TB8-01981

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 / Dossier de la SAR : TB8-01981 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered at Toronto, ON Appel instruit à Date of decision May 1, 2018 Date de la décision Panel Nadra Qadeer Tribunal Counsel for the person(s) who is(are) the subject of the appeal Aleksandar Jeremic Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX (the Appellant), appeals the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is currently XXXX years of age and a citizen of Sierra Leone. He is requesting that the Refugee Appeal Division (RAD) accept new evidence and either allow the appeal or refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA),1 the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and dismisses the appeal. ROLE OF THE RAD [3] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.2 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases, applies a standard of review of reasonableness.3 BACKGROUND [4] The Appellant has been living with his family in the Netherlands since he was 8 years of age. He identifies as gay. His mother and siblings travelled to Canada in October 2016 and made refugee claims. He was supposed to travel with them but was denied by his father who held him back in the Netherlands as punishment for not obtaining the necessary documents in order to travel. In XXXX 2017 the Appellant and his father attended a meeting at his school where they were concerned about his many absences from school. His father became angry with the Appellant and threatened to send him back to Sierra Leone. Fearing he would be sent there, he travelled to Canada June 29, 2017 to join his mother and siblings. He made an inland refugee claim in August 2017. [5] His claim was heard before the RPD on October 13, 2017 and denied in a written decision November 20, 2017. NEW EVIDENCE AND REQUEST FOR ORAL HEARING [6] The Appellant submits that two pieces of new evidence under Rule 29 of the RAD Rules, after the perfection of the appeal. He argues that they are both relevant and new and therefore meet the requirements. The two pieces of evidence include: (a) A letter from XXXX XXXX, a XXXX XXXX at the XXXX Community Center, dated February 20, 2018, verifying the Appellant's involvement in the XXXX dating back to August 2017.4 (b) Evidence contained in the Appellant's affidavit that he began a romantic relationship with XXXX XXXX XXXX on January 30, 2018.5 [7] Under Rule 29 the factors to consider as to whether to allow an application include; the document's relevant and probative value; any new evidence the document brings to the appeal; and whether the Appellant could have provided this as part of the appeal record. [8] The Appellant's notice of appeal was filed January 25, 2018 and was perfected on February 16, 2018. [9] The Appellant states that the evidence from the 519 Community Centre (evidence (a)) both predates and postdates the RPD's rejection of the claim. He states that he only requested the letter from the XXXX on February 13, 2018 yet provides no explanation for why he did not do it sooner. I find that much of this letter is not new. Evidence of the Appellant's activities in the XXXX Community Centre were already before the RPD panel. The Designated Representative (DR) spoke about it,6 and the Appellant submitted evidence of his activities.7 The only aspect of this evidence that is new is the evidence in the letter that the Appellant is now a peer leader in a XXXX program, a skill building initiative that began XXXX XXXX, 2018. I find that this evidence has no probative value to assist in his appeal, and could have been provided as part of the appeal record. I am therefore rejecting this evidence. [10] The second piece of new evidence (evidence (b)) is the Appellant's written testimony that he began a romantic relationship with XXXX XXXX XXXX on XXXX XXXX, 2018. I find this does not meet the criteria as set out in Rule 29 of the RAD rules as it began before the perfection of the appeal. The Appellant provides no explanation for why he could not include this evidence as part of his appeal record. Furthermore the Appellant explains that he cannot obtain corroboration from his new partner because "I have not known him long enough to feel comfortable asking him to write a statement confirming we are in a relationship."8 Given the limited amount of evidence this is, I also find that it is lacking in probative value. The new evidence is therefore denied. [11] The Appellant requests an oral hearing as a result of the new evidence. As no new evidence is accepted the RAD is unable to hold a hearing. ANALYSIS OF THE APPEAL [12] The Appellant argues that the RPD erred by: (a) not correctly considering the Guidelines with regard to Child Refugee Claimants and the SOGIE Guidelines;9 (b) erring in its credibility analysis, particularly in relation to Guideline 3; (c) ignoring the evidence provided by the Designated Representative (DR); and (d) dismissing the psychological report. The RPD correctly applied Guideline 3 [13] The Appellant argues that the RPD did not correctly apply the SOGIE Guidelines10 or the Child Refugee Claimant Guidelines,11 as it considered the Appellant "sophisticated" and did not consider his young age in relation to his testimony. The Appellant does not indicate where the RPD erred in the SOGIE Guidelines and having reviewed the RPD's decision, I find the RPD did consider and apply the SOGIE Guidelines. [14] I cannot agree with the submission that the RPD did not consider Guideline 3. Guideline 3 deals with both procedural and evidentiary issues. With respect to procedural, a Board appointed designated representative was present; the RPD panel was cognizant of the Appellant's age, offering breaks, directing him not to guess at answers but to state when he does not know, and allowing counsel to assist in directing the Appellant in how best to answer questions. Having listened to the hearing, the RPD approach was respectful and courteous, including when it needed to confront the Appellant on inconsistencies. [15] With respect to the evidentiary issues, the RPD took into account that, despite the Appellant's young age, he had received a formal education. The RPD considered the assistance the Appellant's family had provided given much of his family had previously had their refugee claim heard before the RPD, and that he has had counsel for the entire process. The RPD demonstrated its consideration of the Appellant's young age when the Appellant appeared uncomfortable discussing his sexual relations. In addition, the RPD allowed the Appellant to review his own evidence a number of times throughout the hearing when discussing his evidence. The RPD was mindful and ensured the Appellant was not required to discuss sexual activities with his partner. [16] The Appellant takes issue with the RPD describing him as "sophisticated." Having listened to the Appellant's testimony, I would agree with the RPD that the Appellant's vocabulary suggests a higher level of sophistication for his age. For example, when asked about the context of the text messages he submitted as part of his claim,12 the Appellant stated, "I can't put a narrative on just a single image." In another example, when asked about his reason for not travelling to Canada on an earlier trip with his family, the Appellant testified, "I'm not sure that that's such a big discrepancy." While the RPD panel had the meaningful advantage of observing the Appellant throughout the hearing, I find, upon a review of the testimony of the Appellant, that there is no issue with the RPD's characterization of the Appellant as sophisticated, given his circumstances. No errors in the analysis of the Appellant's first same-sex relationship When the relationship became romantic [17] The Appellant submits that he has had one sexual relationship, with a man named XXXX who is ten years senior to him. This relationship began in the Netherlands in XXXX 2016 and was continuing long distance, up until the date of the RPD hearing (XXXX XXXX, 2017). The Appellant submits that the RPD erred when it found his testimony inconsistent regarding how it became clear that XXXX was interested in being more than friends. I have reviewed the testimony on this aspect of the hearing: [18] The RPD asked the Appellant: How did it become clear he was interested in more than friendship? The Appellant responded: When we went to the city centre. RPD Panel: After a week? Appellant: No. 2-3 weeks later. RPD Panel: How did that happen? Do you want me to repeat the question? Appellant: Yes. RPD Panel: What was happening that caused you to both realize that it's going to turn into something more? Appellant: I can't really give any details because I don't remember the specific setting. [19] The RPD found that this testimony was inconsistent with the statement he made in his Basis of Claim (BOC) narrative which states, "Throughout texting it became clear that XXXX was interested in me more than a friend. So we went out next, we went out on a date".13 The Appellant argues that his explanation was that he thought the RPD member was asking how it became clear, once they met again, that XXXX was interested. This was the Appellant's response during the hearing as well. I find that the RPD finding on this point was not in error. While the Appellant explained during the hearing what he thought the RPD meant, it is clear from the exchange that the RPD's question was clear and was even repeated. I find no error in the RPD's finding here and find that the Appellant was inconsistent regarding how he knew XXXXwas interested in him for more than a friendship. Information about XXXX [20] The RPD made findings about the Appellant's lack of information about XXXX. The Appellant did not know what XXXX did for a living, what XXXX was doing in his life when they first met, and he did not know the basis of XXXX claim of asylum in the Netherlands. These findings are not contested by the Appellant in the memo and, having reviewed the testimony of the Appellant in the hearing, I find it unreasonable that the Appellant would not know such details. By the time of the RPD hearing, the Appellant and XXXX had been dating over a year and a half and were seeing each other and/or communicating regularly. That the Appellant would not know such details about his partner is lacking in credibility. Where they would meet [21] The Appellant argues that the RPD erred in finding him not credible regarding whether XXXX lived alone or not. The RPD asked the Appellant what he and XXXX did as a couple couple. The Appellant testified, "We meet up at least once a week, and weekends, we go out, watch movies, stuff like that". RPD panel: He lives by himself? Appellant: I've never been to his place [22] The RPD found that this statement was inconsistent with the letter from XXXX which states, "We started going out and sometime spend unforgettable hours of moments at my place."14 It is also inconsistent with the Appellant's BOC narrative which states, "XXXX is older and lives alone, so we were able to spend time there."15 When the Appellant was confronted by the RPD regarding this apparent inconsistency, he testified that he thought the panel meant XXXX most recent address. On appeal, the Appellant argues that the RPD's finding was erroneous on this point. I do not agree. There was no evidence that XXXX had ever moved from his place, and the questions asked by the RPD were in the context of what the Appellant and his partner did together. There was no indication, as the Appellant suggests, that the RPD was asking about one place versus another. The Appellant's response contradicted his other evidence, and it was open to the RPD to find the Appellant lacking in credibility. [23] The RPD went on to impugn the Appellant's testimony regarding XXXX home and whom he lived with. The Appellant takes issue with this as well finding the RPD did not consider the Appellant's young age. I find the Appellant's age has no bearing on his ability to describe whether or not he went to his partner's home and what it looked like. The Appellant provided contradictory evidence regarding whether he had even been there, and this contradiction is the more significant issue. Change in testimony when counsel questioned [24] While the Appellant submits that the RPD failed to consider the change in the Appellant's demeanor when questioned by his counsel, I find this is not determinative of the claim. Similarly, the issues raised by the Appellant regarding the RPD's finding on what he and XXXX talked about, given they were both gay and from Sierra Leone, is not determinative in this case. No error in the analysis of the Appellant's testimony regarding his father's threat [25] The Appellant argues the RPD erred in its analysis regarding his explanation for not being able to travel with his family in 2016. According to the Appellant's BOC, his family travelled to Canada in 2016, and he was supposed to go as well. He was denied going to Canada by his father because "I was supposed to go to a doctor to get a note, excusing me from school to be able to go on the trip to Canada."16 However, when asked by the RPD why he was supposed to obtain a doctor's note, the Appellant testified, "my dad told me about it about a month before the trip. He said go with the immunization card and they will give you a document....No, I had to get a shot and then get the card." The RPD asked, "So why were you supposed to get this?" Appellant: Because if we are travelling together he didn't want them to stop me because I am not immune. My passport is Sierra Leone there is some issue with that if travelling together...". [26] The RPD put the inconsistency to the Appellant who testified that he did not add the immunization issue to the story but that he sees no "discrepancy". I find the RPD's finding is not in error. A number of times through the course of the hearing the Appellant provides testimony that was different than what was written in his BOC. While his explanation was repeated to incorporate his new testimony with his new evidence, it was open for the RPD to find these inconsistencies significant. The RPD, in its decision, considered the various factors such as the assistance of the Appellant's mother and counsel in completing the BOC and the opportunity given to the Appellant at the start of the hearing to amend his BOC.17 [27] The RPD found that such inconsistencies go to the heart of the reasons for the Appellant needing to travel to Canada at a later date to make a refugee claim. Here, I agree with the RPD and find that the Appellant's testimony contradicted his written evidence, and this impugns his credibility. The RPD did not fully consider the DR's testimony [28] The Appellant argues that the RPD failed to consider the DR's testimony. While the RPD refers to the DR's submissions in its reasons, the Appellant argues that there is no indication in the reasons how the RPD considered it. Here, I agree with the Appellant that the RPD merely referring to considering the DR's testimony is insufficient, and it must demonstrate that it has. [29] I have reviewed the hearing and will consider the DR's testimony. The DR provided approximately 3 minutes of testimony following approximately 2.5 hours of testimony from the Appellant. The DR did indicate that the Appellant had been shy in the hearing room, and it was his first time speaking about his sexuality in "public". The DR went on to describe her assistance and observations of the Appellant at his first meeting at the XXXX Community Centre. While the DR stated, "I truly believe he is gay." I find the DR is not in a position to make such a finding. What I can accept from the DR is her observations of the Appellant attending the XXXX Community Center and the ease he felt among others in his peer group. I find, however, this does not outweigh the numerous credibility problems with the Appellant's evidence. Uncontested findings about joining an LGBTQ organization in the Netherlands [30] The RPD found, based upon the testimony of the Appellant, that he joined an LGBTQ organization in the Netherlands to assist in his claim. This finding is not contested by the Appellant. Reviewing the testimony during the hearing, the Appellant initially referred to joining the organization when questioned whether he was part of any LGBTQ organizations in the Netherlands.18 However, when asked why he joined, he stated that XXXX signed him up, and when asked the purpose of signing up, he stated, "was just for me. He also had to go through this in a way. He was just trying to utilize that to get a better case for the lawyer."19 The RPD impugned the Appellant's credibility, as it found the Appellant merely joined the organization to help his refugee claim. The RPD made similar findings in relation to the Appellant's activities with LGBTQ organizations in Canada. I have reviewed these findings, including having listened to the relevant testimony, and come to the same conclusion as the RPD. Psychological Report [31] The Appellant argues that the RPD erred in dismissing the psychological report.20 The RPD placed little weight on the report, as it was unable to question the doctor on the conclusions he makes. The RPD also found the report went beyond the scope of an assessment and essentially advocated for the Appellant. I find this argument to be non-determinative. [32] The report refers to the Appellant experiencing stress-related problems but also indicates that the Appellant does not report severe cognitive problems. In my reading of the report, I find that while I accept that the Appellant is facing stress related problems, and this may come with a pending RPD hearing, I find that this does not explain nor outweigh the numerous credibility problems with his testimony. There were numerous instances in which his oral testimony contradicted his written testimony, and he was unable to explain why he has no knowledge of basic information about his partner. I find the report cannot rectify the credibility problems with the Appellant's testimony and corroborating evidence. [33] In considering the totality of the evidence before me, I find that the minor errors made by the RPD are not fatal and that most of the RPD's findings are correct. Based upon my own independent assessment, the Appellant is lacking in credibility, on a balance of probabilities. CONCLUSION [34] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. [35] The appeal is dismissed. (signed) "Nadra Qadeer" Nadra Qadeer May 1, 2018 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 3 Ibid., Huruglica, 2016 FCA 93, at paras 69-74; and X (Re), 2017 CanLII 33034 (CA IRB). 4 Exhibit P-2, Appellant's Record, at p. 41. 5 Ibid., Appellant's Affidavit at p. 38. 6 Audio of RPD hearing 2:41-2:44 7 Exhibit RPD-1, RPD Record, Exhibits 4, items 6 and 7, and Exhibit 7 at p. 263. 8 Exhibit P-2, Appellant's Record, Affidavit of XXXXX XXXXX XXXXX, at p. 39. 9 Chairperson's Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, September 10, 1996 as continued in effect by the Chairperson on June 28, 2002 in section 159(1)(h) of the Immigration and Refugee Protection Act. 10 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression 11 Chairperson's Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, September 10, 1996 as continued in effect by the Chairperson on June 28, 2002 in section 159(1)(h) of the Immigration and Refugee Protection Act. 12 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 91. 13 Exhibit RPD-1, RPD Record, Exhibit 2, BOC narrative, at p. 29. 14 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 87. 15 Exhibit RPD-1, RPD Record, Exhibit 2, BOC narrative at p. 29. 16 Exhibit RPD-1, RPD Record, Exhibit 2, BOC narrative, at p. 29. 17 Exhibit RPD-1, RPD Record, Reasons and Decision, at p. 12, at paragraph 41. 18 Exhibit RPD-1, RPD Record, Exhibit 7, at p. 264. 19 Audio of hearing at 1:32 20 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 258. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-01981 14 RAD.25.02 (March 7, 2018) Disponible en français