MB5-04138

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. / No de dossier de la SAR : MB5-04138 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 à Date of decision May 11, 2016 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Jeanne LaRochelle Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX, the appellant, who is a Tanzanian citizen, is appealing against the decision of the Refugee Protection Division (RPD). He is submitting that the RPD erred in assessing his credibility. II. DETERMINATION OF THE APPEAL [2] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD's determination, namely, that XXXX XXXX XXXX is not a "refugee" under section 96 or a "person in need of protection" under section 97 of the IRPA. III. BACKGROUND A. Summary of alleged facts [3] In his memorandum, the appellant presents the facts as follows: - On June 21, 2015, he arrived in Canada with an American visa. - His claim is based on his Christian beliefs and the fact that he is homosexual. - At age 19, he was baptized in secret in a church in his village and when his family members learned of this, they beat him up, burned his stomach and cut off his XXXX XXXX. - Furthermore, in 2006, he began secretly seeing a man and when his wife learned of this, she informed his family, who reported him to the police, who then incarcerated him.1 [4] In addition to his Basis of Claim Form (BOC Form),2 the appellant, referred to as the claimant at the time, submitted a few documents into evidence before the RPD.3 B. RPD's decision [5] The hearing before the RPD was held on August 20, 2015, and the decision to reject the refugee protection claim was rendered on August 31, 2015.4 [6] In its reasons for decision, the RPD indicates that it noted credibility issues, particularly major omissions and contradictions, not taking into account the fact that the claimant's testimony was often vague and evasive.5 [7] With regard to the omissions, the RPD explained that, one week before the hearing, the claimant amended his account to add that people wanted to kill him because he is Christian. In June 2015, while being questioned by a Canada Border Services Agency officer, the claimant stated that he was fleeing Tanzania because of his homosexuality and he stated that he is Muslim. At the outset of the hearing before the RPD, the claimant stated that it was because he converted to Christianity when he was 19 that he wanted to leave his country. [8] Having taken into account the explanation that he was scared to mention that it was because he is Christian that he fled Tanzania, the RPD was of the opinion that this explanation is unreasonable and that, if he had converted to Christianity, he would have spontaneously indicated this in his BOC Form or when he spoke with a border services officer. It was of the opinion that this omission is major and that it leads it to find that the refugee protection claim lacks credibility.6 [9] The RPD was also of the opinion that, after being beaten by his family because he allegedly changed his religion, he did not try to leave Zanzibar, married into the Muslim religion, had children who are allegedly Muslim and worked as a businessman without any problems because, in general, Christian communities practice their religion freely in Tanzania. Hence its conclusion that the claimant lacks credibility with regard to his fear of being persecuted because he allegedly became Christian.7 [10] With regard to the allegations of homosexuality, the RPD found it surprising that, at the hearing, the claimant stated that he left his country because of his religion instead of spontaneously relating the story described in his BOC Form regarding his homosexuality. Moreover, the RPD was of the opinion that the claimant's testimony was extremely vague, not taking into account the fact that there is no proof of the existence of the man whom he allegedly loved and with whom he had been sharing his life since 2006.8 [11] The RPD was also of the opinion that the allegations relating to his flight from Zanzibar are implausible. Here is what it writes on this topic: [translation] [18] The allegations relating to his flight from Zanzibar are implausible. He stated to the panel that his family reported him to the local police, who put him in prison. Allegedly, he was detained for ten days and he fled owing to a sympathetic guard. From there, he reportedly went home (the home of his wife and children) to get money, his passport and his driver's licence. I asked him why he took such a risk knowing that his wife and his family had reported him. He responded that his wife was not at home and therefore there was no risk. I asked him then how he knew that his wife would not be there because he had been detained for ten days without any contact with the outside world. He responded that it made sense for her not to be there after everything that had happened and the shock of realizing that her husband is gay. Then he stated that, in the chaos of his arrest, he heard his wife say that she would be at her parents' home. This is not credible. I dismiss these explanations. This is not at all the behaviour of an individual who has just been reported by his wife and his family, who gave him up to the police. Once again, this brings me not to believe these fantastic allegations.9 [12] Furthermore, the RPD indicated that the claimant spent five months in the United States of America without applying for asylum in that country. Then, it referred to the fact that his parents sent various documents to him in Canada and found that the claimant was not credible when he stated that they did so in order to get rid of him.10 C. Grounds of appeal and decision sought [13] In his memorandum, the appellant submits that the RPD conducted an unreasonable analysis of his credibility.11 [14] He submits that it was not until after he participated in an information session that he realized that he could talk about his fear relating to his religion and that he could combine his two fears for his refugee protection claim. He adds that his explanations are not unreasonable and that they should not have been set aside by the RPD.12 [15] He also submits that, if he made an error when he was questioned about the name of the church he attends in Montréal, this error can be explained by the fact that he is a newcomer whose mother tongue is neither English nor French, and that it is not surprising that it is difficult to remember a name and an address at a hearing as stressful and nerve-wracking as the hearing scheduled as part of a refugee protection claim.13 [16] Finally, he submits that there was no valid reason to question the truthfulness of his allegations and that the fact that he did not mention that he was Christian when he arrived in Canada should not be fatal to his claim.14 [17] In conclusion, the appellant is requesting that the RAD set aside the RPD's determination and allow his refugee protection claim or refer the matter to the RPD for a re-determination by a new member or to give any other directions it considers appropriate.15 [18] In a written statement, the appellant's lawyer indicates that they are not submitting any evidence under subsection 110(4) and that they are not requesting that a hearing be held under subsection 110(6) of the IRPA.16 IV. APPROACH TO BE TAKEN IN THIS APPEAL A. Appellant's position [19] In his memorandum, the appellant does not specify the approach to be taken as part of his appeal even though he submits that the RPD conducted an unreasonable analysis of his credibility and that its decision does not fall within the range of possible, acceptable outcomes that are defensible in respect of facts and law.17 B. A brief summary of the Federal Court of Appeal's decision in Huruglica [20] Following an exhaustive analysis of the legislative history and various arguments used to date, in a recent, long-awaited decision, the Federal Court of Appeal states that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law.18 It also states that an appeal before the RAD is not a true de novo proceeding.19 It also clearly specifies the approach to be taken by the RAD: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.20 [21] As for the degree of restraint or deference owed by the RAD to the RPD's conclusions or findings as to the credibility of any testimony, Justice Gauthier makes a number of clarifications that I find very useful: [70] This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [71] One can imagine many possible scenarios. For example, when the RPD finds a witness straightforward and credible, there is no issue of credibility per se. This will also be the case when the RAD is able to reach a conclusion on the claim, relying on the RPD's findings of fact regarding the relative weight of testimonies and their credibility or lack thereof. [72] Problems will occur when the credibility findings themselves are disputed on appeal, and the RAD has no way to reach a conclusion without endorsing or rejecting those findings. If the RAD can identify an error in situations where, for example, a claimant was not found credible because his story was not plausible based on common sense, the RPD may have no real advantage over the RAD. [73] Similarly, there may also be cases where a finding that a witness is not credible was based on discrepancies that could not justify such a conclusion or that simply did not exist. If the assessment of the oral evidence contains an error which the RAD can easily identify, but the weight to be given to this testimony is essential to determine whether the RPD decision should be confirmed or set aside, the RAD may conclude that it is a proper case to refer back to the RPD with specific directions in respect of the error identified in the credibility findings. [74] That said, it is not appropriate to say more about the various scenarios that may arise, for they are not before us. The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.21 C. Independent assessment to correct any error [22] Drawing on the Federal Court of Appeal decision, it is clear that I must fully exercise the role of the RAD in correcting any errors that the RPD may have made and rendering the determination that should have been made or must be made in light of the most recent evidence on the record.22 That being said, if required, I must justify whether the circumstances warrant a degree of restraint or a measure of deference to the RPD's findings as to the appellant's credibility based on his testimony. V. ANALYSIS OF THE MERITS OF THE APPEAL [23] It should be noted here that the appellant's arguments in his memorandum only focus on one aspect of the allegations that he presented before the RPD, that is, the fact that he fears being persecuted because of his religion if he had to return to live in his country. In other words, there were no arguments in his memorandum regarding his allegations relating to his homosexuality or even relating to the fact that, in the United States of America, where he lived from XXXX to XXXX 2015, according to the information included in the IMM 5669 form,23 he did not apply for asylum. [24] Following an independent assessment of the record, I am of the opinion that the RPD did not err in assessing the appellant's credibility with regard to his fear relating to the fact that he allegedly converted and became Christian. Here is why. [25] One week before the hearing, the claimant amended his account to add that people wanted to kill him because he is Christian.24 In June 2015, while being questioned by a border services officer, he did not state that he was fleeing Tanzania because of his religion, but rather, because of his homosexuality,25 while presenting himself as Muslim in his initial BOC Form.26 [26] Omissions must be examined in their context and be assessed in light of all of the evidence; a claimant's credibility cannot be impugned when the changes made to the BOC Form are minimal and the refugee protection claimant has provided a plausible explanation of the corrections made. However, credibility may be undermined when omissions have to do with the facts that directly concern the very basis of a claim for refugee protection.27 [27] In his initial BOC Form, the appellant states that the information provided in this form is complete, true and correct, that he is able to read English, that he was able to fully read and understand the content of this form and all attached documents, and that he knew that his declaration has the same force and effect as if made under oath.28 A careful reading of the information provided in his initial BOC Form allows for the conclusion that he did not mention in it that he fears persecution because he converted to Christianity when he was 19 years old.29 I am of the opinion that this omission focuses on one of the two fundamental aspects of his refugee protection claim. [28] With regard to his explanation that he was scared of mentioning that he had converted to Christianity, both in his initial BOC Form and at the interview with the border services officer, I am of the opinion, like the RPD, that it is unreasonable. [29] It should be pointed out that the RPD did not limit itself to this major omission alone. It was actually also of the opinion that, if it were true that he converted to Christianity when he was 19, over the numerous years that followed, he was able to marry, have children and engage in business there, all in the context that, in general, Christian communities freely practice their religion in his country. Staying longer than necessary in a country where the person fears being persecuted is behaviour that shows a lack of subjective fear.30 A delay in leaving this country may undermine the credibility of a refugee protection claimant when there is no convincing or reasonable explanation for the delay.31 In this case, I am of the opinion that the RPD was justified in finding that the claimant's behaviour over a period of twenty years was not that of a person who fears for his life or who would be persecuted because of his religion and that he is not credible in this regard. VI. CONCLUSION [30] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX is not a "refugee" under section 96 or a "person in need of protection" under section 97 of the IRPA. [31] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette May 11, 2016 Date IRB translation Original language: French 1 Appellant's memorandum, October 14, 2015, paragraphs 4, 5 and 6, page 16 of the appeal record. 2 Appellant's Basis of Claim Form (BOC Form), pages 12 to 27 of the RPD record. 3 The list of these documents is reproduced at page 99 of the RPD record. The documents themselves are reproduced at pages 100 to 146 of the RPD record. 4 RPD's reasons and decision, pages 3 to 10 of the RPD record. 5 Idem, paragraph 7, page 5 of the RPD record. 6 Idem, paragraphs 8 to 12, pages 5 and 6 of the RPD record. 7 Idem, paragraphs 13, 14 and 15, page 7 of the RPD record. 8 Idem, paragraphs 16 and 17, pages 7 and 8 of the RPD record. 9 Idem, paragraph 18, page 8 of the RPD record. 10 Idem, paragraphs 19 to 22, page 9 of the RPD record. 11 Appellant's memorandum, paragraph 8, page 17 of the appeal record. 12 Idem, paragraphs 9 to 13, page 17 of the appeal record. 13 Idem, paragraphs 14, 15 and 16, page 17 of the appeal record. 14 Idem, paragraphs 18 and 19, page 19 of the appeal record. 15 Idem, page 20 of the appeal record. 16 Written statement of Jeanne LaRochelle, page 13 of the appeal record. 17 Appellant's memorandum, paragraph 8, page 17 of the appeal record. 18 Minister of Citizenship and Immigration v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93, paragraphs 36 to 103. 19 Idem, paragraph 79. 20 Idem, paragraph 103. 21 Idem, paragraphs 70 to 74. 22 Idem, paragraphs 96, 97 and 98. 23 IMM 5669 form, which is reproduced at pages 65 to 68 of the RPD record. 24 Additions and corrections in the BOC Form, which are reproduced at pages 100 and 101 of the RPD record. 25 Report under subsection 44(1), which is reproduced at pages 50 to 54 of the RPD record. 26 Appellant's BOC Form, page 13 of the RPD record. 27 Hamidi v. Canada (Minister of Citizenship and Immigration), No. IMM-5049-14, Shore, February 26, 2015; 2015 FC 243, paragraphs 27 and 28. 28 BOC Form, page 27 of the appeal record. 29 Idem, pages 17, 18 and 19 of the RPD record. 30 Rivera v. Canada (Minister of Citizenship and Immigration), No. IMM-5826-02, Beaudry, November 5, 2003; 2003 FC 1292, paragraphs 29 and 30. 31 Medina Canchon v. Canada (Minister of Citizenship and Immigration), No. IMM-3359-12, Noël, November 27, 2012; 2012 FC 1374, paragraph 28. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB5-04138 3