MB3-04826

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 File No. / N° de dossier de la SAR : MB3-04826 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, Quebec Appel instruit à Date of decision April 30, 2014 Date de la décision Tribunal Panel Normand Leduc Counsel for the person who is the subject of the appeal Me Jamal Addine Fraygui Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister Farah Merali Conseil du ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX, a citizen of the Democratic Republic of the Congo (DRC), is appealing against the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim. [2] He did not present any new evidence but is requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX is not a "Convention Refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. BACKGROUND [4] The appellant is a 31-year-old man who alleged before the RPD that he fears returning to his country because of his homosexuality. He alleged that because of his inability to live in Congolese society, he left the DRC in XXXX 2006 for France, where he claimed refugee protection, and his claim was rejected. [5] The appellant alleged that he had difficulty living as a homosexual in France and being married to a woman with whom he had a child, while also having romantic relations with men. He alleged that he was beaten by members of his wife's family after a dispute with her on XXXX XXXX, 2012, in which she called him a homosexual, and that he then left his spouse and child. [6] The appellant alleged that he was attacked in XXXX 2013 because he cuddled his partner at the time in public. [7] The appellant alleged that he left France on XXXX XXXX, 2013, using a Belgian passport issued in a name that was different from his, for Canada, where he claimed refugee protection. [8] The RPD rejected the refugee protection claim on the ground that the appellant's essential allegations were not credible. The RPD identified a certain number of contradictions and omissions in the evidence presented that will be considered in the analysis section below and that caused it to find that the appellant failed to establish in a credible manner the facts alleged in support of his claim, and the RPD did not believe that he is a homosexual person. [9] Before the RAD, the appellant submitted that the RPD erred in its assessment of his credibility for reasons that will also be considered in the analysis section below. [10] For these reasons, the appellant is requesting that the RAD set aside the RPD's determination. [11] The Minister of Public Safety and Emergency Preparedness of Canada (the Minister), through his representative, intervened before the RAD, arguing that the RPD's determination on the appellant's credibility is reasonable. The Minister is therefore asking the RAD to confirm the RPD's determination and to dismiss the appeal. STANDARD OF REVIEW [12] The IRPA does not expressly set out the standard of review that should be applied by the RAD when reviewing decisions rendered by the RPD, nor is that standard of review directly set out in the case law. The appellant did not submit in his memorandum what the standard of review should be, while the Minister proposed that the RAD apply the standard of reasonableness. [13] In Dunsmuir,1 rendered in 2008, the Supreme Court of Canada revisited the foundations of judicial review and the standards of review that apply in various situations. In order to simplify the analysis, the Supreme Court decided that, henceforth, there ought to be two standards of review: correctness and reasonableness. [14] Although the RAD does not conduct judicial reviews of RPD decisions, but rather acts as an appellate body within the same administrative tribunal, the IRB, I am of the opinion that, without more direct guidance from the higher courts, the principles developed in Dunsmuir can be applied to the RAD. [15] In paragraph 51 of its decision in Dunsmuir, the Supreme Court wrote the following: ...questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness while many legal issues attract a standard of correctness. Some legal issues, however, attract the more deferential standard of reasonableness. [16] I am of the opinion that, in this case, the issue of whether the RPD erred in its assessment of the appellant's credibility is a question of fact. I will therefore apply the reasonableness standard of review in this matter. [17] In paragraph 47 of Dunsmuir, the Court states that "reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." Judicial deference is therefore required, and deference must be given to the RPD's decision. DECISION ON WHETHER TO HOLD A HEARING [18] In his affidavit included in the appellant's record, the appellant wrote the following: [translation] "I would like the panel to me give the right to a hearing before ruling on my appeal." [19] Under subsection 110(6) of the IRPA, the RAD may hold a hearing if, in its opinion, the new documentary evidence presented on appeal is admissible and meets the following three criteria: 1) it raises a serious issue with respect to the person's credibility; 2) it is central to the decision with respect to the refugee protection claim; and 3) if accepted, it would justify allowing or rejecting the refugee protection claim. [20] Given that no new document was submitted as evidence, the prerequisite to that provision was not satisfied. Therefore, I find that a hearing may not be held in the context of this appeal. ANALYSIS [21] The issue in this case is whether the RPD erred in its assessment of the appellant's credibility. [22] In coming to its finding on the appellant's lack of credibility, the RPD determined as follows: * There is a contradiction between his testimony that he was attacked by members of his spouse's family in France on XXXX XXXX, 2012, and his written statement in his Basis of Claim Form (BOC Form) that the attack took place on XXXX XXXX, 2010; * The appellant failed to include in his BOC Form attacks that he allegedly experienced in France because of his homosexuality in XXXX 2009, XXXX 2011 and XXXX 2013. The RPD does not find reasonable the appellant's explanations that he did not mention these attacks because he had no written evidence of the complaints that he allegedly filed afterward, given that he also had no written evidence of the attacks that he did mention in the BOC Form; * There is a contradiction regarding the number of complaints (XXXX XXXX XXXX) that he allegedly filed in France following reported attacks; * There are contradictions in his testimony regarding the dates and locations of his moves in France, and between his testimony and his statement in his Generic Application Form for Canada on when he allegedly left his spouse; * He failed to write in his BOC Form that he was attacked in the DRC as a result of his homosexuality, and in particular that he was attacked in 2004 and allegedly received serious stab wounds; * The appellant failed to mention, following a question from the RPD about his contact with the police in France, that he was summoned and sentenced in absentia for domestic violence in 2011; * The stamps in the Belgian passport used by the appellant indicate that he entered the DRC on XXXX XXXX, 2013, and left the DRC on XXXX XXXX, 2013, which leads the RPD to believe that the appellant returned to the DRC in that period; * The RPD finds that the appellant's credibility about his sexual orientation is undermined because he married a woman and had a child in France, even though he stated that in the DRC [translation] "he could not hide or ignore his sexual urges." [23] In his memorandum, regarding his failure to indicate the alleged attacks in France, the appellant submits that the RPD erred in its analysis of his credibility because it is [translation] "common for someone claiming refugee protection to have memory lapses." In my view, it was open to the RPD to draw negative inferences as it did as a result of these omissions, especially since the explanation given by the appellant on the subject was not that he had [translation] "memory lapses," but rather that he had failed to mention these attacks because he had no document to prove them. [24] The appellant also submits that the RPD focused on an element that is not central to the claim when it drew negative inferences on the subject of the contradiction regarding the date when he allegedly left his spouse in France. It is true that the contradiction alone would probably not have been fatal to the claim, but I find that it was still open to the RPD to draw negative inferences as it did, especially since the appellant allegedly left his spouse because of problems related to his homosexuality. [25] The appellant then submits that the RPD should have considered his level of education and his social environment when analyzing the omission in his BOC Form of the alleged attack in 2004 in the DRC. I cannot accept this argument, which moreover was not submitted to the RPD. The evidence in the file indicates that the appellant has 13 years of education (see page 85 of the RPD record). However, no evidence presented to either the RPD or the RAD concerns the appellant's social environment. [26] Lastly, the appellant submits that the RAD erred in imposing its own interpretation of the facts regarding his marriage with a woman in France and in drawing negative inferences regarding his credibility with respect to his sexual orientation. [27] I find that it was open to the RPD to draw negative inferences as it did, in view of the evidence presented before it. As stated above, the appellant testified that he could not ignore his sexual urges. However, once he arrived in France, he married a woman. The RPD took into account the appellant's explanation that he [translation] "wanted to test his sexual orientation," which it did not find reasonable, since the appellant did not need to marry and have a child to do so, especially since he alleged that he had relations with men during this period. [28] In conclusion, I am of the opinion that, taken as a whole, the RPD's decision is reasonable because it is intelligible, transparent and falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law. REMEDIES [29] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection." [30] The appeal is dismissed. Normand Leduc Normand Leduc April 30, 2014 Date IRB translation Original language: French 1 Dunsmuir v. New Brunswick, 2008 SCC 9, (2008) 1 SCR 190. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB3-04826 RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : MB3-04826 2