TB6-07650

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 : TB6-07650 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 September 7, 2016 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dariusz Wroblewski 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 N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of the Republic of Cameroon (Cameroon), is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant states in his Written Statement that he submits new evidence in support of his appeal and requests an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA). [2] The Appellant mistakenly asks that the Refugee Appeal Division (RAD) grant leave to his appeal. The RAD, however, assumes the remedy requested by the Appellant is to set aside the decision of the RPD and find that he is a Convention refugee or, in the alternative, refer his claim back to the RPD for redetermination. DETERMINATION [3] The RAD accepts the appeal and refers the matter back to the RPD for redetermination by a differently constituted panel.1 The RAD finds the RPD erred in its credibility assessment. The RAD finds that information gathered during the hearing before the RPD is insufficient for the RAD to make its own credibility findings. The RAD is, therefore, unable to conclude that the Appellant is a Convention refugee. Background [4] The Appellant alleges that when he was 15 years of age he realized that he was gay. Subsequently, the Appellant entered a same-sex relationship with XXXX XXXX (XXXX XXXX, a fellow student. They kept their relationship a secret because of the attitudes and laws regarding homosexuality. They attended different high schools for their final two years of secondary education. However, in 2013 they both entered the University of XXXX where their relationship continued. [5] The Appellant's parents sent him to study in Canada. He arrived in Canada on XXXX XXXX, 2014. He resided with his cousin XXXX XXXX (XXXX). [6] On November 30, 2015, XXXX discovered the Appellant and his ex-boyfriend "making out". XXXX informed the Appellant's parents of his sexuality. When his parents contacted and questioned the Appellant about his sexuality, he admitted to them that he is gay. His parents were angry and demanded that the Appellant return to Cameroon. The Appellant refused to do so because he feared persecution. The Appellant subsequently learned that his father provided evidence to the police of the relationship between the Appellant and XXXX. The Appellant's father then demanded that the police arrest Yohan. When XXXX learned the police were looking for him, he went into hiding. During the first week of December 2015 XXXX demanded that the Appellant leave her home. [7] The Appellant made a sur place claim for refugee protection on February 4, 2016. [8] The Appellant had a refugee determination hearing on April 7, 2016. In a written decision issued on May 13, 2016, the RPD rejected the claim. The RPD found that the Appellant was not credible and that he had not established his sexual identity as gay. [9] Appeal pleadings were received on June 27, 2016. In his appeal, the Appellant argues that the RPD erred in its credibility findings and erred in not assessing his claim based on sexual orientation. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [10] As provided for in section 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD, and may accept documentary evidence and written submissions from the Minister and refugee claimant/Appellant. Section 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [11] The Appellant states in his Written Statement that he will be submitting new evidence in the form of a psychological assessment and report, a police report and warrant for arrest, as well as affidavits from his sister, his parents, his cousin XXXX XXXX and his current boyfriend, XXXX XXXX. In his Memorandum the Appellant states that he will be seeking the permission of the Division to file his psychiatric assessment and report as soon as it becomes available. [12] As of the writing of this decision, more than two months since the Appellant submitted his appeal, no applications for late disclosures have been received by the RAD. Accordingly, the RAD finds that there is no new evidence. [13] The Appellant requests that the RAD hold an oral hearing. Since no new evidence has been submitted, the RAD, under 110(6) of the IRPA, is not allowed to do so. ROLE OF RAD: [14] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. [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. ANALYSIS OF THE EVIDENCE [15] The RAD will focus on whether the RPD erred in its credibility findings. Delay in Claim [16] The RPD noted in its decision that the Appellant arrived in Canada in XXXX 2014, but did not make a claim for protection until January 2016. The RPD found that the Appellant's explanations for his delay in making a claim were not reasonable. The RPD found that the Appellant's failure to seek protection earlier than he did added to its concerns regarding the credibility of the Appellant. [17] The Appellant submits that when he arrived in Canada in 2014 he had no intention of making a claim for refugee protection. He argues that he had a comfortable status in Canada as a foreign student and that it is totally unreasonable that he should have traded this status for the prospect of the indignities and uncertainties of a refugee claimant. He argues further that once he obtained his Canadian educational credentials he would have had a great advantage and bright prospects to secure gainful employment upon his return to Cameroon. The Appellant submits that it was only when his sexual orientation was revealed that he sought protection. [18] For the following reasons, the RAD concurs with the RPD. [19] As the RPD noted in its decision, that the Appellant testified that he was aware of his sexual orientation since approximately 2010 and that he was very much aware of the negative treatment of sexual minorities in Cameroon. The RPD noted that the Appellant is well educated and is fluent in the English language. The RPD stated that the Appellant, during his testimony, provided the criminal provisions related to same-sex relations. According to the recording of the hearing, the RAD notes that the Appellant testified that it was necessary to keep secret his alleged, over three year, homosexual relationship in Cameroon. While the Appellant's employment prospects may have improved in Cameroon with Canadian credentials, the RAD does not agree with this argument. The Appellant would have been returning to a country where it would have been necessary to hide his sexuality throughout his life to ensure his safety. [20] Delay has been recognized by the Federal Court as an important factor in assessing a claimant's credibility and subjective fear. It is reasonable to assume a person with a well-founded fear of persecution will attempt to apply for refugee protection without unreasonable delay.3 The RAD finds the delay of over one and one-half years to be substantial and undermines the Appellant's allegation that he faces serious harm in Cameroon if he were to return. While delay in making a refugee claim is not in itself decisive, it is a relevant factor to be considered when assessing the overall viability of the claim.4 [21] The RAD appreciates that the Appellant had a valid student visa when he made claim. However, jurisprudence provides guidance regarding those with valid temporary status in Canada. In the Nijjar decision, Mr. Justice de Montigny declared: It is trite law that a delay in submitting a refugee protection claim, while not decisive, remains a relevant element that the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant. The claimant knew upon his arrival that he was only authorized to stay in Canada for a specific and limited period of time. Under these circumstances it was reasonable to expect that he would regularize his status as soon as possible if he truly feared for his life and physical integrity in India.5 [22] Similarly, in the Case of Assadi, Nasser-Eddin v. MCI, the Court held: Failure to immediately seek protection can impugn the claimant's credibility, including his or her testimony about events in his country of origin.6 [23] The RAD finds that the Appellant's delay in seeking refugee protection in Canada is not consistent with a subjective fear of persecution. The Appellant's credibility is, thus, undermined. The alleged incident involving the Appellant's cousin Gwendolyn Timeline [24] The RPD noted in its decision that the Appellant alleged in his Basis of Claim (BOC) form that XXXX found out about his sexual orientation on November 30, 2015 and asked him to leave her home a week later. The RPD found that the Appellant's oral testimony, that the incident occurred in January 2016, contradicted this allegation. The RPD took a negative inference as to the Appellant's credibility, as well as the credibility of the alleged incident with XXXX, for the clearly inconsistent evidence about the timeline of the events critical to his claim. [25] The Appellant submits that while his BOC form indicates that XXXX asked him to leave her home during the first week of December 2015, the fact is he left home and moved in with his friend XXXX in January 2016. The Appellant also submits that during his hearing he explained to the RPD that the incorrect date in his BOC form was an innocent error. The Appellant argues further that he explained to the RPD during the hearing that he was preparing his application for protection when he was" in a mental state of trauma and fear and was truly sick of the situation". [26] For the following reasons, the RAD cannot agree with the RPD or the Appellant. [27] The RAD listened to the over one and a half hour recording of the hearing. The Appellant testified that on January 8, 2016 XXXX returned home to find the Appellant and his same-sex partner, XXXX, "cuddling" on the couch and watching a pornographic movie. According to his BOC form narrative, it was on November 30, 2015 that XXXX found the Appellant and XXXX "making out" on the couch. The RPD did not put this contradiction to the Appellant. While the RAD finds this to be a serious contradiction, the RAD finds that the Appellant was denied natural justice when he was not provided the opportunity to explain the contradiction. [28] The RAD finds that the Appellant's submissions and arguments in this regard make no sense. According to the recording of the hearing, the Appellant provided no testimony regarding the contradictions between his oral testimony and his written narrative. Documents supporting the Appellant's allegations A letter from XXXX XXXX7 [29] The RPD noted in its decision that a letter from the Appellant's friend, XXXX, states that he, XXXX, would not forget the incident of January 8, 2016 when the Appellant called him and explained that he was kicked out of his cousin, XXXX, home because she caught him with his boyfriend. The RPD assigned little weight to the letter from XXXX. The RPD had concerns about the credibility of this letter because of the contradiction of the date of the event, discussed above, and the fact that it was not sworn nor witnessed. The RPD had concerns that some of the wording of the letter was similar to the Appellant's BOC form narrative and other letters from the Appellant's boyfriend, XXXX, from his sister, and from his ex-partner, XXXX, provided as evidence. [30] The Appellant submits that the letters speak of the same incident from different perspectives and since the authors of the letters are of similar age and background, they used similar wording to describe the same event. [31] The RAD is unable to make a finding on the letter provided by XXXX for the following reasons. [32] While the date of the alleged event at the home of XXXX provided in the letter from XXXX is consistent with the Appellant's oral testimony, as stated above, the Appellant was not asked to explain the contradiction with the date provided in his BOC form. [33] The RPD's comments regarding the similarity of wording of some of the letters does not refer to the letter from XXXX. [34] The RAD notes that according to the Appellant's testimony, as referred to above, he and XXXX were "cuddling" and watching a pornographic movie when they were discovered by the Appellant's cousin XXXX. According to the letter from XXXX,8 the Appellant told him that he was chased out of the house by XXXX because she caught the Appellant and his boyfriend "committing sodomy". The RPD did not put this serious contradiction to the Appellant. A letter from XXXX XXXX9 [35] The RPD gave little weight to the letter from XXXX XXXX, the Appellant's same-sex partner in Canada, because, as stated above, the letter is not sworn or witnessed and the letter contained similar wording to the Appellant's BOC form narrative as well as other letters provided as evidence by the Appellant. [36] As stated above, the Appellant submits that the letters speak of the same incident from different perspectives and since the authors of the letters are of similar age and background, they used similar wording to describe the same event. [37] The RAD declines to assign weight to this document because of credibility concerns not addressed by the RPD. [38] XXXX XXXX states in his letter that "last November" (the RAD assumes, November 2015) he and the Appellant were kissing when the Appellant's cousin, XXXX, discovered them. As stated earlier, according to the recording of the hearing, the Appellant testified that this same alleged incident occurred on January 8, 2016. The RPD did not put this contradiction to the Appellant. [39] According to the recording of the hearing, the Appellant testified that he met XXXX XXXX at XXXX XXXX in Toronto. The undated letter from XXXX XXXX was accompanied by Mr. XXXX driver's licence, issued on XXXX XXXX, 2014. The RAD notes that the licence indicates that Mr. XXXX resides in Ottawa. The Appellant was not asked to explain why Mr. XXXX residence is listed on his driver's license as Ottawa when the Appellant testified that Mr. XXXX is a student in Toronto. Driver's Licence of XXXX XXXX10 [40] The Appellant provided as evidence the driver's licence of XXXX XXXX. The RAD notes that the address on the licence, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, coincides with the address the Appellant provided as his Ontario residence in his BOC.11 The RAD, therefore, reasonably infers that the licence was submitted as evidence of the existence the Appellant's cousin, XXXX. [41] According to the Appellant's testimony, when XXXX discovered he was homosexual she informed his family in Cameroon and threw him out of her house. When asked by the RPD what motivated XXXX to take these actions, the Appellant testified that he guessed she hated gays. The RAD has concerns as to how the Appellant obtained a copy of the driver's licence of XXXX XXXX, the relative whose alleged actions resulted in the Appellant making a claim for refugee protection. The RPD did not put this question to the Appellant. The Appellant's same-sex partners XXXX XXXX (XXXX) [42] The RPD took a negative inference regarding the Appellant's alleged former homosexual partner in Cameroon, XXXX. The RPD found the Appellant's testimony about XXXX and their relationship to be vague and evasive. In its decision, the RPD cited a number of examples from the Appellant's testimony. [43] The Appellant made no submissions in this regard. [44] The RAD will not interfere with the RPD's findings where the conclusions result from the RPD's distinct advantages of hearing and observing the Appellant during the hearing. E-mail from XXXX XXXX12 [45] The Appellant provided an e-mail from XXXX as evidence for his claim. The RPD gave it little weight in establishing the Appellant's allegation of persecution because the e-mail was not attested or witnessed and because of the similarity of wording in the e-mail and other documents submitted by the Appellant, discussed previously in this decision. [46] The Appellant submits that there is no basis for the negative credibility finding given that the RPD questioned the veracity of the e-mail letter from XXXX solely because the Appellant testified that the e-mail was sent to his new e-mail address. [47] The RAD declines to assign weight to the e-mail from XXXX because it has unresolved credibility concerns regarding the document,which are outlined below. [48] According to the recording of the hearing, the Appellant testified that for a short while after he arrived in Canada he kept in contact with XXXX via the telephone. However, XXXX states in his e-mail that "the first few months after XXXX (the Appellant) travelled (to Canada) [he] and XXXX always sent love letter to each other."13 The RPD did not put this apparent contradiction to the Appellant. The RAD notes that according to the Appellant's testimony it was a letter that XXXX gave to him before he left Cameroon that his cousin, XXXX, found and sent to the Appellant's father. The Appellant was not questioned during the hearing about the existence or whereabouts of the letters allegedly sent by XXXX to the Appellant in Canada. XXXX XXXX [49] The RPD took a negative inference regarding the Appellant's alleged homosexual partner in Canada, XXXX XXXX. The RPD found the Appellant's testimony about his alleged relationship with XXXX XXXX to be vague and evasive. The RPD also found that the Appellant did not provide reasonable explanations regarding discrepancies between information provided in the letter from XXXX XXXX and the Appellant's testimony, such as the present status of their relationship. [50] The Appellant submits that the RPD ignored his oral testimony but the Appellant made no submissions with regard to the RPD's finding of the vague and evasive testimony. [51] The RAD will not interfere with the RPD's findings where the conclusions result from the RPD's distinct advantages of hearing and observing the Appellant during the hearing. Documents to support the Appellant's allegations of his sexual orientation [52] The RPD considered a letter provided by the Appellant from an organization in Toronto that supports sexual minorities, the 519 Community Centre,14 and a webpage from the "Out and Out",15 which shows a number of upcoming events. The RPD noted the Appellant's oral testimony regarding his very recent and limited involvement in these organizations. The RPD found the documents general in nature and only corroborated the Appellant's testimony that he had recently joined each organization. The RPD noted that the letter from the 519 was silent on the subject of the Appellant's sexual orientation. [53] The Appellant submits that the RPD does not understand how the 519 Community Centre operates. The Appellant submits that the 519 "is inclusive accessible place providing services for refugee settlement and counseling for people of Toronto supporting happy fulfilling LGBTQ lives. They do not assess or provide confirmation of one's sexual orientation."16 [54] The RAD finds, as did the RPD, that the letter from the 519 Community Centre confirms the Appellant's brief attendance at activities provided by this organization. However, simple attendance at the centre does not establish one's sexual identity. The RAD, therefore, assigns no weight. [55] The RAD assigns no weight to the printout of the website of "Out and Out" because of its general nature and because the Appellant's name is not found on the document. [56] On the basis of the totality of the evidence, the RAD finds that the RPD's overall determination cannot be confirmed. DISPOSITION [57] Section 111(1) of the IRPA allows the RAD to: a) confirm the determination of the RPD; b) set aside a decision of the RPD and substitute a determination that, in its opinion, should have been made; or c) refer the matter back to the RPD, giving the directions to the RPD that it considers appropriate. [58] The RAD can make the referral described in section 111(1)(c) only if it was of the opinion that the decision of the RPD was wrong in law, in fact, or in mixed law and fact, and if the RAD cannot make a decision to confirm or substitute the RPD's decision without hearing evidence that was presented to the RPD.17 The RAD assumes that the Appellant requires the RAD to substitute its own determination that he is a Convention refugee. The RAD is not in a position to do so. The RAD finds that there remain significant credibility concerns which were not addressed by the RPD. The RAD has not seen or questioned the Appellant and is therefore in no position to make its own credibility finding on his refugee claim. Similarly, the RAD is unable to make a finding regarding the Appellant's sexuality. For these reasons, the RAD cannot substitute its own determination for that of the RPD, and it cannot find the Appellant to be a Convention refugee or a person in need of protection. CONCLUSION [59] Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. This appeal is allowed. (signed) "Lesley Mason" Lesley Mason September 7, 2016 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c.27, at s. 111(1)(c). 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 Heer, Karnail Singh v. M.E.I. (F.C.A., no. A-474-87), Heald, Marceau, Lacombe, April 13, 1988; Huerta v. Canada (Minister of Employment and Immigration) [1993], 157 N.R. 225 (F.C.A.). 4Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.). 5 Nijjar, Yadhwinder Singh v. M.C.I. (F.C., no. IMM-340-09), de Montigny, December 9, 2009, 2009 FC 1259, at para 24. 6 Assadi, Nasser-Eddin v. M.C.I. (F.C.T.D., no. IMM-2683-96), Teitelbaum, March 25, 1997. 7 Exhibit RPD-1, RPD's Record, p. 244-245. 8 Ibid. 9 Exhibit RPD-1, RPD's Record, pp. 246-247. 10 Exhibit RPD-1, RPD's Record, p. 243 11 Ibid., pp. 11-23. 12 Ibid., p. 263. 13 Ibid. 14 Ibid., p. 241-242. 15 Ibid., p. 248 16 Ibid., p. 241-242 17 Immigration and Refugee Protection Act, S.C. 2001, c.27, s. 111(2). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-07650