TB5-10813

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 : TB5-10813 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 November 18, 2015 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A 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 Cameroon, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his claim. He has requested an oral hearing. The Appellant further requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and remits the matter to the RPD for reconsideration by a differently-constituted panel. Determination [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. [3] The Appellant alleged he is a homosexual who fears return to the Cameroon because he has been summoned for trial and will be imprisoned. He further submits he was involved in a homosexual relationship for years in high school, and subsequently he had other sexual relationships while still in high school and after graduation. [4] He moved to XXXX after graduation in 2008 and began a relationship with a man named XXXX. The Appellant was attacked and beaten on XXXX XXXX, 2014 because he was holding hands with XXXX while waiting for a taxi. The Appellant did not know that XXXX was known for being gay in that community. [5] The Appellant moved back to his home in XXXX and hid his sexuality from his parents. He met XXXX, a man he knew to be gay in high school. He approached XXXX who took offence and reported the Appellant to the police. The Appellant was issued 'convocation' (summons) and arrested on XXXX XXXX, 2014, and detained for three days. After his release on bail, he was issued a notice to appear in court for involvement in homosexual activities. As a result, he left Cameroon and came to Canada. The issues [6] The panel indicated the determinative issues in this claim are lack of subjective fear and credibility. [7] The Appellant submits the panel erred by misapprehending his evidence. [8] The RAD acknowledges that the Appellant is self-represented in this appeal and has taken this matter into consideration in its review and analysis of the evidence in the RPD record and the Appellant's Memorandum of Argument. Role of the RAD [9] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [10] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [11] In this regard, the Court in Huruglica considered the appropriate relationship between the RAD and the RPD.1 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [12] The Court determined that, in conducting its assessment, the RAD 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. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error." [13] The RAD will review all of the evidence in the RPD record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Application for an oral hearing [14] The Appellant asks that an oral hearing be held pursuant to subsection 110(6) of IRPA. Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. According to subsection 110(6), the RAD may hold a hearing if in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant that is central to the RPD's decision, and if accepted, would justify allowing or rejecting the refugee protection claim. The RAD notes that no new evidence in support of this claim has been submitted by the Appellant. Therefore the request for an oral hearing is dismissed. Credibility Corroborative documentation from Cameroon [15] The panel noted the Appellant provided no documentation from his former sexual partners in Cameroon and he did not even contemplate asking any of them to provided evidence for his case. The panel noted he was with some of these alleged partners for six months and according to his testimony longer than five years. The Appellant failed to provide emails, cards or any other evidence that these relationships ever took place or that he ever had a gay sexual encounter with anyone in Cameroon. [16] The Appellant submits he testified that he had lost contact with XXXX after the incident in XXXX. He further submits he had other people who could testify about his sexuality but was not given the chance to present any. [17] The RAD has reviewed all of the evidence in the RPD record concerning this issue, including the recording of the hearing. The RAD notes there is no evidence that the Appellant was denied the opportunity to present witnesses. The RAD further notes the panel asked the Appellant if he tried to find XXXX in order to provide corroboration of their relationship, and he responded "I did not think of that." [18] The RAD notes as well the Appellant stated that he had multiple homosexual relationships in Cameroon but there is no evidence he made any effort to seek corroborating documentation from any of these men. The RAD notes as well the Appellant testified his uncle was told he was gay and his uncle, who made the contact with an agent, was aware of his need to leave Cameroon, but there is, as well, no corroborating documentation from him. [19] The RAD notes the panel made no specific finding regarding the lack of corroborating documentation. The RAD finds that it strains credulity that the Appellant could not provide some corroborating documentation in this regard and the Appellant's failure to do so raises a serious doubt regarding the truthfulness of his testimony concerning his homosexual relationships. The police beating [20] The panel noted that the Appellant testified he had been brutally beaten by the police while detained for three days in XXXX 2014. The Appellant indicated he had been repeatedly flogged with sticks resulting in excruciating pain, swollen legs and an inability to walk. The panel further noted the Appellant indicated he was tortured because he was a homosexual, the basis for his claim, but he did not mention this in his Basis of Claim Form (BOC). [21] The panel noted that question 2A in the BOC specifically asks whether the claimant had ever been mistreated or harmed and he mentioned being beaten by a group of men in 2011. The panel further noted he did not mention the most recent torture by the police, the reason he allegedly fled Cameroon. [22] The Appellant explained in the hearing that he only wrote what was necessary and subsequently stated he forgot to put it down. The panel rejected this explanation and noted the Appellant reads and writes English and the instructions regarding question 2A are in bold print and caps and states the claimant should list everything that is important to the claim. [23] The panel noted the Appellant had prepared his own BOC without assistance by counsel but further noted the Appellant is fluent in English and no interpreter was required for the hearing. The panel further noted the Appellant is a high school graduate and affirmed in the hearing that his BOC was complete, true and correct. The panel noted as well the Appellant subsequently obtained counsel and no amendments were filed. [24] The panel drew a negative inference as to the Appellant's credibility and whether he had actually been detained by the police in Cameroon. [25] The Appellant submits he was brutally beaten by the police but this is not the basis of his claim for protection. The Appellant further submits he was released and subsequently received a notice to appear in court for the reason he was jailed, his homosexual advance to a man in XXXX. The Appellant submits as well that this is the reason he fled Cameroon. [26] The RAD has reviewed the evidence in the RPD record concerning the Appellant's arrest and detention by the police. The RAD finds the Appellant's failure to indicate in his BOC that he was brutally beaten by the police raises a serious doubt that the beatings ever took place and raises a doubt as well that the Appellant was arrested and detained. The RAD finds it was open to the panel to draw a negative inference and concurs with the panel's finding in this regard. Response to Schedule A question when filing his claim [27] The panel noted the Appellant was asked whether he had ever been detained, incarcerated or put in jail and he checked off "no". The Appellant was questioned in the hearing about this contradiction and he responded that he thought it meant that had he ever stolen or been convicted of anything and he had not. The panel further noted the Appellant subsequently acknowledged that the question did not mention conviction or theft. [28] The panel drew a further negative inference as to whether the Appellant had ever been incarcerated and detained. The panel noted the Appellant had testified that he had been caned over 30 times over 12 hours in one day and could not walk on swollen legs, and found he would clearly remember his arrest as this is the reason he left Cameroon. [29] The panel drew a further negative inference as to the Appellant's credibility and whether he was ever arrested or detained in Cameroon. [30] The Appellant submits he was confused in this regard and he was told that homosexuality is not a crime in Canada and so he thought being jailed for homosexuality was not considered. [31] The RAD is not persuaded by the Appellant's explanation in this regard. The RAD notes the Appellant gave a different explanation when this issue was raised in the RPD hearing. In the hearing he testified he thought the question referred to whether he had ever stolen something or was convicted of anything. The RAD finds it was open to the panel to draw a negative inference regarding the Appellant's indication that he had not been detained in Cameroon. The RAD further finds the Appellant's failure to mention his beating by police during his alleged detention, his failure to indicate he was arrested in his Schedule A form and his changed explanation for his Schedule A response, cumulatively enhance the doubt as to whether he was ever beaten and whether he was ever arrested and detained in Cameroon because he is a homosexual. Documentation [32] The panel found, in the context of credibility findings noted above and also country document evidence cited below, that the "non-secure" documents from Cameroon concerning the alleged arrest are not genuine.2 The panel cited a Response to Information Request (RIR)3 which indicates that there appears to be fraudulent police Notice to Appear documents that are available in Cameroon. This document further indicates that these fraudulent notices are almost identical to real notices and the only way to distinguish them is to contact the police for verification. The panel gave the Appellant's documentation in this regard no weight. [33] The Appellant submits the police document was issued by a competent authority. [34] The RAD has reviewed the evidence in the RPD record concerning the Appellant's police summons and detention and finds, in the context of the negative credibility findings above concerning the truthfulness of the Appellant's allegation that he was arrested and beaten, and as well the country document evidence concerning the availability of fraudulent Notice to Appear documents in Cameroon, that it was open to the panel to give this documentation no weight. The Appellant's relationship with XXXX [35] The panel noted the Appellant testified that XXXX was older and taught him how to avoid being caught as a gay man in Cameroon. The Appellant further testified that he was told not to participate in holiday marches and events and keep an extremely low profile. He was also told by XXXX that he should not tell anyone he was gay and must never publicly display any affection with a man. [36] The panel noted however that the Appellant testified that XXXX was an openly gay person and everyone knew he was gay. He would dress in a way recognized in Cameroon as an indication that he was gay and he was a XXXX XXXX also associated with a gay man. [37] The panel found it did not appear credible that XXXX would instruct the Appellant about how to avoid being identified as gay. The panel noted in this regards that the Appellant indicated in his BOC that XXXX was known in the community to be a homosexual. [38] The panel further found it is not credible that the Appellant would have been holding hands with XXXX in public while waiting for a taxi if he had been instructed by XXXX not to do so. The panel noted that the Appellant explained that men never display hand-holding in Cameroon unlike the practice in other cultures. The panel noted that the Appellant testified that XXXX was overtly gay and known to be gay in this community. [39] The panel questioned the Appellant as to why he would be holding hands with XXXX in public after he was instructed not to do so and he responded that it was at night and he did not think he would be seen. The panel found, in the context of the situation in Cameroon, this would not be done and further noted a cab driver observing this could result in a public beating. The panel noted that homophobia is extreme in Cameroon.4 [40] The panel drew a negative inference as to the credibility that this event took place. [41] The Appellant submits he mentioned that XXXX was known to be gay in his neighbourhood, not in the entire country as the panel indicated. The Appellant further submits he said this because the attackers knew XXXX and it was in his neighbourhood. The Appellant submits as well that they had been together in other places and there was no issue. The Appellant also submits that there are many male hair dressers in Cameroon who are not gay [42] The Appellant submits that two brothers can hold hands and it is common in XXXX where traffic is rough and it is usually considered that one person is helping the other to cross the road. The Appellant further notes it was late in the evening and there was trouble because XXXX was known by the attackers. [43] The RAD has reviewed all of the evidence in the RPD record convening the Appellant's relationship with XXXX and the XXXX 2014 incident. The RAD notes the Appellant's testimony was confusing in that XXXX allegedly told him to avoid any public demonstration of affection with another man but they were holding hands in public. The RAD further notes the Appellant testified that it was permitted in certain circumstances to hold hands but in earlier testimony he indicated that men holding hands in Cameroon was not acceptable. [44] The RAD notes that the Appellant testified that a homosexual must be caught in the act in order to be at risk of attack and it was not a problem that XXXX was known to be gay. The RAD finds that it strains credulity that a person known to be gay would be left alone and the risk of attack would come only if one were observed engaging in an act that suggested homosexuality, such as holding hands. [45] The RAD finds it strains credulity that a person known to be a homosexual in Cameroon would not be subject to abuse whether engaged in a homosexual act or not. The RAD notes that the Appellant indicated in his BOC that he did not know that XXXX was known to be a homosexual in his community when he held hands with XXXX. The RAD finds this too strains credulity since the Appellant described XXXX dress and actions which were presumed to reflect homosexuality in Cameroon and they had known each other for some time. [46] The RAD is not persuaded by the Appellant's argument in this regard and finds it was open to the panel to draw a negative inference. Medical documentation [47] The panel gave no weight to the medical documentation concerning the Appellant's beating after being seen holding hands with XXXX. The panel noted the documentation was unsecured and is inconsistent with the booklet indicating two different dates for the occurrences, The panel noted as well the medical document does not state why the Appellant was beaten. The panel found this documentation does not corroborate that the Appellant was beaten for being perceived to be a homosexual. [48] The Appellant submits the panel mentioned that the medical documentation was inconsistent in regard to dates, but failed to mention the inconsistency or the dates involved. The Appellant further submits he did not disclose to the doctor that he was beaten because he was gay and he did not want to be judged. [49] The RAD has reviewed the medical documentation and is unable to confirm the panel's observation that the document is inconsistent regarding dates. The RAD agrees with the panel, however, that the medical document does not confirm that the Appellant was beaten because he was perceived to be a homosexual. Multiple homosexual relationships in a repressive homophobic country but no such contacts in Canada [50] The panel found it not to be credible that the Appellant would have engaged in many homosexual relationships, even after being beaten for just being suspected of homosexuality, and then propose to another man when he returned to his home town. The panel noted prejudice and discrimination against homosexuals is pervasive in Cameroon.5 The panel found it incredible that this same man had no interest in gay men in Canada. The Appellant explained he needed to acclimatize himself to the environment in Canada. [51] The panel noted the contrast between the Appellant's alleged multiple homosexual relationships in repressive Cameroon and, as he testified, his avoidance of even a chat or coffee with a gay man in Canada. The panel found it not credible that the Appellant has divorced himself from all gay men who have reached out to him in Canada. [52] The Appellant submits that his not having a sexual partner in Canada should not be a determining factor in this decision. The Appellant further submits he is fully engaged in the GLBT community in Canada. The Appellant noted the letter from his Minister and his activities in the XXXX Pride Centre. The Appellant submits as well he was not in the best frame of mind to engage in sexual relationships before the hearing. [53] While the RAD agrees that the Appellant's willingness to engage in multiple homosexual relationships in Cameroon where there is significant prejudice and repression by the government, but his rejection of such relationships in Canada where he would be safe does raise a doubt about his homosexual identity. The RAD finds however, the Appellant's explanation noted above concerning no such relationships in Canada is plausible. Delay in making a claim for protection [54] The panel found the Appellant evinced a lack of subjective fear of harm by not filing a refugee claim immediately on his arrival in Canada in September 2014. The panel noted the Appellant did not file a claim until mid-January 2015. The panel further noted the Appellant testified he knew he could claim refugee protection in Canada when he was in Cameroon but delayed for months. The panel further noted the Appellant stated that people in a local Gay Pride Centre encouraged him to file a refugee claim, but he did not do so. The panel found that if he feared imprisonment in Cameroon he would have consulted websites, talked to a lawyer or anyone about how he could avoid returning to Cameroon. [55] The panel noted the Appellant is fluent in English and he drafted on his own his BOC with multiple pages in English. The panel found he is intellectually adept and able. The panel questioned the Appellant about the delay and he explained he feared the immigration system in Canada and he was so confused that he could not file. [56] The panel found the Appellant was not so incapacitated. He found the Pride Centre in XXXX and volunteered there. He was advised about how to apply and the panel further found his delay reflected a lack of subjective fear. [57] The RAD notes the Appellant makes no submission in this regard. The RAD's conclusion [58] The RAD has reviewed and assessed all of the evidence in the RPD record and finds there is insufficient credible evidence that the Appellant is a homosexual and that his allegations of attack, arrest and detention and beating by the police are true. Disposition [59] Pursuant to section 111(1)(a) of IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Milton Israel" Milton Israel November 18, 2015 Date 1Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2Exhibit RPD-1, RPD's Record, at pp. 147-151. 3Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for Cameroon (30 April 2014), item 10.1. 4 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for Cameroon (30 April 2014), item 10.1. 5Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for Cameroon (30 April 2014), item 6.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-10813