TC0-11061

RAD File / Dossier de la SAR : TC0-11061 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 Toronto, ON Appel instruit / entendu à Date of decision March 26, 2021 Date de la décision Panel Joseph Wyger Tribunal Counsel for the person who is the subject of the appeal Rebeka Lauks Conseil de la personne en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal. The Appellant XXXX XXXX XXXX XXXX (Ms. XXXX.) is a citizen of Barbados. a. Ms. XXXX. alleges she had a same-sex relationship, and she identifies as a lesbian who fears persecution for her sexual orientation in Barbados. b. The Refugee Protection Division (RPD) found Ms. XXXX.'s testimony vague, hesitant and lacking corroboration; Ms. XXXX. says the corroboration of her mother and godmother are sufficient to establish that she is a lesbian. c. The determinative issue for the Refugee Appeal Division (RAD) is whether there is sufficient evidence to establish Ms. XXXX.'s contention that she is a lesbian. d. The RAD decides that the RPD was correct that Ms. XXXX.'s narrative of being a lesbian is not credible because her testimony was vague, hesitant, lacking in reasonably expected detail and insufficiently corroborated. DECISION [2] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] Ms. XXXX. was a 17 year old minor at the time of the RPD hearing and her designated representative was her mother XXXX XXXX (Ms. XXXX.), who was the Principal Claimant. Ms. XXXX. presented sufficient evidence of her lesbian sexual orientation to receive a positive decision from the RPD. The RPD rejected Ms. F.'s claim. [4] Ms. XXXX.'s allegations can be summarized as follows: [5] Ms. XXXX. was at age 13 when she felt attracted to girls and became friends with XXXX. After four months, they became girlfriends at XXXX request, but kept it secret out of fear of receiving the same bad treatment that her lesbian mother received from XXXX XXXX XXXX Ms. XXXX. was waiting for a good time to tell her mother about her same sex relationship with XXXX and did so at a family luncheon in 2018 with XXXX as her guest. A grandaunt overheard the conversation and spread the news, causing drama with XXXX XXXX and the rest of the family, including Ms. XXXX.'s father who became angry with her. [6] Ms. XXXX. travelled to Canada in XXXX 2018 while Ms. XXXX. stayed with her godmother XXXX, until joining her mother in XXXX 2018. She fears returning to Barbados because girls liking girls is not considered normal and is against the Bible and the law in Barbados. RPD FINDINGS [7] The RPD made several findings in support of the panel's determination that Ms. XXXX. failed to establish that she is a lesbian: a. Ms. XXXX.'s credibility was undermined as her testimony about her time with XXXX over 2 years was vague, hesitant, and lacking in reasonably expected details. b. Given the deficiencies in her testimony, Ms. XXXX.'s explanation for the lack of corroborating evidence of her relationship with XXXX was not reasonable. c. A negative credibility inference was drawn from Ms. XXXX XXXX's failure to make an effort to obtain a letter from XXXX confirming the alleged same-sex relationship. APPELLANT'S POSITION [8] The Appellant's Memorandum (AM) advances the position that the RPD failed to offer reasons to impugn Ms. XXXX.'s credibility but only regarding her daughter's sexual orientation. It contends that the panel erred by rejecting corroborating evidence such as Godmother XXXX letter, only because it did not line up with its already reached finding that Ms. XXXX. was not a lesbian. The AM also submits that the RPD failed to consider the risk to Ms. XXXX. as a result of her relationship to her mother, who was found to be lesbian. ANALYSIS [9] My role is to look at all the evidence and decide if the RPD made the correct decision.1 I determine that the RPD was correct that Ms. XXXX. failed to establish a same sex relationship with XXXX or that she is a lesbian. In doing so, I reviewed and had regard for the Sexual Orientation Gender Identity Expression (SOGIE) Guidelines2 and the Guidelines for Child Refugee3 Claimants. RPD correct that Ms. XXXX.'s testimony about a two-year same-sex relationship was not persuasive [10] The RPD questioned Ms. XXXX. with the expectation that she would provide more details of her two years in an intimate relationship with XXXX, than were found in her narrative. Instead, the panel found her testimony to be hesitant, vague, and lacking in any significant detail. The panel had concerns with: the timing of the start of the same-sex relationship; differing birthdates for XXXX; vagueness about what Ms. XXXX. liked about XXXX; joint activities mirroring the narrative without any elaboration; not remembering any of the movies they saw every weekend for two years; and no special memory or further information beyond what was in the written narrative. [11] The AM does not address these credibility concerns except to suggest that the RPD cannot expect to hear the types of deeply personal testimony that it might expect to hear from an adult. I note that counsel at the hearing did not make any attempt to rehabilitate Ms. XXXX XXXX's problematic testimony when given the opportunity. My impression on listening to the audio is that the panel was professional and considerate of Ms. XXXX.'s youth and alleged sexual orientation, but came away as I did, expecting a more fulsome account of an alleged two-year affair. [12] The AM focuses on faulting the RPD for accepting Ms. XXXX.'s credibility about her own sexual identity but not about her daughter's sexual orientation. I do not agree with the AM's suggestion that there is no reasonable basis for the panel to reject Ms. XXXX.'s evidence on this issue. Given the problems with the believability of Ms. XXXX.'s testimony, I understand the panel's reluctance to simply accept believing her mother's say so. [13] Ms. XXXX.'s sexual orientation was backed by significant evidence and was believable. I accept at the same time, that statements made to help her daughter were not believable to the RPD. Ms. XXXX. is not a disinterested witness and I find that while she may be generally credible, her testimony about her daughter cannot be simply accepted as truth as the AM would suggest. [14] The AM points to Ms. XXXX.'s account of her daughter's coming out as credible evidence for Ms. XXXX.'s sexual identity. Ms. XXXX.'s own account has her fearful of anyone finding out about her and XXXX, especially her disapproving XXXX XXXX, but that she wanted to reveal her secret to her mother at some point. So the time and place that Ms. XXXX. chose to tell her mother was at a busy family luncheon at XXXX house, bringing XXXX with her and allowing herself to be overhead by a disapproving grandaunt. This story may not be implausible, but contrary to the AM submission, I do not think that it aids anyone's credibility. [15] I conducted an independent assessment of the evidence, including listening to the audio recording of the RPD hearing. I agree with the panel's characterization of Ms. XXXX.'s testimony as generally not believable to the point of needing probative corroboration beyond her mother's word. RPD did not reject corroborating evidence solely because the panel had already come to a conclusion [16] The RPD considered the evidence of Godmother XXXX, and Ms. XXXX.'s partner XXXX, and found them credible with respect to Ms. XXXX XXXX's sexual orientation, but they did not ameliorate the credibility of Ms. XXXX XXXX's allegations of her own sexual identity. [17] The AM says the RPD failed to explain why this evidence was not credible and it should not have been rejected under the sole pretext that it was not in line with a credibility conclusion already reached by the panel. The AM concedes that what XXXX knows about Ms. XXXX.'s sexual orientation is through Ms. XXXX., and I note that in her letter she does not reveal any first-hand personal knowledge of Ms. XXXX.'s sexual identity. Similarly, XXXX letter only repeats Ms. XXXX.'s story that Ms. XXXX.'s father was furious that she liked girls, which is hearsay twice removed. The statements from both of these witnesses are hearsay through Ms. XXXX.'s mother, and I find the evidence casts no light on the alleged same-sex relationship with XXXX or Ms. XXXX.'s sexual orientation. [18] The RPD did not dismiss the corroborating evidence because it contradicts a credibility finding. Rather the panel found it very thin evidence to overcome Ms. XXXX.'s unbelievable account of her time with XXXX. Clearly the panel would have preferred something from XXXX over these hearsay statements. I agree with the RPD finding that the hearsay corroboration does not provide much evidence to help establish that Ms. XXXX. is a lesbian, particularly in the absence of some real corroboration from XXXX. RPD was correct to want some corroboration from XXXX given Ms. XXXX.'s credibility issues [19] The RPD determined that the lack of effort by Ms. XXXX. to obtain reasonably available corroborative evidence can be a valid consideration for the purposes of assessing her credibility. The panel canvassed Ms. XXXX.'s communications with XXXX since coming to Canada and received some inconsistent testimony. The RPD rejected her explanation that she did not know a letter from XXXX should be provided to help her claim and since there was no evidence that they ended on bad terms, a letter was reasonably obtainable. The panel drew a negative credibility inference from the failure to make any effort to obtain some evidence from XXXX confirming the same-sex relationship. [20] The AM asserts that the RPD was unreasonably pre-occupied with the lack of specific corroborating evidence of the relationship with XXXX. It contends that this was the entire reason for the panel rejecting Ms. XXXX XXXX's sexual identity and is an error of law. I disagree with that characterization because the entire reason for the rejection of the allegation was Ms. XXXX.'s unconvincing testimony. The presumption of truthfulness is rebutted when there is good reason to doubt the narrative, as is the case here. My assessment of the RPD's reasoning is that Ms. XXXX.'s testimony was so deficient, that it could only be rehabilitated by some word from the only person who could provide real corroboration of her sexual orientation. In my view, Ms. XXXX.'s unpersuasive testimony does require better corroboration than second and third hand information. [21] I agree with the assertion in the AM that even if unconvinced of the XXXX relationship, the RPD should still have considered the evidence supporting Ms. XXXX.'s sexual orientation. It is correct that there is no obligation for a claimant who identifies as a lesbian to have had a same-sex relationship. However, where such a relationship is put forward as the centerpiece of the narrative of sexual identity, I believe that some evidence of it would be reasonably expected. I determine that the RPD was correct to focus on evidence, or lack of evidence from the two principals who might actually establish the existence of a sexual relationship between them. [22] I have conducted an independent assessment, and I find that second and third hand hearsay accounts of mothers, godmothers, or their partners is insufficient evidence to establish that Ms. XXXX XXXX is a lesbian. More is needed given the lack of credibility of her own evidence of her sexual identity. RPD was right to doubt Ms. XXXX.'s explanation for not having any communication from XXXX [23] The RPD assessed Ms. XXXX.'s explanation that she did not know that a communication from XXXX would help her case, along with a story about a broken smartphone, a hacked Facebook account and a deleted Facebook profile. The panel pointed to the wealth of corroborating evidence Ms. XXXX. presented to support her own sexual identity through the same counsel, incredulous that seemingly no effort was made to secure something from alleged girlfriend XXXX. [24] The AM correctly states the law that the RPD may validly consider the failure to provide corroborating documentation in making its credibility determination, if the panel does not accept the claimants' explanation for that failure. I agree with the RPD that Ms. XXXX.'s explanation for not documenting some form of communication with XXXX is not reasonable in all the circumstances. I determine that Ms. XXXX.'s inability to retrieve either alleged text messages or alleged Facebook messages from XXXX, made it all the more important that she and her counsel obtain something from XXXX to support the narrative of a lesbian relationship with her. [25] Some possibilities emerge: First, that XXXX was not asked to provide corroboration because Ms. XXXX. knew she would not confirm a sexual identity that was not true; second, that XXXX was asked to provide corroboration but she refused to confirm a sexual identity that was not true; third, that counsel was negligent in not even attempting to secure the best evidence in support of the claim. I find on a balance of probabilities that the third possibility is the least likely, leaving the probability that XXXX would not provide evidence to confirm a sexual identity that was not true. [26] The RPD was correct that a negative credibility inference is warranted as a result of Ms. XXXX failure to seek the best evidence for her sexual identity. There is insufficient evidence that Ms. XXXX. would be at risk due to her mother's sexual identity [27] The AM submits that the RPD failed to consider the risk to Ms. XXXX. as a result of her relationship to her lesbian mother. It cites the National Documentation Package (NDP) for the proposition that those who are merely perceived to be gay or lesbian have a realistic fear of becoming social pariahs, alienated by family and community.4 Counsel argues that the RPD erred by failing to consider that Ms. XXXX. could be perceived as a lesbian. In my view, the RPD was correct not to address this because there was no evidence provided to the panel to suggest that sexual orientation is hereditary or that people in Barbados believe that it is. There was no evidence tendered on this appeal to support the speculation that a person might be perceived as a lesbian solely due to parentage. [28] The AM also contends that Ms. XXXX. might suffer potentially persecutory emotional and psychological abuse as the child of a lesbian woman without providing any evidence in support of that contention. I think that the scorn that was already directed toward Ms. XXXX.'s lesbian mother by XXXX XXXX and other family members might be unpleasant, but it does not rise to the level of persecution of Ms. XXXX. herself. I also reasonably expect that it would subside now that Ms. XXXX. will no longer be present in the vicinity of her disapproving family. CONCLUSION [29] I determine that Ms. XXXX. has failed to establish that she belongs to a particular social group that would face a reasonable chance of persecution in Barbados. [30] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) J. Wyger Joseph Wyger March 26, 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Chairperson's Guideline 9: Proceedings Before the Immigration and Refugee Board Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, IRB, Ottawa, May 1, 2017. 3 Chairperson's Guideline 3: Child and Refugee Claimants: Procedural and Evidentiary Issues, issued by the Chairperson pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, September 30, 1996, as continued in effect by the Chairperson on June 28, 2002 pursuant to section 159(1)(h) of the Immigration and Refugee Protection Act. 4 National Documentation Package for Barbados (March 31, 2020), Item 6.4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-11061 RAD.25.02 (January, 2020) Disponible en français 2 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