printout of the Appellant's chats with a person XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXemail confirmation regarding XXXX XXXX XXXX XXXX XXXX; (3) email from XXXX XXXX; (4) message to XXXX XXXX XXXX; (5) photographs of the Appellant distributing XXXX XXXX XXXX; (6) XXXX XXXX XXXX XXXX XXXX XXXX XXXX; and (7) copy of schedule for XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [13] Subsection 110(4) of the IRPA provides that 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 expected in the circumstances to have presented, at the time of the rejection." [14] The second step in the analysis for new evidence, if the requirements in s. 110(4) are met, is to consider it in relation to the adapted Raza factors endorsed in Singh.3 In Singh, the Federal Court of Appeal (FCA) held that the RAD should assess the admissibility of the new evidence for its credibility, relevance, and newness. [15] I have reviewed the pieces of evidence submitted by the Appellant and note that those that include a date, are dated post-rejection of this claim on May 14, 2019. When I review them in the context of whether they are credible, relevant and new, I find that they meet the admissibility criteria. I therefore accept these documents into new evidence. [16] The Appellant has also made an application under Rule 29 of the Act for two pieces of additional evidence. The items are a photocopy of the Appellant's XXXX XXXX XXXX XXXX, as well as photographs of the Appellant XXXX XXXX XXXX. These items are from XXXX XXXX XXXX, and clearly post-date the refusal of the RPD. I also find that these items meet the requirements of being credible, relevant and new. I therefore accept these documents as new evidence. I do not find that the admission of the new evidence requires an oral hearing under section 110(6). RAD Analysis of the Merits of the Appeal [17] The Appellant argues that the RPD erred in its credibility findings and its analysis of the documentary evidence relating to his sexual orientation. I am not persuaded by the Appellant's argument that the RPD erred. In rendering this decision, the Panel has considered and applied the Chairperson's Guideline 9 on proceedings involving Sexual Orientation and Gender Identity and Expression (SOGIE).4 [18] The Appellant argues that the RPD focused only on whether or not he established he was a gay man, and not the evidence of his risk if he was to return to Pakistan. He also argues that the Panel at the RPD ignored the totality of the evidence. After a review of the Record, I find that the RPD performed the proper assessment in this case. The first step in this claim for refugee protection would be to assess if the Appellant had established his sexual orientation on a balance of probabilities. The next step would be to assess if the Appellant would indeed be at risk in Pakistan by reason of being a gay man. The RPD found that the Appellant had not established his sexual orientation. XXXX XXXX XXXX XXXX [19] The RPD found that the Appellant's testimony regarding his XXXX XXXX XXXX XXXX XXXX XXXX was problematic. The Appellant was issued a XXXX XXXX XXXX XXXX XXXX XXXX XXXX, for a pleasure trip he planned on taking in XXXX XXXX XXXX. He was asked by the RPD why he returned to Pakistan XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [20] The Appellant testified that he had returned to Pakistan to live closer to his family and boyfriend. He wanted to resettle and to start a new job he had been offered with the same company he had been working for XXXX XXXX XXXX. He also noted he had been wanting to return for some time, but required a job. The RPD noted that on his refugee intake forms, he stated he was unemployed when he returned to Pakistan XXXX XXXX XXXX.5 The Appellant's testimony then evolved and he stated he had received the job offer, but had not started yet prior to his departure XXXX XXXX. He noted his company had made a job offer, but they had been negotiating. [21] After a review of the Record, I agree with the RPD. The Appellant's testimony did evolve regarding this matter, and he did not at any time indicate he was in negotiations with his former company or not working until the inconsistency with the intake forms was put to him. The Appellant provided no corroborative documentary evidence relating to the aforementioned job offer. If he was only in negotiations with the company, this would not provide a reasonable explanation as to why he did not go to XXXX XXXX XXXX, as he alleged he was going to do in XXXX XXXX XXXX. I find that the Appellant's inconsistent testimony regarding why and when he returned to Pakistan leads me to make a negative credibility inference regarding his overall credibility, as well as his allegation that he returned to be closer to his boyfriend with whom he alleges a long-term relationship. Testimony and lack of corroborating evidence regarding boyfriend in Pakistan [22] The RPD found the Appellant's omission in his Basis of Claim (BOC) narrative about contact with his boyfriend around the issue of the farmhouse to be significant. [23] The Appellant testified that after they were discovered XXXX XXXX XXXX, they both fled to different locations. After they fled, they were in contact and his boyfriend was the one who told him that the XXXX XXXX XXXX XXXX XXXX. A review of the BOC narrative shows that the Appellant knew of XXXX XXXX XXXX XXXX XXXX XXXX, but failed to provide the important details that he was in contact with his boyfriend and how he was XXXX XXXX XXXX XXXX. I agree with the RPD that in this case, this is a significant omission. The Appellant was unable to provide a clear explanation for this omission, other than that he forgot to provide all the information relating to the events. I do not find this explanation to be reasonable. The Appellant's narrative is very detailed and includes his movements XXXX XXXX XXXX and that he spoke to his XXXX XXXX XXXX XXXX XXXX who threatened him. I find that the omission of his contact with his boyfriend as well as how he found out about the fire to result in a negative credibility inference relating to his allegations about having a boyfriend in Pakistan and how he found out about XXXX XXXX XXXX XXXX XXXX. [24] The RPD took issue with the Appellant's lack of corroborating documentary evidence relating to contact with his boyfriend in Pakistan. The Appellant testified that he and his boyfriend XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. He testified they were friends on the social media site Facebook, and stayed in contact over Facebook Messenger. [25] The RPD asked the Appellant if he was still on Facebook; he testified that he barely used it anymore. He then added that his account may no longer be active. He again reiterated later in the hearing that the account may be deactivated. He was asked why he would deactivate his account, and needed to be asked the question a second time. He then replied that it reminded him of his boyfriend. The Appellant was then asked why he shut down his Facebook account when he was still searching for his boyfriend. He testified that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX before his refugee hearing. [26] The Appellant was asked if he had any evidence of the history of video messaging or Facebook messaging that took place between him and his boyfriend, his testimony then evolved. The Appellant then stated that he did not have any evidence and that they did not use the messaging option often because his XXXX XXXX XXXX. He was confronted by the RPD about this evolution, and I find he did not give a reasonable answer, stating that the couple only used the function to video chat. [27] The Appellant has provided no documents or other evidence to corroborate his relationship with his boyfriend in Pakistan. There are no photographs, videos, or history of video of messenger chats. I am keenly aware that the SOGIE guidelines state that this corroboration may not always be available in sexual orientation cases; however, I note that the Appellant testified this chat history existed on a platform that is still functioning. He made no attempt to reactivate his alleged defunct profile or to retrieve the messages that were available after he made his claim for protection in November 2018, XXXX XXXX XXXX XXXX XXXX XXXX. Given the credibility concerns I have been identified in this case, I find it to be reasonably expected. The absence of any corroborating documents about contact with his boyfriend detracts from his overall credibility. I therefore find, on a balance of probabilities, that the Appellant was not engaged in a homosexual relationship in Pakistan, as alleged Affidavits [28] The RPD found that the affidavits that the Appellant provided as evidence from his XXXX XXXX XXXX XXXX were to be assigned no weight in establishing his claim for protection. The Appellant argues that the RPD's finding in relation to these documents was unreasonable. [29] I have reviewed the affidavits in question and the audio recording of the hearing. I disagree with the Appellant. I note that the Appellant's testimony regarding how he obtained the affidavits was inconsistent. The Appellant was asked by the RPD how he obtained the documents and he proceeded to provide three separate answers. He noted that his brother obtained the second affidavit because of XXXX XXXX XXXX XXXX, then he testified that his brother got the document because the affiant was his friend and finally, that the affiant was not a friend, but that his brother knew him. I do not find the Appellant's explanation regarding the provenance of the XXXX affidavit to be credible. [30] The affidavits in question6 were both signed and notarized on April 11, 2019. They are in English and do not include a certificate of translation. At the hearing, the Panel asked the Appellant what level of education or ability to speak English the individuals who authored the affidavits had. He testified that his brother speaks broken or basic English and that XXXX XXXX XXXX XXXX XXXX. The RPD noted that the affidavits appear to be written by someone with a more advanced knowledge of the English language, and the Appellant added that the individuals had the assistance of a translator. The Panel noted to the Appellant that there was no indication that a translator was used for the affidavits. The Appellant then changed his testimony and said he was unsure if they were translated. [31] I agree with the RPD that the affidavits were written by someone who had more than a basic or broken knowledge of the English language. While I agree with the Appellant that there are some grammatical and spelling errors, this does not detract from the sophistication of the words used and the overall knowledge of the English language that would be required to write them. For example, in the farm owner's affidavit,7 the following is included: "...involved in homosexual activities which is strictly prohibited in our society..." and "After detailed discussion with XXXX on this issue..." I do not find that this document was authored by someone who has broken or basic English as alleged. [32] The Appellant provided evolving testimony about a translator being used for the production of the documents and there is no evidence that a translator was used by the affiants. I also assign no weight to these documents and find them insufficient to establish the allegation that the Appellant is at risk if he were to return to Pakistan based on the discovery of his relationship with his boyfriend. Other Documents from within Canada [33] The Appellant presented a XXXX XXXX XXXX XXXX in support of his claim.8 I accept the XXXX XXXX of the Appellant as exhibiting a range XXXX XXXX XXXX XXXX XXXX. [34] The Appellant also provided documentary evidence from his activities within the gay community in Canada. He provided evidence that he had joined XXXX XXXX,9 The XXXX10 and XXXX XXXX XXXX XXXX,11 all on XXXX XXXX XXXX XXXX XXXX XXXX. When asked why he had decided to join these clubs at this time, and not earlier, the Appellant said he was not financially able to join prior to this date. He also included photographs and receipts from local establishments XXXX XXXX XXXX. that he visited with his neighbour.12 [35] The Appellant provided chats from a site called XXXX XXXX XXXX XXXX XXXX13 These chats took place within a one-hour span XXXX XXXX XXXX XXXX XXXX. The Appellant was asked by the RPD about these chats all taking place on the same date, and he stated that this is when he printed the evidence. I agree with the findings of the RPD that the date and times included on the print outs are a time stamp for when the chat took place, not for when they were printed. [36] The Appellant has also provided new evidence which contains evidence of chat room discussions with various individuals, as well as documents confirming he XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [37] I accept, on a balance of probabilities, that the Appellant met with a XXXX XXXX has contacted community groups that welcome the LGBTQ community in Canada. I also accept that the Appellant presented himself as a gay man in his meeting with the XXXX, in his dealings with community groups, and in chat groups. I note that the XXXX, community groups, and unknown persons in a chat room are not in any better a position than the RPD Panel to know whether the allegations made by the Appellant are true, on a balance of probabilities.14 They each worked to assist him and their role was not to judge the credibility of his sexual identity or allegations. Moreover, the XXXX and community groups did not have before them all of the evidence that was before the RPD Panel or myself, including the Appellant's inconsistent testimony about his relationship history and why he returned to Pakistan. [38] Indeed, the Federal Court has found that it is open to the Board to find that "opinion evidence is only as valid as the truth of the facts on which it is based."15 I find that the XXXX XXXX, the community membership, and chats were based on the Appellant's self-reporting, and I have found his testimony regarding his sexuality and fear of persecution in Pakistan, not to be credible. In relation to the Appellant's volunteer history XXXX XXXX XXXX, I find that XXXX XXXX XXXX XXXX XXXX does not confirm one's sexuality. I find that these documents do not establish the Appellant's sexuality and assign them little weight, other than to confirm XXXX XXXX XXXX XXXX XXXX XXXX. [39] The Federal Court has also found that "letters from organisations which are friendly to the LGBTQ community do not in themselves establish [a claimant's] sexual orientation."16 I do not accept that the Appellant has established that it is more probable than not that he is gay on the basis of his self-reporting to community agencies or by entering a chat room. [40] I have found that due to the aforementioned credibility concerns that the Appellant is not credible and has not established the central allegations of his claim, that he is a gay man and fears persecution in Pakistan. These supporting documents do not overcome these concerns. CONCLUSION [41] I find that the Appellant has failed to establish his fear of persecution in Pakistan based on his nexus to a particular social group as a gay man. Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and dismisses the appeal. (signed) Kimberley Foreman Kimberley Foreman July 31, 2020 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-2, Appellant's Record, pp. 20-50. 3 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 Singh, 2016 FCA 96, at para 64. 4 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 IRPA, IRB, Ottawa, May 1, 2017 [Guideline 9]. 5 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 35. 6 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 106 and 109. 7 Exhibit RPD-1, RPD Record, p. 109. 8 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 103-104. 9 Ibid., at pp. 113-114. 10 Ibid., at p. 115. 11 Ibid., at pp. 116-117. 12 Ibid., at pp. 128-134. 13 Ibid., at pp. 123-127. 14 Abiodun Napoleon, Christiana v. M.C.I. (F.C., no. IMM-6502-10), Zinn, July 5, 2011, 2011 FC 822, at para. 22. 15 Abiodun Napoleon, Christiana v. M.C.I. (F.C., no. IMM-6502-10), Zinn, July 5, 2011, 2011 FC 822, at para. 22. 16 Garrick, Linda Erunwon v. Canada (IRCC) (F.C. no. IMM-5109-16), Harrington, June 21, 2017, 2017 FC 611, at para. 15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-14786 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