TB8-23756

RAD File / Dossier de la SAR : TB8-23756 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 XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision June 11, 2020 Date de la décision Panel H. Shepherd Tribunal Counsel for the person who is the subject of the appeal Michael Brodzky 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] I allow this appeal. The Appellant, XXXX XXXX XXXX XXXX is citizen of Tanzania who claims refugee protection on the basis of her lesbian sexual orientation. She has not applied to file additional evidence, but has asked for an oral hearing.1 This request is denied because no new evidence has been submitted that was not before the Refugee Protection Division (RPD) that would need to be evaluated pursuant to subsection 110(6) of the Immigration and Refugee Protection Act (IRPA). Basis of Claim summary [2] The appellant is from Zanzibar, Tanzania. She became aware of her sexual attraction towards women at her very young age. She had a long-term relationship with a girl named XXXX XXXX XXXX XXXX XXXX.2 with whom she maintained a relationship even when working in Dubai. On March 28, 2016, XXXX XXXX XXXX XXXX XXXX XXXX XXXX husband discovered the two of them in an intimate situation. He locked XXXX XXXX XXXX XXXX XXXX. in the house and dragged the Appellant to the police station. After criminal charges were laid, her aunt made arrangements for her release on bail on an undertaking to appear in court on April 12, 2016. She did so at which time she was arraigned. She was then sent to jail where she was repeatedly raped. Her aunt went to court and succeeded in having her released on bail six days later. After her release, she was hospitalized from April 18, 2016 until April 23, 2016 where she was treated for sexual assault. After her discharge, she was taken to see a psychiatrist. She was subsequently unable to attend court because she was not well enough mentally or physically. Fearful of the consequences of a conviction, she obtained a Canadian temporary resident visa with the help of an aunt in Canada with which she entered the country on XXXX XXXX XXXX 2016. She claimed refugee protection in September 2016. Findings of the RPD [3] The RPD rejected the claim on the basis of the lack of credibility for the following reasons: i) As a preliminary matter, the RPD concluded that there was insufficient evidence that the interpretation at any sitting was inadequate; ii) The RPD drew adverse inferences from Basis of Claim (BOC) omissions and inconsistencies relating to the core incident when the claimant's sexual orientation was revealed; iii) The Appellant failed to establish that her mental health affected her ability to testify; iv) The Appellant failed to provide a reasonable explanation for the omission in her BOC narrative that she fled Zanzibar in disguise; and v) The supporting documents do not establish the claimant's allegations including her sexual orientation. Grounds for the Appeal [4] Counsel submits that the RPD erred for the following reasons: i) The RPR erred with respect to the interpretation issue; the deficiencies were obvious to the tribunal; ii) The RPD erred by drawing negative inferences from inconsistencies and omissions that are peripheral to the claim; iii) The RPD failed to assess all the supporting evidence; iv) The RPD failed to apply Guidelines 4 and 9 properly; and v) The RPD failed to conduct a separate section 97 analysis. Summary of the Refugee Appeal Division decision [5] The determinative issue for the appeal is credibility. [6] The RPD erred by failing to assess inconstancies and BOC omissions in light of all of the evidence and applicable Guidelines. ANALYSIS The issue of interpretation [7] Counsel submits that the RPD erred in dismissing the issue of inadequate interpretation without given adequate reasons. This submission is without merit. Although Immigration and Refugee Board of Canada (IRB) interpreters are accredited after having passed an examination, problems sometimes arise as a result of differing dialects. In such cases, an audit can be requested to ensure that any transcript that is relied on meets applicable legal standards. This should be done in a timely manner to avoid any unnecessary delays in the proceedings. The hearing took place over three days. At the beginning of the second session, counsel intended to apply for a change of interpreters, but did not do so because a different interpreter was present. He provided no evidence that there were meaningful problems with the first interpretation, nor did he ask for an audit. In particular, he did not challenge the use by the RPD of the transcript from the first session. The second and third sessions proceeded uneventfully. Counsel's submissions at the end of the third day never raised the question of interpretation, nor did he submit that the first transcript should not be relied on. [8] First, counsel never asked for an audit, nor did he produce evidence of faulty interpretation before the RPD. Second, counsel acquiesced to proceeding on the second and third days with the first transcript. Third, counsel never submitted that the RPD should not rely on the first transcript because of inadequate interpretation. Fourth, given that this issue was never raised as an issue by counsel, the RPD was under no obligation to consider on its own initiative. Fifth, counsel raised the issue for the first time on appeal. Sixth, counsel asks the Refugee Appeal Division (RAD) to review the transcript and to speculate that any perceived issues should be attributed to poor translation rather than to the mental health issues that the Appellant has been diagnosed with. No evidence was filed that could support this submission, nor were specific examples cited. Seventh, counsel has failed to explain the significance of any particular interpretation issue for the fairness of the hearing. Finally, the role of the RAD is to correct errors made by the RPD and to consider new evidence that is admissible pursuant to section 110 of the IRPA, not to accommodate hindsight on the part of counsel. RPD Findings Inconsistent evidence about discovery by husband and apprehension by police [9] According to the BOC narrative, XXXX XXXX XXXX XXXX XXXX XXXX's husband walked in on them in an intimate situation and became upset. He locked his spouse in the house and took the Appellant to the police station. Inconsistently, she testified that XXXX XXXX XXXX XXXX XXXX XXXX's husband locked the door when he discovered them, went to the police station and then returned with officers who then took both of them to the station. She stated that she forgot to mention details about the specific actions of the police in her BOC narrative, and that there may have been problems with the interpretation. The RPD drew an adverse credibility inference from this because she declared that the BOC was "complete, true and correct"3, and because the issue of how her sexual orientation was discovered is a core element of the claim. BOC omission about being followed to the police station and harassed there [10] The RPD drew an adverse inference from the fact that no mention is made in the BOC narrative to having been followed to the police station by at least five people who were insulting and threatening her. She also failed to mention that the police harassed, assaulted and swore at her at the police station. The RPD did not accept the explanation that she was suffering from stress and depression when the BOC was drafted which resulted in her being forgetful of a number of details. [11] The RPD considered a report from a Canadian psychiatrist which diagnosed the Appellant as suffering from Adjustment Disorder with features of post-traumatic stress disorder (PTSD) which impairs sleep and causes flashbacks, depression and crying spells.4 A prescription from Zanzibar shows a diagnosis of "psychotic".5 A worker at the Canadian Centre for Victims of Torture (CCVT) assessed the Appellant and concluded that she is a victim of torture who needs ongoing trauma counselling.6 The RPD then cited from Guideline 4 on gender-related persecution with respect to the potential psychological consequences that could arise from Rape Trauma Syndrome. However, the RPD noted that the psychiatric report indicates that the Appellant's cognition is intact and that she does not suffer from a thought disorder. As a result, the panel concluded that the state of her mental health did not affect her ability to present her case and does not reasonably account for the BOC omissions and inconsistent testimony. Departure from Zanzibar [12] The RPD drew an adverse credibility inference from the fact that the Appellant omitted to state in her BOC narrative that she wore a Niqab from the time she left Zanzibar until she arrived at the airport in Dar es Salaam. She did not accept the Appellant's explanation that she did not consider this to be important. According to the RPD, this is important with reference to her level of fear as well as to the means and motivation of the police to find her. Corroborative Evidence [13] The RPD relied on the Sheikh decision to conclude that the Appellant is not credible and trustworthy in any of her testimony based on the cumulative effect of the credibility concerns.7 It then went on to consider the supporting evidence. [14] Although the RPD did not challenge the identity, educational or professional documents, little weight was given to them because they do not address the issue of persecution or harm. [15] The RPD also accepted the authenticity of the Zanzibar medical report and the prescription which show that she received medical treatment. However, the RPD noted that they do not indicate how and why she was attacked. In particular, they do not link the attack to her having been arrested because of her sexual orientation. As a result, they have little weight in assessing the stated risk. [16] The RPD concluded that a photograph of the Appellant with another woman has little probative value because it shows people in ordinary circumstances and because it does not indicate the identity of the other woman, nor does it establish the nature of their relationship.8 [17] Although the RPD did not question the authenticity of police "wanted" notice and the letter from her aunt which states that she is being sought by the police, neither specify the reason for the police interest. As a result, little weight can be given to them because the Appellant is otherwise not credible. [18] The RPD accepted that the Appellant attended activities in the LGBTIQ+ community and at the CCVT. However, the RPD did not give much weight to the documents because services are provided to people without questioning their sexual orientation. The RPD gave little weight to a statement from a community health worker at Access Alliance that he does not doubt that the Appellant is a lesbian because this opinion was based on how she presented herself, not on the evidence that was before the RPD. Objections by Counsel [19] Counsel concedes the inconsistencies and BOC omissions, but submits that the RPD erred in a number of ways. First, the inconsistencies identified by the RPD are minor and peripheral ones which cannot justify adverse credibility findings. Second, the RPD failed to be sensitive to the consequences of a brutal sexual assault on a woman, as required by Guideline 4.9 Third, the RPD failed to be sensitive to cultural, psychological and other barriers that could help explain inconsistencies on the part of a lesbian, as mandated by Guideline 9.10 Fourth, the RPD erred by failing to conduct its credibility assessment in light of all of the evidence -including medical and psychiatric- an affidavit from the aunt, country conditions, and the experiences of similarly situated persons. Fifth, the RPD failed to make a finding concerning the Appellant's sexual orientation independently of allegations of fact that occurred in Tanzania. Sixth, the RPD did not respect the presumption that sworn testimony is true. Finally, the RPD erred by failing to conduct an assessment pursuant to section 97 of the IRPA. RAD Assessment [20] Although the determinative issue is credibility, two significant legal issues arise from the appeal. The first concerns the definition of a material BOC omission and its consequences. The second relates to the question of whether a general finding of lack of credibility is based on a disjunctive or a conjunctive consideration of the evidence. BOC Omissions [21] A distinction should be made between important facts that must be identified in the BOC and supplementary details which can be added during oral testimony. According to the Federal Court in Basseghi, although answers in the BOC should be brief, all relevant and important facts should be included. The role of oral testimony is to explain the information found in the BOC.11 In Feradov, the Court accepted that the narrative in question was a very general summary of the central aspects of the claim.12 The fact that collateral details were not included should not have been of concern to the RPD. In other words, important events must be disclosed, but supporting details that are of an explanatory nature do not need to be included. In addition, the RPD should not be zealous in its attempt to find contradictions, nor should it be over-vigilant or microscopic in its assessment.13 Explanations that are not implausible must be considered. [22] The Appellant provided a narrative of over three pages in which she presented the key events. She said that she was dragged by the police to the station, but omitted to say that a group of people followed along and insulted her. She stated that she was detained on March 28, 2016 for one night, but failed to mention that she was harassed and insulted while there.14 Although she initially said that she had been hit, she clarified this by stating that she was pushed. She indicated that she fled from Zanzibar to Dar es Salaam, but failed to mention that she wore a Niqab to hide her identity while travelling. In all of these cases, the underlying event was disclosed, but not all of the accompanying details. Although it is true that the additional information is relevant to the issue of risk, they function as explanatory details that are significant, but fill out the narrative. The fact that she was followed by the crowd and wore a Niqab are collateral details that did not need to be disclosed. The allegations that she was harassed and pushed by police is important and should have been disclosed. A conclusion as to whether an adverse credibility inference should be drawn from this would require an assessment of all of the evidence. A disjunctive approach which detaches each observation and attempts to assess it in isolation from all of the evidence constitutes an error in law. [23] A more significant issue can be found in the clear inconsistency between the BOC narrative and her testimony about how she was first apprehended by the police. The two versions are fundamentally irreconcilable and concern an issue that forms part of the core of the claim. Although the RPD is entitled to take such significant inconsistencies into consideration, it must consider all of the evidence. In this case, the Appellant provided medical and psychological evidence that establishes that she was treated in hospital after having been raped. The incident in question concerns a very traumatic chapter in her life. She was discovered by an irate husband and dragged to the police station with neighbours jeering at her. Once at the station, she was insulted and pushed. She was taken back into custody on April 12, 2016 and brutally raped on a number of occasions. She was treated for mental health problems in Tanzania and has been diagnosed with PTSD and other psychological problems by a Canadian psychiatrist. Under these circumstances, it is plausible that her recollection of altercations with police may not have been as accurate as the RPD expected. The methodological problem stems from the fact that she dismissed the Appellant's explanation and drew and adverse credibility inference without considering her psychological state. Later in the reasons for decision, the psychiatric evidence with given little probative value because of the adverse credibility. The RPD failed to assess credibility in light of the medical evidence and to apply Guideline 4 in any meaningful way. The totality of the evidence [24] Consideration of the consequences that result from adverse credibility findings can be found in the Federal Court of Appeal's Sheikh decision.15 It holds that the RPD can find a claimant so lacking in credibility that there is no credible evidence to support the claim. A general finding of a lack of credibility with respect to part of the claimant's evidence can extend to all relevant evidence that comes from that person's testimony. In Sellan, the Federal Court of Appeal determined that a general finding of lack of credibility is sufficient to dispose of the claim if there is no credible independent evidence that is capable of supporting it.16 It is important to note that this Federal Court of Appeal extends reasons to believe that a claimant is not a credible witness to all evidence that is not independent of the person. This point is made clear by the Federal Court in the Dhaliwal decision.17 Unreliable evidence from the claimant does not negate independent evidence. An allegation is not proven to be false by the mere fact that some of the evidence is unreliable and could not alone establish its reliability. He illustrates this point by referring to one of Aesop's Fables: "distrusting the panicked yelps of the boy who cried wolf does not let one ignore security camera footage of a wolf chasing him." Independent third-party evidence must be evaluated on its own merits independently of a claimant's lack of credibility. [25] The RPD made no adverse findings with respect to the authenticity of any of the supporting documents. However, the panel used a discrete and microscopic approach to assign probative value to each document in abstraction from all of the other evidence. As a result, it was able to accept that the police "wanted" notice and the letter from her aunt are authentic, but that they have little probative value because they do not specify the reason why the police want to arrest her. The RPD justified this approach on the basis of previous adverse credibility findings without attempting to determine what the supporting evidence, taken together establish. [26] The corroborative evidence reveals the following picture: The Appellant was admitted to the XXXX XXXX XXXX XXXX in Kilimani, Zanzibar on April 18, 2016 and treated after she was seriously injured as a result of having been sexually assaulted.18 After her discharge on April 23, 2016, she was treated for psychological problems related to psychosis.19 The Appellant's aunt provided her with accommodation from May 10, 2016 until she left the country on XXXX XXXX, 2016, during which time the police were looking for her.20 She was able to apply for, and receive, a Canadian temporary resident visa while staying with her aunt.21 After she left the country, the police posted a notice in a newspaper on November 8, 2016 seeking the public's help in locating the Appellant.22 After her admission to Canada, the Appellant began attending the 519 Community Centre on September 14, 2016, about three weeks after her arrival in Canada.23 She also began to participate in weekly activities with Access Alliance in October 2016.24 Based on an assessment, an Access Alliance community health worker has no doubt that the Appellant is a lesbian.25 She also sought counselling at the CCVT which referred her to a psychiatrist for assessment. She was diagnosed with PTSD and other psychological challenges that resulted from past trauma.26 A picture emerges from the documentary evidence that is consistent with the core elements of the Appellant's allegations of fact. [27] The RPD did not challenge the authenticity of any of these documents. As a result, it was required to assess credibility in light of this established factual background and in accordance with Guidelines 4 and 9. When all of the evidence is considered together, the BOC omissions and the significant inconsistency with respect to interaction with the police are insufficient to make an overall finding that the Appellant is not to be believed. In particular, the RPD had inadequate grounds to rebut the presumption that her basic narrative is true. As a result, I set aside the RPD's adverse credibility findings and substitute my own determination that she is a credible and trustworthy witness with respect to the central elements of the claim. Country conditions [28] The National Documentation Package (NDP) presented before the RPD was issued on April 30, 2018 and contains two primary sources for information: The first is a 2014 response to information request that documents arbitrary arrest, physical abuse, sexual assault, beatings and other forms of mistreatment at the hands of police who act with impunity.27 Systemic societal prejudice and discrimination exist and can result in threats and violence against sexual minorities. [29] The second is the United States Report on Human Rights Practices.28 Same-sex sexual conduct is illegal and can result in imprisonment of up to 14 years in Zanzibar and 30 years to life on the mainland. Zanzibar also has a law that provides terms of imprisonment for a maximum of 5 years or a fine for acts of lesbianism. However, the burden of proof is high and prosecutions are rare. Arrest on these grounds was typically used by the police to collect bribes and coerce sex from the victims. Police often harass persons whom they believe to be lesbian, gay, bisexual, transgender, intersex, or queer. (LGBTIQ). [30] According to the Federal Court, the RAD must consider the most recent NDP. Duty of fairness requires that disclosure be made of novel or significant documents, including those that demonstrate changes in general country conditions that could affect the decision.29 I have considered the current version of the NDP that was issued on September 30, 2019 which includes updates of both of the previously-cited documents. They have not been disclosed because they do not demonstrate a change in country conditions that could affect the outcome of the appeal. [31] Section 136 of the Tanzanian Penal Code was amended on March 16, 2018 to increase the sentences for acts of lesbianism from a fine or up to 5 years in jail to a term of imprisonment between a minimum of 5 years and a maximum of 10 years.30 The situation has become worse for members of the LGBTIQ community in that country because of an unprecedented government "crackdown" that began in July 2016. Authorities are now arresting and prosecuting people on charges relating to homosexuality. The document confirms that police continue to mistreat gay detainees. Sources report that sexual minorities are subject to discrimination in health care, housing, and employment. [32] The updated version of the United States Country Report on Human Rights Practices confirms that the state has taken more aggressive action against sexual minorities since the previous report.31 A number of examples are given of homosexuals and lesbians who have been arrested. In one case, two lesbians were arrested in December 2017 and have not been heard from since. Zanzibar police arrested 20 people in September 2017 because they participated in an HIV/AIDS education course provided by an officially accredited international organization. Tourists are being denied admission if they are suspected of being gay. Attempts to improve the treatment of members of the LGBTIQ community are viewed as being contrary to the cultural norms of Tanzania and contrary to the law. The Regional Commissioner of Police in Dar es Salaam created a taskforce in October 2017 to round up people who have engaged in same-sex relations. This government crackdown has instilled widespread fear among sexual minorities. Victims are often fearful to report to the police the violence that they have experienced for fear of being arrested. Discrimination continues to impair access to health care, housing and employment. The government has taken no steps to stop these practices. Concluding remarks [33] The evidence establishes that the Appellant has a subjective fear of persecution. Objective support for the claim is evident in the applicable country documentation. Given that the police are the agents of persecution, State protection and internal flight alternative are not available to her. The Appellant has a well-founded fear of persecution in Tanzania. CONCLUSION [34] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) "H. Shepherd" H. Shepherd June 11, 2020 Date 1 Exhibit P-2, Appellant's Record, p. 11. 2 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision. 3 Exhibit RPD-1, RPD Record, Exhibit 2, p. 26. 4 Ibid., Exhibit 7, pp. 117-118. 5 Ibid., p. 113. 6 Ibid. Exhibit 12, p. 143. 7 Sheikh v. Canada (Minister of Employment and Immigration), 1990 CanLII 8017 (FCA), [1990] 3 FCR 238 at para. 8. 8 Exhibit RPD-1, RPD Record, Exhibit 9, p. 136. 9 Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines issued by the Chairperson pursuant to Section 65(3)of the Immigration Act. IRB, Ottawa, Effective date: November 13, 1996. 10 Chairperson's Guideline 9: 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 Immigration and Refugee Protection Act. IRB, Ottawa, Effective date: May 1, 2017. 11 Basseghi, Kourosh v. M.C.I. (F.C.T.D., no. IMM-2227-94), Teitelbaum, December 6, 1994 12 Feradov v. Canada (Citizenship and Immigration), 2007 FC 101 (CanLII). 13 Attakora v. Canada (Minister of Employment and Immigration), (1989) 99 N.R. 168 (F.C.A.). 14 Transcript of June 5, 2018 RPD Hearing, pp. 24-27. 15 Sheikh v. Canada (Minister of Employment and Immigration) 1990 CanLII 8017 (FCA), [1990] 3 FC 238 at 244. 16 Canada (Citizenship and Immigration) v. Sellan, 2008 FCA 381 (CanLII), at para. 3. 17 Dhaliwal v. Canada (Public Safety and Emergency Preparedness), 2015 FC 157 (CanLII), at paras 85 and 86. 18 Exhibit RPD-1, RPD Record, Exhibit 7, p. 112. 19 Ibid., pp. 113-114. 20 Ibid., Exhibit 8, p. 127. 21 Ibid., Exhibit 4, pp. 75-85. 22 Ibid., Exhibit 8, pp. 125-126. 23 Ibid., Exhibit 7, pp. 119-120; Exhibit 8, pp. 133-135. 24 Ibid., Exhibit 8, p. 132. 25 Ibid., Exhibit 7, p. 121. 26 Ibid., p. 117. 27 Exhibit RPD-1, RPD Record, Exhibit 11,National Documentation Package (NDP), for Tanzania, 30 April 2018, item 6.1: Treatment of sexual minorities by society and government authorities; recourse and protection available to those who have been subject to ill treatment (2007 - July 2014). Response to Information Request (RIR) TZA104923.E. 8 August 2014. 28 Ibid., item 2.1: ?Tanzania. Country Reports on Human Rights Practices for 2017. 20 April 2018. 29 Zhang v. Canada (Citizenship and Immigration), 2015 FC 1031 (CanLII). 30 National Documentation Package, for Tanzania, 30 September 2019, item 6.1: Treatment of sexual minorities by society and the authorities, including legislation, state protection available and support services; the laws criminalizing same-sex unions in Zanzibar, including whether there is any confusion among the ... RIR TZA106150.FE. 17 September 2018. 31 Ibid., item 2.1: Tanzania. Country Reports on Human Rights Practices for 2018. 13 March 2019. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-23756 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