TB9-12622

RAD File / Dossier de la SAR : TB9-12622 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 12, 2020 Date de la décision Panel M. Lee Tribunal Counsel for the person who is the subject of the appeal Anthony P Navaneelan 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 (Appellant), a citizen of Jamaica, appeals a decision from the Refugee Protection Division (RPD) dated April 17, 2019. DETERMINATION [2] The appeal is allowed. The Refugee Appeal Division (RAD) substitutes its own decision and finds that the Appellant is a Convention refugee because of her sexual orientation. BACKGROUND [3] The Appellant alleges that she is a bisexual woman and fears persecution in Jamaica because of her sexual orientation. The Appellant came to Canada on XXXX XXXX XXXX 2013. The Appellant made her claim for refugee protection in February 2015. [4] The Appellant's refugee claim was first heard by the RPD on May 29, 2015. The RPD member denied the Appellant's refugee claim, and found that it had no credible basis on July 13, 2015. The Appellant appealed the decision to the Federal Court. The Federal Court granted the Appellant's application for judicial review on March 18, 2016, and referred the matter back to a different panel, quashing the RPD's decision. [5] A different RPD panel heard the Appellant's claim once again on February 6, 2019. At this time, the Appellant was now self-represented. The RPD denied the Appellant's claim on the determinative issue of credibility on April 17, 2019. [6] Presently, the Appellant appeals the most recent RPD decision to the RAD, submitting that the RPD erred in its credibility assessment. The RAD carefully considered the merits of the appeal in its decision below. ANALYSIS Role of the RAD [7] According to the Federal Court of Appeal's ruling in Huruglica,1 the RAD will review decisions of the RPD on a standard of correctness after conducting an independent analysis of the evidence. Rule 29 Application denied [8] The Appellant made a Rule 29 application to submit new evidence on July 12, 2019, after the appeal was perfected on July 8, 2019. The Appellant submits a copy of a second decision written by the same RPD member for a different set of claimants dated April 18, 2019.2 This second decision was rendered by the same RPD member one day after the Appellant's decision was rendered. In that decision, the RPD member adopted the principles of a decision that was quashed by the Federal Court. This mirrors the same actions taken by this RPD member in the decision before the RAD. In their application, the Appellant explained that this second decision has the names of the claimants redacted, and consent was obtained by these claimants and their counsel to release the decision for the purpose of this appeal.3 [9] The RAD considered the three criteria under Rule 29(4) of the Refugee Appeal Division (RAD) Rules. The RAD must consider the document's relevance and probative value; any new evidence the document brings to the appeal; and whether the person who is the subject of the appeal, with reasonable effort, could have provided the document with the Appellant's record. [10] The RAD finds that this second decision by the same RPD member is rejected for lack of relevance and probative value for this claim. The RAD understands the Appellant's concern, regarding the RPD's similar approach in its analysis. However, this second decision concerns a different set of claimants from a different country, who are not subject to this particular appeal, and therefore, lacks relevance to this particular claim. As well, this second decision is being appealed before a different RAD panel, and each decision is to be assessed independently. The Appellant has already raised the concern regarding the RPD's potential error of adopting principles of a decision quashed by the Federal Court in its memorandum. The RAD will consider the Appellant's submissions on this issue when assessing this particular claim. [11] Therefore, the RAD finds that the Appellant's application for new evidence is rejected, due to the lack of relevant and probative value. [12] As no new evidence, has been accepted, the RAD also finds that there is no jurisdiction for an oral hearing under subsection 110(6) of the IRPA. RPD failed to make a clear final determination on Appellant's sexual orientation [13] The Appellant submits that the RPD did not make a definitive finding as to whether the Appellant established her identity as a bisexual woman.4 The Appellant further submits that it is the duty of the RPD to weigh all of the evidence and to come to a conclusion about the Appellant's sexual identity.5 In its conclusion, the RPD makes a statement that the Appellant has not established on a balance of probabilities her subjective fear because of her sexual identity. However, this is not a definitive statement regarding her bisexuality.6 [14] The RAD has carefully reviewed the RPD's written decision and agrees with the Appellant. The RPD drew a number of negative inferences to the Appellant's credibility for inconsistencies and gave little to no weight to some documents. The RPD found that the Appellant lacked subjective fear because of her lengthy delay and reavailment. However, the RPD did not make a definitive finding on whether or not the Appellant was credible as a bisexual woman or not. [15] In its independent analysis below, the RAD has reviewed all of the extensive chat records with various romantic interests and individuals from online dating sites, photographs, letters and documents provided by the Appellant, in addition to the audio recording and the written decision. The RAD finds on a balance of probabilities, that the Appellant is generally credible in her testimony, and finds that she is a bisexual woman. [16] The RAD considers that the Appellant's experience of violence, trauma and sexual abuse over the course of her lifetime may have impacted her ability to testify at both RPD hearings. The RAD also considers that the Appellant was self-represented at her latest RPD hearing, and did not have the benefit of counsel to advocate on her behalf. The RAD finds that the RPD made a number of errors that cannot be upheld on appeal. The RPD's errors are explained below. RPD erred in relying on previous credibility findings from the previous RPD decision which was quashed by Federal Court [17] The RPD adopted the reasoning of the previous RPD panel with respect to her failure to refer to relationships with the two women who wrote support letters for the Appellant. The RPD went on to quote the previous RPD panel in its decision.7 [18] The Appellant submits that the Federal Court quashed the previous member's decision on March 18, 2016, and had referred the Appellant's claim for redetermination before a different panel.8 The effect of setting aside a decision is to extinguish the decision for all purposes.9 Therefore, the RPD panel who hears the redetermination should not rely on and adopt the findings of the first RPD panel in rejecting it.10 Those findings no longer exist. The RPD erred in doing so.11 [19] The RAD agrees with the Appellant. The RPD explicitly quotes the previous RPD's reasons for disbelieving the Appellant's credibility, and adopts this exact reasoning as its own. The RPD did not provide any additional, independent assessment for finding the omission of two romantic interests not to be credible, aside from simply quoting the portion of the quashed decision.12 The previous RPD decision was already found to be erroneous and had been set aside by the Federal Court. A fresh hearing before a different panel requires a fulsome independent analysis by a different panel out of fairness to the Appellant. The RAD finds that the RPD erred in relying on reasoning from a quashed decision which has been extinguished, and this finding cannot be upheld. RPD's own credibility findings are in error [20] The RPD identified three negative credibility findings in its decision. The RPD found that the Appellant omitted to mention the two women in her Basis of Claim (BOC), who wrote the support letters, as discussed above.13 The RPD further found that the Appellant identified the wrong person who encouraged her to come out to her mother, and gave this response without hesitation.14 The RPD also found that the Appellant provided inconsistent testimony regarding the number of times she was intimate with one of her partners.15 [21] The Appellant submits that neither of the women who wrote the support letters were sexual or romantic partners to the Appellant.16 In their letters, they indicate that they were romantically interested and had flirted with the Appellant, but referred to her as a friend.17 The RPD erred by drawing an adverse inference to the omission of two individuals that had nothing to do with the events causing her to flee the country.18 Regarding the inconsistency of who advised her to come out to her mother, the Appellant submits that she hesitated before giving the wrong name, and indicated on record that she was unsure of her response.19 The Appellant further submits that the RPD erred in drawing a negative inference for the number of sexual encounters she had with her first same-sex partner at the age of 14.20 The Appellant submits that her BOC is silent on the number of sexual encounters that occurred, and there is no inconsistency.21 Evidence from support letter writers is credible [22] The RAD agrees with the Appellant. The RAD has reviewed the support letters and finds that the descriptions of their friendship and their interest in one another is consistent with the Appellant's testimony.22 It is clear from the letters that neither of these women were in a relationship with the Appellant, but merely had a brief romantic interest in one another than evolved into friendship. The RAD finds that failing to include the names of these women in her BOC is insignificant. The Appellant already listed and described her romantic and sexual encounters with other women in her BOC. The Appellant was able to describe how she met and interacted with her romantic and sexual same-sex partners in a consistent manner at the hearing, which adds to her credibility. Consequently, the RAD does not find that the omission of the support-letter writers affects the core of the claim. [23] The RAD finds that one of the chat records with these women is dated XXXX XXXX XXXX 2014, predating when the Appellant made her refugee claim by XXXX months.23 The chat record is 54 pages, and contains spontaneous, daily conversations between the Appellant and this woman, as they clearly show romantic interest in one another.24 In some of the early texts from XXXX, the Appellant and this woman were talking about exchanging sexually- charged photographs of one another.25 This is consistent with the Appellant's testimony. The RAD finds that the lengthy chat record is genuine on a balance of probabilities, and was not simply created to bolster her claim. The RAD finds that the letters and chats are probative evidence of the Appellant's sexual identity. The RAD finds that the RPD erred by failing to weigh the evidence in the letters and lengthy chats in its decision against the perceived peripheral omissions. Inconsistency regarding person who encouraged Appellant to come out is peripheral [24] The RAD also finds that the RPD erred by drawing a negative inference for the Appellant giving the name of the wrong person who advised her to tell her mother about her sexuality. The RAD has listened to the audio recording and finds that the Appellant did pause and hesitate when she testified about the person who encouraged her to come out to her mother.26 After stumbling on her words, the Appellant qualified her response by saying that she "thinks" it was this person who encouraged her to come out. Contrary to the RPD's assessment, the RAD does not find that the Appellant simply gave a response "without hesitation".27 Furthermore, the RAD finds that the Appellant was able to testify in detail about how her mother felt about the Appellant's sexual identity and how it impacted their relationship. [25] Even if the Appellant had trouble remembering the person who encouraged her to come out to her mother, the RAD finds that the Appellant was able to testify consistently about her personal experience of coming out to a family member in Jamaica and the challenges that followed.28 Even if the Appellant could not recall the person who advised her to come out, the RAD still finds that the Appellant's account of how she came out to her mother is credible, on a balance of probabilities. The RPD did not make a finding that the Appellant fabricated the story about how she came out to her mother. The RAD finds that the inconsistency of who advised her is peripheral in comparison with the overall event where the Appellant opened up about her sexuality to her mother and that this was difficult for her. Therefore, the RAD finds that the RPD erred by drawing a negative inference for the peripheral inconsistency. Appellant did not provide inconsistent testimony regarding number of sexual encounters with first same-sex partner [26] The RAD has reviewed the BOC and does not find that the BOC clearly indicates that the Appellant had more than one sexual encounter with her first same-sex partner. [27] The RAD finds that the number of sexual encounters she had with this partner are not listed in the BOC, and nor was it a necessary detail to include. In her BOC, the Appellant writes that she "started being intimate' with her partner, and that they "enjoyed being intimate together".29 [28] The RAD disagrees with the RPD that these sentences in the BOC are a clear indication that the Appellant had more than one sexual encounter with her first same-sex partner. The term "intimate" does not necessarily equate to being exclusively sexual. An intimate relationship can also imply emotional or personal closeness in a romantic sense. The RAD does not find this to be a clear inconsistency between the BOC and the oral testimony. Furthermore, this detail alone does not negate whether or not this relationship took place, and therefore, it is peripheral. [29] The RAD considers that the Appellant provided consistent details about how she met her first sexual same-sex partner and how their relationship was subjected to rumours.30These details were consistent in her testimony and her BOC. The RAD finds on a balance of probabilities, that the Appellant genuinely had a same-sex relationship with this partner. Therefore, the RAD finds that the RPD erred in drawing a negative inference in regards to the number of sexual encounters she had with this partner. RPD's findings on delay alone cannot sustain the decision [30] The RPD found that the Appellant's delay in claiming was not reasonably explained, and that she lacked subjective fear.31 The RPD found that the Appellant was educated and sophisticated, and had the resourcefulness to have sought refugee protection at an earlier point in time than she did.32 The Appellant had the wherewithal to apply for a work permit and run her own business in Toronto. The RPD also found that the Appellant had a valid three year multiple-entry visa to Canada which was issued to her in XXXX 2010.33 The Appellant came to Canada for vacation in XXXX 2013 while using this visa, but had returned to Jamaica.34 The RPD found that the Appellant did not mention that she made the final decision to leave Jamaica to avoid persecution based on her sexual identity, but rather, because of the robbery and sexual assault that occurred to her.35 [31] If the RPD erred in its credibility analysis, the Appellant submits that the claim cannot be dismissed for lack of subjective fear alone.36 The reavailment findings cannot stand, as it is clear from the narrative that the first significant event of homophobic violence prompted her to leave Jamaica and not return.37 The sexual assault was persecution on the basis of sexual identity. Therefore, the RPD's finding that the Appellant did not mention avoiding persecution as a basis for sexual identity is nonsensical.38 [32] The RAD finds that the RPD's assessment on delay is correct. The Appellant came to Canada in XXXX 2013 and made her refugee claim in February 2015, XXXX XXXX XXXX XXXX XXXX later. The Appellant's temporary visitor status had long since expired at the time she made her claim, and so she risked deportation back to the country where she fears persecution. The RAD agrees with the RPD that the Appellant is college-educated, and had the sophistication and resources to start her own business. She had family members and friends who resided in Canada, who could have assisted her in finding a way to remain permanently and legally in the country. The RAD finds that the Appellant could have made a refugee claim at an earlier point in time. [33] However, the RAD finds that the Appellant's reavailment is not an indication of a lack of subjective fear. The RAD agrees with the Appellant, that the robbery and sexual assault was in part motivated by her sexual orientation. The RAD finds that this was the cumulating incident that led her to leave Jamaica for the final time. [34] The RAD also agrees with the Appellant, and finds that it cannot uphold the RPD's decision on its findings of delay alone. The RAD has found that the RPD's credibility findings are all in error for the reasons given above. The RAD finds that the preponderance of credible evidence outweighs its concerns regarding the lack of subjective fear due to delay. [35] Credibility is assessed on a balance of probabilities, and so the Appellant's evidence and testimony need not be perfect. Therefore, the RAD finds that the Appellant is credible as a bisexual woman, on a balance of probabilities. Consequently, there is a serious possibility of persecution for the Appellant if she returns to Jamaica. No state protection for the Appellant [36] The RAD finds that there is no adequate state protection available for the Appellant as bisexual woman living in Jamaica. Homophobia continues to be widespread in Jamaica and is a cultural norm.39 The police force in general did not recognize the extent and seriousness of bullying and violence against members of the LGBTQ community and failed to investigate.40 Human Rights Watch indicated that police officers have perpetrated violence against sexual minorities themselves.41 The documentary evidence is consistent with the Appellant's understanding of police attitudes and treatment of sexual minorities in Jamaica. Therefore, the RAD finds that the Appellant has rebutted the presumption of state protection in Jamaica, and that adequate state protection would not be forthcoming to her on a balance of probabilities. No internal flight alternative (IFA) [37] Given the homophobic attitudes that are prevalent throughout the country, the RAD finds that there is no safe and reasonable IFA for the Appellant, as there is a serious possibility of persecution throughout the country. [38] In summary, the RAD has reviewed all of the evidence in this claim. The RAD finds that the Appellant is credible in her testimony as a bisexual woman, on a balance of probabilities. The Appellant is a Convention Refugee as she would face a serious possibility of persecution if she were to return to Jamaica, because of her sexual orientation. Therefore, the RPD's decision is in error. CONCLUSION [39] The appeal is allowed. The RAD substitutes its own decision that the Appellant is a Convention refugee. (signed) M. Lee M. Lee August 12, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93, paragraph 78. 2 Exhibit P-3, Rule 29 Application, Exhibit A. 3 Exhibit P-3, Rule 29 Application, Application to admit post-perfection document and written submissions. 4 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 11, paragraph 15. 5 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 10, paragraph 14. 6 Exhibit P-2, Appellant Record, Appellant's Memorandum, at pages 11-12, paragraph 16. 7 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at pages 10-11, paragraphs 37-39. 8 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 13, paragraph 19. 9 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 14, paragraph 21; Burton v. Canada (CI), 2014 FC 910, paragraph 29, per Gleason J. 10 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 15, paragraph 23. 11 Ibid. 12 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at pages 10-11, paragraph 39. 13 Ibid. 14 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 11, paragraph 41. 15 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 11, paragraph 44. 16 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 17, paragraph 28. 17 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 18, paragraph 31. 18 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 17, paragraph 29. 19 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 21, paragraph 37. 20 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 21, paragraph 39. 21 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 24, paragraph 45. 22 Exhibit RPD-1, RPD Record, Exhibit 6, at pages 169, 173. 23 Exhibit RPD-1, RPD Record, Exhibit 6, pages 174-228. 24 Ibid. 25 Exhibit RPD-1, RPD Record, Exhibit 6, at pages 180-181. 26 RPD Hearing Recording, February 6, 2019, at 22:01. 27 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 11, paragraph 41. 28 RPD Hearing Recording, February 6, 2019, at 21:11. 29 Exhibit RPD-1, RPD Record, Exhibit 2, Basis of Claim (BOC) narrative, at page 33, paragraph 17. 30 RPD Hearing Recording, February 6, 2019, at 33:00; 38:36. 31 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 14, paragraph 54. 32 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 14, paragraphs 56-60. 33 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at pages 16-17, paragraph 72. 34 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 16, paragraph 70. 35 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 17, paragraph 73. 36 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 25, paragraph 48. 37 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 26, paragraph 50. 38 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 27, paragraph 53. 39 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentary Package (NDP) for Jamaica, 30 April 2018, item 6.1, Response to Information Request, JAM105416.E, 12 February 2016. 40 Ibid. 41 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-12622 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