TB3-07727

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB3-07727 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 9, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Geraldine Macdonald Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Christine Houde Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX a citizen of Pakistan, is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has submitted new evidence in support of his appeal and is requesting that the appeal be allowed and that the matter be referred back to the RPD for re-determination by a differently-constituted panel. DETERMINATION [2] Pursuant to ss. 111(1) (a) of IRPA, the Refugee Appeal Division (RAD) confirms the determination of the RPD and dismisses the appeal. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL: EXPRESS STATUTORY CONDITIONS: [3] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [4] If the statutory requirements have been met, the panel must then consider the factors in Raza,1 in which the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA, Section 110(4), it is based on the very similar wording of Section 113(a) for the IRPA. The Court held that new evidence should be considered for its newness, credibility, relevance, and materiality, in addition to any express statutory provisions. NEWNESS [5] Is the evidence new in the sense that it is capable of: Proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or Proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or, Contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. CREDIBILITY [6] Evidence that passes the test in Section 110(4) must be assessed for credibility. The RAD must determine whether the evidence is credible, considering its source and the circumstances in which it came into existence. RELEVANCE [7] The RAD must consider whether the evidence is relevant to the appeal. Is it capable of proving or disproving a fact that is relevant to the claim for protection. If not, the evidence need not be considered. MATERIALITY [8] Is the evidence material in the sense that the refugee claim probably would have succeeded if the evidence had been available to the RPD? If not, the evidence need not be considered. [9] The RAD received an application from the Appellant for an extension of time to perfect his appeal. This extension was granted by the RAD on XXXX XXXX, 2014. [10] The following new evidence was submitted along with the foregoing application:- (a) Letter from the Appellant's Uncle XXXX XXXX XXXX, who lives in Canada, dated XXXX XXXX XXXX 2013. He attests to having knowledge of the Appellant's homosexuality since 1993. He also learned of the incident of XXXX XXXX, 2012 from his mother, which lead to the Appellant's decision to leave Pakistan. (b) Affidavit of XXXX XXXX XXXX, business partner of the Appellant, dated XXXX XXXX, 2013. This affidavit also speaks to the above, but adds information with respect to his bribing the officials for the Appellant's release from jail. It also speaks to the financial help he has provided to the Appellant's family. (c) Affidavit of XXXX XXXX, former wife of the Appellant, dated XXXX XXXX XXXX 2013, in which she reiterates the above. NOTICE OF INTERVENTION BY THE MINISTER [11] In accordance with IRPA, subsections 172(a.4) and 172(a.5), as well as Rule 4 of the RAD Rules, the Minister submits that the "new" evidence should not be admitted to the RAD, as it does not meet either the Statutory requirements or the test as set out in Raza.2 [12] The Minister argues that this evidence could reasonably have been available to the Appellant. In fact, the Minister submits that, at the RPD hearing, the Appellant explained that he did not know that he could submit this kind of evidence. [13] The Appellant argues that due to the fact that, in its Reasons (paras. 30-33), the RPD refers to the lack of supporting affidavits from parties with first-hand knowledge of relevant events in the Appellant's claim, specifically the Appellant's uncle in Canada, his wife and business partner in Pakistan; these documents should be accepted. He further argues that coming forth now should corroborate the Appellant's explanation for not having this documentation at the time of his RPD hearing. [14] With due respect, the RAD disagrees. The Appellant had the services of competent counsel at the time of the RPD hearing. Moreover, the BOC and kit provided to the Appellant explains the process which includes the instructions to submit corroborative evidence to support the allegations. The Appellant had the opportunity to do so at the time of the RPD hearing and up until the time that the RPD rejected the claim on October 3, 2013. He failed to do so, and therefore all of the "new" documentation does not meet the Statutory requirement, as these documents could reasonably have been available at the time of the RPD hearing. The RAD particularly notes the affidavit from the Appellant's uncle in Canada, who could have come forward in person and testified as a witness at the RPD hearing. Background: [15] The Appellant's claim is based on his homosexuality. He alleges that, as a result of his sexual orientation, he was arrested and held in jail for three days. He further alleges that he was threatened by Muslim extremists. [16] To cover up his sexuality, the Appellant was married, however he discovered several months into his marriage that his wife had also been forced into marriage. She carried on a relationship with a cousin; he did the same with a male partner and they maintained this façade of being married for approximately 10 years. STANDARD OF REVIEW [17] The Federal Court in Iyamuremye3 addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. The reasonableness standard is concerned with the "existence of justification, transparency and intelligibility in the decision-making process" and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law as per Dunsmuir.4 The correctness standard is applicable to questions of law and issues of general legal importance, e.g. principles of natural justice and procedural fairness which fall outside the specialized area of expertise of the RAD.5 COUNSEL'S SUBMISSIONS [18] Counsel submits the following:- The RPD made no assessment of the country conditions with respect to being homosexual in Pakistan. The RPD erred in its findings that the Appellant was not credible. DETERMINATIVE ISSUES [19] The determinative issue is credibility. If the RAD finds that the RPD did not err in its credibility findings, then the fact that the RPD made no assessment of the country conditions is irrelevant. In other words, if the Appellant was unable to establish his identity as a homosexual through credible evidence, there is no need to examine the country conditions in Pakistan with respect to homosexuality. Appellant's Credibility (Paragraph 11) [20] The RPD did not find the Appellant to be a credible witness, based on unreasonable explanations for discrepancies and omissions, and, as a result, the RPD found him not to be a "gay man." Specifically, the RPD found that the omission of his boyfriend's (or partner's) name in his Basis of Claim form (BOC) was material (XXXX XXXX) and the RPD did not accept his explanation of lack of knowledge of what kind of details to provide. Moreover, at the outset of the hearing, the RPD asked the Appellant what had occurred on XXXX XXXX, 2012, and the Appellant, in responding, used the term "friend," XXXX. The RPD found that there was a distinct difference between "friend" versus a "boyfriend" or "partner." The RPD further noted that amendments were made to the BOC in other areas; yet, in this significant issue, he failed to provide this amendment, notwithstanding the services of counsel and interpreter. The RPD also examined the fact that the Appellant testified that he was unable to locate this longstanding partner (since 2002) after he was released from jail in XXXX 2012. [21] Counsel submits that the RPD made an unreasonable finding based on the foregoing. The appellant submits that he was never asked the question "who was his boyfriend?;" however, during the hearing, he spoke of his gay friend XXXX and at relevant times referred to his boyfriend/partner without mentioning the name, but was clearly talking about the one he was having the relationship with. It is further submitted that the RPD has erred in imposing its own view of what terminology the Appellant should have used in relating the events on which he has based his claim and that the RPD is imposing a Canadian viewpoint when it states "there is a distinct difference between a friend versus a partner or boyfriend. The Appellant further submits that the lack of effort by the Appellant, in attempting to contact his boyfriend, lead to a conclusion by the RPD that this was implausible, given their lengthy relationship of 10 years. In this regard, the Appellant submits that since XXXX had escaped to another city upon release, and the Appellant had gone into hiding at the home of an elderly woman, there was no way for XXXX to know where the Appellant had gone and he had asked his business partner to try to find him. Moreover, the Appellant submits that when his business partner called XXXX's cell phone, it was turned off and the RPD ignored the testimony of the Appellant when he stated that his business partner had also spoken to Malik's brothers, who did not want the Appellant and XXXX to see each other, and therefore it should not be expected that there would be co-operation through his family. [22] The RAD finds that the conclusion by the RPD that "there is a distinct difference between a friend versus a partner or boyfriend," to be unreasonable, as it relies on a distinction in terminology that may be viewed as microscopic in this circumstance. However, the RPD questioned the Appellant with respect to why, in his BOC, he did not refer to XXXX XXXX being his boyfriend or partner. His explanation that he did not know what details he should include was not accepted by the RPD and the RAD finds this finding to be reasonable. The RAD finds that the RPD also made a reasonable finding given that he did not mention XXXX as being his partner when speaking about the incident which took place in XXXX 2012. The RAD finds that, in addition to this, the Appellant did not mention him as his partner anywhere in his BOC. The RAD finds that, given the length of their alleged relationship, namely 10 years, and most importantly, the fact that the Appellant's claim is based on his sexual orientation, the RPD's finding that the Appellant's explanations were not accepted is reasonable. The RAD further finds that since the Appellant amended his BOC, with respect to other issues, the RPD's negative inference as to the veracity of this relationship was reasonable. [23] However, the RAD will articulate its findings with respect to the lack of contact with the Appellant's boyfriend, following the XXXX 2012 incident, under the heading "Delay in Departure". Delay in leaving Pakistan [24] The RPD examined the fact that the Appellant went into hiding at the home of an elderly lady from XXXX 2012 until XXXX XXXX, 2013. He had applied for his Canadian visa in XXXX 2012, which was issued in XXXX 2012. The RPD questioned the Appellant as to why he waited to come to Canada after the issuance of the Canadian Visa. His explanation that he was trying to obtain a visa for the U.S., in case he was unable to reach his uncle in Canada, was not accepted as reasonable by the RPD as the Appellant had not requested a U.S. visa until XXXX XXXX, 2013. Moreover, the Appellant had also testified that if he had not been allowed into Canada, he would have another option. The RPD drew a negative inference from the Appellant's delay in departing Pakistan following the precipitating incident and made a negative credibility finding in this regard. [25] Counsel submits that the Appellant's explanation of insufficient funds to purchase an airline ticket was not an unreasonable explanation provided by the Appellant. Moreover, he argues that it is not unreasonable or implausible that the Appellant would be concerned about the welfare of his family, thereby having his business partner provide the funds for their maintenance instead of taking the money for himself for an airline ticket. With respect to the issuance of a U.S. visa, the Appellant submits that having an option of where to seek safety is reasonable. Furthermore, counsel submits that the fact that the Appellant remained in hiding and did not return to his place of employment should not be demonstrative of a lack of subjective fear. [26] The RAD finds that, after reviewing all the evidence, the Appellant is a sophisticated individual who had capital in a business, who, according to the transcript, did go out at night and, if he truly could not find his boyfriend, and if truly fearing for his life, he would have left Pakistan immediately after the issuance of the Canadian visa. The RPD found that it was implausible that the Appellant would be giving money to this elderly lady on a monthly basis and also his wife who was being cared for by her family. The RAD finds that these actions do not accord with someone fearing for his life and, for these reasons, the RPD's findings in this regard are reasonable. [27] Moreover, although many of the discrepancies in the CIC Schedule A are not central to the claim, there were several that the RAD noted after listening to the audio recording of the two sittings. [28] Firstly, the RAD finds the testimony, with respect to the Appellant's address when he left Pakistan, to be lacking in credibility. He could not provide an explanation as to why he listed his marital home when he was living with the elderly lady approximately one hour away for one year and also his wife had allegedly moved in with her parents after the incident in XXXX2012. [29] Secondly, in the same form, the Appellant indicates that he is married, when, in testimony, he stated that he and his wife had gone their separate ways after the incident. He explained the discrepancy as being common knowledge that this kind of information would lend itself to a positive visa application. The RAD finds this statement on its own to be reasonable, however, when the RAD examines this evidence in conjunction with the address information and the Appellant's delay in departure, it doubts the veracity of the story that the Appellant was in hiding for one year. Delay in claiming [30] The Appellant did not make a refugee claim upon his arrival in Canada, according to his testimony, out of fear that he might be deported; he had insufficient information and he was frightened and wished to seek the services of counsel first. The RPD rejected this explanation as the Appellant had, according to his testimony, decided to come to Canada five to seven days following the incident in XXXX 2012. The RPD indicated in its Reasons that, in considering this evidence, it took into consideration that he is a businessman, sophisticated, and an extensive world traveler. The RPD then concluded that it was not reasonable that he did not conduct any research regarding the process when he even had a laptop with him while in hiding. The RPD made a finding of lack of subjective fear, but did acknowledge the very short delay, but came to its conclusion in conjunction with other credibility concerns. [31] Counsel submits that the finding by the RPD of a delay of just over two weeks should not call into question an Appellant's subjective fear. Since the RPD acknowledges that it is a short delay, its conclusion, based in conjunction with other credibility issues, is tainted. Moreover, the Appellant submits that it is not unreasonable for the Appellant to want to consult with counsel prior to proceeding with his refugee claim and that he entered Canada legally and had the time to obtain the necessary information and advice that he believed he needed. The RAD finds that this short delay, in conjunction with the opportunity to consult with counsel, is reasonable and therefore the findings by the RPD in this regard are unreasonable. Deed of Disinheritance: [32] The RPD found that given the Appellant's testimony that his mother had not disinherited him and the deed did not indicate why he had been disinherited or what this lifestyle actually is, the RPD could not rely on this document to prove that the Appellant is a gay man. [33] Counsel submits that although the Deed does not indicate that the Appellant is "gay," it does refer to "his immoral acts, disobedience, rebelling against Muslim culture and religious values and bad company and that the RPD are capable of recognizing this as an implicit reference to the Appellant's behavior as a gay man. [34] After the RAD listened to the audio recording, the testimony in this regard related to inheritance of property. The Appellant's mother did not want the Appellant to inherit certain property, not because he was homosexual, but because she didn't want him to give it to his wife, who was involved in another relationship. The RPD's finding that this document provided no proof of the Appellant's relationship with his partner is reasonable. Moreover, the RAD finds, after listening to the testimony that this was with respect to a piece of property, and the Appellant's mother had in fact moved back in with him. The RAD finds that any references to anything other than that, according to the testimony, were not canvassed. Appellant's Family [35] The Appellant testified that his uncle in Pakistan had threatened to kill him if he didn't "turn back." This information was questioned as it was not contained in the original BOC or its amendment. After listening to the audio recording, the Appellant testified that 90% of his fears were of the Muslim extremists, and 10% of family members who wanted to murder him. When asked to explain why this was being stated for the first time, the response was that he had not yet been questioned directly in this regard. However, earlier in questioning by the RPD, when asked directly if members of his family had threatened him, he replied "no." This information was also contained in the Psychological report, which then caused the RPD to draw a negative inference as nowhere in the BOC is this mentioned. The RAD finds the RPD's conclusions to be reasonable given the significance of an uncle threatening him with death due to his sexual orientation. The RAD finds that if the Appellant found it was important enough to mention this to the psychologist, this information should have been contained in the BOC or amendments to the BOC, and, therefore, the RPD's findings are reasonable. Psychological Report: [36] The RPD found that the psychological assessment did not offset its concerns regarding the Appellant's credibility and cited Danilov.6 The RAD finds that, given this omission in the BOC, the psychological report does not assist the Appellant in establishing his identity as a homosexual or his credibility with respect to his fears. After listening to the tape, the RAD finds that there was also contradictory evidence with respect to the Appellant's encounters with the police and what he told the Psychologist. The Appellant was shown the report at the hearing and, although not stated in the RPD Reasons, the RAD noted from the transcript that the Appellant stated that the psychologist made a mistake, thereby exacerbating the credibility of this entire issue with respect to the Appellant's fears of his family. Overall Credibility Findings: [37] The RPD found a general lack of credibility on the part of the Appellant based on omissions, contradictions, demeanor, hesitation, inconsistencies, and vagueness. This lead to the conclusion that there was insufficient persuasive evidence that the incident even occurred, whether the Appellant was involved in a relationship, as alleged, with XXXX XXXX, whether he is being pursued by a member of an extremist organization and his own family and indeed whether or not he is gay. CONCLUSION: [38] Notwithstanding the RAD's findings on the testimony with respect to the use of the word "friend" vs. partner/boyfriend, and the findings with respect to "delay in claiming," which the panel found to be unreasonable, the RAD finds that the RPD made reasonable findings on the Appellant's lack of credibility with respect to his same sex relationship and there was insufficient credible evidence upon which to make a positive determination. [39] Pursuant to ss. 111(1) (a) of IRPA, the Refugee Appeal Division (RAD) confirms the determination of the RPD and dismisses the appeal. (signed) 'Roslyn Ahara' Roslyn Ahara July 9, 2014 Date 1 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 2 Ibid., footnote 1 3 Iyamuremye c. Canada (Citoyenneté et Immigration), 2014 CF 494 - 2014-05-26 [ French ] 4 Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47 5 Ibid. 6 Danilov (Daniailof) Vasco (Vassil) Valdimirov v. M.E.I. (F.C.D. no. t-273-93) Reed, October 6, 1992, at 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB3-07727