MB9-18345

RAD File No. / No de dossier de la SAR : MB9-18345 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 / heard at Montréal, Quebec Appel instruit / entendu à Date of decision June 12, 2020 Date de la décision Panel Me Toni Jedid Tribunal Counsel for the person who is the subject of the appeal Luciano Mascaro 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 OVERVIEW [1] I allow the appeal. XXXX XXXX XXXX XXXX (the appellant) is a citizen of Senegal. He is appealing the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim for lack of credibility. a. The appellant alleges that he fears persecution for supporting his sister, recognized as a Convention refugee, who allegedly disclosed her sexual orientation to her family. b. The appellant maintains that the RPD erred in not examining his fear as an ally of his sister's. The RPD found that the appellant was not credible. c. The determinative issues are as follows: * Did the RPD err in its assessment of the appellant's credibility? * Was the presumption of state protection rebutted? * Is there an Internal Flight Alternative (IFA) in Senegal? d. I conclude that the RPD decision is not correct. The appeal is allowed. DETERMINATION [2] The appeal is allowed. I substitute my own decision that the appellant is a Convention refugee. FACTUAL BACKGROUND [3] The appellant alleges that he arrived in Canada in 2013 in order to pursue his studies. Owing to the fact that he supported his sister in Canada when she revealed her sexual orientation to her family, he alleges that he also risks persecution in his country at the hands of his father and other family members, namely an uncle who is an imam. He reportedly defended his sister by telling his father that she had the right to live her life as she saw fit. Because he supported his sister when she decided to claim refugee protection on those grounds, his relationship with his father deteriorated. He alleges that his father is an influential person in the country. He fears for his life if he ever had to return to Senegal. ANALYSIS [4] My role is to examine all the evidence and establish whether the RPD decision is correct.1 In accordance with Huruglica and Rozas del Solar, I personally considered all the evidence, including the audio recording of the hearing, and I applied the standard of correctness. Nexus to the Convention [5] At the hearing, the appellant stated that he feared his father, the state authorities, and the general population of Senegal because he had supported his sister in her decision to openly express her sexual orientation. This allegedly caused his father to stop paying his school tuition. [6] The RPD concluded that, although it understood the appellant's position, supporting his sister against the opinion of his father cannot be a ground justifying international protection. In its decision, the RPD indicated that the appellant was unable to provide an answer justifying the power of his father in Senegal. It added the following: [translation] [..] at the most, he stated in his testimony that his father is an employee of the African Development Bank (ADB) in Cote d'Ivoire, and the he has lived there for many years. Asked once again to explain how his father would go after him in Senegal even though he is based in Cote d'Ivoire, he replied that his uncle is an imam and that he comes from a religious family. However, he was not able to indicate the neighbourhood or mosque where his uncle is an imam. On balance, he has tried every which way to cobble together an account. When he was questioned, the answers obtained were found to be not credible.2 [7] In his memorandum of appeal, the appellant maintains that the LGBTQIA+ community also includes allies because they are also victims of repression owing to their support of said community. He claims that the RPD did not analyze the issue of his being an ally. He maintains that the RPD is inventing questions it did not ask and is giving answers the appellant did not give. He also maintains that the questions he was asked about his father's job were as follows: the nature and location of his work. As regards his uncle, the RPD never asked him questions about the neighbourhood or mosque where his uncle served XXXX XXXX XXXX. He claims that the RPD should have asked him about these matters if they were to form part of its decision. He maintains that the IRB's obligation to give claimants a chance to address its concerns is a matter of procedural fairness. [8] I agree with the appellant. I have listened to the recording of the hearing and I note that the RPD did not question the appellant at all regarding his father's influence and ability to find him throughout the country, or about the location of the mosque where his uncle XXXX XXXX XXXX. I am therefore of the opinion that the RPD based this aspect of its decision on speculation. [9] I also note that the RPD made another error in concluding that the appellant's support of his sister, who was recognized as a refugee in Canada owing to her sexual orientation, does not justify international protection. I am of the opinion that the RPD did not understand the scope of the application of the Convention in this case. In fact, the Chairperson's Guideline 9 states as follows:3 8.3.1. Individuals may be subjected to persecution by reason of their perceived or imputed SOGIE.4 Examples may include: * [..] * Those advocating for, or reporting on, SOGIE rights may be perceived to be individuals with diverse SOGIE; and * Individuals who provide support for individuals with diverse SOGIE-for example, partners who remain with individuals with diverse SOGIE through, for instance, gender reassignment surgeries-may be perceived to be individuals with diverse SOGIE. 8.3.2 The fear of family members of an individual who is, or is perceived to be, an individual with diverse SOGIE may also have a nexus to the Convention ground of membership in the particular social group of the family.5 [10] In my opinion, the appellant's testimony as a whole was consistent with all the evidence. No contradictions or omissions were noted in the appellant's testimony. Accordingly, I am of the opinion that the RPD's conclusion in this regard is not correct. The appellant's behaviour [11] In its decision, the RPD concluded that it was only after he was rejected from a job selection process, when he tried in vain to regularize his immigration situation, that the appellant found out that he could try to obtain status for having supported his sister. [12] In his memorandum of appeal, the appellant explained the reasons for his delay in claiming refugee protection in Canada. Because he was not gay, he did not know that he could be recognized as a refugee. He tried to flee repression in Senegal by other means, as he was protected by Canada with his student visa and, subsequently, by trying to obtain a work permit. [13] I do not agree with the RPD. The appellant was questioned about the reason why he did not claim refugee protection at the same time as his sister; he replied that he did not know that he could claim refugee protection as a member of the family. The appellant did not state at the hearing that he had problems with his immigration status, namely, having been rejected from a job selection process. I note that the RPD did not raise any concerns about the appellant's answer and, in my opinion, his explanations about his behavior are satisfactory. Establishing the merits of the refugee protection claim [14] In its decision, the RPD concluded that the appellant had the burden of proving that the picture he was painting applied to him. It is not enough to merely piggyback his account on that of his sister's. He had to prove that he would also be in danger if he were to return to his country. When he was questioned, the answers he gave could not in and of themselves be found credible for the purposes of supporting his allegations. It found that the appellant was not credible. [15] In his memorandum of appeal, the appellant maintains that, although he has stated that he is not gay, he can be recognized as a Convention refugee because he is an ally of that community. He did not devise a way of cobbling together an account. He submitted into evidence his letter of support from his sister, who was recognized as a Convention refugee. In her account, his sister recounts the violent reaction of their father. She was also cut off financially by her father. She mentions her uncle, who is XXXX XXXX and the family elder. She has submitted a letter in order to support the appellant. [16] I do not agree with the RPD. I would like to point out that the appellant himself submitted a letter in support of his sister's refugee protection claim, stating at the time that he accepted her sexual orientation and would continue to support her.6 The appellant's sister also submitted a written attestation describing the support her brother allegedly gave to her as regards her sexual orientation and also confirming his allegations regarding his fear of returning to Senegal.7 The appellant alleges that he fears persecution owing to threats from his father and other family members and also owing to the perception on the part of members of society and the authorities in his country that he is gay. Although the appellant alleges that he is not gay, this allegation is not enough to determine that he is not in danger. In fact, the RPD did not examine the matter of perception or the matter of membership in a particular social group, the family. In Macias, it was held that, in order to consider the immediate family as a particular social group, a claimant must only prove that there is a clear nexus between the persecution being levelled against one member of the family and that which is taking place against the claimant.8 In this case, the appellant submitted evidence that his sister was recognized as a refugee owing to her sexual orientation, and established, in my opinion, the persecution to which he is subject owing to the threats made by his immediate family because of the support he gave to his sister and also the fear of being perceived as gay in Senegal. [17] Tomov, Nikolay Haralam, states: [..] the applicant, a citizen of Bulgaria, claimed refugee protection based on his membership in his common-law spouse's Roma family and the assault he faced when he was in her company. The Court noted that family is a valid social group for the purposes of seeking protection. Here, there was a sufficient nexus between the applicant's claim and his wife's persecution. The Board erred in requiring that the applicant be personally targeted outside of his relationship.9 [18] In the light of the evidence on record, I am of the opinion that the appellant managed to substantiate his allegations and that his testimony was credible. State protection [19] The objective documentary evidence shows that, in Senegal, improper or unnatural acts are punished by imprisonment: Subsection 319(3). Without prejudice to the more serious penalties provided for in the preceding paragraphs or by articles 320 and 321 of this Code, whoever will have committed an improper or unnatural act with a person of the same sex will be punished by imprisonment of between one and five years and by a fine of 100,000 to 1,500,000 francs. If the act was committed with a person below the age of 21, the maximum penalty will always be applied.10 [20] A source points out that homosexuality, whether among men or women, is perceived as a sexual deviancy or an [translation] "unnatural act."11 [21] Another source reports that, between 2011 and 2016, the police arrested people based on their perceived sexual orientation and charged them with "unnatural acts" under article 319 of the Penal Code. The same source further adds that "many" of those arrested described police officers hitting them, beating them with fists and with rubber batons [..] "[m]any" victims belonging to sexual minorities are afraid to report to authorities the violations of their rights that they have experienced. Individuals who report abuse "were sometimes subject to police abuse, including beatings and humiliating treatment."12 [22] As regards treatment by society, another source points out that 92 percent of respondents [translation] "would strongly dislike" having homosexual neighbours ... the [translation] "vast majority" of people belonging to sexual minorities live in insecurity and are subject to "recurrent violations of their most basic rights" by authorities and their fellow citizens.13 [23] Another source reports that the law has been used as a means of targeting certain [translation] "types" of individuals on the grounds of their actual or perceived sexual orientation and/or their "gender identity or expression." According to Human Rights Watch, homosexual behavior is inferred on the basis of mere physical appearance or based on hearsay, sometimes in the absence of any evidence.14 [24] Taking into account the perception factor, and in view of the foregoing, I am of the opinion that the appellant has rebutted the presumption of state protection. Internal flight alternative [25] Given that the state would be one of the agents of prejudice, I am of the opinion that the appellant does not have a viable internal flight alternative in Senegal. [26] For all of the above reasons, I conclude that the appellant would face a serious possibility of persecution in Senegal. CONCLUSION [27] The appeal is allowed. I substitute my own decision that the appellant is a Convention refugee. (Signed) Me Toni Jedid Me Toni Jedid June 12, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 RPD-1, RPD Record, reasons for decision, paras. 7, 8 and 9, p. 5. 3 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. Effective date: 2017-05-01. 4 Amaya Jerez v. Canada (Citizenship and Immigration), 2012 FC 209 (CanLII), at paragraph 24. See also Dykon v. Canada, [1994] 87 FTR 98, 25 Imm. L.R. (2d) 193. 5 Corneille v. Canada (Minister of Citizenship and Immigration), 2014 FC 901 (CanLII). 6 RPD-1, RPD Record, Exhibit D-4, p. 77. 7 Ibid, Exhibit D-5, p. 80 8 Macias, Laura Mena v. M.C.I. (F.C., IMM-1040-04), Martineau, December 16, 2004; 2004 FC 1749, para 13. 9 Tomov, Nikolay Haralam v. M.C.I. (F.C., IMM-10058-04), Mosley, November 9, 2005, 2005 FC 1527. 10 RAD-1. National Documentation Package, Senegal, November 29, 2019, Tab 6.1: Senegal. State-Sponsored Homophobia 2019. International Lesbian, Gay, Bisexual, Trans and Intersex Association. Lucas Ramón Mendos. March 2019. 11 RAD-1, National Documentation Package, Senegal, November 29, 2019, Tab 6.3: La situation actuelle des personnes homosexuelles [the current situation of gay people]. France. Office français de protection des réfugiés et apatrides [French office for the protection of refugees and stateless persons], September 25, 2014. 12 RAD-1, National Documentation Package, Senegal, November 29, 2019, Tab 6.2: The situation of sexual minorities, including legislation, treatment by society and authorities, state protection and support services (2014-October 2018) Immigration and Refugee Board of Canada. October 31, 2018. SEN106182.FE, pages 2 and 3. 13 Ibid, page 5. 14 Supra, footnote 11, page 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-18345 RAD.25.02 (January 2020) Disponible en français 8 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.25.02 (January 2020) Disponible en français