TB5-05088

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 : TB5-05088 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 / heard at Toronto, Ontario Appel instruit à Date of decision September 16, 2015 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Pablo Andres Irribarra Valdes Barrister and Solicitor 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] XXXX XXXX XXXX, (the Appellant), is a citizen of Uganda, and appeals a decision of the Refugee Protection Division (RPD) denying her claims for refugee protection. She has submitted new evidence in support of her appeal. The Appellant asks that the appeal be allowed, and that either the Appellant be found to be a Convention refugee, or in the alternative, that the matter be referred back to Refugee Protection Division for redetermination. DETERMINATION [2] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD (Refugee Appeal Division) set aside the determination of the RPD and substitute a determination that, in its opinion, should have been made. The RAD finds that the Appellant is a Convention refugee, who would face a threat of persecution should she return to Uganda. Memorandum of Appeal [3] The RPD erred in its assessment of Ms. XXXX credibility, in finding that she did not provide sufficient credible and trustworthy evidence that she is a lesbian woman, thereby reaching an unreasonable determination, warranting intervention on appeal. [4] The new evidence filed in support of this appeal meets the requirement of subsection 110(4) of the IRPA, further corroborating the Appellant's testimony that she is a lesbian woman with reliable and trustworthy evidence, such that this appeal should be allowed and the Appellant should be determined to be a Convention refugee. Background [5] The Appellant alleges that she is a lesbian who fears harm amounting to persecution in Uganda at the hands of the police, family, and other community members. The Appellant alleges that she was in a secret same-sex relationship since 2008 with XXXX with whom she occasionally stayed. The Appellant's family members, her mother and two teenage daughters, were unaware of this relationship and never met XXXX. The Appellant was previously in a customary marriage which she alleges ended over 15 years ago. Her former common-law husband is the father of her two daughters. [6] The Appellant worked for a XXXX agency in XXXX, Uganda. In XXXX, 2014, she obtained a Canadian temporary resident visa to attend a XXXX month training course in Nova Scotia. The Appellant made a claim for refugee protection in January, 2015. [7] The Appellant's Refugee hearing was held on March 18, 2015, and in a decision on that same day the RPD rejected the claim. The RPD found that the Appellant had provided insufficient credible evidence to support the central allegation of her claim. The panel found, on a balance of probabilities, that the Appellant is not a lesbian. [8] As a result, the RPD found that the Appellant had not provided sufficient credible and trustworthy evidence to show that she would face a serious possibility of harm in Uganda on the basis of her sexual orientation, or that, on a balance of probabilities, she would have a risk to life or of cruel and unusual treatment or punishment or a danger of torture in Uganda. ROLE OF THE RAD [9] The Appellant submits that the appropriate standard of review applied to this appeal is the Federal Court case of Huruglica.1 The RAD finds that the Federal Court decision, in Huruglica, 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 [Appellant] 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." [10] 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. Admissibility of Evidence Submitted on Appeal [11] Section 110(4) of the IRPA provides that the Appellant "may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected2 in the circumstances to have presented, at the time of the rejection." [12] It is for the Appellant to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellant.3 [13] While section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, is irrelevant, or is immaterial to the issues to be considered by the RAD, it would make little sense to admit such a document, even if it meets the test in section 110(4). [14] For these Reasons, the RAD will apply the following factors to evidence that passes the test in section 110(4). a. The RAD will consider whether the proposed new evidence is credible and trustworthy. b. The RAD will assess the relevance of the evidence-whether it is capable, together with the other evidence in the record (including other admissible new evidence) of proving or disproving a fact at issue in either the refugee claim or the appeal.4 c. The RAD will determine whether the evidence is material, in the sense that it would be capable of justifying, with or without the benefit of an oral hearing, as the case may be, a disposition under section 111 of the IRPA. [15] If the proposed new evidence does not meet each of the factors above, the RAD may choose not to admit it. These factors, however, are not exhaustive, as the RAD may consider other factors as appropriate in the circumstances. Documentation Not Submitted [16] The Appellant submitted a letter, dated March 16, 2015, from her alleged lesbian lover, XXXX XXXX, who lives in Uganda. This letter predates the date of the hearing of March 18, 2015 and the date of decision, March 18, 2015. Along with this letter was a photocopy of XXXX Ugandan passport.5 [17] Pages 40 and 41 of the Memorandum of Appeal is a copy of the email messages exchanged between the Appellant and her counsel, Christine Sepuya on March 17, 2015 at 6:07 AM until 1:08 PM. The Appellant's counsel chose not to submit this letter from the Appellant's alleged lover in Uganda because she questioned its genuineness. The email message timed at 8:55 AM on Tuesday, March 17, 2015, includes the following, "Omukono oguli kuno gugwo. Sisobola kugiwa yo. Be very careful. Bano balaba bingi." The Appellant provided a certified translation of this message, "The signature on this is yours. I cannot hand it in. Be very careful. These [sic] see many things."6 [18] The RAD examined the signature on the photocopy of XXXX Ugandan passport and the signature of the letter referred to above. Although the RAD member is not a handwriting expert, the RAD member, on a balance of probabilities, finds that the signatures are from the same person. Although the letter predates the date of the hearing, the Appellant followed the instructions of her counsel at that time. The RAD finds that although the letter does not meet the criteria of newness, it is relevant to the decision made by the RPD, and will be admitted into evidence. The RAD finds, on a balance of probabilities, that if this letter had been admitted into evidence at the hearing, it would have caused the RPD to respond differently. New Evidence [19] Pages 50 to 51 of the Memorandum of Appeal, include email messages, dated Wednesday, April 8, 2015, April 28, 2015, and April 29, 2015 sent from XXXX XXXX to the Appellant. There were also letters dated March 25, 2015, April 7, 2015, April 14, 2015 and May 20, 2015.7 The contents of these letters indicate that the Appellant and the author had an intimate relationship. The RAD again examined the signatures on the letters submitted, and compared it to the signature on the copy of the passport submitted, and found them, on a balance of probabilities, to be from the same person. RPD's Finding [20] Although the Appellant had indicated on her BOC8 form that she had been in casual same-sex relationships previously, the RPD found the omission of this alleged long-term relationship in her BOC documents impacted her credibility. The RPD also found that the lack of supporting documentation regarding this relationship undermined her credibility, regarding the basis of her claim, as well. As stated above, the RAD admitted new evidence that reasonably should have been before the RPD at the Refugee hearing. The RAD found that had this document been produced, a different process and conclusion might have been reached. Additional New Evidence [21] Pages 61 through 69 of the Appellant's Record are medical documentation from Uganda and Canada. The medical documentation from Uganda predates the hearing, and should reasonably have been presented. This documentation was sent from Uganda, according to the FedEx waybill submitted, from XXXX XXXX to the Appellant. Given the educational background of the Appellant, it would have been reasonable to expect the Ugandan medical documentation at the hearing. The RAD does not accept this documentation in that it could have been made available for the hearing. The Canadian documentation submitted, post hearing, is not probative in relation to the basis of the Appellant's claim, that she is a lesbian from Uganda. In that this documentation has no relevance, it will not be accepted as new evidence. [22] The following letters of support were submitted: i. A letter from a Ugandan national, (with an accompanying photo of her Ugandan passport face page), stating that she has known the Appellant as a lesbian since 2011, and a secret group of eight girls who protected each other.9 ii. A letter from a lesbian member of the XXXX XXXX XXXX, commenting on the positive characteristics of the Appellant, and stating that she self-identified as a lesbian.10 iii. A letter (with accompanying Ontario Photo Card) from a self-identified gay man. He comments on the stories that the Appellant related to him, in a group for newcomers, of a homosexual orientation, at the XXXX XXXX XXXX, regarding her humiliating and dehumanizing experiences in Uganda.11 iv. A letter (with accompanying Ontario Photo Card) confirming that the Appellant is a lesbian who has shared many of her experiences while meeting and socializing at the XXXX XXXX in downtown Toronto.12 v. A letter (with accompanying Ontario Photo Card and picture) commented on the positive attributes of the Appellant.13 vi. A letter in French (with the accompanying face page of the Canadian Refugee claimant's application form), recounting the stories that the Appellant told related to her lesbian experiences in Uganda.14 vii. A letter from an ordained church minister, Reverend XXXX XXXX, serving XXXX XXXX XXXX XXXX Church in Toronto. He comments on, and states that the Appellant identifies as a lesbian. A letter from the Director of XXXX at XXXX XXXX XXXXChurch, and two others, outlines his personal experience having been raised in a homophobic family, and relates the Appellant's story.15 viii. A letter from the Director of the XXXX XXXX XXXX in Toronto, who retells the Appellant's story, and the consequences of her returning home after disclosing her sexuality.16 ix. A letter from a lesbian refugee claimant (Canadian refugee protection claimant document face page included) who affirms that the Appellant is a lesbian.17 x. A letter from a refugee claimant (Canadian refugee protection document face page included) who comments on the positive personal qualities of the Appellant.18 xi. A letter from the XXXX XXXX XXXX XXXXCoordinator, XXXX XXXX XXXX XXXX, comments on the positive qualities of the Appellant, and her participation in the weekly support meetings and XXXX related workshops.19 xii. Pictures of the Appellant's participation in events at the XXXX XXXX XXXX and the XXXX XXXX in Toronto in 2015.20 xiii. A report from XXXX XXXX, a Registered Psychotherapist. The report outlines the cognitive effects of stress on the Appellant, and the traumatization of the Appellant from her experiences in Uganda, and the potential deterioration if she returned.21 [23] The RAD accepts all the documents above, numbers i-xiii, as new evidence. In reviewing the transcript of the hearing, the RAD finds, given the first document reviewed above, that the Appellant was truly not aware of the necessary documentation needed to support her claim. The RAD is cognizant of the Appellant's academic and employment background, and would have reasonably expected her to have some knowledge and insight into the necessary documents. [24] Although the Appellant is responsible for the counsel she engaged to represent her at the hearing, the RAD gives benefit of the doubt to the Appellant's testimony regarding the lack of knowledge about the appropriate documentation necessary to support her claim. [25] The RAD finds, on a balance of probabilities, that if the original documentation had been presented at the RPD hearing, arrangements would have been made for subsequent documentation to have been presented to support her claim. The RAD finds that if this subsequent documentation had been presented, that a different result would have occurred. The RAD finds, on a balance of probabilities, given the additional evidence presented, that the Appellant is a lesbian. [26] Uganda passed the Anti-Homosexuality act, the law passed in 2014 22 which clearly outlines the consequences-life imprisonment-for being involved in same-sex intimacy. The RAD finds this law is persecutory for all LGBT people. Disposition [27] The RAD, having found that the Appellant is a lesbian, cannot support the RPD's decision regarding the Appellant. The RAD, according to IRPA section 111(1)(b) sets aside the determination of the RPD and substitutes a determination that, in its opinion, should have been made. The RAD finds that the Appellant is a Convention refugee, who would face a threat of persecution should she return to Uganda. (signed) "Robert S. Garner" Robert S. Garner September 16, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 In the French version of IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, at para. 51. 3 Rule 3(3)(g)(iii)., Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012/257. 4 See Raza, Syed Masood v. M.C.I. (F.C., no. IMM-7269-05), Mosley, November 16, 2006, 2006 FC 1385; Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, at para. 13; also David Paciocco & Lee Stuesser, The Law of Evidence, 3d ed. (Irwin Law, 2002) at 24: "Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence." 5 Exhibit P-2, Appellant's Record, at pp. 34-38. 6 Exhibit P-2, Appellant's Record, at p. 43. 7 Exhibit P-2, Appellant's Record, at pp. 52-60. 8 Exhibit RPD-1, RPD's Record, at pp. 9-19. 9 Exhibit P-2, Appellant's Record, at pp. 73-74. 10 Exhibit P-2, Appellant's Record, at p. 77. 11 Exhibit P-2, Appellant's Record, at pp. 79-80. 12 Exhibit P-2, Appellant's Record, at pp. 82-83 13 Exhibit P-2, Appellant's Record, at pp. 85-87. 14 Exhibit P-2, Appellant's Record, at pp. 89-90. 15 Exhibit P-2, Appellant's Record, at pp. 92-94. 16 Exhibit P-2, Appellant's Record, at pp. 96-98. 17 Exhibit P-2, Appellant's Record, at pp. 100-101. 18 Exhibit P-2, Appellant's Record, at pp. 103-104 19 Exhibit P-2, Appellant's Record, at pp. 106-109. 20 Exhibit P-2, Appellant's Record, at pp. 111-121. 21 Exhibit P-2, Appellant's Record, at pp. 123-128. 22 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Uganda (June 27, 2014), item 6.1 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05088