TB4-12415

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 : TB4-12415 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 18, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dilani Mohan Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, (the Appellant), a citizen of Jamaica, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. No new evidence has been submitted in support of the appeal and the Appellant is not requesting an oral hearing. However, the Appellant is requesting that the Refugee Appeal Division (RAD) find him to be a Convention refugee or a person in need of protection. DETERMINATION [2] This appeal is allowed. The matter is referred back to a newly-constituted panel of the RPD for re-determination. Background [3] The Appellant believes that he could be killed if he were to return to Jamaica, as he has been labelled a "bow cat," because he has engaged in oral sex with a woman in Canada. According to the Appellant, the boyfriend of the Appellant's "baby mother" has spread photographs depicting this behaviour throughout the community. Moreover, this individual has exaggerated the truth by also indicating that the Appellant has engaged in anal sex. Both behaviours are, according to the Appellant, associated with homosexuality, and therefore, the Appellant's claim is based on this perception. [4] Moreover, the Appellant alleges that the rumours are associated with a gang called the Shower Posse, which, according to the Appellant, control his community. Furthermore, the Appellant believes that, as a XXXX XXXX XXXX, his profile is such that he could not reside safely anywhere in Jamaica. In totality, he fears the current boyfriend of his baby mother, XXXX, and "guys that live in the community," specifically neighbours in XXXX XXXX, perhaps 200 families who reside there. [5] The Appellant entered Canada in XXXX 2010 and had valid status by way of a work permit until XXXX 2013. He had been involved in a number of relationships concurrently, and out of jealousy, one of such relationships resulted in a female, by the name of XXXX, photographing the Appellant engaging in oral sex with her. The Appellant's "baby mother's" current boyfriend was in receipt of this photograph. [6] The RPD noted that the Appellant's work permit in Canada was set to expire in XXXX 2013 and, just prior to this, his passport went missing. The Appellant testified that in order to obtain a new passport from the consulate of Jamaica, he would have had to produce a police report to explain the loss of a passport, which was valid until 2017. The Appellant required a valid passport to renew his status in Canada. ROLE OF THE RAD [7] Counsel submits that the RAD must conduct an independent review of the evidence before it and arrive at its own conclusions, unfettered by or without owing great deference to the decision of the RPD.1 In Huruglica, Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision. 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau in Alyafi2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. The RAD has applied the reasoning as set out in Huruglica.3 It is submitted by counsel that the RPD's credibility assessments do not merit any deference, as these findings are based on misapprehension of facts, speculation and conjecture or, in many cases, directly contradicted by evidence that was before the RPD.4 SUBMISSIONS BY COUNSEL: [8] Did the RPD err in its credibility findings? [9] Did the RPD misconstrue and ignore relevant evidence? Appellant's failure to recall his sons' exact birthdates [10] In the Appellant's initial IMM-008 Generic Application form,5 the Appellant provided birthdates of his two sons, however, in the revised application, these dates were quite different. The RPD did not accept the explanation that he was not aware of his frame of mind at the time, as he was able to correctly recall other dates and information for the purpose of completing the application, e.g. the exact date of his arrival in Canada, the exact date of his mother's death some 18 years previously. [11] The Appellant submits that he cited the correct ages of his sons, but not the birthdates, and that the RPD focused only on the discrepancy between the years. The Appellant submits that, when he obtained counsel, the error was pointed out to him, and moreover, this issue was peripheral to the claim itself, and ought not to have contributed to serious credibility concerns. It is submitted by the Appellant that the RPD's conclusion that he was deliberately misleading was without merit, given that the information accurately reflected the Appellant's sons' ages. In totality, the Appellant has an issue that the RPD then found that his suspect memory rendered his entire testimony unreliable, when the issue was not central to the claim. [12] The RAD concurs with the Appellant that the RPD was microscopic in its findings with respect to the foregoing issue. We find that this issue, in and of itself, is peripheral and the fact that the Appellant provided the correct ages of his sons is more persuasive in establishing his relationship as their father than the recorded birth dates, and ought not to be determinative of his credibility. Photograph of Appellant: [13] The Appellant was asked why, if this photo of the Appellant performing oral sex would be considered abhorrent, would so many Jamaicans have seen it. The Appellant's response was "out of curiosity." On the other hand, the Appellant testified that this behaviour is stigmatized all over Jamaica. [14] The Appellant alleged that he was unaware that the photograph of him performing oral sex was being taken at the time by XXXX, as he was not facing the camera. He did not submit a copy of the alleged photograph, even though he believes that it is being widely circulated in Jamaica. The RPD concluded that the Appellant would not have been recognizable in the photograph, and found, on a balance of probabilities, that this compromising photo does not, in fact, exist. [15] The Appellant submits that the absence of a photograph does not automatically mean that it cannot exist, and that the Appellant could not reasonably have been expected to obtain copies from his ex-girlfriend, XXXX (baby mother). Moreover, the fact that the Appellant was not looking at the camera, it is submitted, does not preclude the identity of the Appellant. [16] The Appellant further submits that the RPD's comments, with respect to the photos, if they exist, only being seen by about 200 families in XXXX XXXX, ought not to have resulted in the RPD's findings that his fears were not well-founded, when rumours have a wider circulation. [17] The RAD concurs with the Appellant that it would seem unlikely that his identity would be apparent from the photograph, however, in the absence of this corroborative evidence, one cannot assume this. For example, he could have been positioned sideways and yet been unaware of the camera. The RAD concurs with the Appellant that, in this regard, the RPD speculated that the Appellant's identity would not be established. What is important, in the RAD's opinion, is that this is the most vital piece of documentation as proof of the allegations of the Appellant. This is the crux of the claim. Without this photograph allegedly circulating somewhere in Jamaica, the Appellant's allegations have no merit. The RAD concurs with the RPD that if it has in fact been circulated, then it should have been reasonably available for the Appellant to submit to the RPD as corroboration for his claim. Moreover, in the absence of a reasonable explanation as to why this document was not provided or evidence surrounding possible steps taken to access this document, the RPD correctly assessed the lack of evidence of this important document. The RAD's comments follow with respect to this integral element of the claim, in fact, the only element to be considered. Allegations re Appellant's sexuality: [18] The RPD noted that the Appellant's "baby mother," XXXX and her current boyfriend, XXXX, have a motive to spread negative allegations about the Appellant. However, the RPD found that this does not translate into these allegations being believed by others, nor that the Appellant would not be given a chance to explain himself if he were to return to Jamaica. The RPD found that the Appellant's fears were speculative at best, and even if the photo has been circulated within the community of the Appellant, which was not conceded by the RPD, there were only 200 families in his former neighbourhood who might be aware of its existence. In general, the RPD found the Appellant's testimony to be vague when it suited him, his testimony contradictory as well as statements that undermined his own credibility. [19] The RPD concluded that even if there is a photograph of the Appellant performing oral sex, which it did not concede, this photo would not identify the Appellant, nor would it be obvious that it would attract the condemnation of the whole of the population of Jamaica, as alleged by the Appellant. Accordingly, the RPD found that the Appellant, on a balance of probabilities, would not be perceived as gay if he were to return to Jamaica. [20] The Appellant submits that it is trite law that an Appellant is only required to demonstrate a reasonable possibility of risk to his life on a Convention ground. As a "sur place" Appellant, it is submitted that the Appellant cannot be required to return to Jamaica to conclusively demonstrate the risk to his life and the lack of protection. It is argued that there was sufficient evidence before the RPD that Jamaicans perceived to be gay because of their gender nonconformity or participation in oral or anal sex, even within the context of a heterosexual relationship, are at risk and that there is no state protection for such individuals. The Appellant submits that the RPD's comments that he might be given the opportunity to explain his sexuality smacks of insensitivity, indifference, or disregard for the seriousness of the Appellant's claim. [21] The RAD's analysis of the objective evidence is not necessary given its findings with respect to the photographs. (see below) Having said this, the RAD concurs with the Appellant that the RPD was selective in its consideration and assessment of the National Documentation Package in this regard. However, the RAD concurs with the Appellant that to expect the Appellant to attempt to explain his sexuality, is totally without merit. Moreover, the finding by the RPD that, even if the photograph was circulated, it was only to 200 families, and would therefore not translate into a risk in the entire community is also without merit. The RAD concurs with the Appellant that 200 families could result in a much wider circulation. Delay in Claiming: [22] The Appellant had valid status until XXXX 2013, having entered Canada in XXXX 2010. He learned of the photograph around XXXX 2013. However, the Appellant did not make his refugee claim until his arrest in XXXX 2014. His reason for not doing so was that he was fearful that, in the absence of a valid passport, he would be returned to Jamaica. The RPD did not accept this explanation as it found that the Appellant could have applied for a new passport and made a refugee claim around the same time. The RPD drew an adverse inference as the Appellant had not sought any assistance during the period in question with respect to steps he could have taken to avoid deportation to Jamaica. The Appellant's explanation that his situation in 2013/14 was "almost insane" as he had no passport, no permit to work, and yet he could not return to Jamaica, and yet he took no steps to remedy, in the RPD's opinion, did not accord with his alleged fear. [23] Moreover, the Appellant testified that he was unable to make a refugee claim in the absence of a valid passport as he had relied on the "Document Requirement list." However, the RPD did not accept the explanation of the Appellant, as when he did, in fact, apply, he did not have this passport, as well as the four photographs which the checklist states are "required." [24] In light of the foregoing, the RPD concluded that the Appellant's failure to make a refugee claim in a more timely manner was not consistent with the actions of someone who is fearful of returning to Jamaica, and that the Appellant, on a balance of probabilities, had embellished his account as a last effort to regularize his status in Canada. [25] Furthermore, the RPD concluded that the contention by the CBSA that the Appellant would not have applied for refugee protection, had he not been apprehended, was found to have merit. [26] The Appellant submits that the RPD did not consider the biggest impediment, namely that he no longer had a valid passport and that he could not apply to obtain a new one in the absence of a police report and he feared he would be deported for failure to produce a passport to the police. The Appellant also submits that the RPD did not accept his explanation that he did not have the money to pay for a new passport, and that he believed he could not make a claim without a valid passport. The Appellant further argues that the RPD's comments, with respect to his being depressed and not seeking therapeutic help, in the absence of money, were without merit. Moreover, the Appellant submits that he did his best under the circumstances to inform himself about his legal options and determined that he would not be eligible to make a refugee claim until he could produce a valid passport. In totality, the Appellant submits that the RPD's credibility on this issue is unjust, unreasonable, and goes against jurisprudence advising that plausibility findings must only be made in the clearest of cases. [27] Although the RAD concurs that plausibility findings must only be made in the clearest of cases, the RAD finds that the delay in claiming, in the absence of an acceptable explanation by the RPD, can undermine the credibility of the Appellant. [28] The RAD finds that this aspect of the claimant's conduct is inconsistent with a person living in fear of persecution in their country. It is to be expected that genuine Convention refugees would seek protection as soon as is practical, once out of reach of their oppressors. The Board is mindful, then, that one of the significant factors which speaks to subjective fear and credibility is the element of delay. Delay, in and of itself, is not normally a factor in refugee determination.6 However, it can be relevant and a potentially important consideration to the Board,7 where the claimant has delayed in making a claim upon their arrival to Canada and failed to offer a reasonable explanation for the delay. In certain circumstances, however, delay can be a determinative and decisive factor.8 In the case at hand, it is not determinative, however the RAD finds that it does undermine the credibility of the Appellant when he did not, at the very least, make inquiries as to how to normalize his status. Moreover, the RAD concurs with the RPD that the credibility of the Appellant is undermined, when one examines the fact that the Appellant did not make a refugee claim until he came to the attention of the authorities and he was detained. Mindful of the fact that the Appellant did not have a valid passport, the RAD finds that the delay, given the Appellant's fears, undermines his credibility. Duration of Appellant's Relationship with XXXX XXXX: [29] The Appellant acknowledged discrepancies in his Imm-008 Generic Application forms, completed on June 11, 2014, eg. the name of the female with whom he was cohabiting The Appellant explained that some of his belongings were at one domicile, however the RPD found that the Appellant could not pretend that he continued to live with Ms. XXXX from 2013 to June 2014, when, in the amended narrative, he stated that, during this period, he was "without a roof over my head," and that XXXX XXXX had disposed of his belongings on the street. [30] The Appellant insisted that the breakdown of his relationship with Ms. XXXX was at the core of his problems, however the RPD concluded that the Appellant did not have a common-law relationship with Ms. XXXX in the period XXXX to XXXX 2014. Since it was the two concurrent relations with both Ms. XXXX and Ms. XXXX that caused Ms. XXXX (XXXX) to take the photo in question, the RPD found that these contradictions went to the credibility of the Appellant. [31] It is submitted by the Appellant that, in the amended application, completed with counsel's help, the end date of that relationship was corrected to "XXXX 2013." The Appellant was not asking the RPD to believe that he had continued to be in a common-law relationship from XXXX 2013 until XXXX 2014. In fact, he corrected this by the amendment to the IMM-008 application and it is submitted that he was not pretending, as found by the RPD, that he continued to live with Ms. XXXX (XXXX). It is further submitted that the RPD ignored the Appellant's testimony when he explained that he returned to XXXX home to store his belongings, and that the RPD cannot dismiss the Appellant's explanation for this discrepancy. [32] The RAD, after reviewing the transcript of the proceedings, concurs with the Appellant that he was not pretending to live with Ms. XXXX during the period in question and therefore the RPD's finding, with respect to the alleged contradiction is erroneous, however is not a determinative aspect of this claim. Letter from XXXX XXXX9 [33] The letter from Mr. XXXX states that "threats were made" if the Appellant were to appear at a community event in XXXX 2013. However, the RPD noted that no reason for the threats was indicated, and the certain elements who are known to be dangerous were not identified, as well as the location of these alleged perpetrators. Given the lack of detail, the RPD drew an adverse inference and accorded little weight to this document. [34] The RPD found, on a balance of probabilities, that the photo allegedly sent to Jamaica by XXXX XXXX was not viewed all over the island as alleged. [35] The Appellant submits that the foregoing letter was submitted by a friend whom he refers to as "Nutsy," and with whom he worked at the XXXX XXXX XXXX XXXX XXXX. The Appellant submits that the credibility finding with respect to this letter, in the absence of reasons for the threats, lack of identities of the perpetrators and the reasons for the threats is problematic. It is submitted that the Appellant consistently testified that XXXX's boyfriend, XXXX, had shared the photos with others in XXXX XXXX, and that the Appellant's fears are based on the threats relayed (emphasis added) by XXXX XXXX. In other words, this information was not received first hand, and, therefore, the lack of details ought not to be cast a doubt on the document. [36] The Appellant submits that this letter ought to accord some weight as it confirmed that people had made threats that they would stone the Appellant after seeing a poster featuring him and also it confirms the community to which Mr. XXXX was referring, and thus the letter confirms that threats were made by people in XXXX XXXX. [37] The Appellant further argues that the RPD's contention that this letter does not support "island-wide" risk, misapprehends the letter's evidentiary value and that this letter was never intended to speak to other parts of the island. Moreover, the Appellant acknowledges that the island threats are a reference to Jamaican attitudes around heterosexual masculinity and its proper sexual expression, rather than any particular threats against the Appellant. [38] The RAD finds that the weight attached to this letter by the RPD in terms of supporting the crux of the claim is minimal. However, the RAD concurs with the Appellant that it does provide additional evidence with respect to Jamaican attitudes surrounding heterosexual masculinity, which is already contained in much of the documentation submitted by the Appellant. In addition, the RAD finds that this letter also indicates that threats were made by people in XXXX XXXX, even though the reason for these threats is not provided. Trinidad: [39] The Appellant testified that he was prepared to go to Trinidad in XXXX 2014, but, due to insufficient funds to purchase a new passport (approximately $180. Canadian), he could not go. The RPD then questioned if he could not afford a passport, how could he afford the travel. Furthermore, the RPD found that the Appellant had already indicated that, unless he had reported the loss of his previous passport to police, it would have been impossible to effect this sojourn. The RPD concluded, as a result, that the Appellant had neither the intention to travel to Trinidad at that time, i.e. in the period of XXXX to XXXX 2014, nor the intention of leaving Canada. [40] The Appellant submits that the RPD erred in its interpretation of the facts which were contained in a letter from the Appellant to the XXXX XXXX, in which he agrees to participate if XXXX "will provide the airfare, accommodations and a suitable honorarium." Moreover, it is submitted that the RPD did not question the Appellant in this regard, and therefore, drew conclusions based on unsubstantiated speculation and conjecture. [41] The RAD concurs with the Appellant that citing insufficient funds, when the letter requests financial compensation, is an unsubstantiated conclusion on the part of the RPD. Corroborative evidence10 [42] The RPD acknowledged that certain elements reject heterosexual oral sex as being tantamount to homosexuality and the RPD considered the documentation in this regard. It examined all the corroborative evidence in this regard and concluded that there was no evidence that soca musicians are persecuted because of their views on heterosexual oral sex, but rather the attitudes are limited to certain circles such as the purveyors of reggae and dancehall music, and that these attitudes can and do change over time. [43] The Appellant submits that the RPD failed to consider relevant evidence and moreover failed to explain why it did not. The documentary evidence11 demonstrates, it is submitted, that, although there may now be greater acceptance of oral sex in Jamaican culture, this acceptance is limited to fellatio, or where the woman performs the sexual service. It is still taboo for males to "bow" to women in this way. It is further submitted that this exhibit includes news articles about incidences where people were attacked on suspicion of their having engaged in oral sex, or where violence was utilized to refute allegations of oral sex. The Appellant argues that the RPD ignored this evidence, particularly when counsel made submissions highlighting these articles. [44] It is submitted by the Appellant that the RPD only mentioned documents found in Exhibit 6, and accorded the article by XXXX XXXX little weight in the absence of a curriculum vitae, and what it viewed as dated research and a dated article. It is submitted that the RPD failed to ask the Appellant to provide information on the author's credentials. [45] In this regard, the RAD concurs with the RPD. It is not encumbent upon the RPD to ask for a curriculum. It is common practice when a professional report is received, that particulars about the author are provided in order to assess its weight accordingly. [46] The Appellant further argues that the RPD reviewed other evidence in Exhibit 6, and concluded that attitudes toward heterosexual oral sex are not as widespread in Jamaica as the Appellant alleges. The Appellant submits the RPD did not read the paragraph in full, otherwise it would realize that it is clearly comparing Jamaican attitudes toward oral sex with the attitudes on other Caribbean islands and, in fact, the Appellant indicates that this article was submitted to highlight why the Appellant would be safe in Trinidad. Relying on this same article, the Appellant submits that the RPD's logic is unsound, as it is essentially arguing that negative attitudes around oral sex were only prevalent in the mid-nineties, which the article does not state as it only states that the theme of oral sex was prevalent in the nineties, and, moreover, it does not mean that the negative attitude has disappeared. Furthermore, the Appellant submits that the RPD's argument that the Appellant's fears are limited only to "purveyors of reggae and dancehall music" demonstrates its failure to assess the evidence in context, as it is submitted it would transcend the entire music scene and influence larger Jamaican culture. The Appellant submits that he never disputed that attitudes around sexuality and masculinity evolve and that Jamaican culture has evolved to become more accepting of oral sex, however the testimony from the Appellant in this regard was that acceptance was limited to female performance on a receiving male.12 Additionally, the Appellant submits that the RPD did not consider the 2010 articles reporting an attack against a heterosexual couple engaging in "freaky sex" or an article about a police officer who attacked a woman for starting a rumour that he indulged in oral sex. OVERALL RAD FINDINGS: [47] The RAD has indicated where it concurs with the RPD findings with respect to credibility findings or negative inferences. [48] After conducting an independent assessment of all the evidence, the RAD finds that this claim is entirely based on an alleged photograph of the Appellant performing oral sex on a female. There is documentary evidence to support the effects of this becoming known in the community, however, as stated above, it is not necessary to assess this in light of the RAD's findings below. [49] The RAD concurs with the RPD that the "delay in claiming" issue undermines the credibility of the Appellant. At the very least, the RAD finds that the Appellant ought to have made inquiries as to how to regularize his status, given his alleged fears, acknowledging that his missing passport was a concern. [50] The RAD finds that the RPD focused on a certain population in Jamaica (200 families) when assessing the risk to the Appellant and in refuting that the risk would be widespread. However, this issue is not relevant to the claim as a whole, in the absence of the photograph. [51] After conducting an independent assessment of all the evidence, including the transcript of the proceedings, the RAD finds that some of the foregoing credibility findings are unsustainable. However, the RAD has indicated where these findings relate to peripheral issues. [52] We do, however, concur that the Appellant has provided insufficient persuasive evidence that the alleged photograph exists. However, given the credibility findings made by the RPD, which appear to have overlapped into its overall credibility of the Appellant, the RAD finds, given the objective evidence, that deference cannot be owed to the RPD in the particular circumstances of this claim. Moreover, there is insufficient evidence on the record with respect to the photographs and their distribution, to make a substitution, without re-hearing the entire claim. [53] As stated earlier, the crux of the claim is the alleged photograph of the Appellant performing oral sex on a female. The RPD made a finding that, on a balance of probabilities, this photograph did not exist. However, the RAD finds that this conclusion is flawed, in that no questions were posed to the Appellant in this regard. These questions should have included why this photograph could not be submitted into evidence; what, if any, steps had been taken to obtain a copy, and most importantly if, as alleged, this picture was spread over social media, why it would not have been reasonably available to corroborate the Appellant's allegations. The RPD simply states that the Appellant did not submit a photograph depicting his sexual behaviour. That would suggest that the RPD ought to have believed the Appellant's oral testimony and the contents of his Basis of Claim form (BOC) in this regard. However, after conducting an independent assessment of the entire record of this claim, the RAD finds that the RPD erred when making the finding of the non-existence of a photograph in the absence of the contrary. The RPD simply makes the finding based on the lack of corroborative evidence without delving into the reason why, and then explaining how that does or does not support the conclusion. [54] The RAD owes some deference to the RPD with respect to credibility findings, however it must consider the extent to which that deference applies to findings of the RPD. In Huruglica, the Court held that the RAD could show deference "on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion."13 The concept of deference is also reflected in subsequent cases.14 The Courts have noted that the RAD has similar or greater expertise to the RPD in matters of refugee law. This advantage does not extend to objective information, such as the documentary evidence submitted in this claim. The RAD will show deference to the RPD's findings where the RPD was in an advantageous position to reach such findings. However, in the particular circumstances of this claim, the RPD has made findings of implausibility based on its own reasoning, and credibility findings based on deduction and reasoning rather than a contradiction. The RAD is equally qualified to come to its own conclusion and deference need not be owed and a standard of correctness has been applied. [55] The degree of deference has been discussed in much of the jurisprudence but, to date, that degree to which it should be applied, has not been defined. In the RAD's opinion, the findings of the RPD must be comprehensible and the result must be supported by a proper analysis of the evidence before the RPD. [56] In the particular case at hand, the RAD concludes that the finding by the RPD that the alleged photograph does not exist is a finding which goes to the only central issue of the claim. In other words, if there is no photograph of the Appellant displaying the alleged activity with a female, then its impact and widespread knowledge becomes immaterial. [57] However, the RAD finds that simply stating in its Reasons that the Appellant did not submit this photograph15 is simply insufficient to cast aspersions on the existence of this photograph. Had the RPD posed questions as to why not, what steps had been taken, and most importantly if alleged on social media, then why was it not available, and come to its conclusion based on the explanations provided, then this would be sufficient to dismiss the claim. However, the RAD has reviewed the transcript of the proceedings and can find no such questioning. In light of this, along with comments by the RPD affecting the overall credibility of the Appellant, the RAD cannot substitute its own decision in the particular circumstances of this claim. [58] Accordingly, this appeal is allowed and the matter is referred back to a newly-constituted panel of the RPD for re-determination. (signed) 'Roslyn Ahara' Roslyn Ahara March 18, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-3632-13), Phelan, August 22, 2014, 2014 FC 799; Owochei, Elizabeth Ngozi v. M.C.I. (F.C., no. IMM-3655-11), Russell, February 2, 2012, 2012 FC 140 2 Alyafi, Aghiad v. M.C.I. (F.C. No. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952 3 Supra, footnote 1 4 Hilo v. Canada (Minister of Employment and Immigration), (1991) FCJ No. 228 and Valtchev v. Canada (MCI), (2001) FCJ No 1131 at para 7 and Mehmood v Canada (M.C.I.O.) 2005 FC 1526 (T.D.) at para 18. 5 Document 1 6 Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.). 7 Heer, Karnail Singh v. M.E.I. (F.C.A., no. A-474-87), Heald, Marceau, Lacombe, April 13, 1988. 8 Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003, 2003 FC 1324; Ghasemian, Marjan v. M.C.I. (F.C., no. IMM-5462-02), Gauthier, October 30, 2003, 2003 FC 1266; Bhandal, Surjit Kaur v. M.C.I. (F.C., no. IMM-4277-05), Teitelbaum, April 3, 2006, 2006 FC 426. 9 Exhibit 6 10 Exhibits 6 and 9-Personal and Documentary 11 Exhibit 9 12 Exhibit 9 articles by Paul Andrew Bourne and Conroy Julian 13 Huruglica, para. 55 14 Njeukam, Gaelle Leonelle Nguedo v. M.C.I. (F.C., no. IMM-7280-13), Locke, September 10, 2014, 2014 FC 859 para 24, Yetna, Fidele Ngo v. M.C.I. (F.C., no. IMM-7567-13), Locke, September 10, 2014, 2014 FC 858, para. 27, Akuffo, Edwin Yaw Sarfo v. M.C.I. (F.C., no. IMM-6640-13), Gagné, November 12, 2014, 2014 FC 1063 para 39; Allalou, Abedelkrim v. M.C.I. (F.C., no. IMM-7217-13), Shore, December 17, 2014, 2014 FC 1084 paras. 17-29 15 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.) --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-12415