MB9-10716

RAD File / Dossier de la SAR : MB9-10716 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 Toronto, ON Appel instruit / entendu à Date of decision December 17, 2019 Date de la décision Panel Elana Rose Tribunal Counsel for the person who is the subject of the appeal N/A Conseil de la personne en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (Principal Appellant), citizen of South Africa, appeals a decision of the Refugee Protection Division (RPD), dated April 24, 2019, rejecting his claim for refugee protection. [2] Based on my independent review of the record, I agree with the RPD that the Appellant is neither a Convention refugee or a person in need of protection, and the appeal is dismissed1. BACKGROUND [3] The Appellant's father, the Designated Representative (DR) was accepted as a Convention refugee based on his activities as an activist supporting, advocating and campaigning for the LGBTQ youth in South Africa (SA) and in the Democratic Republic of Congo (DRC). He was found to be a citizen of DRC and a permanent resident of South Africa. [4] The Appellant is a citizen of South Africa, and his claim was rejected as there was no convincing evidence adduced that he would face a serious possibility of persecution based on his father's previous activities in the DRC or SA. [5] The Appellant's mother and half-sister remain in South Africa unharmed, and the Appellant's mother has provided a statement that she gives permission to the DR to make decisions on behalf of the Appellant as the continued primary care giver. NEW EVIDENCE [6] The Appellant seeks to have new evidence admitted in this appeal. For the reasons below, I have determined that none of the tendered evidence is admissible. [7] In determining whether to admit new evidence the Refugee Appeal Division (RAD) must apply the provisions of s.110(4) of the Immigration and Refugee Protection Act (IRPA)2. Pursuant to this provision I must consider whether the evidence arose after the rejection of the claim, or whether it was not reasonably available at the time of the rejection, or whether the Appellants could not reasonably have been expected under the circumstances to have presented the evidence at the time of the rejection. [8] If one of these conditions is met, I must then go on to consider whether this evidence is credible, relevant and new,3 failing which, the evidence cannot be admitted. [9] The new evidence that the Appellant seeks to admit is a Support Letter from XXXX XXXX XXXX (the Appellant's father and DR) and Professor/Pastor XXXX XXXX XXXX XXXX and Dr. XXXX XXXX XXXX XXXX XXXX, the Appellant's two uncles4. [10] The letter is dated June 12, 2019, after the RPD decision was rendered, and provides statements as to why the writers believe that the Appellant should remain in Canada. The letter confirms that the DR was active in advocating for the LGBTQ community in South Africa and the DRC. This letter contains the same information that was before the RPD. [11] There is no explanation offered by the Appellant addressing how the evidence is new and why it could not have been provided at the RPD hearing or before the decision was rendered. This supporting letter does not meet the legislative requirement of new evidence. [12] The second piece of new evidence the Appellant seeks to admit is a Parental Consent Affidavit from the Appellant's mother, XXXX XXXX XXXX, sworn in South Africa on May 20, 20195; along with a supporting letter from the Appellants mother and sister, XXXX XXXX, dated June 10, 2019. [13] While these documents are dated after the RPD decision was rendered, the information contained in the Affidavit and supporting letter did not arise after the RPD rejection, and was reasonably available for the Appellant to present to the RPD. There was a six-month period between the RPD hearing on October 10, 2018, and the rendering of the decision received in May 2019. As a result, these are not accepted as new evidence. [14] I note that even if the documents had been accepted as new evidence, they do not meet the factors set out in Singh. The contents are not capable of proving or disproving a fact that is relevant to the claim for protection, and has no bearing on the issue as to whether the Appellant would be targeted on return to South Africa for his father's profile as an LGBTQ activist. [15] Attached to the Appellant's memorandum are a series of news articles6 not specifically referred to in the written statement or identified as new evidence. As the Appellant is not represented, and the DR is acting as his representation, I have reviewed these documents to see if I can allow them under ss. 110(4) of IRPA. [16] The new documents submitted include: 1. Online article entitled: One child in every three is abused in SA: Researchers, dated June 2, 2016. 2. Online Article from Inclusive Education entitled: our Children Are Not Safe in School! dated June 1, 2018. 3. News article entitled: 63% of young SA children live in poverty-study, dated May 13, 2015. 4. New article entitled: Six million children in SA live in poverty, dated November 21, 2018. 5. Online article entitled: SA not safe for children: report, dated November 19, 2016. [17] As all of the articles provided by the Appellant predate the RPD decision, they do not contain information that arose after the RPD rejection and they were reasonably available for the Appellant to present to the RPD in support of his claim. As a result, the evidence does not meet the requirements of s. 110(4) of the IRPA. [18] Also contained in the Memorandum7 are a series of photographs that depict the Appellant with his father and others. These photographs are undated, and there is no explanation as to how the photographs meet the requirements of new evidence. Again, even if admitted as new evidence these photographs have no context and do not meet the Singh factors. [19] Section 110(6) of the IRPA8 allows the RAD to hold a hearing only in cases where new evidence has been admitted. As no new evidence has been admitted in this appeal, the RAD has no jurisdiction to hold an oral hearing. The Appellant's request for an oral hearing is therefore denied. ISSUES IN APPEAL [20] The DR argues that the RPD erred in its decision as the Appellant will suffer psychological harm if he is separated from the DR as the DR is his primary care giver. [21] The DR also argues that the Appellant faces a risk of harm in South Africa as he is the son of an activist who was targeted for his LGBTQ advocacy. [22] The Chairperson's Guideline 3 was considered in reviewing the evidence. ANALYSIS I have reviewed the entire record and agree with the RPD that the Appellant did not establish that he will face a serious possibility of persecution based on his father's advocacy and profile. [23] While the Appellant's father was successful in establishing a profile for himself, there is no credible evidence that establishes that this profile extends to his young son, or that the Appellant cannot live safely with his mother in Cape Town. [24] At the RPD hearing, the DR speculated that his son may be targeted for rape, as a result of the DR's problems9, when asked why his son cannot safely return to his mother in South Africa. [25] As set out in the RPD decision10, the mother and step daughter of the Appellant have remained in South Africa unharmed; these are similarly situated persons to the Appellant. [26] I note that the DR's own sworn account of the attack on him while residing in Pietermaritzburg, South Africa, contained in the shared BOC narrative11 states: 'as soon as we entered the house, I noticed that one of the men and the woman quickly toured the house to make sure there was none else around, the two signaled to the other two men that there was only a child sleeping.' [27] While the DR's assailants knew that his young son was sleeping in the other room, they had no interest in him at the time of the attack, and there is no evidence contained in the record to establish that there is any interest in him today. [28] As noted by the Consent Letter provided by the DR's ex-wife, the DR has her permission to be the primary 'care giver' but there is no evidence that he is the sole custodial parent. The only evidence adduced as to why the Appellant's mother cannot raise the Appellant comes from the DR who states that it is not convenient due to her professional obligations. According to the DR, the couple separated in 2016 when the Appellant was five years old, and therefore for half of his life he was raised by both parents. [29] I have reviewed the current National Documentation Package 12 and find no objective evidence to support the DR's allegations that his son will face persecution due to the DR's advocacy. [30] The Appellant's mother no longer lives in Pietermaritzburg, where the DR experienced his problems. She resides in Cape Town, according to the evidence. Cape Town, is a city of over 3.4 million people13, and even if the young child is somehow associated with the DR there, it is noted that homophobia and transphobia is more prevalent in rural, tradition-bound townships, like where the DR previously resided, than in the progressive cities.14 [31] The British Home Office Report for December 201715 confirms that South Africa has a functioning criminal justice system and has shown a willingness and ability to enforce the law.16 If the Appellant was to attract attention from any non-state actor, effective protection exists according to the objective sources. [32] There are laws in South Africa protecting the rights of the child. Public education of children is mandatory up to grade 9 or age 15; and if the fee cannot be paid, admission must still be granted.17 Child abuse is illegal. The penalties for conviction of child abuse includes fines and up to 20 years' imprisonment.18 [33] While the DR has alleged to have been the victim of a 'corrective rape', the objective evidence confirms that a landmark ruling in 2012 resulted in severe consequences for this abhorrent activity, with an 18-year prison sentence.19 There is a functioning judiciary in South Africa. [34] I also note that in 2014 and 2015 new programs were launched by the government designed to address Gender and Sexual Orientation violence which has resulted in South Africa becoming the favoured immigration destination for LGBT individuals seeking safety in neighboring southern African countries20. Psychological [35] At the RPD hearing, when asked about the Appellants claim for protection, the DR spontaneously offered that his son will have psychological issues if returned, as the DR has been the primary care giver. This appeared to be his primary concern. He testified that the Appellant's mother's career as a mobile nurse means that she travels a lot21. I note that the DR and the Appellant's mother are in contact, as post hearing evidence was obtained from the Appellant's mother by the DR and provided to the RPD.22 There was no psychological evidence regarding the Appellant before the RPD nor any provided to the RAD as new evidence. While the Appellant may miss his father and uncles if returned to live with his mother in South Africa, this does not give rise to a need to grant international protection. In order to apply the principle of family unity, I would have to extend the definition of Convention refugee, and that is not within my jurisdiction23. [36] Overall there is insufficient evidence on the record to credibly establish that there is a serious possibility of persecution for the Appellant if returned to his mother in South Africa; nor that on a balance of probabilities, he will face a risk to life or risk of cruel and unusual treatment or punishment or torture in South Africa. CONCLUSION [37] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) "Elana Rose" Elana Rose December 17, 2019 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, C. 27, as amended, at paragraph 111(1)(a) 2 Supra, note 1. 3 Singh v. Minister of Citizenship and Immigration, 2016 FCA 96. 4 Exhibit P-2, Appellant Record, at p. 9. 5 Exhibit P-2, Appellant Record, at p. 19. 6 Exhibit P-2, Appellant Record, at pp. 11-19. 7 Exhibit P-2, Appellant Record, at pp. 20-32. 8 Supra, note 1. 9 RPD Hearing Recording, [October 10, 2018], at [2:28:29-2:30:50]. 10 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 15, para 49. 11 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 32. 12 Exhibit RPD-1, RPD's Record, Exhibit 4, National Documentation Package (NDP) for South Africa, (March 29, 2019), See all items. 13 Exhibit RPD-1, RPD's Record, Exhibit 4, National Documentation Package (NDP) for South Africa, (March 29, 2019), item 1.4, at 6.13. 14 Exhibit RPD-1, RPD's Record, Exhibit 4, National Documentation Package (NDP) for South Africa, (March 29, 2019), item 6.1. 15 Ibid, at 1.4. 16 Ibid, item 1.4, at 2.2.4. 17 Ibid, item 1.4, at 16.22. 18 Exhibit RPD-1, RPD's Record, Exhibit 4, National Documentation Package (NDP) for South Africa, (March 29, 2019), item 2.1, at p. 22. 19 Exhibit RPD-1, RPD's Record, Exhibit 4, National Documentation Package (NDP) for South Africa, (March 29, 2019), item 6.1, at p.13. 20 Ibid, at p. 13 21 RPD Hearing Recording, [October 10, 2018], at [2:28:29-2:30:50]. 22 RPD Hearing Recording, [October 10, 2018], at [11:29]. 23 Casetellanos v. Canada (Solicitor General) (T.D.), "1995› 1994 CanLII 3546 (FC), 2 F.C. 190 (T.D.) at parap 199-201 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-10716 RAD.25.02 (April 04, 2019) Disponible en français 2 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 (April 04, 2019) Disponible en français