MB6-00388

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 : MB6-00388 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision December 23, 2016 Date de la décision Panel Me Christina Harrison Baird Tribunal Counsel for the person who is the subject of the appeal Me Rezaur Rahman 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 [1] XXXX XXXX XXXX XXXX1, a citizen of Cameroon, appeals the decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant neither requests to submit new evidence, nor requests that a hearing be held. The Appellant requests that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute a determination that, in the RAD's opinion, should have been made, or refer the matter back to the RPD for re-determination. The Minister did not intervene in the appeal. DECISION [2] Pursuant to s. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD for different reasons. The Appellant is neither a "Convention Refugee" pursuant to s. 96 of IRPA, nor a "person in need of protection" pursuant to s. 97 of IRPA. BACKGROUND [3] The Appellant alleges that if she is returned to Cameroon she will be arrested by the police or assaulted by members of the public for being a lesbian. It is a criminal offence in Cameroon to engage in homosexual behaviour. She alleges that she had a secret romantic relationship with a female co-worker. The Appellant says that unknown members of the public discovered this relationship, resulting in two assaults on herself and her lover, and that the circumstances of the second assault resulted in criminal charges for homosexual behaviour. [4] The Appellant states that she fears persecution if returned to Cameroon because her sexual orientation is known to the public and to the police. She departed Cameroon on XXXX XXXX 2014, and claimed refugee protection in Canada on 1 April 2014. [5] The Appellant has appeared before two differently constituted panels of the RPD. Her first RPD hearing took place on 30 June 2014. The RPD determined that the Appellant was not credible and had failed to meet the burden of proof required of her under both ss. 96 and 97 of IRPA. The Appellant appealed to the RAD, which referred the matter back to the RPD for redetermination, giving the following directions: [29] ... the credibility conclusion of the RPD is not quite sufficient for me to accept the decision as is. I conclude that, in this case, the key allegation of the Appellant that she is associated with and has been involved with the XXXX [sic] requires investigation. I must conclude that the legitimacy of Exhibit C-5 (RPD Record, p. 145-6) should be investigated and given that this should be doable in a relatively expeditious manner, I conclude that this file must be returned to a differently constituted panel to accomplish this task.2 [6] The Appellant's second RPD hearing took place on 26 November 2015. The RPD determined that the claimant was not credible and had failed to discharge the burden of proof to establish either a serious possibility of persecution on one of the Convention grounds, or that, on a balance of probabilities, she would be personally subjected to a danger of torture or to a risk to her life, or to a risk of cruel and unusual treatment or punishment if she were to return to her country. The RPD found that the Appellant's passport and visa application contained material contradictions to her oral testimony, which contradictions the Appellant was unable to explain. The RPD further found that the Appellant's corroborative evidence, purportedly from the non-governmental organization XXXX XXXX XXXX XXXX XXXX XXXX had no probative value. As a result, the RPD found that the Appellant's credibility as to her sexual orientation was undermined and that she was not credible in terms of any of her allegations or the documents she produced to support her claim for refugee protection. [7] The Appellant submits that the RPD erred in its credibility analysis by finding facts without any evidence and by misapprehending or ignoring the evidence. Furthermore, the Appellant submits that having dealt extensively with the Appellant's credibility, the RPD failed to assess her credibility on the core issue, that is, whether the Appellant is a lesbian. The Appellant argues that there is no valid reason for the RPD not to believe that she is a lesbian and has a well-founded fear of persecution in Cameroon. [8] For these reasons, the Appellant requests that the RAD grant the appeal by setting aside the RPD decision and substituting its own decision or by referring the matter back to the RPD for re-determination. SCOPE OF THE RAD APPEAL [9] The standard of review to be applied by the RAD now has been clearly articulated by the Federal Court of Appeal in the matter of Huruglica.3 [10] The RAD is required to consider carefully the decision of the RPD and to carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred.4 The role of the RAD is not to review RPD decisions in the manner of a judicial review. Rather, the process before the RAD is a "hybrid appeal". The standard of review for questions of law is correctness.5 The standard of review for findings of fact and findings of mixed fact and law is also correctness, where those findings raise no issue of credibility of oral evidence.6 [11] For findings that require an assessment of the credibility or weight to be given to oral evidence, the RAD should determine whether the RPD benefited from a meaningful advantage over the RAD and whether the RAD should, therefore, give deference before substituting its own determination.7 The Federal Court of Appeal has explicitly distinguished the RAD's review of the RPD from the high level of deference afforded by appellate courts to lower courts.8 The amount of deference to be accorded will be determined based on the circumstances of each case.9 In this case, I will address deference in the discussion of credibility. [12] Having made its own analysis of the record, the RAD may either confirm the decision of the RPD, or set it aside and substitute its own decision.10 The RAD must provide a final determination unless it cannot do so without hearing the oral evidence presented to the RPD. Only in cases where it cannot make a final determination, the RAD may refer the matter back to the RPD for re-determination. 11 ANALYSIS [13] I have listened to the recording of the hearing before each of the two RPD panels and analyzed the entire RPD Record, including the oral and documentary evidence and the reasons for the second RPD decision. I have considered all the arguments of the Appellant. Issues [14] The issues in this appeal are: i) whether the RPD erred in making its finding that the Appellant was not credible; and ii) whether the RPD erred in its assessment of the evidence, including the corroborative evidence provided by the Appellant. Credibility [15] When a refugee claimant swears certain facts to be true, this creates a presumption that they are true unless there is valid reason to doubt their truthfulness.12 The Appellant submits that the RPD erred in concluding that she was not credible. The RPD found that the Appellant's testimony contained many inconsistencies and "a plethora of contradictions".13 Having carried out my own analysis of the record, I find that the RPD was correct. There were valid reasons to doubt the truthfulness of the Appellant's sworn testimony. i. Appellant's evidence about her personal information [16] The Appellant's difficulty to establish her credibility begins with the most basic information about her. Upon review of her visa application dated 6 January 2014, her immigration forms dated 1 April 2014, her Basis of Claim form dated 6 May 2014 and her oral testimony at her refugee hearings on 30 June 2014 and 26 November 2015, it is clear that she has provided different information regarding her immediate family, her place of residence, her travel, her education and her employment. [17] Regarding her children, the Appellant's visa application stated she had twin children, XXXX and XXXX, born XXXX XXXX 2012. In support of the visa application, the Appellant provided birth certificates for the twins as well as a certificate of marriage to their father dated XXXX XXXX 2011. In the visa application, the Appellant indicated that XXXX was her sister, born on XXXX XXXX 1980.14 However, in her Basis of Claim and in oral testimony, she claims to have only one child, XXXX, a daughter born on XXXX XXXX 1998, and to be unmarried. In support of her refugee claim, the Appellant provided a birth certificate for XXXX showing her birth in 1998.15 [18] As to place of residence, in her visa application, the Appellant stated that she had lived in XXXX, Côte d'Ivoire, from XXXX 2010 to XXXX 2011. This statement was consistent with her passport, which shows that when she applied for the passport, she indicated her place of residence as XXXX.16 In contrast, in her IMM5669 form and in oral testimony, the Appellant stated that she always resided in Cameroon, prior to lodging her refugee claim in Canada.17 [19] As to travel, the visa application indicates that the Appellant undertook travel related to work and study.18 In contrast, the Appellant indicated in her initial oral testimony that she had never travelled outside Cameroon. However, when confronted with evidence from her passport that she had travelled to Nigeria, she adjusted her testimony to indicate that she had travelled to Nigeria to help someone.19 She then indicated that this was the only travel she had done.20 When further confronted with the evidence from her passport that she had indicated a residence in XXXX upon applying for the passport in 2011, the Appellant insisted that this information was not correct and could not explain the contradiction.21 [20] As to education and employment, the Appellant stated in her visa application that she had a post-secondary education in XXXX and employment in the XXXX XXXX XXXX.22 In stark contrast, the Appellant states in her oral testimony and IMM 5669 that she completed only XXXX XXXX XXXX23 and that she has vocational training in XXXX.24 She states that she was employed from 2007 to 2013 in a XXXX XXXX and that this is the only employment she has held. She provides a letter from her employer in support of this allegation.25 [21] By way of explanation for the several contradictions between her testimony and the visa application, the Appellant states that her uncle - who has been like a father to her since the death of her parents and with whom she and her daughter XXXX were living - was the one who completed the visa application. She confirms that she signed the visa application.26 However, she states variously that she asked him what it was and he told her to just sign27, or that she thought it concerned her bail from detention so she signed without asking her uncle anything28. Therefore, the Appellant maintains that she is unable to explain the contradictions between the information in the visa application and her testimony in support of her refugee claim.29 RPD findings and Appellant's submissions on Appeal [22] Faced with multiple contradictions, RPD decided that the visa application probably contained the Appellant's personal information and found: that the Appellant was married to the father of her twin children; that the Appellant had lived and studied in XXXX, Côte d'Ivoire; that the Appellant had travelled to both Côte d'Ivoire and Nigeria from Cameroon; and that the Appellant had received post-secondary education in XXXX.30 [23] On appeal, the Appellant concedes that her passport contains information that she provided about her residence and that the passport, therefore, raises questions about her place of residence at the time it was issued. However, she submits that the RPD speculated when it found that she was married with twin children and that she studied in XXXX.31 ii. Appellant's evidence about XXXX XXXX XXXX XXXX XXXX XXXX [24] A primary purpose of the second RPD hearing was to explore the evidence of the Appellant's association with XXXX XXXX XXXX XXXX XXXX XXXX, as well as the impact of this evidence on the Appellant's credibility. The Appellant testified that she met with the president of XXXX on XXXX XXXX 2012, that she told him she had been assaulted for being a lesbian and that he reassured her it was her human right to live true to her sexual orientation. Following this meeting, the Appellant says she felt less fearful about her sexuality and became a volunteer with the organization.32 She states that she attended meetings of XXXX two times.33 As proof of her membership, she offers an original membership card dated XXXX XXXX 2012.34 However, a copy of another XXXX membership card dated XXXX XXXX 2011, also figures in the evidence produced by the Appellant in the lead-up to her first RPD hearing. 35 When asked by Minister's Counsel whether she could explain the existence of a membership card that predated her first encounter with XXXX, the Appellant stated she did not have an explanation.36 [25] The Appellant states that after she and her girlfriend were attacked a second time and then arrested and detained, she told her uncle to call the president of XXXX. The Appellant claims that representatives of this organization came to the jail and requested to take her to hospital, but were unsuccessful in convincing the police to release her.37 Ultimately the Appellant says it was her uncle who persuaded the police to release her on bail in order to seek medical attention.38 She claims her uncle told her that XXXX informed him there is a warrant for her arrest.39 [26] The Appellant claims that since she has been in Canada, she has asked her uncle to assist her in documenting her refugee claim. In particular, she states that she asked him to obtain an affidavit from XXXX.40 In addition to the two membership cards mentioned above (in para. 24), the Appellant presented the following documents, purporting to prove her involvement with XXXX: * Affidavit of XXXX XXXX XXXX (Mr. XXXX XXXX XXXX XXXX of XXXX XXXX XXXX (XXXX) dated XXXX XXXX 2014;41 * Affidavit of Mr. XXXX, dated XXXX XXXX 2015, submitted by counsel on 5 November 2015;42 * Partial Affidavit of Mr. XXXX, undated, submitted by counsel on 6 November 2015;43 and * Email correspondence between Mr. XXXX and XXXX XXXX, Senior Immigration Officer, Citizenship and Immigration Canada, hereinafter "Minister's Counsel", dated XXXX XXXX 2015 to XXXX XXXX 2015, submitted by counsel on 6 November 2015. 44 [27] Collectively, these documents purport to show that: * Mr. XXXX, the XXXX XXXX of XXXX, knew the Appellant; * he knew of the two assaults she had suffered alongside her same sex partner; * the Appellant's partner was in prison awaiting trial for homosexual conduct; * the Appellant was in danger both from members of the public in Cameroon who knew her sexual orientation, and from the authorities, who had made a warrant for the Appellant's arrest and were threatening members of her family; and that * information about the Appellant had been published in the media, including a newspaper and a radio station. [28] The partial, undated affidavit presented several allegations that contradicted the other documents purporting to come from Mr. XXXX. The email correspondence purported to retract evidence given to Minister's Counsel by Mr. XXXX that he did not know the Appellant. When confronted with evidence that Mr. XXXX denied any knowledge of her, the Appellant repeatedly insisted that they knew one another.45 [29] With respect to the XXXX documents, the Appellant testified: I told my uncle that I have appealed my case and that they should send an affidavit, and before they send it, they cannot just send a signed affidavit, they should go to court and notarize it before they send it to me. So I sent my uncle to go and do it for me 'cause I know that he can do it but when he went, he said he did not see XXXX but he saw one member and the member did it. 46 [30] Asked by Minister's Counsel whether she understood that it was problematic for her to present a document that purported to be written by Mr. XXXX XXXX XXXX XXXX and signed in front of a notary, the Appellant answered that she would ask her uncle later on.47 Presented again with the confirmation by Mr. XXXX that he did not sign the document supporting her claim, the Appellant said: "So Mr. XXXX is saying that it was signed by one of the workers in the office, so I cannot be blamed for that."48 Submissions of Minister's Counsel at the RPD [31] Minister's Counsel submitted two documents from Mr. XXXX, confirming that he did not know the Appellant and stating that the affidavits purporting to be signed by him were false: these were a letter dated XXXX XXXX 201549, and email correspondence dated XXXX XXXX 201550. Furthermore, the Minister's Counsel stated and provided documentary evidence from Citizenship and Immigration Canada information technology services to the effect that she never received the email correspondence that the Appellant submitted as Exhibit C-12.51 Minister's Counsel submitted that the XXXX affidavits and membership cards were fraudulent and that the evidence clearly demonstrated that the Appellant was not associated with XXXX. Moreover, Minister's counsel contended that the passport of the Appellant should be considered to be proof of its contents, namely that the Appellant had resided in XXXX, Côte d'Ivoire in 2011. Minister's Counsel, therefore, submitted that the Appellant's claim was manifestly unfounded. 52 RPD findings and Appellant's submissions on Appeal [32] The RPD considered the email dated XXXX XXXX 2015 from Mr. XXXX, denying knowledge of the Appellant and denying having written any affidavit dated XXXX XXXX 2014 to support her. The RPD accepted the statement from Minister's Counsel and the document from Citizenship and Immigration Canada information technology services. The RPD found this evidence seriously undermined the genuineness of the email submitted to the RPD by the Appellant as Exhibit C-12, which purported to be from Mr. XXXX to Minister's Counsel. In addition, the RPD found that the XXXX membership card dated XXXX XXXX 2011, which was included as an attachment to Exhibit C-12 and which predates the Appellant's alleged association with XXXX, also undermined the genuineness of that email. Finally, the RPD found that the partial affidavit included as an attachment to Exhibit C-12 contradicted other material allegations of the Appellant. The RPD asked for an explanation and was not satisfied with the Appellant's twofold response: first, that her uncle had taken care of contacting XXXX and second, that she would not have signed the consent form requested by the panel to verify the genuineness of the affidavit from Mr. XXXX if she had not been a member of XXXX. As a result, the RPD placed no probative value on the alleged email correspondence between XXXX XXXX XXXX and Minister's Counsel, XXXX XXXX, nor on the related attachments. Moreover, the RPD found that as a result, the Appellant's credibility was undermined regarding her sexual orientation, since she claimed to have joined XXXX because it encouraged her to be open about her homosexuality. 53 [33] On appeal, the Appellant concedes that her testimony and documentary evidence about her membership in XXXX have failed to meet the test of credibility and that she has not succeeded in providing credible testimony and evidence about XXXX involvement in her matter. Nonetheless, she argues that her failure to prove XXXX role in her case should not make the rest of the facts of her claim unbelievable.54 iii. Appellant's evidence about her lesbian relationship and persecution [34] The Appellant alleges that she began appreciating the beauty of women and admiring them in 1999, when she was disappointed by the father of her daughter XXXX. She states that she worked in a XXXX XXXX and provides an Attestation of Work stating her commencement date as "XXXX XXXX XXXX XXXX XXXX" as corroboration.55 She claims she discovered that she was a lesbian on XXXX XXXX 2011, when she and a female co-worker had sex. The Appellant says that from 2007 to 2011, she was showered with gifts and pursued by this co-worker who claimed she was in love with the Appellant. The Appellant states that on XXXX XXXX XXXX 2012, after a night of drinking, she awoke naked in the bed of this co-worker, who explained that they had had sexual relations. The Appellant claims she expressed her anger at the way the co-worker had gone about things and went home. After some time, the Appellant alleges she re-established the friendship with her co-worker and then entered into a secret romantic relationship with her.56 The Appellant alleges they were lovers from XXXX 2012 until their arrest and detention on charges of homosexual conduct in XXXX 2013.57 She submits photos of herself with a woman as proof of her relationship.58 When the RPD asked her about these photos, the Appellant only answered that one was taken near her lover's place in 2013 before she burst into audible sobs.59 The Appellant presented a notarized affidavit of support dated XXXX XXXX 2015 from a person purporting to be her human rights lawyer in Cameroon60. The affiant gave the names of the Appellant and her alleged partner and swore that: he was aware the Appellant was a lesbian, her partner was detained, there was a warrant for the Appellant's arrest, and the Appellant was involved in XXXX. Asked by Minister's Counsel how she met this lawyer, the Appellant answered that she knew him before but contacted him after she arrived in Canada. Asked in what context he was her lawyer, the Appellant answered, "He is my lawyer because I explained my problem to him." Asked repeatedly why she consulted him, the Appellant answered because she "wanted to know exactly whether things have settled down."61 [35] The Appellant alleges that she and her lover have been assaulted twice by unknown members of the public in Cameroon. The first assault allegedly occurred on XXXX XXXX 2012, after the Appellant and her lover were caught kissing in the lover's car. Four young males dragged them out of the car and beat them until a police patrol intervened. The police detained the two women overnight, then released them for lack of evidence that they had engaged in homosexual conduct.62 [36] The second assault allegedly occurred on XXXX XXXX 2013, when the couple was accosted by a group who broke into their hotel room while they were having sex. As a result of this second incident, the Appellant alleges that she and her lover were arrested on criminal charges. The Appellant states that whereas her uncle bailed her out, her lover is still in jail awaiting trial. The Appellant claims that there is a warrant for her arrest and that her uncle learned this information from an informant through XXXX.63 She asserted that her uncle was also sought by the police and that for fear of being arrested he did not go to the police station to get a copy of this warrant.64 However, previously, the Appellant had testified that her uncle had problems because the police came to his house to ask for her.65 [37] The Appellant claims that she recovered in hospital from her injuries consequent to the assault, then moved frequently within Cameroon to avoid detection by the authorities or homophobic members of the public. Testifying about her injuries following the second assault, the Appellant stated that her face was swollen, she was in pain, she could not eat and she did not feel well.66 At her first hearing, the Appellant was asked what she was treated for in the hospital and she said she was given drugs in the hospital, but she did not know the prescription or what they were treating her for.67 She stated that after being released from detention on XXXX XXXX 2013, she was in hospital for XXXX weeks.68 Asked at the second hearing about the kind of injuries she suffered in XXXX 2013, the Appellant testified that she had open wounds on her back, hands and feet, and red marks all over, but that nothing was broken.69 She provides a Medico-Legal Certificate signed in XXXX XXXX on XXXX XXXX 2013,70 a letter of justification dated XXXX XXXX 2015,71 and a letter attesting to healed scars on her arms legs and back, dated XXXX XXXX 2014.72 She states that she has joined a support group for LGBTI73 newcomers and that although she has begun to make friends, she does not have a lesbian relationship in Canada.74 As corroboration, the Appellant submits a letter from a mental health counsellor who attests that the Appellant has joined the GLBTQ+ newcomer support group and has attended 4 counselling sessions between XXXX and XXXX XXXX 2014;75 and a report from a psychologist who lists the symptoms that the Appellant described in an interview and writes, "These are clearly symptoms of post-traumatic stress disorder, which add greatly to the credibility of [her] account of what traumatized her."76 RPD findings and Appellant's submissions on Appeal [38] The RPD found the Appellant obtained post-secondary education in XXXX and that, therefore, her credibility about having completed only a high school education and her vocation as a XXXX XXXX was severely undermined. As a result, the RPD did not believe that the Appellant had a homosexual relationship that started at her place of work, a XXXX XXXX.77 The RPD found that the Appellant's credibility about her kinship with XXXX, who was allegedly the Appellant's only child, was undermined by the visa application and supporting documentation, including a marriage certificate and birth certificates for two other children. As a result, the RPD did not believe that the Appellant began admiring women after being disappointed by the father of XXXX. Nor did the RPD believe that the Appellant had been in an exclusive relationship with a woman since 2007.78 [39] On appeal, the Appellant argues that the RPD dealt with the issue of the Appellant's credibility extensively but not with reference to her sexual orientation and the risk of persecution she faces as a result.79 RAD analysis on Credibility [40] Having made my own analysis of the record, I find that the RPD erred. However, I find that the errors of the RPD are not determinative and I agree with the RPD's conclusion that the Appellant is not credible. [41] I begin with my conclusion about the Appellant's personal information. The Appellant denied any knowledge of the contents of her visa application at the time she signed it and denied the substance of its contents. The RPD found that the Appellant: was married to the father of her twin children born in 2012; had lived and studied in XXXX, Côte d'Ivoire; had travelled to both Côte d'Ivoire and Nigeria from Cameroon; and had received post-secondary education in XXXX. The RPD itself recognized that refugee claimants may pad their visa application in order to convince a visa officer that they will return to their country of origin.80 The documentary evidence supports a conclusion that false national identity cards are prevalent in Cameroon, that forged business documents are available and that there is a thriving industry for fabricated birth certificates.81 The information with regard to her travel outside Cameroon and residence in XXXX is recorded in the visa application but is also recorded in the Appellant's passport. I think it is more likely than not that the information and supporting documents in the Appellant's visa application were false. While I do not agree with the Appellant that the RPD "imagined" the basis for its findings about her personal information, I find that the evidence is more consistent with a conclusion that the visa application was largely false and fraudulent. Given that the visa application was of questionable reliability, I find the RPD erred in according it probative value. Therefore, the RPD erred with respect to its conclusions about the Appellant's marital status, twin children and post-secondary education. [42] However, a passport is a government issued document, which benefits from a rebuttable presumption of validity.82 In this case, the Appellant does not assert that the passport was obtained irregularly or altered, nor does she argue that she did not give her residence as XXXX upon applying for her passport. Therefore, I find that the passport is evidence of its content, i.e. that the Appellant has traveled outside Cameroon and that she lived in XXXX in 2011, facts which undermine the Appellant's credibility. This means that in addition to providing false information in her visa application, the Appellant continued to provide false information about her past travel and residence in her immigration forms, her Basis of Claim and her oral testimony. [43] As to the Appellant's family status, I find there is no credible or trustworthy evidence upon which to conclude whether the Appellant has one, two, three or no children, nor whether she is or has been married to a man. I have given no probative value to the visa application, nor to the birth and marriage certificates that accompanied it. The Appellant presents another birth certificate for XXXX, the daughter whose father allegedly caused her to be disappointed in men. The birth certificate does not look materially different to me from the two alleged by the Appellant to be false. Given that the documentary evidence refers to a thriving industry in fabrication of birth certificates, I accord no probative value to any of those submitted by the Appellant, including the birth certificate that purports to belong to XXXX. There was no photographic or other evidence to corroborate the Appellant's testimony about the existence of a daughter named XXXX. Therefore I find that the Appellant has failed to establish the existence of a child whose father was material to the development of her self-perception as a lesbian. [44] I continue with my conclusion about the Appellant's association with XXXX. The RPD found that the genuineness of documents pertinent to this alleged association was undermined in several ways. In particular, the RPD referred to the Appellant's membership card and the documents produced by the Appellant to address the denial of her story by Mr. XXXX, the XXXX XXXX of XXXX. As a result, the RPD did not believe the Appellant had joined XXXX and found that her credibility was undermined as to her sexual orientation. The Appellant herself concedes that she has not successfully established the credibility of her evidence about XXXX. On my own analysis, I prefer the evidence of Mr. XXXX, who has no interest in the outcome of this case, over that of the Appellant, and I find that he does not know her. I find that the documents the Appellant submitted to support her association with XXXX are inconsistent with one another and with the Appellant's evidence. I accept the submission of Minister's Counsel that she never received from Mr. XXXX the email with attachments that the Appellant produced, and I find that this document was both incomplete and fraudulent. It is neither credible nor trustworthy. Furthermore, I find that the Appellant was aware that the XXXX documentation was false at the time she submitted it. I find that the RPD was correct. I find it more likely than not that the Appellant's alleged association with XXXX was entirely fabricated. [45] Moreover, I disagree with the Appellant's submission that her failure to prove XXXX role in her case should not make the rest of her claim unbelievable. I find that it does make the rest of the Appellant's claim unbelievable for two reasons: first, her falsified association with XXXX is woven throughout the refugee story that she presented; and second, the falsification of this aspect of her story demonstrates a wilful intention to mislead the Canadian authorities even once she was safely in Canada and as she was seeking Canada's protection. I will cite here just a few examples. [46] The following aspects of the Appellant's testimony were integrally linked with her alleged membership in XXXX: * the Appellant claimed she began to feel less fearful about her sexual orientation and more able to be open about it because of her conversation in XXXX 2012 with Mr. XXXX XXXX XXXX, XXXX XXXX of XXXX;83 * the Appellant stated that XXXX carried out the first advocacy for her release from detention;84 * the Appellant claimed her uncle told her that XXXX advised him there was a warrant for her arrest;85 and * the Appellant said that both her knowledge of human rights and her sense that she would be protected from harm related to her sexual orientation, came from knowing Mr. XXXX XXXX XXXX. 86 [47] As a result, the Appellant's failure to establish her association with XXXX does tarnish the credibility of many of her other allegations. [48] The Appellant repeatedly stated that she had very little education and relied heavily on her uncle, having been orphaned at a young age. In this case, the RPD familiarized itself with the proceedings before the previous panel, then met the Appellant in person and heard her over the course of a morning. The RPD was acting on directions from the RAD to continue the assessment of the Appellant's credibility in light of evidence to be adduced about her association with XXXX XXXX XXXX (XXXX). The RPD was able to benefit from visual cues in the hearing room - including the opportunity to see the Appellant as she testified, and to examine and assess original documents - which gave it an advantage over the RAD. In the circumstances of this case, I find that the advantage enjoyed by the RPD is meaningful enough to require deference from the RAD. Thus, even though I find the RPD erred in giving probative value to the visa application, I find that RPD is entitled to deference on the questions relating to the oral evidence of the Appellant. The RPD found the Appellant disingenuous in her protestations that her uncle handled her visa application and her overseas communications with XXXX and that she was not responsible for the content of these documents. I agree. The Appellant's description of how her uncle obtained the notarized affidavit was particularly damaging to her credibility. She stated that her uncle went to see Mr. XXXX and, not finding him, the uncle accepted that a staff member of XXXX sign Mr. XXXX name and that a notary bear witness to this false signature.87 The Appellant knowingly submitted a fraudulent document but insisted she could not be blamed for that. The fact that the Appellant continued to create and provide fraudulent information throughout her two opportunities to make her refugee claim before the RPD undoubtedly impacts her general credibility in very negative way. [49] I finish with my conclusion about the Appellant's alleged lesbian relationship and persecution. First, the RPD erred by misstating the Appellant's evidence when it referred to an exclusive lesbian relationship commencing in 2007. The Appellant said that her relationship began with a sexual encounter on XXXX XXXX XXXX 2011, or with her acceptance of her lover around XXXX 2012. The RPD found that the Appellant was not credible about starting to feel attracted to women as a result of her disappointment with XXXX father, and about her lesbian relationship starting at her workplace. Since I have found that the Appellant has not established the existence of this daughter, I also find the Appellant not credible about the origins of her attraction to women being her disappointment with her daughter's father. The RPD made no finding with respect to the photographs purporting to show the Appellant with her girlfriend. I find that nothing about these photos links them to the name that the Appellant provided for her lover, nor do they prove that the women pictured are in a romantic or sexual relationship. The first RPD panel demonstrated the sensitivity required by the Guidelines on Women Refugee Claimants fearing Gender Related Persecution88 when questioning the Appellant about the photos and asking about her emotional reaction to those questions after she burst into tears. However, the Appellant did not answer the RPD's questions. I note that neither of two experienced counsel for the Appellant questioned her about these photos to establish their relevance or reliability. Therefore, I accord the photos no probative value. [50] I also accord little weight to the psychologist's report. The psychologist lists the symptoms that the Appellant herself described in an interview and gives the opinion that the symptoms described are symptoms of post-traumatic stress disorder. While the psychologist is within her expertise to draw the conclusion that the symptoms described are consistent with a disorder, she is not well placed to diagnose the Appellant because the psychologist herself has not observed these symptoms. This is not a case where the psychologist utilized independent and objective testing that resulted in clinical observations. I do not think that the psychologist goes so far as to make a diagnosis of post-traumatic stress disorder in her report. However, even had the psychologist made this diagnosis, any post-traumatic stress disorder suffered by the Appellant could be based on other factors in the Appellant's life. I find that that Appellant has not established on a balance of probabilities that she has post-traumatic stress disorder related to being a lesbian in Cameroon. In circumstances where the psychologist merely repeats what the patient has said are the reasons for her stress and then reaches a medical conclusion that the patient suffers stress for those reasons, it is within the mandate of the refugee decision maker to discount the psychological evidence. 89 The psychologist's report post-dates the Appellant's claim for refugee protection and is based on self-reporting. Therefore it is reasonable to draw an inference that report was prepared to support the Appellant's refugee claim. The Appellant cannot cure her tarnished credibility with a report that is based on the same evidence from the Appellant that the RPD has found not credible. In similar circumstances, the Federal Court has held that such a report does not assist a refugee claimant to establish their sexual orientation.90 [51] Similarly, I find that the affidavit from the Appellant's human rights lawyer in Cameroon is based on information from the Appellant herself. I find that during ten minutes of questioning by Minister's Counsel, the Appellant was vague and evasive about her reason for consulting this lawyer. There is no indication from the affiant how he became aware of the facts to which he attests. There is only the Appellant's testimony that she explained her problem to him. The lawyer's assertion that he is aware of the Appellant's involvement with XXXX and their efforts to protect her undermines the credibility of this affidavit, in light of my finding that the association with XXXX was fabricated by the Appellant. [52] I will now consider whether documentation provided by the Appellant assists her to establish her credibility with respect to the genesis and circumstances of her alleged lesbian relationship. I have said already that I accord no probative value to the birth certificates submitted by the Appellant, including the one that purports to belong to XXXX. The Attestation of Work provided by the Appellant states that she commenced work in 2007 but does not give the date that she left her work at the XXXX XXXX. As a result, it is not useful to corroborate the Appellant's allegations: that she met a co-worker there in 2011 who would become her lover; that she worked there during the time of her alleged lesbian relationship from 2012 to XXXX 2013; that she left there in XXXX 2013, as a result of being assaulted; or that she was continuously resident in XXXX from 2007 to 2013. In addition, since the documentary evidence refers to the availability of false business documents,91 I accord no probative value to the Attestation of Work purporting to come from the hair salon. These conclusions further undermine the credibility of the Appellant with respect to the genesis and circumstances of her alleged lesbian relationship. [53] The RPD made no finding about the Appellant's alleged assault and detention in XXXX 2013. I find that the Appellant's testimony about her injuries was vague, particularly at her first RPD hearing. The Appellant was able to give slightly more information at her second RPD hearing: that she had open wounds on her back, hands and feet. This inability to testify about her injuries causes me to believe that the Appellant did not in fact suffer these injuries. In addition, the Appellant failed to show how the injuries she described would warrant a XXXX XXXX XXXX stay in hospital. I accord no probative value to the Medico-Legal certificate, which is dated at the beginning of the Appellant's alleged hospital stay but does not corroborate hospitalization and does not give any detail of the alleged trauma and wounds. While this certificate purports to identify the cause of the alleged injuries as "une aggression populaire soit disant qu'elle est lesbienne," the physician is not well-placed to give evidence about causation. There is no suggestion that the physician was present during the assault and therefore I conclude that this note is based on the Appellant's report and that, if the document is genuine, the physician has strayed from their expertise. The letter of justification purports to corroborate the Medico-Legal Certificate and adds the information that the Appellant was admitted to the XXXX XXXX XXXX Hospital as a result of a public assault. However, this document does not provide any information about the Appellant's injuries or the length of her stay in the hospital. Furthermore, I note that it is notarized by the same person who notarized the fraudulent affidavit purporting to be from Mr. XXXX. As a result, I accord it no probative value. I also accord no probative value to the medical letter obtained in Canada, which cannot provide any evidence about the causation of the scars observed. These documents do not sufficiently address my concerns about the credibility of the alleged assault. I find the Appellant has not established that she was assaulted. [54] Having found on a balance of probabilities that the Appellant was not assaulted, I also do not find credible her allegation about the resulting detention. The Appellant's evidence about her detention is also tarnished by her inability to establish an association with XXXX - specifically, meaning that she was not visited in detention by representatives of this organization. All of these findings support a conclusion that the events of XXXX XXXX 2013 were a fabrication. I also find the Appellant's testimony with respect to the interest of the police in her uncle to be inconsistent: since the police allegedly knew where she and her uncle lived and went there looking for the Appellant, it is inconsistent to state that her uncle avoided the police by refraining from going to the station to request a copy of the warrant. I find on a balance of probabilities that the Appellant has not established that she was assaulted or detained, nor that there is a warrant for her arrest. [55] Nonetheless, simply because an Appellant may not be a credible witness regarding their allegations of past persecution, does not necessarily undermine the truthfulness of their allegation regarding their sexual orientation. I acknowledge that to disbelieve some of a claimant's allegations is one thing, and to disbelieve her sexual orientation is quite another.92 Counsel rightly submits that a person's sexual orientation is such a personal thing that the most definitive proof of that orientation can be established by that person's testimony. It is true that the Appellant rarely hesitated or faltered as she gave her evidence about her sexual orientation. However, fluent testimony is not always an indication that the witness is telling the truth. Some people are simply good at telling stories. After listening to the Appellant's testimony in a series of soliloquies at her first RPD hearing, I remarked both her ease in telling her story when she was uninterrupted, and her difficulty to depart from her set narrative when asked a question. For example, the RPD asked why the Appellant hid her relationship with her girlfriend if they were unaware that lesbianism was illegal. The RPD asked this question three times. The Appellant first replied by contradicting herself and denying that they were hiding, then by giving a lengthy narrative of events rather than answering the question. Only seven minutes later did the Appellant finally answer that she was unaccustomed to the idea of a woman making love to another woman.93 I find that the Appellant was evading the RPD's question and I draw a negative inference about the Appellant's credibility regarding her allegation that she is a lesbian. [56] I recognize that the Appellant's allegations about her disappointment in men after XXXX birth, about her workplace and even her detention alongside her lover are, as counsel submits, peripheral to the issue of her sexual orientation. However, when examined beside the Appellant's admission that she presented a notarized affidavit purporting to be from XXXX, which she knew to be fraudulent,94 and the multiple stains on her credibility, these peripheral issues do give rise to valid doubts about the Appellant's sexual orientation. Here again, given the advantage enjoyed by the RPD in the hearing room, I am prepared to place confidence in its overall assessment that the Appellant is not credible, despite the errors I have identified. [57] I accept the Appellant's testimony that she has joined a LGBTI support group and has attended counselling in Canada, which is corroborated by the letter from the mental health worker and the report from the psychologist. Nonetheless, I accord these documents little weight, since they are based on self-reporting and are based upon a small number of sessions in the period immediately preceding the Appellant's first RPD hearing. The letter from the mental health worker was based on four sessions in the month of XXXX 2014. The psychologist's report is based on two interviews. From these facts I draw the inference that the activities they report were undertaken to support the Appellant's refugee claim. While these documents purport to corroborate the Appellant's sexual orientation, they do not overcome my concerns about the Appellant's credibility. Based on the totality of the adverse findings and on a balance of probabilities, I find the Appellant has not established her identity as a lesbian. [58] Furthermore, there remains no credible or trustworthy evidence to show that the Appellant is reputed to be a lesbian in Cameroon as a result of events before her departure for Canada. In particular, the Appellant did not produce any credible documentary evidence to support her testimony that her sexual orientation had been reported on the radio or in a newspaper in Cameroon. These assertions were made in the partial XXXX affidavit, which I have found to be fraudulent and given no probative value.95 The documentary evidence states that newspapers regularly publish sensational stories about alleged homosexuals.96 The events alleged by the Appellant - including the assault and detention of herself and her lover, and the ongoing prosecution of her lover - would seem to be the type of material that is indeed published. However, the Appellant did not provide any such news report to indicate that she was accused of being a lesbian or known as one in Cameroon. [59] The Federal Court of Appeal has held that where the tribunal makes a general finding that the claimant lacks credibility, that determination is sufficient to dispose of the claim unless there is independent and credible documentary evidence in the record capable of supporting a positive disposition of the claim.97 Therefore, I consider the documentary evidence below. Documentary evidence [60] National and international human rights organizations reporting on Cameroon agree that lesbians there are subject to violations of their fundamental human rights by state authorities and by the public as a result of their sexual orientation. Furthermore, it is said that "grave violations of the human rights of individuals because of their real or perceived sexual orientation have become commonplace in Cameroon."98 The Appellant submitted that if she is a lesbian, or even has just engaged in lesbian behaviour, then she is at risk.99 Therefore, despite the Appellant's failure to discharge her burden of proof with respect to her sexual orientation or her activities in Cameroon, I must consider whether she may still be at risk due to imputed sexual orientation, given her activities in Canada. [61] Does the evidence presented by the Appellant about her activities in Canada give rise to a residual claim? The answer to this question is clearly no. The Appellant has never alleged that her activities in Canada will cause her problems in Cameroon. There is no indication that the evidence from the mental health counsellor or the psychologist was adduced with the purpose of establishing a claim that the Appellant is at risk because of her activities in Canada. The Appellant has presented no credible or trustworthy evidence that anyone in Cameroon believes the Appellant to be a lesbian as a result of her activities in Canada. Moreover, experienced counsel chose not to question the Appellant and not to lead evidence that the Appellant's activities in Canada had come to the attention of anyone in Cameroon. On the record before me, therefore, I conclude that the Appellant has not established any risk due to imputed sexual orientation as a result of her activities in Canada. [62] The burden of proof is with the Appellant. Since the Appellant has failed utterly to establish the credibility of her allegations, I find that the Appellant has not discharged her burden of proof to show a serious possibility of persecution. I have conducted my analysis under s. 96 of IRPA due to the Appellant's alleged membership in a particular social group (i.e. lesbians and persons who might be perceived as lesbians) and the clear link to the 1951 Convention relating to the Status of Refugees. However the same reasoning also extends to my analysis under s. 97 of IRPA. On the evidence available, I cannot conclude that it is more likely than not that the Appellant faces a risk of torture, or a risk to life or a risk of cruel and unusual treatment under s. 97(1)(b) of IRPA. Since the burden of proof is more onerous under s. 97 than that under s. 96, the Appellant has not met the s. 97 burden either. CONCLUSION [63] For all of these reasons, I confirm the determination of the RPD, but for different reasons. The Appellant XXXX XXXX XXXX XXXX is neither a "Convention Refugee" pursuant to s. 96 of IRPA, nor a "person in need of protection" pursuant to s. 97 of IRPA. [64] The appeal is dismissed. Christina Harrison Baird Me Christina Harrison Baird 23 December 2016 Date /ag 1 Hereinafter "the Appellant". 2 RAD Decision dated XXXX XXXX 2015, para. 29. Refers to Affidavit of XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX dated XXXX XXXX 2014, Exhibit C-5 at the first RPD hearing, pages 217-218 of the second RPD record. 3 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 4 Ibidem, at para. 103. 5 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93 at para. 37. 6 Ibidem, at paras. 78 and 103. 7 Ibidem, at para. 70. 8 Ibidem, at para. 48. 9 Ibidem, at para. 70. 10 S. 111(1)(a) and 111(1)(b) of IRPA. 11 S. 111(1)(c) and 111(2) of IRPA; and Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93 at para. 103. 12 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 13 RPD Reasons at para.22. 14 RPD Record pages 159 and 185-187. 15 RPD Record pages 21-29, 227 (partial copy of document) and 265. 16 RPD Record pages 156 and 184. 17 RPD Record page 44. 18 RPD Record page 156. 19 Audio recording of RPD Hearing (hereinafter "Hearing") on 30 June 2014 at minute 1:42:00. 20 Audio recording of RPD Hearing (hereinafter "Hearing") on 26 November 2015 at minute 15:58. 21 Hearing on 26 November 2015 at minute 25:14. 22 RPD Record page 163-169 and 199-202. 23 Hearing on 26 November 2015 at minute 28:00. 24 RPD Record page 43. 25 RPD Record page 267; and Hearing on 30 June 2014 at minute 1:54:55. 26 Hearing on 30 June 2014 at minute 49:34; and Hearing on 26 November 2015 at minute 17:00. 27 Hearing on 30 June 2014 at minute 49:34. 28 Hearing on 26 November 2015 at minute 18:22. 29 Hearing on 30 June 2014 at minutes 49:34 and 1:58:00; and Hearing on 26 November 2015 at minute 16:15. 30 RPD Reasons at paras. 14 to 17. 31 Appellant's Memorandum at paras. 27 to 32. 32 Hearing on 30 June 2014 at minutes 38:00 and 1:14:40; see also Hearing on 26 November 2015 at minute 51:22, where the date of the meeting is different. 33 Hearing on 26 November 2015 at minute 57:03. 34 RPD Record pages 223-224. 35 RPD Record pages 79-80. 36 Hearing on 26 November 2015 at minute 1:00:12. 37 Hearing on 30 June 2014 at minute 46:00. 38 Hearing on 26 November 2015 at minute 40:38. 39 Hearing on 30 June 2014 at minute 1:37:27. 40 Hearing on 26 November 2015 at minutes 1:47:40 to 1:55:11. 41 RPD record, pages 217-218, Exhibit C-5 at the first RPD hearing. 42 RPD record, page 70, Exhibit C-5 at the second RPD hearing. 43 RPD record, page 81, Exhibit C-12 at the second RPD hearing. 44 RPD record, pages 74-78, Exhibit C-12 at the second RPD hearing. 45 Hearing on 26 November 2015 at minutes 1:18:11, 1:20:47, 1:47:40, 1:49:40. 46 Hearing on 26 November 2015 at minute 1:52:12. 47 Hearing on 26 November 2015 at minute 1:53:14. 48 Hearing on 26 November 2015 at minutes 1:55:00. 49 RPD record, page 91, Exhibit M-1 at the second RPD hearing. 50 RPD record, pages 103-108, Exhibit M-5 at the second RPD hearing. 51 RPD record, pages 96-97, Exhibit M-4 at the second RPD hearing. 52 Hearing on 26 November 2015 at minute 2:13:00. 53 RPD Reasons at paras. 18 to 22. 54 Appellant's Memorandum at paras. 34 to 36. 55 RPD record, page 267, Exhibit C-14 at the first RPD hearing. 56 Hearing on 30 June 2014 at minutes 21:10 to 35:14; and Hearing on 26 November 2015 at minute 36:56. 57 Hearing on 30 June 2014 at minutes 42:06 and 1:03:30. 58 RPD record, pages 215-216, Exhibit C-4 at the first RPD hearing. 59 Hearing on 30 June 2014 at minute 2:00:33. 60 RPD record, pages 83-84, Exhibit C-15 at the second RPD hearing. 61 Hearing on 26 November 2015 at minutes 1:59:23 to 2:09:29. 62 Hearing on 30 June 2014 at minute 35:14. 63 Hearing on 30 June 2014 at minute 1:37:27. 64 Hearing on 30 June 2014 at minute 1:40:08. 65 Hearing on 30 June 2014 at minute 1:35:55. 66 Hearing on 30 June 2014 at minutes 42:06 to 53:30. 67 Hearing on 30 June 2014 at minute 1:25:50. 68 Hearing on 30 June 2014 at minutes 1:23:41 and 1:52:07. 69 Hearing on 26 November 2015 at minute 43:23. 70 RPD record, page 226, Exhibit C-10 at the first RPD hearing. 71 RPD record, page 71. 72 RPD record, page 253, Exhibit C-13 at the first RPD hearing. 73 'LGBTI' is intended as a respectful collective reference to sexual and gender minorities, including but not limited to lesbians, gay men, bisexual, transgender and intersex individuals. 74 Hearing on 30 June 2014 at minute 2:03:22. 75 RPD record, pages 210-211, Exhibit C-2 at the first RPD hearing. 76 RPD record, pages 212-214, Exhibit C-3 at the first RPD hearing. 77 RPD Reasons at para. 15. 78 RPD Reasons at paras. 16-17. 79 Appellant's Memorandum at para. 21. 80 RPD Reasons at para. 13. 81 Information on fraudulent identity documents, including national identity cards, Response to Information Request CMR104811.E, Immigration and Refugee Board of Canada, National Documentation Package for Cameroon, 17 July 2015, Tab 3.1, at pages 1 and 3. 82 Rasheed v. Canada (Minister of Citizenship and Immigration), 2004 FC 587 (CanLII), paras. 19-20. 83 Hearing on 30 June 2014 at minute 38:00. 84 Hearing on 30 June 2014 at minute 46:00. 85 Hearing on 30 June 2014 at minute 1:37:27. 86 Hearing on 26 November 2015 at minute 1:19:02. 87 Hearing on 26 November 2015 at minute 1:52:12. 88 Guidelines issued by the Chairperson pursuant to Section 65(3) of the Immigration Act - Immigration and Refugee Board of Canada (IRB) Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, section D. Special Problems at Determination Hearings. 89 Saha v. Canada (Minister of Citizenship and Immigration), 2009 FC 304, at para. 16, cited in Boyce v. Canada (Minister of Citizenship and Immigration), 2016 FC 922, at para. 53. 90 Irivbogbe v. Canada (Minister of Citizenship and Immigration), 2016 FC 710, at para. 36; see also Boyce v. Canada (Minister of Citizenship and Immigration), 2016 FC 922, at para. 62. 91 Information on fraudulent identity documents, including national identity cards, Response to Information Request CMR104811.E, Immigration and Refugee Board of Canada, National Documentation Package for Cameroon, 17 July 2015, Tab 3.1, at pages 1 and 3. 92 Kandel v. Canada (Minister of Citizenship and Immigration), 2014 FC 659 (CanLII), para. 29. 93 Hearing on 30 June 2014 at minute 1:00:39. 94 RPD record, page 70, Exhibit C-5 at the second RPD hearing. 95 RPD record, page 81, Exhibit C-12 at the second RPD hearing. 96 Cameroon: Situation of sexual minorities, including legislation; treatment by government and society, including state protection and support services, Response to Information Request CMR104749.E, Immigration and Refugee Board of Canada, National Documentation Package for Cameroon, 17 January 2014, Tab 6.1, at page 5. 97 Sellan v. Canada (Minister of Citizenship & Immigration), [2008] F.C.J. No. 1685, (F.C.A). 98 Cameroon: Situation of sexual minorities, including legislation; treatment by government and society, including state protection and support services, Response to Information Request CMR104749.E, Immigration and Refugee Board of Canada, National Documentation Package for Cameroon, 17 January 2014, Tab 6.1, at pages 1-3. 99 Hearing on 30 June 2014 at minute 2:13:31. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB6-00388 27 RAD.25.02 (2014.09.11) Disponible en français