TB7-21087

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 / Dossier de la SAR : TB7-21087 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 15, 2018 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are) the subject of the appeal Fedora Mathieu Barrister & Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW OF THE APPEAL [1] XXXX XXXX XXXX ("the Appellant") appeals the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant is also known as XXXX XXXX XXXX XXXXs as per her Jamaican passport XXXX XXXX and as XXXX XXXX XXXX XXXX XXXX as per her Jamaican passport XXXX XXXX She submits that the RPD erred by not complying with the SOGIE Guideline in assessing her subjective fear and credibility. She also alleges that her former counsel provided her with inadequate representation which caused a miscarriage of justice. Following a review of the evidence, I have found that the Appellant's former counsel did not provide the Appellant with inadequate representation and the Appellant has failed to establish that her former counsel's conduct fell outside the wide range of reasonable professional assistance. I have also found that the RPD did not err in its consideration of the SOGIE Guideline or in its assessment of the Appellant's credibility. For the reasons that follow, I am confirming the decision of the RPD and dismissing the appeal. BACKGROUND [2] The Appellant alleges a fear of persecution in Jamaica based on her sexual identity as a bisexual woman. She alleges that she fears harm at the hands of her ex-husband, her ex-husband's family, and the community in general; as they would mistreat, threaten and kill her if she was to return to Jamaica. The Appellant travelled to Canada in XXXX 2017 and filed a claim for refugee protection approximately six months later. SCOPE OF THE APPEAL [3] As held by the Federal Court of Appeal in Huruglica, the Refugee Appeal Division (RAD) is to review decisions of the RPD on a standard of correctness on questions of law, fact, and mixed fact and law, after conducting an independent assessment of the evidence before it.1 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases may attract a standard of review of reasonableness.2 Unless otherwise stated, a correctness standard has been applied. ANALYSIS Natural justice issue - allegation regarding inadequate representation by former counsel [4] The Appellant, in her affidavit, makes a number of allegations against her former counsel. She submits that these allegations, if not refuted by her former counsel, constitute a serious breach of procedural fairness that should be sufficient to overturn the RPD decision based on a breach of natural justice. She refers to case law setting out legal principles of inadequate representation, and submits that her former counsel's acts or omissions constituted incompetence and that a miscarriage of justice resulted from his incompetence. [5] The Appellant points out that she came to Canada and went back to Jamaica twice before she claimed asylum. She maintains that her former counsel should have anticipated a "lack of subjective fear" finding and should have clarified what kind of situation awaited her in Jamaica after both returns - and included it in her Basis of Claim Form (BoC) narrative. She maintains that her former counsel did not explain the timeline of the persecution in her narrative and it was apparent that she and her former counsel were unprepared to answer questions about this issue at the hearing. [6] It is also alleged by the Appellant that her former counsel convinced her to provide the RPD with explicit photos of her intimacy with her same-sex partner, even though the SOGIE Guideline mentions that it is not expected of a refugee claimant to show explicit or intimate pictures of themselves to prove their SOGIE. She submits that her former counsel breached her rights to dignity and privacy, and the exhibition of these photos to the RPD put her in an even more vulnerable and uncomfortable position during the hearing. [7] The Appellant also alleges the following with respect to her former counsel. Her former counsel advised her to provide false information in her BoC regarding threats she received from her husband's family; he advised her to explain that her visits to Canada were for exploratory purposes; he blamed her for providing her divorce decree late and for failing to provide her marriage certificate when he had these documents in his possession before the disclosure deadline; and he had not advised her that she could and should have brought her same-sex partner to the hearing to testify - and he lied when he told the RPD that her partner was sick and could not come. [8] The Appellant submits that the above either show a lack of substantive knowledge about the fundamental issues and legal principles or a blatant lack of candour towards the RPD. She submits that each of the above allegations are substantial examples of former counsel's lack of reasonable, care, skill and knowledge to the performance of the professional service which he has undertaken; and assessed as a whole, should definitely be sufficient to prove his incompetence. She submits that the quality of the representation her former counsel provided her must be assessed within its context and her profile, and the power dynamics between them are all relevant factors that should inform the RAD's determination of this issue. She submits that the circumstances constitute a lack of procedural fairness. [9] I note that incompetence or negligence of counsel will amount to a breach of procedural fairness in only limited circumstances where: (a) the negligence or incompetence is sufficiently specific and clearly supported by evidence; and (b) there is a fairly arguable case that the result would have been different.3 Where counsel negligence or incompetence is alleged, the courts have required a complaint to the governing body as a form of corroborating evidence of the allegations.4 While complaints to a regulatory body may serve to corroborate claims of negligence or incompetence, they should not be perceived as requirements to making such an allegation.5 It is required that former counsel be given notice and an opportunity to respond to the allegations made against him.6 [10] The Appellant has written to her former counsel (Mr. XXXX) advising him of this appeal.7 She indicates in her letter that she was providing a copy of her appeal record because it contains an argument about the incompetence he demonstrated in the services he provided her at the RPD. No evidence was presented to indicate that a complaint has been made by the Appellant against MrXXXX XXXX to his regulatory body, Immigration Consultants of Canada Regulatory Council (ICCRC); however, as noted above, although it may serve to corroborate claims of negligence or incompetence, it is not a requirement. The Appellant has met the requirement of giving her former counsel notice and an opportunity to respond. Mr. XXXX has responded to the Appellant's notice and refutes all the allegations of incompetence made against him.8 [11] The right of the Appellant to fully present her case is a matter of procedural fairness. Procedural fairness is a question of law, and the standard of review for that question is one of correctness.9 I note, however, that the Appellant does not allege that the RPD denied her natural justice; her allegations are directed at former counsel, and it was the alleged incompetence or negligence of former counsel that led to a denial of natural justice. The Supreme Court of Canada has stated that, "The analysis proceeds upon a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment."10 [12] Did former counsel's acts or omissions constitute negligence or incompetence? I must presume that former counsel's conduct fell within the wide range of reasonable professional assistance, and it is for the Appellant to establish otherwise. [13] Before I can properly assess former counsel's conduct, I must consider the new documents submitted in this appeal. Two of the documents relate to former counsel's alleged negligence while others speak to the Appellant's refugee claim. As not all of the documents directly relate to the negligence allegations, and as the other document does not entirely relate to the well-foundedness of the refugee claim, I will separate the documents into two groups: first, the documents that directly relate to or support the Appellant's allegations against former counsel; and second, those documents that support the Appellant's refugee claim but were not presented to the RPD because of former counsel's alleged actions or lack thereof. [14] Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) allows the Appellant to present only evidence that arose after the rejection of her claim, or that was not reasonably available at the time of the rejection, or that she could not reasonably have been expected in the circumstances to have presented at the time of the rejection. In my view, the Appellant could not reasonably have been expected to present, at the time her refugee claim was rejected by the RPD, evidence that supports her contention that her counsel at the time was negligent. It would be unreasonable to expect most refugee claimants, before or at the time of their refugee hearing, to be knowledgeable and capable of collecting and submitting evidence against their own counsel. It would also be difficult for me to determine whether former counsel's alleged negligence occurred without considering the relevant documents, and such a determination without documents would be unfair to both the Appellant and to former counsel. [15] Considering the above, I find that the following documents, or portions thereof, could not reasonably have been expected in the circumstances to have been presented to the RPD prior to the rejection, are relevant to the issue of alleged counsel misconduct or negligence, and are therefore admissible in this appeal: * Paragraphs 13 to 24 of the Appellant's affidavit dated November 28, 2017;11 and * Copy of letter from Mr. XXXX in response to the Appellant's notice and allegations made against him.12 [16] It is only portions of the Appellant's affidavit (paragraphs 13 to 24) that speak to the issue of former counsel's negligence. [17] In her affidavit, the Appellant describes her interactions with her former counsel, and the instructions and direction she received from him. She indicates that she is not satisfied with her former counsel's services. She believes that his advices and practices harmed her case and her credibility. She alleges that her former counsel did not prepare or submit her documents on time and made it clear that she had to provide explicit photographs of her and her partner in order to show evidence of their relationship. She alleges that her former counsel lied to the RPD about her partner being sick and did not want her to get in contact with her partner in order for her partner to testify over the phone. [18] As mentioned above, the Appellant maintains that her former counsel should have anticipated a "lack of subjective fear" finding and should have clarified what kind of situation awaited her in Jamaica after both returns - and included it in her BoC narrative. She alleges that her former counsel advised her to provide false information in her BoC; and he did not go into details of the persecution she experienced and instead told her that her case would be stronger if she said that her husband's family was threatening her. She also alleges that her former counsel advised her to explain that her visits in Canada were for exploratory purposes; and he did not assist her in explaining the concurrent family context that motivated and mold these visits in Canada. She maintains that these are examples of her former counsel's lack of reasonable care, skill and knowledge to the performance of the professional service which he has undertaken. [19] Instructions for completing the BoC are clear in asking refugee claimants to include everything that is important for their claim and to include dates, names and places wherever possible.13 The Appellant is fluent in English and is not uneducated. She had completed application forms for a visa to Canada and the United States in the past. She ought to have realized the importance of providing accurate information on immigration-related forms and ought to have included everything in her BoC that was important to her claim. Her BoC contains her signed declaration indicating that the information she provided was complete, true and correct. She affirmed at the outset of her hearing that the information in her BoC was complete, true and correct. One would expect that the information in her BoC was complete, true and correct. If she included false information in her BoC upon the advice of her former counsel as alleged, she ought to have corrected the false information in her BoC before it was presented to the RPD or sought alternate counsel. In my view, she would have had the capacity to have done so. Her failure to do so undermines the credibility of her allegations against former counsel. [20] The Appellant explains in her affidavit that to draft her BoC narrative, she met with her former counsel for about an hour, he asked her questions and he wrote down her story. She indicates that her former counsel did not get into a lot of details. Mr. XXXX XXXX in his response, indicates that he met with the Appellant on a number of occasions. He indicates that he had also asked the Appellant to attend his office with her same-sex partner, after they began their relationship, however the Appellant's partner did not attend. He indicates that he asked the Appellant to obtain and provide documents supporting her claim. He also indicates that he went over the issues he thought were relevant in her case and prepared her for the hearing. [21] As indicated by the Appellant and her former counsel, they met on a number of occasions to go through the Appellant's BoC and they discussed the evidence the Appellant should attempt to obtain to support her claim. With respect to the BoC, the Tribunal in Hohots14 held that the proper preparation of the form required careful questioning by counsel, not an interpreter, to ensure that the narrative portion of the form was complete, sufficient, clear and internally consistent. The evidence in the case at hand demonstrates that former counsel met his responsibilities regarding the proper preparation of the Appellant's BoC. Former counsel's review of the Appellant's BoC with the Appellant suggests that this was done to ensure it was complete, sufficient, clear and internally consistent. [22] It is alleged by the Appellant that her former counsel convinced her to provide the RPD with explicit photos of her intimacy with her same-sex partner. However, in response to this allegation, MrXXXX XXXX provides a detailed account of his instructions to the Appellant regarding her same-sex partner that did not include his direction to take and submit sexually explicit photographs. The following is a summary of Mr. XXXX's account. [23] When the Appellant informed Mr. XXXX that she was in a same-sex relationship, he advised her to attend his office with her partner so that he could speak with both of them about the documents they needed to gather to support the Appellant's claim. The Appellant promised to bring her same-sex partner to Mr. XXXX's office but failed to do so. When the Appellant's partner failed to attend Mr. XXXX's office, Mr. XXXXtold the Appellant that it was important for her to provide evidence of a same-sex relationship, such as photographs and a letter from the partner. While Mr. XXXX had concerns about the photographs the Appellant provided him, such as the sexually explicit nature of the photographs and the location where they were taken, he noted that the individuals in the photographs were not nude and he had obtained permission from the individuals depicted in the photographs to submit them to the RPD. [24] In my view, Mr. XXXX's detailed account of his instructions to the Appellant regarding evidence of her same-sex relationship, and the Appellant's lack of response to this account, undermines the credibility of the Appellant's allegation that her former counsel convinced her to provide the RPD with explicit photos of her intimacy with her same-sex partner. [25] The Appellant alleges that her former counsel did not advise her that she could and should have brought her same-sex partner to the hearing to testify. However, in response to this allegation, Mr. XXXX provides a detailed account of his instructions to the Appellant and her same-sex partner regarding the evidence the partner could provide. The following is a summary of Mr. XXXX's account. [26] Mr. XXXX asked the partner - presumably over the telephone since the partner never attended his office - if she could provide a support letter and attend the hearing with the Appellant. The partner said she could provide the letter but was not sure if she could attend the hearing since she had to work. Mr. XXXX asked the Appellant if she could convince her partner to attend her hearing, and to attend his office so that he could explain the role of the partner at the hearing. Although the Appellant agreed to bring her partner to Mr. XXXXs office before the hearing, she failed to do so. Mr. XXXX asked the Appellant to attend a meeting at his office the day before the hearing, and asked that she bring her partner, however, while the Appellant attended the meeting, her partner did not. On the day of the hearing, the Appellant informed Mr. XXXX that her partner was sick and would not be attending the hearing as promised. Mr. XXXX had stressed to the Appellant the importance of having her partner give evidence to corroborate their same-sex relationship. [27] Once again, Mr. XXXX's detailed account of his instructions to the Appellant and her partner regarding evidence of their same-sex relationship and his attempts to have the partner appear at the hearing, and the Appellant's lack of response to this account, undermines the credibility of the Appellant's allegation that her former counsel did not advise her that she could and should have brought her same-sex partner to the hearing to testify. [28] The Appellant alleges that her former counsel blamed her for providing her divorce decree late and for failing to provide her marriage certificate, when he had these documents in his possession before the RPD disclosure deadline. In response to this allegation, Mr. XXXX indicates that in preparation for the hearing, he advised the Appellant to bring all her original documents to the hearing. He also indicates that the divorce decree was not made available to him before the hearing and that he advised the Appellant to bring it to her hearing, which she did. He notes that the RPD accepted it into evidence. [29] It is unclear to me if or when the Appellant provided her marriage certificate and divorce decree to her former counsel. In any event, instructions for completing the BoC are clear in asking refugee claimants to attach any documents they have to support their claim. It also provides information on how to present documents to the Board after they have submitted their BoC. The Appellant ought to have known from the BoC instructions that supporting documents may be essential to establish a claim for protection. Further, as former counsel indicates in his response, he held several meetings with the Appellant to go over her case and instructed her to obtain documents to support her claim. The Appellant's former counsel presented to the RPD the personal documentary evidence the Appellant had obtained following his direction15 and country conditions documentation to support the Appellant's claim.16 [30] The Tribunal in Hohots17 indicated that one of counsel's basic obligations is to marshal the necessary evidence. It indicated that there are two categories of evidence. The first is evidence of the client's identity, membership in particular political or other organizations, acts of persecution, and medical or psychological consequences of persecution. The second is evidence of country conditions, such as the availability of state protection and any internal flight alternative. It is clear that the Appellant's former counsel met his obligations with respect to marshalling the necessary evidence. [31] The Appellant had the opportunity at the outset of her hearing to make changes or additions to the information in her BoC before she confirmed that the information was accurate. She also had the opportunity at the outset of her hearing to indicate that the information in her forms was not accurate. She failed to make changes to the information in her BoC and failed to indicate any inaccuracies. If the Appellant noticed errors in her forms before her hearing, it would be reasonable to expect her to notify the RPD at the outset of her hearing. If the Appellant failed to provide the RPD with an update or correction to her BoC when asked by the RPD, former counsel cannot be faulted for this. [32] The Appellant maintains that her former counsel failed to anticipate and prepare her for the lines of inquiry that the RPD pursued, especially regarding her failure to claim previously in Canada and her re-availment to Jamaica on two occasions. The RPD rejected the claim on credibility. It found that the Appellant's account of fearing persecution was not credible. Counsel has little control over the responses of witnesses, including clients, to questions posed by the RPD at a hearing. I note that former counsel in this case offered input throughout the hearing and sought confirmation from the Appellant that she understood certain questions. This once again demonstrates that former counsel satisfied his obligations in representing the Appellant. Furthermore, it is unreasonable to expect counsel to anticipate a client giving inconsistent testimony or omitting significant details. This does not amount to incompetence or negligence.-+ [33] In my view, for the reasons noted above, the Appellant's former counsel satisfied his responsibilities in representing the Appellant. It is clear from the transcript of the RPD hearing that former counsel was prepared in representing his client. He was familiar with the Appellant's alleged circumstances and with the documentary evidence in the record. He sought clarification from the RPD when required. He interjected when his client may not have understood a question posed by the RPD. He provided substantial oral submissions at the end of the hearing with multiple references to the documentary evidence. He related the Appellant's alleged circumstances to the documentary evidence. He also addressed the anomalies in the Appellant's evidence. In my view, the allegations against the Appellant's former counsel are either unfounded or inconsequential and do not demonstrate negligence. I find that the Appellant has failed to establish that her former counsel's conduct fell outside the wide range of reasonable professional assistance. Admissibility of the other evidence submitted on appeal [34] As mentioned above, I have separated the Appellant's documents into two groups: documents that directly relate to or support the Appellant's allegations against former counsel; and those documents that support the Appellant's refugee claim but were not presented to the RPD because of former counsel's alleged actions or lack thereof. The documents that directly relate to or support the Appellant's allegations against former counsel are addressed above. The documents that support the Appellant's refugee claim but were not presented to the RPD because of former counsel's alleged actions or lack thereof are addressed in this section. [35] The Appellant tendered the following items as proposed new evidence in support of her appeal. (a) Copy of the Appellant's marriage certificate dated September 19, 2008; 18 and (b) Copy of letter from the Appellant's sister dated November 27, 2017.19 [36] I also note that paragraphs 1 to 13, and paragraph 25, of the Appellant's affidavit contain information not presented to the RPD prior to the rejection of the Appellant's claim for refugee protection.20 [37] The Appellant submits that the new evidence she submitted should be admitted as they respect section 110(4). She maintains that her marriage certificate and the letter from her sister should have been presented to the RPD by her former counsel. She submits that these items should be considered due to their relevance, in conformity with the principles of natural justice. [38] In my view, items (a) and (b), and paragraphs 1 to 13 of the Appellant's affidavit, do not meet the statutory requirements of subsection 110(4) or satisfy the Raza21 criteria for the following reasons. [39] As noted above, I have found that the Appellant's former counsel was not negligent in the handling of the Appellant's case and the Appellant has failed to establish that her former counsel's conduct fell outside the wide range of reasonable professional assistance. Also, the evidence is clear that the Appellant's former counsel directed the Appellant to obtain documentation to support her claim and directed her to bring original documents to her hearing. The letter from the Appellant's sister post-dates the rejection of the Appellant's claim. Although it contains information that pre-dates the rejection, the Appellant could reasonably have been expected to have presented a letter from her sister prior to the rejection, if it was supportive of her claim as alleged. [40] The Appellant has failed to establish that a copy of her marriage certificate was in former counsel's possession prior to her hearing. Nevertheless, the Appellant failed to provide the original to the RPD at the hearing, as directed by her former counsel. Therefore, the Appellant's contention that items (a) and (b) should have been presented to the RPD by her former counsel is without merit. [41] Paragraphs 1 to 13 of the Appellant's affidavit contain new details and new allegations regarding her alleged circumstances in Jamaica and her previous travel to Canada. These are details and allegations that ought to have been in the Appellant's BoC. The Appellant could reasonably have been expected to have presented this evidence to the RPD, in her BoC and at her hearing, prior to the rejection. [42] In paragraph 25 of her affidavit, the Appellant indicates that she is no longer in a romantic relationship with a woman named XXXX. Considering the Appellant's lack of credibility with respect to her alleged same-sex relationship with XXXX XXXX as outlined by the RPD and discussed below, evidence regarding the termination of the relationship does not make the allegation credible. [43] The Appellant has failed to establish that items (a), (b) and the information in paragraphs 1 to 13 of the Appellant's affidavit, arose after the rejection of her claim, or that they were not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented them at the time of the rejection. Information in paragraph 25 of the Appellant's affidavit fails to satisfy the Raza criteria. Since they do not meet the test, they will not be accepted as new evidence in this appeal. Request for an oral hearing [44] The Appellant requests that a hearing be held under subsection 110(6). [45] My jurisdiction to convene an oral hearing is limited: there must be admissible new evidence that raises a serious issue of credibility, is central, and determinative.22 No new evidence has been admitted in this appeal, and so no hearing can be convened. The Appellant's request for an oral hearing is therefore denied. Findings of the RPD Credibility Marriage, separation and divorce Marriage toXXXX XXXX [46] The RPD noted that the Appellant provided inconsistent evidence regarding the date she was married to XXXX, and she had failed to provide her marriage certificate. It noted that according to the Appellant's divorce certificate, she was married on May 31, 2006, however according to her Generic Application Form for Canada, her BoC narrative, and her testimony at the hearing, she was married on May 30, 2006. The RPD found the Appellant's explanation for the inconsistency - her marriage was originally scheduled for May 30, 2006 but due to a problem at the hotel, it was re-scheduled to May 31, 2006 - not credible. Separation from XXXX [47] The RPD noted that the Appellant provided inconsistent evidence regarding her separation from XXXX. It noted that the Appellant could not recall when the separation occurred, then indicated it was in 2015, then indicated it was in September, then indicated that she was not sure of the month or year but that it had been less than five years prior. It noted that according to her Generic Application Form for Canada, the Appellant was separated on September 30, 2012. It noted that according to her application for a Canadian visitor visa made in 2015, she was married and not separated. Divorce from XXXX [48] The RPD noted that the Appellant could not recall when she was divorced from XXXX even though she had a copy of the divorce certificate in her possession and, according to that copy, the divorce had occurred only four months prior. [49] The Appellant submits that the RPD engaged in a microscopic analysis of her testimony. She submits that whether she was married on the 31st or the 30th of May 2006, whether she was separated in 2012 or 2015, her uncertainty regarding the month her divorce certificate was issued, and the late production of her divorce certificate are marginal issues that have little to no relevance in determining if she is at risk upon return to Jamaica as a bisexual woman. [50] In my view, the Appellant's marriage to XXXX XXXX and her subsequent separation and divorce, are not marginal issues. The Appellant alleges that her marriage to XXXX was impacted by her alleged sexual orientation and this caused the marriage to fail. She also alleges that XXXX and his family members caused her harm and threatened her with death because she was accused of being bisexual. Considering the Appellant's allegations, it would be reasonable to expect the Appellant to provide consistent evidence regarding the date she married XXXX, when they separated and when they divorced. Her inability to do so undermines her credibility and the credibility of her allegations, including the credibility of her alleged sexual orientation. Failure to claim previously in Canada and re-availment to Jamaica [51] The RPD noted that the Appellant had been in Canada previously on two occasions as a visitor but had not made a claim for refugee protection. It noted that the Appellant instead returned to Jamaica where she alleged word had spread that she was a lesbian prior to her first trip to Canada. It noted the Appellant's testimony that after her return to Jamaica from Canada the first time she received threats to her life, but after her second visit to Canada she once again returned to Jamaica. The RPD found that the Appellant had not credibly explained her returns to Jamaica from Canada, without having attempted to make a claim for refugee protection in Canada, and without researching how she could go about staying in Canada in those years. [52] The RPD found the Appellant's explanation for failing to make inquiries on how to stay in Canada was not in harmony with her stated purpose for coming to Canada those two previous visits. It found her explanation unreasonable and her returns to Jamaica showed a lack of subjective fear and a lack of credibility. [53] The Appellant submits that the RPD's conclusions are unreasonable as it did not engage with the fact that her persecution happened gradually and that it had a cumulative effect leading to her departure. She points out that she explained to the RPD that other than inquiring about how to remain in Canada to her sister in 2016, during her second visit, she did not take any other steps to find a way to remain in Canada. She also points out that she said that looking further into the options suggested by the RPD did not come into her mind. She maintains that this attitude towards her sexuality is consistent with her allegations. [54] The Appellant points out that she mentioned in her narrative that she hid her sexuality all of her life, that her family did not support her decision to live without being in a relationship with a man, that she never had a stable relationship with a same-sex partner and that the few encounters she had in Jamaica were held in secrecy. She submits that in light of this evidence, the RPD should have applied, and not rejected, the SOGIE Guideline while assessing her subjective fear and delay in claiming asylum in Canada. She maintains that the RPD did not acknowledge the other contextual factors that could have led her not to claim asylum in Canada in 2015 or 2016. [55] In my view, the Appellant's argument fails for the following reasons. It is unclear what part of the SOGIE Guideline the Appellant alleges the RPD did not apply. The RPD indicated that section 3.1 of the SOGIE Guideline23 - regarding an individual's self-awareness and self-acceptance of their SOGIE - did not support the Appellant's explanations for her failure to claim previously in Canada and her re-availment to Jamaica following her two previous visits to Canada. The RPD was not wrong to make this finding. The Appellant explained that she was still discovering her sexual identity in Canada; however she alleged that she faced persecution or harm in Jamaica because of her alleged or perceived sexual orientation before her first trip to Canada in 2015 and then again before her trip in 2016. Since she allegedly faced persecution or harm in Jamaica due to her alleged sexual orientation before her first trip to Canada in 2015, her self-awareness and self-acceptance of her SOGIE when she first travelled to Canada was irrelevant in consideration of her failure to claim in Canada during her two previous visits, and her re-availment to Jamaica following those visits. She allegedly was aware and had accepted her bisexual orientation well before her first trip to Canada. Her BoC narrative clearly demonstrates this. [56] The Appellant was aware of the homophobia that exists in Jamaica as she indicated in her BoC that a woman cannot remain in Jamaica without a man in her life even if the woman is a lesbian, and some women who refuse to date men or have children have been killed in Jamaica. She alleges that she was aware of her alleged sexual orientation since she was a teenager (more than 20 years ago). She alleges that she had some intimate same-sex encounters in Jamaica. She alleges that she was accused of being a lesbian in Jamaica before her first trip to Canada and she received threats to her life in Jamaica before her second trip to Canada. She states in her BoC that she came to Canada in 2015 for exploratory purposes: to see if homosexuals are free to live in Canada and to verify if her sister would allow her to stay with her in Canada. [57] If the Appellant came to Canada in 2015 for exploratory reasons as alleged, it would be reasonable to expect her to have researched protection mechanisms available to her as a bisexual woman from Jamaica. However, she failed to conduct research on this issue or to consult with an immigration professional during her two previous visits. Her explanation that it did not enter her mind to conduct such research is unreasonable considering her stated intention of exploring the situation for homosexuals in Canada. [58] Considering the Appellant's allegations, it would be reasonable to expect her to have claimed refugee protection in Canada when she travelled here in 2015 or 2016, however she did not. Not only did the Appellant not claim refugee protection in Canada during her two previous visits to Canada, she failed to research protection mechanisms in Canada and then re-availed herself to the protection of Jamaica. The Appellant ought to have feared returning to Jamaica in 2015 and 2016 in light of her alleged circumstances. [59] I concur with the RPD's assessment of the Appellant's failure to claim previously in Canada and her re-availment to Jamaica. Upon a review of the record, I find that the Appellant's failure to claim previously in Canada, during two separate visits, without a reasonable explanation, undermines her credibility with regards to her subjective fear of returning to Jamaica, her overall credibility, and her allegations, including the credibility of her alleged sexual orientation. Her re-availment to Jamaica in 2015 and 2016, without a reasonable explanation, further undermines her credibility with regards to her subjective fear of returning to Jamaica, her overall credibility, and her allegations, including the credibility of her alleged sexual orientation. Same-sex relationship in Canada [60] The RPD considered the Appellant's evidence of a same-sex relationship in Canada. It found that a letter from the Appellant's alleged same-sex partner did not allay its concern about the credibility of her allegations, including the credibility of her alleged sexual orientation. It noted that the letter was general and refers to a relationship that began a few weeks prior. It noted that the partner was not presented as a witness at the hearing. It commented on the presentation of sexually explicit photographs and noted that photographs are not sufficient to demonstrate credible and reliable testimony. It noted that no evidence of communication between the Appellant and her partner, such as email or chats, was presented. It gave no weight to the letter and photographs in terms of evidence of a same-sex relationship. [61] The Appellant submits that the RPD based its assessment of her sexual identity solely on her relationship with her partner in Canada. She maintains that the RPD drew a negative conclusion because her partner did not testify. She alleges that the RPD gave no weight to the letter from her partner and assessed her credibility based on immaterial information. [62] The Appellant alleges that the RPD rejected intimate photos of her and her partner due to their explicit content. She points out that the RPD explained that she did not have to provide them and that no written consent from her partner was provided. The Appellant alleges that the RPD rejected the photos as evidence. She argues that while the SOGIE Guideline mentions that it is not expected that an individual establish their SOGIE through the use of sexually explicit photographs, if she provides them voluntarily, it is not the RPD's discretion to accept or refuse the pictures based on its own sensitivity. She submits that she should have had the opportunity to talk about the photographs and explain in what context they were taken before the RPD decided to discard them and give them no weight. [63] The Appellant's argument is without merit. There were a number of factors that caused the RPD to give the letter from the Appellant's alleged same-sex partner and the photographs no weight in terms of establishing a same-sex relationship. The letter24 from XXXX provides very little information, and few details, about her alleged romantic relationship with the Appellant. In my view, it lacks probative value. Further, the Appellant provided no credible evidence of communication with her alleged same-sex partner, such as email or chats, which one would expect individuals in a romantic relationship to have. Further, XXXX was not called as a witness at the Appellant's hearing, even though XXXX lived in Toronto at the time. It would be reasonable to expect the Appellant to present her same-sex partner at the hearing to provide evidence of the relationship. I give the letter from XXXX very little weight in terms of establishing that she was in a same-sex relationship with the Appellant. I give it no weight in terms of establishing the Appellant's alleged sexual orientation. [64] Also, the RPD did not reject the photographs the Appellant presented. Copies of the photographs were submitted and are contained in Exhibit 6 of the RPD record.25 I note that the copies of the photographs contained in the RPD record are of poor quality and the images are hard to make out. The RPD returned the original (clearer) versions of the photographs to the Appellant once they had been examined. The RPD was not wrong to note that it is not expected that an individual establish their SOGIE through the use of sexually explicit photographs. This is stated in section 7.2.4 of the SOGIE Guideline. [65] While the RPD had the advantage of viewing the original photographs, I note that the copies in the RPD record are not clear and the images are hard to make out. Nonetheless, the photographs are undated and lack context. The only description provided of the photographs is that they are photos taken by the Appellant with her same-sex partner in Toronto.26 In my view, they lack probative value and deserve very little weight, if any. Evidence from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX) [66] The Appellant submits that the RPD did not discuss the evidence from The XXXX that she provided. She maintains that the RPD erred when it conducted an incomplete and unidimensional analysis of her sexual identity. [67] The RPD is presumed to have considered all of the evidence before it, and there is no requirement for it to refer to each document in the record.27 I presume that the RPD considered the documents from The XXXX.28 It was not wrong for the RPD to not refer to these documents in its reasons. [68] In my view, the Appellant's involvement with an organization such as The XXXX does little if anything to support her allegation that she is bisexual. The attendance sheet from The XXXX merely indicates that the Appellant attended one session of the program "Among Friends" on August 2, 2007. A training record from The XXXX indicates that the Appellant attended a newcomer orientation session on July 18, 2017. A membership card from The XXXX indicates that the bearer of the card is a valued member of The XXXXcommunity of supporters. The XXXX is an organization that serves the LGBTQ community in the Toronto area. The Appellant's participation in the organization's programs is extremely limited. I give very little weight to the documents from The XXXX in terms of in terms of corroborating the Appellant's allegations, including her alleged sexual orientation. Disposition [69] Having reviewed the evidence, and for the reasons above, I find that the Appellant has failed to establish that her former counsel's conduct fell outside the wide range of reasonable professional assistance. I also found that the RPD did not err in its consideration of the SOGIE Guideline or in its assessment of the Appellant's credibility. The RPD's findings are based on the evidence and in consideration of the SOGIE Guideline. Having considered the evidence, I reach the same conclusion as the RPD. [70] As a cumulative result of the above-noted findings, I find that the Appellant lacks credibility. I do not accept, on a balance of probabilities, that the material events, as described by the Appellant in her BoC and at her hearing with the RPD, occurred as described. [71] On the basis of the findings noted above and after my own assessment of all the evidence in the record, including the transcript of the hearing, I find that the Appellant has not established, on a balance of probabilities, that she is bisexual. I further find that the Appellant has not established, on a balance of probabilities, that she separated from her husband because of her alleged sexual orientation, or that she was involved in same-sex relationships in Jamaica or Canada, or that she was threatened with harm because of her alleged sexual orientation, or that she is perceived as bisexual or lesbian in Jamaica. [72] Therefore, I find that there is not a serious possibility of persecution should the Appellant return to Jamaica. I therefore conclude that the Appellant has failed to establish a well-founded fear of persecution under section 96 of the IRPA, and, for these same reasons - the lack of credibility - I find that the Appellant is not a person in need of protection or at a risk to life, or at risk of cruel and unusual treatment or punishment, or in danger of torture as set out in section 97 of the IRPA. CONCLUSION [73] Pursuant to paragraph 111(1)(a) of the IRPA, I confirm the decision of the RPD and dismiss the appeal. (signed) "M. Pettinella" M. Pettinella October 15, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 2 Huruglica, 2016 FCA 93, at paras 69-74; X (Re), 2017 CanLII 33034 (CA IRB). 3 Srignanavel, Thangarasa v. M.C.I. (F.C., no. IMM-2619-14), Brown, May 5, 2015; 2015 FC 584. 4 Pusuma, Jozsef v. M.C.I. (F.C., no. IMM-8948-11), Russell, August 29, 2012; 2012 FC 1025, para 42. 5 Basharat, Sadaf v. M.C.I. (F.C., no. IMM-1611-14), Diner, April 29, 2015; 2015 FC 559. 6 Pusuma, Jozsef v. M.C.I. (F.C., no. IMM-8948-11), Russell, August 29, 2012; 2012 FC 1025, para 43. 7 Exhibit P-4, Appellant's letter to former counsel. 8 Exhibit P-5, Former counsel's response. 9 Galyas, Viktor v. M.C.I. (F.C., no. IMM-5351-12), Russell, March 8, 2013; 2013 FC 250; Huruglica, 2016 FCA 93. 10 R. v. G.D.B., 2000 SCC 22, para 27. 11 Exhibit P-2, Appellant's Record, at pp. 40-41. 12 Exhibit P-5, Former counsel's response. 13 Exhibit RPD-1, RPD Record, at p. 10. 14 Hohots, 2015 ONLSTH72 (CanLII), at p. 6. 15 Exhibit RPD-1, RPD Record, at pp. 104-119. 16 Exhibit RPD-1, RPD Record, at pp. 84-98, 103. 17 Hohots, 2015 ONLSTH72 (CanLII), at p. 6. 18 Exhibit P-2, Appellant's Record, at p. 44. 19 Exhibit P-2, Appellant's Record, at pp. 46-47. 20 Exhibit P-1, Appellant's Record, at pp. 38-41. 21 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 22 IRPA ss. 110(6). 23 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guideline), Effective date: May 1, 2017, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. 24 Exhibit RPD-1, RPD Record, at p. 118. 25 Exhibit RPD-1, RPD Record, at pp. 106-115. 26 Exhibit RPD-1, RPD Record, at p. 101. 27 Hassan v Canada (Minister of Citizenship and Immigration), [1992] FCJ No 946. 28 Exhibit RPD-1, RPD Record, at pp. 104, 105, 116, 117. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-21087 RAD.25.02 (September 18, 2018) Disponible en français 21 RAD.25.02 (September 18, 2018) Disponible en français