TB5-07197

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 : TB5-07197 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 XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 27, 2015 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Benjamin Allison Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Appellant, XXXX XXXX XXXX, is a citizen of Jamaica and appeals a decision of the Refugee Protection Division (RPD) dated June 22, 2015, rejecting her claim for refugee protection. The Appellant is not submitting new evidence and is not requesting an oral hearing. The Appellant is requesting that the decision of the RPD be set aside and that the Refugee Appeal Division (RAD) refer the matter back to the RPD or that the RAD substitute a determination that the Appellant is a Convention refugee. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant fears returning to Jamaica due to her alleged sexual orientation as a bi-sexual woman. She alleges to have had relationships with women and men while she was residing in Jamaica. She arrived in Canada on a student visa in XXXX 2014, and in September of 2015, after her brother allegedly discovered her email conversations with her female lover in Jamaica, she filed for refugee protection. She is currently living with and is in a committed relationship with a man and she is carrying his child. ROLE OF THE RAD [4] The RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. 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". [5] 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 Alyafi,2 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. [6] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [7] The RPD found that the determinative issue in this claim is credibility. The RPD found that the Appellant was not a credible witness. Credibility [8] The RPD found that the Appellant failed to establish her sexual orientation. [9] The RAD has had an opportunity to listen to the recording of the RPD's sitting held on June 8, 2015 and makes the following findings of credibility. [10] The Appellant alleges that, while living with her brother in Toronto, she was using her brother's computer to communicate with XXXX XXXX, a female with whom the Appellant alleges to have had a relationship in Jamaica. She testified that she would inform her lover of the conditions in Canada with respect to gays and how free gays are to live out their lives. She then alleges that, because she had failed to erase one of these electronic conversations, her brother's wife found the conversation on the computer and told her husband about it. The Appellant then stated that her brother informed her family living in Jamaica of what he had discovered on the computer, thus exposing the Appellant's sexual orientation. [11] The RPD rejected this part of the Appellant's testimony because the panel felt that there was an inconsistency between the Appellant's testimony and the narrative in her Basis of Claim (BOC) with respect to what her family in Jamaica actually knew about her sexual orientation. The RAD does not place a great deal of evidentiary weight on this inconsistency. What is more troubling to the RAD is the fact that the Appellant made no effort to attempt to obtain a copy of this electronic correspondence. [12] The RPD asked the Appellant if she had copies of this correspondence and she replied that she did not. The RPD then asked her if she had made efforts to obtain them from her lover in Jamaica and again she replied in the negative. [13] The RAD finds it difficult to accept that the Appellant made no effort to attempt to obtain a copy of this electronic correspondence. After all, this is the cornerstone of her refugee claim for she alleges that her brother discovered that she is bisexual after her brother's wife discovered the correspondence on her brother's computer. The electronic correspondence would have corroborated the Appellant's testimony that she had communicated with her lover in Jamaica. It is reasonable to expect that someone who alleges that the very foundation of her fear for returning to her country of origin rests on the existence of electronic correspondence, would have made every effort to obtain the correspondence from her lover in Jamaica so that she could have corroborated her testimony. This the Appellant did not do. The RAD concludes that, on a balance of probabilities, the electronic correspondence between the Appellant and her alleged lover in Jamaica does not exist. [14] In support of her allegation, the Appellant filed with the RPD a letter from XXXX XXXX, dated January 4, 2015.3 The author recounts in some detail the events surrounding the Appellant's family and how they became suspicious of her, especially of how the Appellant's brother discovered that she was bi-sexual and the consequences that the Appellant would face if she were to return to Jamaica. However, the RAD has already made a credibility finding with respect to the allegation as to how the Appellant's brother became aware of the electronic correspondence and therefore gives this letter little evidentiary weight. [15] The RPD made a credibility finding with respect to the lack of letters of support from gay organizations in Toronto. The Appellant argues that the RPD should not have imposed on the Appellant the responsibility of providing letters of support from gay organizations in Toronto. [16] What is troubling for the RAD is not the absence of letters from gay organizations, but the lack of knowledge on the part of the Appellant of any support group for gay individuals in Toronto. The RPD asked numerous questions with respect to the Appellant's knowledge of support groups in Toronto for gay individuals. The Appellant provided vague and general responses without being able to provide any specific names of support groups. The RAD finds it reasonable that an individual who alleges to be bi-sexual, and who allegedly corresponds with her alleged former lover in Jamaica, singing the praises of Canadian society's attitude toward gays, would have been able to provide specific examples of how gay individuals are supported in the city of Toronto. The RAD agrees with the conclusion of the RPD on this point; that if Appellant's sexual orientation was important to her, "... she would have knowledge of and be involved in the LGBT community in Toronto." CONCLUSION [17] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the determination of the Refugee Protection Division that the Appellant is neither a Convention refugee nor a person in need of protection. [18] The appeal is dismissed. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino October 27, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Exhibit RPD-1, RPD's Record, pp. 122-123. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-07197