TB6-02142

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 : TB6-02142 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 June 28, 2016 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dariusz Wroblewski 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), a citizen of Tanzania is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant submitted new evidence in support of his appeal and has requested an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA). [2] The Appellant mistakenly asks that the Refugee Appeal Division (RAD) grant leave to appeal. The RAD, however, assumes the remedy requested by the Appellant is to set aside the decision of the RPD and find that he is a Convention refugee or, in the alternative, refer his claim back to the RPD for redetermination. DETERMINATION [3] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor is he a person in need of protection. The RAD dismisses the appeal. Background [4] The Appellant alleges that he is a Muslim and a bisexual man. [5] When the Appellant was a child he had his first sexual experience with a man who was a member of his mosque. During public school the Appellant befriended a boy named XXXX XXXX XXXX XXXX XXXX The friendship grew into a sexual relationship. [6] After completing high school the Appellant studied XXXX management. He obtained employment as a XXXX at a XXXX XXXX XXXX. When the Appellant obtained work in Dubai his mother insisted he get married. In 2010, shortly before he travelled to Dubai, the Appellant married. He remained in Dubai for two years and during that time was faithful to his wife. He did not tell her about his earlier sexual relationship with XXXX. [7] In 2013 the Appellant commenced work in Singapore on a ship out of the United States of America (U.S.). On one trip home XXXX came to the Appellant's home asking for money. The Appellant explained to XXXX that he was unable to provide him with money because of financial obligations to various family members. XXXX continued to visit the Appellant's home every day and became well known as an associate of the Appellant. The Appellant returned to sea in XXXX 2015. Out of boredom the Appellant had a sexual relationship with XXXX, another ship employee. [8] In XXXX 2015 the Appellant decided to leave the ship when he learned that XXXX had called his wife asking for help. His wife informed him that the police were looking for XXXX because XXXX was caught having sex with another man. XXXX and the other man managed to escape from people who attacked them. The Appellant's wife did not know the whereabouts of XXXX or whether he had been apprehended by the police. The Appellant became worried when his wife began to ask questions about the relationship between him and XXXX. The Appellant did not inform his wife about their sexual past. The Appellant worried that XXXX would begin to talk about their sexual relationship. [9] The Appellant arrived in Canada on XXXX XXXX, 2015 and made a claim for refugee protection on October 29, 2015. [10] The Appellant had a refugee determination hearing on December 22, 2015. In a written decision issued on January 18, 2016 the RPD rejected the claim. The RPD member found that the Appellant was not a credible witness and not bisexual. [11] Appeal pleadings were received on March 14, 2016. In his appeal, the Appellant argues that the RPD erred in its credibility findings. ROLE OF THE RAD [12] The RAD finds that the recent Federal Court of Appeal 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. [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. ANALYSIS Admissibility of new evidence presented on appeal [13] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his/her claim or that was not reasonably available, or that he/she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection of the claim. [14] The Appellant has submitted the following as new evidence with his Appellant's Record. a) An affidavit from the Appellant's wife, dated XXXX XXXX, 2016. b) A Warrant, dated XXXX XXXX, 2015. c) A Call of Police, dated XXXX XXXX, 2015 d) A letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX, dated XXXX XXXX, 2015. e) A letter from XXXX XXXX, the Appellant's partner, date XXXX XXXX, 2016, and four photographs. [15] In the case at hand, the Appellant submits that the proposed new evidence meets the test of s.110(4) of the IRPA because his wife refused any contact with him when his homosexual relationship and sexual orientation was revealed to her by XXXX and the police. After the Appellant's hearing his wife changed her mind and provided the Appellant with the first four documents listed above. The Appellant provided no explanation as to why the letter from XXXX XXXX and four photographs of the Appellant and Mr. XXXX meet the test of s.110(4). [16] The RAD will first consider the four documents a), b), c), and d), issued in Tanzania. The RAD does not accept the Appellant's explanation for the reason these pre-rejection documents were not submitted earlier and finds that they do not meet the statutory requirements of s.110(4). The RAD's reasons follow. [17] The Appellant pleads that his wife refused any contact with him until after he had his hearing before the RPD and she then changed her mind and, subsequently, sent these documents. The Appellant's testimony during his hearing before the RPD does not support this argument. According to the recording of the hearing, the Appellant's counsel asked him if his wife told him anything when he spoke with her on XXXX XXXX. The Appellant testified that his wife told him she was not with him because of what happened. When asked to explain his testimony, the Appellant testified that his wife does not love him now because she learned he was in love with someone else. When the Appellant was asked if he has spoken with his wife since XXXX XXXX, he responded in the affirmative. He made no mention in his oral testimony that his wife refused to have contact with him. The RAD, therefore, finds that the Appellant has provided no reasonable explanation why his wife could not have provided an affidavit for his hearing. The RAD notes that in her affidavit, the Appellant's wife makes no mention for the delay in providing the documents. [18] The RAD has also considered the date of issuance of the documents. Document c), the Call of Police, was issued XXXX XXXX before the Appellant's hearing before the RPD on December 22, 2015. The other three documents were issued after the hearing but before the RPD rendered its decision on January 18, 2016. While the RAD appreciates that the 'Call from Police' was issued only XXXX XXXX prior to the Appellant's hearing, the Appellant provided no explanation as to why all four documents could not have been presented to the RPD by way of post-hearing submissions. The Appellant did not include any envelopes in which the documents were sent to Canada which would provide delivery dates. [19] Even if the RAD accepted document c), the Warrant, the RAD would assign no weight to this document for the following reasons. The document appears to be a pre-printed form issued by the High Court in XXXX. However, the full title of the document is "Warrant in First Instance for Aprehension (sic) of Accused". The RAD reasonably expects that a document issued by the High Court in XXXX would not be printed with the obvious spelling error of the word "apprehension". In addition, information contained in the warrant indicates that the Appellant is charged with the "Unnatural Offences Contrary to Section 150(a) of Penal Act No. 7 of 2004 of Law of XXXX". According to the independent documentary evidence, 'Unnatural Offences' are listed under Section 154 of the Penal Code.2 [20] The RAD, therefore, does not accept documents a), b), c) and d). [21] The RAD accepts neither the letter from XXXX XXXX nor the accompanying photographs for the following reasons. According to information contained in a letter, dated XXXX XXXX, 2016, Mr. XXXX met the Appellant in XXXX 2015 which led to a relationship. Mr. XXXX says that he has come to know the Appellant over the past three months and that he and the Appellant have spent most weekends together. The RAD reasonably infers that the relationship existed when the Appellant had his hearing on December 22, 2015. As stated above, the Appellant provided no explanation as to why these documents were not provided for his hearing, if not as post-hearing submissions. Therefore the evidence fails to meet the test in s.110(4). [22] Even if the RAD were to accept these documents it would assign them no weight. Mr. XXXX does not specifically state that the relationship between him and the Appellant is a homosexual relationship. No identity documents accompanied the letter and the letter was not attested. The photographs submitted do not establish on their own the Appellant's sexual orientation. Request for an oral hearing [23] The Appellant requests that an oral hearing be held under subsection 110(6) of the IRPA. He submits that his request for an oral hearing fulfills criteria enunciated in subsections (a), (b), and (c). [24] The RAD may only convene an oral hearing if there is new evidence that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, that is central to the decision with respect to the refugee protection claim; and that, if accepted, would justify allowing or rejecting the refugee protection claim. Here the RAD has rejected all documents submitted as new evidence. Therefore, the RAD denies the request for an oral hearing. The Findings of the RPD [25] The RAD will focus on whether the RPD erred in its credibility findings. Information provided to the Appellant by his wife in August 2015 [26] The RPD found that it was not persuaded that XXXX informed the police about the relationship between him and the Appellant which led to the police attending the Appellant's home looking for him. The RPD based its finding on the contradictions between information provided by the Appellant in his Basis of Claim (BOC) form narrative and his oral testimony. [27] The Appellant pleads that the RPD made unwarranted and unfair credibility findings when the RPD found, among other things, that the Appellant failed to include in his BOC form narrative that he had been sought by the police. The Appellant argues that during the hearing he explained that the omission was an innocent error. The Appellant submits that the RPD committed a reviewable error in not accepting his explanation. [28] The RAD concurs with the RPD for the following reasons. [29] The RAD finds that the Appellant has mischaracterized what information was not provided in his written narrative. [30] As stated above, the Appellant alleges in his written narrative that he received information from his wife during a telephone call in XXXX 2015 which led him to leave the ship he was on and make a claim for protection. Having carefully listened to the recording of the hearing, the RAD finds that the Appellant could not keep the critical allegations of his story straight. Examples follow. [31] The Appellant testified that the police attended his house and asked his wife his whereabouts. The Appellant also testified that the police arrested XXXX and the man with whom XXXX was found having sex. When the RPD reviewed the Appellant's testimony the RPD asked the Appellant what the police had told his wife. The Appellant testified that she was informed that XXXX had been arrested and when XXXX was arrested he told the police he was involved with the Appellant. The Appellant testified further that his wife did not believe that he was involved with another man. The RPD then referred the Appellant to his written narrative which states that the police were looking for XXXX because they learned that XXXX was having sex with another man but XXXX managed to escape from an angry group of people who had discovered them. The RPD pointed out to the Appellant that his written narrative provides no information about the police coming to his home and providing this information to his wife. The Appellant simply repeated his earlier testimony. When asked specifically why there was no information about the police coming to his home, the Appellant provided incoherent testimony about a friend who sent a paper from Tanzania which shows the police went to his home. [32] According to the recording of the hearing, the RPD then reviewed the Appellant's testimony and again asked why he had not mentioned in his written BOC form narrative that the police attended his home. The Appellant responded that it was the truth and there was no reason it was not there. He then repeated his earlier testimony. The RPD continued to ask the Appellant why this information was not in his narrative and the Appellant continued to repeat his earlier testimony. The Appellant eventually testified that he apologized for the omission. Because of this serious omission the RAD draws a negative inference regarding the allegations of the actions of the police and XXXX. [33] The Appellant testified that XXXX called his wife requesting money. When asked why XXXX needed money the Appellant testified that if he returned home he would go to jail or, if he provided money to the police, XXXX would be released. He testified that when he would send money to his wife then XXXX received money from his wife. The RPD referred the Appellant to his BOC form narrative and asked him why this information was not in the narrative. The Appellant testified that he was confused. [34] The Appellant continued to testify before the RPD that the police had come to his home and informed his wife that XXXX had been arrested and that XXXX had informed the police that the Appellant had been his partner. When the RPD again asked the Appellant why none of this information was provided in his BOC form narrative, the Appellant was silent. [35] The RAD finds that the Appellant was unable to provide a satisfactory explanation for the serious omissions in his written narrative. An important indicator of credibility is whether a witness can consistently tell his particular story.3Allegedly the information provided to the Appellant by his wife instigated his claim for protection. The RAD finds that not only did the oral testimony not correspond to the BOC form, but the RAD finds that the Appellant embellished his claim throughout his testimony. As a result, the RAD finds that the Appellant seriously undermined his credibility with the omissions from his BOC form. Lack of documents [36] In its reasons the RPD found that, given the Appellant testified that the police came to his home looking for him, it is expected that the Appellant provide a police report or a warrant of arrest or a summons against him laid by the police. The RPD found that since the Appellant continues in his marital relationship it is expected that he provide a notarized affidavit from his wife stating why the police visited the Appellant's home. The RPD noted that the Appellant had testified that he had no identity documents or photographs of XXXX or media reports of XXXX arrest. The RPD then found that the Appellant had not persuasively established that an individual named XXXX exists or that XXXX was arrested and jailed by the police. The RPD disbelieved that the Appellant had a same sex relationship with XXXX. [37] The Appellant pleads that a claimant's sworn testimony is presumed to be truthful unless there is reason not to believe such testimony. The Appellant submits that mere lack of corroborating evidence to support a claimant's testimony is insufficient reason to discredit the claimant's testimony. The Appellant argues that expecting identity documents from XXXX puts not only an impossible onus on him but is irrational and absurd. The Appellant argues further that XXXX proved himself to be a dishonest and unscrupulous person who extorted money from the Appellant and threatened him with exposure if he did not comply with his demands. The Appellant pleads that it is unreasonable to expect him to approach XXXX while he is in custody. [38] The Appellant pleads that the same logic applies to his wife who was extremely upset and refused to talk with him for months. [39] The RAD concurs with the RPD, that as a result of the lack of corroborative evidence the Appellant's allegations are not to be believed. [40] The RAD, above, has found that the Appellant was not a credible witness. The RAD is guided by the jurisprudence for the proposition that the RPD is entitled to draw a negative inference from a claimant's failure to provide corroborating evidence when there are inconsistencies in the claimant's testimony.4 In addition, Justice Martineau held in Morka that in certain circumstances, where the claimant's account lacks credibility on key issues, it is reasonable to ground an adverse credibility finding on an absence of documentation to support an applicant's allegations.5 [41] The Federal Court has stated: It is well established that a panel cannot make negative inferences solely from the fact that a refugee claimant failed to produce any extrinsic documents to corroborate a claim. But where there are valid reasons to doubt a claimant's credibility, a failure to provide corroborating documentation is a proper consideration for a panel if the Board does not accept the applicant's explanation for failing to produce that evidence.6 [42] The Court has also stated: ... Where valid reasons to doubt a claimant's credibility exist, the Board may draw a negative credibility inference from a failure to provide supporting evidence. However, in my opinion, these inferences may only be drawn where the applicant has been unable to provide a reasonable explanation for his or her lack of corroborating material.7 [43] The RAD finds that corroborative information was reasonably available. As the RAD has indicated above, the Appellant testified that he was in contact with his wife. The Appellant had almost four months from the time he made a claim for protection until his hearing before the RPD.While the Appellant may have not wished to contact XXXX, there is no credible evidence that the Appellant could not have solicited documentary evidence from his wife in the form of an affidavit or media accounts of XXXX arrest, if such were issued, or documents from the police regarding actions of the police involving the Appellant. [44] In light of the RPD's credibility findings, the RAD does not find there to be sufficient credible evidence to establish that XXXX extorted money from the Appellant and threatened to expose him. Above, the RAD has found the Appellant's testimony that XXXX requested money from his wife not to be credible. In any event, the Appellant did not testify that XXXX was extorting him. Additionally, the Appellant testified that XXXX had exposed the Appellant's sexuality to the police. However, the RAD agrees that it would be unreasonable to expect a person wanted by the authorities because of homosexual activities, such as the Appellant alleges, to contact his jailed same-sex partner. Nevertheless, as the RAD has indicated in the previous paragraph, the Appellant was in contact with his wife and she was a person from whom he could reasonably request evidence. Letter of support from the XXXX XXXX XXXX [45] The RPD found that the letter from the XXXX XXXX XXXX8 does not mention that the Appellant is bisexual or that only gays can become members of the organization. The RPD found that merely joining an LGBT community does not make a claimant bisexual. [46] The Appellant submits that the RPD did not give clear and convincing reasons for giving no probative value to the letter from the XXXX XXXX XXXX. [47] The RAD agrees with the Appellant. The RPD did not assign weight to this document. [48] The RAD will, therefore, assess the probative value of the letter from the XXXX XXXX XXXX. [49] The letter states that the Appellant is a member of the centre's Among Friends LGBT (Lesbian, Gay, Bisexual, Trans-gender) Refugee Support Group. The letter states that the Appellant completed a newcomer orientation session in XXXX 2015 and attends weekly meetings. The letter establishes that the Appellant is a member at XXXX and is involved in various activities. As the RPD stated in its decision, the XXXX XXXX XXXX is not restricted to LGBT individuals and the letter does not overtly identify the Appellant as a bisexual. The letter, on its own, does not establish the sexuality of the Appellant. Therefore, the RAD finds the letter has little probative value in establishing the sexual identity of the Appellant in light of the numerous credibility problems outlined in these reasons with respect to his sexual orientation. Summary [50] Based on a review of the totality of the evidence, the Appellant has not provided sufficient credible or trustworthy evidence in support of his claim. The RAD, therefore, finds that the Appellant is neither homosexual nor bisexual. DISPOSITION [51] Based on the analysis above, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection, as per s. 111(1)(a) of IRPA. [52] The appeal is dismissed. (signed) "Lesley Mason" Lesley Mason June 28, 2016 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Exhibit RPD-1, RPD Record, pages 50-64, National Documentation Package (NDP) Tanzania, version August 15, 2015, item 6.1, Response to Information Request TZA104923.E. 3 Dan-Ash v. Canada (Minister of Employment and Immigration) (1988), 93 N.R. 33 (F.C.A.). 4 Encinas v. Canada (Minister of Citizenship and Immigration), 2006 FC 61; Mejia v Canada (Minister of Citizenship and Immigration), 2009 FC 1091 5 Morka v.Canada (Citizenship and Immigration), 2007 FC 315 6 Amarapala, Priyanga Udayantha v. M.C.I. (F.C., no. IMM-5034-03), Kelen, January 7, 2004, 2004 FC 12. 7 Dundar, Abdulvehap v. M.C.I. (F.C., no. IMM-5568-06), Tremblay-Lamer, October 5, 2007, 2007 FC 1026, at para.22. 8 Exhibit RPD-1, RPD Record, page 96. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-02142