TB5-06693

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 : TB5-06693 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 October 9, 2015 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A 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 (the Appellant), a citizen of Ukraine, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] The Appellant asks that the Refugee Appeal Division (RAD) allow the appeal, and substitute a positive decision and accept the Appellant's refugee claim. Alternatively, the Appellant submits that his claim be sent back to the RPD for re-determination by a differently-constituted panel. [3] The Appellant is not relying on any evidence as per section 110(4) and is not requesting an oral hearing pursuant to section 110(6) of the Immigration and Refugee Protection Act (IRPA).1 The Minister is not intervening in the appeal. [4] The Appellant is not represented by counsel at the RAD. DETERMINATION [5] Pursuant to section 111(1)(c) of the IRPA the RAD refers the matter to the RPD for re-determination, before a differently-constituted panel. This appeal is allowed. BACKGROUND / ALLEGATIONS [6] The Appellant alleged before the RPD that he is a gay male, and as a result of his sexual orientation he was harassed, and beaten several times while living in Ukraine. Due to fear of persecution at the hands of homophobic people, the Appellant fears returning to Ukraine. [7] In January, 2015, the Appellant left Ukraine on a false Hungarian passport, and went to the Czech Republic. The Appellant lived and worked in the Czech Republic for a couple of months. On March 30, 2015, the Appellant travelled to Canada. The Appellant filed his claim for refugee protection upon arrival at the airport. [8] The Appellant's claim for refugee protection was heard on May 28, 2015. In a decision of June 3, 2015, the RPD rejected his claim. [9] The RPD found that the Appellant was not a credible witness. The RPD found that the Appellant's testimony was vague, inconsistent, and that the Appellant contradicted his own evidence submitted in support of his claim. The RPD found that the Appellant's explanations for the inconsistencies and contradictions were not reasonable. [10] The Appellant submits that the RPD erred in law in finding him to be not credible, and in denying his claim for refugee protection. ROLE OF THE RAD [11] The Canadian jurisprudence 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 the RPD, a first-level administrative tribunal. [12] In the Federal Court decision in Huruglica,2 Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD determination that, in its opinion, should have been made as per s. 111(1)(b) of the IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusions; however, the RAD has equal or greater expertise to the RPD in the interpretation of country conditions evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error based on a standard of review in order for it to trigger its remedial power. [13] Accordingly, the RAD will conduct its own assessment of the RPD decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. THE RPD'S FINDINGS [14] The RPD found the Appellant to be generally not credible. The RPD found that the Appellant's testimony was inconsistent and contradictory. The RPD found that the Appellant's explanations for inconsistencies and contradictions in his testimony were not reasonable.3 THE APPELLANT'S RECORD [15] The Appellant submitted his affidavit4 with the Appeal Record. In the 'Table of Contents," it is listed as the "Affidavit of XXXX XXXX dated July 13th, 2015." [emphasis added]. The RAD notes, however, that this is the Appellant's own affidavit as per the information contained therein.5 Therefore, the RAD concludes the name of the affiant as XXXX XXXX in item 3, listed under "Table of Contents," is an inadvertent typing error. [16] The RAD also notes that the Appellant's Memorandum lists XXXX XXXX as the Applicant on the first page of his Memorandum of Argument.6 [emphasis added]. However, the Appellant's Memorandum is signed by the Appellant,7 who is listed as the Applicant in the last two pages of his Memorandum of Argument.8 Based on the above, the RAD concludes the above-mentioned mix-up relating to the Appellant's name on the first page of the Appellant's Memorandum of Argument is also an inadvertent typing error. [17] The Immigration and Refugee Board (Board) notified the Appellant regarding the above-noted inadvertent errors in the Appellant's Record. Thereafter, the Appellant submitted "Amended Appellant's Record," received at the Board on September 14, 2015.9 The above-mentioned inadvertent typing errors were corrected in the updated version of the Appellant's Record. MERITS OF THE APPEAL [18] The Appellant raises several issues in his Memorandum of Argument. The Appellant submits that the RPD erred in law.10 The RPD found that the Appellant has not satisfied the burden of establishing a serious possibility of persecution on a Convention ground, or that, on a balance of probabilities; he would be personally subjected to a danger of torture or to a risk to life or to a risk of cruel and unusual treatment or punishment.11 Appellant's same-sex relationships in Ukraine [19] The RPD asked the Appellant about his most recent relationship. The Appellant testified that his most recent partner was "XXXX XXXX," and that they dated since the beginning of 2013 for about two years. The Appellant in his Basis of Claim (BOC) form wrote that his most recent relationship was with "XXXX XXXX." Relating to the first name of the Appellant's most recent partner, the RPD asked the Appellant about the discrepancy between his testimony and the information in his BOC narrative. The Appellant testified that XXXX and XXXX represent the same name. The RPD did not find the Appellant's explanation satisfactory, and found that the Appellant provided inconsistent evidence. In reviewing the totality of the evidence submitted/adduced in this case, the RAD finds the Appellant maintained that the two first names represented the same name. In the absence of any persuasive evidence as to why it would have been unreasonable for the Appellant to refer to his partner as XXXX, an endearment name, in his oral evidence, the RAD does not concur with the RPD in that the Appellant provided inconsistent evidence. Moreover, the RAD finds most of the Appellant's other evidence relating to his most recent relationship was consistent, i.e., approximate time of the year when they began dating and how long their relationship lasted. Therefore, the RAD does not draw negative inference from the Appellant's use of "XXXX" as his most recent partner's name at the hearing and use of his formal name, "XXXX," in all of his written documentation. [20] The RPD asked the Appellant when they started dating; the Appellant testified that they started dating in the beginning of 2013. The Appellant testified that he did not recall exactly when they started dating because it was a long time ago. The RPD found it unreasonable for the Appellant to not remember exactly when they started dating since they started dating only about two years ago. In reviewing the totality of the evidence in this case, the RAD finds the Appellant's evidence to be consistent. He wrote in his BOC narrative that he met XXXX in the beginning of 2013, and he testified at the RPD that they started dating in the beginning of 2013. In this respect, the RAD does not concur with the RPD's negative credibility finding. [21] The RPD also asked the Appellant about XXXX, his most recent partner's age and his birthdate; the Appellant testified that his partner was 21 years old but he added that he did not know his birthdate. Later on, the Appellant testified that their relationship ended on XXXX birthday, i.e., on September 14, 2014, the day when they were both attacked. The RPD asked the Appellant why he had earlier testified that he did not know XXXX birthdate; the Appellant said that he was too nervous. The RPD did not find his explanation satisfactory. The RAD finds the birthdate of XXXX came to the Appellant when he was talking about a significant incident and it was in this context that he was able to remember the birthdate. Therefore, the RAD finds it reasonable for the Appellant to remember XXXX birthdate later on, and not when he was initially questioned by the RPD. [22] In consideration of the totality of the evidence relating to the Appellant's most recent relationship, the RAD finds the RPD's analysis was microscopic. The RAD finds the RPD's reliance on evidence around the Appellant's most recent relationship in finding the Appellant to be generally not credible is problematic. The RAD finds the Appellant alleged to have several long-standing relationships in Ukraine. The RAD finds the RPD did not elicit sufficient reliable and satisfactory evidence to make the finding that the Appellant's evidence about his life as a gay male in Ukraine was not credible. Therefore, the RAD finds the RPD's findings, that the Appellant's testimony was inconsistent and contradictory and that the Appellant's explanations for inconsistencies and contradictions in his testimony were not reasonable, cannot be sustained. Persecution in Ukraine [23] The Appellant alleged that he suffered a serious concussion when he was attacked on September 14, 2014. The Appellant submitted medical documents to corroborate his injuries.12 The RPD gave the Appellant's testimony and his medical documents little weight because of inconsistencies in the Appellant's evidence and due to the availability of fraudulent documents in Ukraine. The RAD reviewed the totality of the evidence in this case, including the Appellant's testimony. The RAD finds the Appellant's testimony was not patently inconsistent and/or contradictory. The RAD notes the Appellant did not know answers to some questions, and stated that he did not know. For example, the RPD asked the Appellant why he would be referred to a surgeon and a neurologist; the Appellant replied that he did not know. The RAD reviewed the Appellant's medical reports, and finds that the information in the reports is consistent with the Appellant's allegations of long-standing history of persecution in Ukraine. The RAD acknowledges that the Appellant has high school education. Moreover, the RAD notes the Appellant was able to make arrangement to exit Ukraine and travel to the Czech Republic, and thereafter, was able to travel to Canada and file his refugee claim. The RAD is of the view that the Appellant's above-mentioned steps do not necessarily discount his credibility per se. These steps could also be indicative of his subjective fear. The RAD finds the RPD's negative credibility findings are cumulative, and that the RPD in discounting the Appellant's medical documents also relies on the availability of fraudulent documents in Ukraine. The RAD can appreciate such findings in the clearest of the cases where the trier of facts has, on a balance of probabilities, established that the Appellant generally is not credible. In this case, the RAD finds the RPD's credibility findings lack evidentiary bases, and then the RPD relied on those untenable negative credibility findings in giving no weight to the Appellant's medical documents because of the availability of fraudulent documents in Ukraine. The RAD finds the RPD's reasons to be circular, and therefore, the RAD finds the RPD's negative credibility findings relating to the Appellant's relationships and persecution in Ukraine cannot stand. The Appellant's Involvement in LGBT Groups in Canada [24] The Appellant has also submitted a letter from the 519 Church Street Community Centre13 showing his ongoing membership. The RPD found that mere membership in a community organization does not confer one his/her sexual identity. Due to the credibility concerns the RPD gave this letter no weight. In this respect, the RAD concurs with the RPD in that mere membership in a community organization does not confer one his/her sexual identity. The RAD, however, finds it problematic that the RPD gives all of the Appellant's documents no weight because the RPD found the Appellant to be generally not credible. As mentioned earlier, the RAD finds the RPD's analysis to be microscopic, and further finds that the RPD did not elicit sufficient evidence to confirm or reject the Appellant's identity as a gay man in Ukraine. The RPD did not elicit sufficient evidence, and did not state why the Appellant's medical reports did not corroborate his longstanding history of abuse he alleged to have incurred in Ukraine. The Appellant also submitted photographs with his partners in Ukraine and in Canada.14 The RPD is silent on the relevance of these photographs to the claim. The RAD is aware that the letters and photographs in and of themselves do not establish one's sexual identity; however, there must be reasons provided why such photographs would not be relevant in supporting some of the central elements of the claim as in this case. The RAD finds the Appellant's BOC narrative, his testimony, his medical reports, and other documents submitted, if assessed appropriately, could be relevant to support his allegations. Based on the foregoing, the RAD cannot confirm the RPD's determination of this claim. [25] Based on the totality of the evidence submitted/adduced in this case, the RAD finds there is insufficient evidence upon which the RAD could base its own determination. In order to make its own determination in this case, it would be necessary for the RAD to convene an oral hearing. It is clear from section 110(3) of the IRPA that oral RAD hearings are to be the exception, as the RAD "must proceed without a hearing, on the basis of the record of the proceeding of the Refugee Protection Division...."15 Section 110(6) of the IRPA gives the RAD discretion to hold a hearing if there is new documentary evidence which meets certain requirements, including that it is central to the decision with respect to the refugee claim.16 The Appellant has submitted no new evidence. The Appellant submitted an affidavit,17 the affidavit, however, contained facts that were already in front of the RPD; and the same were duly argued in the Appellant's Memorandum as well. There remain credibility issues which would require the RAD to hold an oral hearing. Moreover, in order for the RAD to make a determination in this case, it would be necessary for the RAD to re-hear the entire refugee claim which the legislative scheme does not permit. [26] As outlined above, the RAD cannot confirm the RPD decision, cannot substitute its own determination, and cannot hold an oral hearing in this case; therefore, the RAD refers this matter back to the RPD for re-determination by a differently-constituted panel. DISPOSITION [27] Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination before a differently-constituted panel. This appeal is allowed. (signed) "S.S. Kular" S.S. Kular October 9, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014, 2014 FC 799. 3 Exhibit P-2, Appellant's Record, at pp. 2-8. 4 Exhibit P-2, Appellant's Record, at pp. 9-10. 5 Ibid. 6 Exhibit P-2, Appellant's Record, at p. 13. 7 Exhibit P-2, Appellant's Record, at p. 19. 8 Exhibit P-2, Appellant's Record, at pp. 20-21. 9 Exhibit P-2, Amended Appellant's Record, received at the Board on September 14, 2015. 10 Exhibit P-2, Appellant's Record, at p. 14. 11 Exhibit P-2, Appellant's Record, at p. 7, para. 19. 12 Exhibit RPD-1, RPD's Record, at pp. 107-115. 13 Exhibit RPD-1, RPD's Record, at p. 131. 14 Exhibit RPD-1, RPD's Record, at p. 133-135. 15 IRPA, section 110(3). 16 IRPA, section 110(6). 17 Exhibit P-2, Appellant's Record, at pp. 9-10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-06693