MB9-26284

RAD File No. / No de dossier de la SAR : MB9-26284 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 October 28, 2020 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Martin Lotard Bayigwalag 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] The appellant, XXXX XXXX XXXX XXXX, a citizen of Cameroon, is alleging a well-founded fear by reason of his sexual orientation. [2] He is appealing the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection on the ground that credibility is the determinative issue. [3] The appellant did not submit new evidence in support of the appeal and did not request that an oral hearing be held.1 He is asking the Refugee Appeal Division (RAD) to set aside the RPD's determination and determine that he is a refugee and a person in need of protection.2 [4] In May 2017, the Chairperson of the Immigration and Refugee Board of Canada (IRB) adopted Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression3 (SOGIE Guideline), which serves as a guide when reviewing refugee protection claims on this ground. [5] In this case, although the RPD questioned the appellant in an appropriate manner, I find that by concluding that the verbal and written statements are contradictory with respect to when the appellant discovered his homosexuality, it did not sufficiently consider the complex internal process through which a person discovers and accepts their sexual orientation and gender identity. While the RPD's determination was not based solely on this conclusion, I am of the opinion that its role was sufficiently material to vitiate the conclusion that the appellant failed to establish that he is homosexual. [6] According to the Office of the United Nations High Commissioner for Refugees Handbook, self-identification as an LGBT person should be taken as an indication of the individual's sexual orientation. In this case, I have no valid reasons for doubting the appellant's statements regarding his sexual orientation. [7] According to the documentary evidence,4 the situation for homosexuals in Cameroon is problematic since it is the highest jailer of homosexuals in Africa. An internal flight alternative (IFA) is not realistic or viable, and they cannot obtain state protection should problems arise.5 After reviewing all of the evidence and listening to the recording of the hearing, I find that the appellant established a serious possibility of persecution by reason of the reported sexual orientation. [8] Consequently, the appeal is allowed. The RPD's determination is set aside. I substitute the determination that, in my opinion, should have been made and determine that the appellant is a Convention refugee. FACTUAL BACKGROUND [9] The appellant entered Canada on XXXX XXXX XXXX 2014, with a visa to study at the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX His visa was valid until December 31, 2017. [10] According to the information in the Basis of Claim Form (BOC Form), in September 2015, the appellant met a man who would become his partner XXXX XXXX XXXX XXXX XXXX One evening while in the company of his partner, he was allegedly being secretly filmed by other Cameroonians. In October 2015, the appellant ceased his studies at XXXX because his parents decided to stop paying his tuition after hearing that he was no longer attending religious services and that he was homosexual. [11] In April 2016, he registered at XXXX XXXX but had to withdraw from his courses since he was unable to pay for them. After talking to his partner, he decided to continue his studies while working so that he could later obtain permanent residence. After several unsuccessful attempts to find assistance to continue his studies, the appellant claimed refugee protection on November 9, 2017, because he stated that he could not return to Cameroon by reason of his sexual orientation. Notice of intervention [12] On October 22, 2018, the Minister of Citizenship and Immigration Canada (the Minister) intervened, raising issues regarding his credibility. Specifically, the Minister argues that [translation] "the claimant is using the refugee protection system for the sole purpose of obtaining permanent status in Canada, which undermines the integrity of Canada's refugee protection program." He submits that the refugee protection claimant is only seeking refugee protection as a last resort to stay in Canada.6 Impugned decision [13] The RPD mentioned that it had taken into account the Chairperson's Guideline entitled Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.7 [14] It found that the appellant's credibility was undermined due to significant credibility issues, to the point where it did not believe his allegations that he is homosexual. Its finding was based on the following factors: * Contradiction between his verbal and written statements regarding when he discovered that he was homosexual; * His family's discovery of his sexual orientation and contradiction regarding the funding of his education; * Omission in the written account that he had been threatened by his paternal cousins; * Little probative value given to the testimony of XXXX XXXX XXXX., his sexual partner; and * Delay in claiming refugee protection. Arguments submitted on appeal [15] The appellant argues that the credibility findings are erroneous and not based on the evidence.8 He also argues that the objective situation in Cameroon establishes that homosexuals face serious problems. SCOPE OF THE APPEAL [16] The RAD must conduct an independent assessment of the evidence and decide if the RPD determination is correct. If the credibility of oral testimony is at issue, and the RPD has a meaningful advantage, the RAD may show deference.9 If this is the case, I will so indicate in my analysis. ANALYSIS [17] SOGIE-based claims are unique because credibility is established in large part on the truthfulness of claimants' homosexuality claims. [18] According to the SOGIE Guideline, cases involving individuals with diverse SOGIE are no different from other cases before the IRB in that decision-makers may draw a negative inference from material inconsistencies or contradictions in the evidence that have no reasonable explanations. [19] If it is not an error to find that the delay in claiming refugee protection and the omission in the written account that his cousins had threatened him when they heard about his sexual orientation undermined the appellant's credibility, I am of opinion that these factors are not sufficient to conclude that he is not homosexual. As the RPD stated, even if the delay could be taken into consideration, it is not in itself a determinative factor. In this respect, Guideline 9 states the following: 8.5.12.1 An individual with diverse SOGIE may develop a well-founded fear of persecution after leaving their country of reference. Sur place claims can arise in situations where there is a change in an individual's SOGIE, such as when an individual realizes that they are an individual with diverse SOGIE, or accepts themselves as such, after leaving their country of reference. [20] Sexual orientation often evolves based on one's relationships. In this case, the appellant's statements suggest that he gradually became aware of his sexual orientation. The delay in claiming refugee protection is not determinative in this case since the appellant believed, after contacting the immigration authorities, that he could work and return to his studies a short time later. At the hearing, he stated that he believed he had more time. The fact that he tried to regularize his status through other means does not suggest in this case that his sexual orientation is not that which was reported. [21] What I consider most significant about the reported sexual orientation is the finding that the appellant's verbal and written statements were contradictory with respect to when he discovered his homosexuality. Discovery of his sexual orientation [22] The RPD noted that the claimant stated in his BOC Form that he had discovered his homosexuality in Canada. Yet at the hearing, he testified that at the age of 13, he was attracted to men, but because he was a Jehovah's Witness and he knew it was forbidden, he did not talk about it. [23] When asked to explain why he does not mention in his BOC Form that he discovered his attraction to men at age 13, the appellant responded that he had desires as of age 13, but he kept them secret because same-sex attraction is not accepted in his country. He added that he did not consider himself homosexual. He began to gradually live as a homosexual after meeting his partner, XXXX. Prior to that, he'd had no intimate physical experiences. He had not put a name on what he was feeling. [24] The RPD found that this explanation was not sufficient. The RPD stated the following in this regard: [translation] The panel understands that a young man, living in a society that represses homosexuality, is unable to accurately describe his attraction to men and his sexual orientation. However, the claimant is now an educated adult who has been openly living as a homosexual in the Canadian context since 2015, and it is in this context that he provided the information in his BOC Form and that he spontaneously stated at the hearing that he had discovered his sexuality at age 13, and that he had been experiencing his sexuality alone and in secret in Cameroon. [25] The appellant argues that the RPD mistook the terms discovering his homosexuality and living his homosexuality. He stated in the BOC Form that he discovered his homosexuality in 2015 and that, since then, he has been living as a homosexual. [26] The RPD did not misconstrue the terms, but the conclusion is erroneous. I am of the opinion that the RPD did not sufficiently consider the complex process some people navigate before accepting their sexual orientation. The appellant's statements are not as contradictory as they seem; this is why. [27] It is true that the written statements suggest that the appellant discovered in 2015 that he is homosexual. However, I noted in listening to the recording of the hearing that the appellant testified that in Cameroon [translation] "although he was attracted to men, he did not consider himself to be homosexual." [28] The SOGIE Guideline notes the importance of assessing material inconsistencies or omissions in a refugee protection claimant's account by examining whether there are cultural, psychological or other barriers that may reasonably explain the inconsistency or omission.10 [29] I am of the opinion that the statements made at the hearing reflect the complex process of affirming one's sexuality rather than an actual contradiction. At the hearing, the appellant also stated that he sought to live his sexual orientation in his own way, [translation] "in secret," because it was not permitted in his society or in his religion. [30] In this case, the evidence before me does not allow me to seriously doubt the appellant's sexual orientation. Relationship with his partnerXXXX XXXX XXXX XXXX. [31] The appellant had a witness testify over the telephone, whom he identified as XXXX XXXX XXXX., or XXXX, his alleged sexual partner. The RPD concluded that his testimony had little probative value because the witness's identity could not be established by means of a document. I agree with the RPD that it would have been preferable for the witness to appear before the panel and that a document be produced to confirm his identity. However, I noted that at the start of his testimony, the witness readily stated his name, address and status in Canada. The panel did not ask him to provide a copy of an identity document to confirm his contact information. It is also difficult for me state whether the RPD erred in assessing that testimony, as it is not possible to determine what was noted from it. [32] I am of the view that this testimony does not lead to any doubt regarding the appellant's sexual orientation. Objective situation [33] The situation of homosexuals is problematic in Cameroon. There has been an increase in homophobia among both law enforcement officials and within society in general. The documentary evidence reports that [translation] "Cameroon prosecutes people for consensual same-sex conduct more aggressively than almost any country in the world." It is the highest jailer of homosexuals in Africa. Arrests and prosecution are based on suspicion rather than evidence. The joint report by Cameroonian civil society organizations reports that [translation] "prosecution is regularly based on a neighbour's or a stranger's information, [and] stereotypes such as clothing and conduct are included as evidence of the charge of homosexual acts."11 [34] With respect to an IFA, the documentary evidence states that: In general, given the widespread societal and state hostility towards and discrimination against LGBTI persons, it will not be reasonable for a person to relocate.12 According to a report published by the Swiss Refugee Council (SFH) in 2012, there were no particular regions or social circles in Cameroon in which LGBTI people were less stigmatised and marginalised. Associations that defend the rights of LGBTI people were largely concentrated in larger cities, including Yaoundé and Douala, and thus most of the reported cases of arrests and convictions came from these areas. In other regions, LGBTI people often did not have access to legal representation or other activities to defend their rights.13 [35] With respect to state protection, the documentary evidence states that: In correspondence with the Research Directorate, a representative of the Central Africa Human Rights Defenders Network (Réseau des défenseurs des droits humains en Afrique Centrale, REDHAC), based in Douala, stated that Cameroonian authorities [translation] "are, in the main, the tormentor of sexual and gender minorities instead of performing their function of protecting populations."14 When LGBTI people seek protection from abuse in their communities, police officers fail to protect these individuals. Police officers not only discriminate against LGBTI individuals but also engage in harassment and violence against them. ... The Cameroonian authorities do not show any intent of fighting the persecution of LGBTI people and their defenders. In some cases, the police and judicial authorities themselves initiate or help with the persecution of people based on their real or perceived sexual orientation.15 [36] In this context, and because I have no valid reason to doubt the declared sexual orientation, I find that the appellant has established a serious possibility of persecution if he were to return to Cameroon. CONCLUSION [37] For these reasons, the appeal is allowed. The RAD sets aside the RPD's determination and substitutes the determination that, in its opinion, should have been made. Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act, it determines that the appellant, XXXX XXXX XXXX XXXXXXXX, is a Convention refugee. (signed) Maria de Andrade Me Maria De Andrade October 28, 2020 Date IRB translation Original language: French 1 P-2, Appellant's record, page 3. 2 P-2, Appellant's record, appellant's memorandum, page 15. 3 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guideline). Immigration and Refugee Board of Canada (IRB), effective May 1, 2017. 4 SPR-1, Exhibit 3, National Documentation Package (NDP) on Cameroon, April 30, 2018 (updated on September 30, 2020), Tab 6.1: CMR104749.E. Cameroon: Situation of sexual minorities, including legislation; treatment by government and society, including state protection and support services (2011-January 2014); updated on September 30, 2020; Tab 6.1: CMR200309.FE. Cameroon: Situation of sexual and gender minorities, including legislation, treatment by authorities and society, state protection and support services (2017-August 2020), Research Directorate, IRB; and Tab 6.4: Cameroon. Status of LGBTI People in Cameroon, Gambia, Ghana and Uganda. Finland. Finnish Immigration Service, December 3, 2015. 5 SAR-1, NDP on Cameroon, updated on September 30, 2020, Tab 6.1: CMR200309.FE. Cameroon: Situation of sexual and gender minorities, including legislation, treatment by authorities and society, state protection and support services (2017-August 2020), Research Directorate, IRB; Tab 6.4: Cameroon. Status of LGBTI People in Cameroon, Gambia, Ghana and Uganda. Finland. Finnish Immigration Service, December 3, 2015, and Tab 6.8: Country Policy and Information Note. Cameroon: Sexual orientation and gender identity or expression. United Kingdom. Home Office. February 2020. 6 SPR-1, Refugee Protection Division record, pages 120 to 128. 7 SOGIE Guideline. IRB, effective May 1, 2017. 8 P-2, Appellant's record, appellant's memorandum, page 6. 9 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 10 SOGIE Guideline, section 7.4.1. 11 Supra, endnote 4, NDP on Cameroon, April 30, 2018 (updated on September 30, 2020), Tab 6.1. 12 Supra, endnote 5, NDP on Cameroon, September 30, 2020, Tab 6.8. 13 Supra, endnote 4, NDP on Cameroon, April 30, 2018, Tab 6.4: Cameroon. Status of LGBTI People in Cameroon, Gambia, Ghana and Uganda. Finland. Finish Immigration Service, December 3, 2015, page 32 of 123. 14 Supra, endnote 5, NDP on Cameroon, September 30, 2020, Tab 6.1: CMR200309.FE, page 4 of 17. 15 Supra, endnote 4, NDP on Cameroon, April 30, 2018, Tab 6.4: pages 32 and 33. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-26284 RAD.25.02 (January 2020) Disponible en français 10 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