TB7-15989

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 : TB7-15989 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 August 1, 2018 Date de la décision Panel Nadra Qadeer Tribunal Counsel for the person(s) who is(are)the subject of the appeal Richard Odeleye 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 Ghana, appeals the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. [2] She is requesting that the Refugee Appeal Division (RAD) either substitute the negative decision with a positive decision or remit the claim back to the RPD for redetermination before a differently constituted panel. DETERMINATION [3] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA),1 the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. ROLE OF THE RAD [4] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.2 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases, calls for a standard of review of reasonableness.3 Background [5] The Appellant had her refugee claim heard before the RPD on July 13, 2017 and denied in a written decision on July 25, 2017. [6] She alleges that she is bisexual and fears persecution in Ghana on account of her sexual orientation. [7] The Appellant travelled to Canada on XXXX XXXX XXXX XXXX to attend the funeral of her brother-in-law. In April 2017, while still in Canada, she learned that her sexual identity had been revealed in Ghana and her partner was detained by the police. She fears the police and her community who have learned of her sexual orientation. Appellant's Arguments [8] The Appellant argues the following with respect to this appeal: * That the RPD breached procedural fairness by failing to request the services of an interpreter as requested by the counsel for the Appellant * The RPD erred by impugning the credibility of the Appellant with respect to her written evidence and not putting the apparent inconsistencies to her * The RPD failed to consider the psychologist's report * The RPD impugned the Appellants' credibility with respect to the lack of corroborative evidence * The RPD panel erroneously discredited the supporting documents * The new evidence submitted by the Appellant on appeal supports the Appellant's testimony and refugee claim [9] The Appellant submits new evidence on appeal. These are: a. Letter from the Appellant's son's friend, XXXX XXXX XXXX XXXX XXXX XXXX dated September 12, 2017 with accompanying identity card, tenancy agreement and rent receipt for the home in Ghana;4 b. The Appellant provides new explanations in her affidavit regarding her tenancy agreement and address history that was not before the RPD and also provides explanations for the findings made by the RPD [10] The Appellant is requesting an oral hearing. RAD Analysis New evidence is not accepted [11] Subsection 110(4) of the IRPA provides that Appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [12] The second step in the analysis for new evidence is to consider it in relation to the adapted Raza factors endorsed in Singh.5 In Singh, the Federal Court of Appeal (FCA) held that the RAD should assess the admissibility of the new evidence for its credibility, relevance, and newness. The RAD will apply the Raza factors, minus the "materiality" factor, as this is to be assessed in light of subsection 110(6) only. [13] In this case the Appellant submits that the new evidence from XXXX XXXX XXXX corroborates that her son's friend is their neighbour, living at her former home. She submits that the RPD, in its decision, draws a negative inference from contradictory evidence regarding where her children were hiding and where the documents, sent to her in Canada, were mailed from. The Appellant provides further explanation in her memorandum regarding the tenancy arrangement between her son's friend and their property. [14] In my view the explanation in the affidavit as well as the documents submitted are not new. This issue was before the RPD and the RPD member questioned the Appellant on this very issue during the hearing. The Appellant was asked by the RPD why the address listed on the envelope and the documents were sent from his address in Accra if her children were living in a village 2.5 hours from Accra, as testified. The Appellant was non responsive to the RPD when questioned on this point. [15] When questioned by her counsel on this same point, the Appellant provided different testimony. The Appellant testified that the address listed is her son's friend's address. The RPD member did follow up again on this point when this evidence was elicited and asked why she knew it was a friend's address and she stated that she knew her son's address and he didn't want to give his own address. [16] It is clear that the issue of where the documents were mailed from, and more importantly whether the evidence supports that the Appellant's children are in hiding due to her sexual orientation, was in question before the RPD. Therefore the new evidence is not new in my view and the new evidence is not admissible. The Appellant has not discharged her burden of establishing that the evidence was not reasonably available at the time of the rejection. This issue was before the RPD, as indicated in the Appellant's memorandum.6 [17] As no new evidence is admissible, there is no jurisdiction for the RAD to hold a hearing pursuant to subsection 110(6). No breach of procedural fairness Communication [18] The Appellant submits that the RPD breached procedural fairness as it did not accede to counsel's request for an interpreter during the hearing. The Appellant testified in English and indicated on her Basis of Claim (BOC) form that she speaks English. In fact she a trained teacher, having taught primary school in English.7 She did not request the services of an interpreter that spoke any other language and the submissions on appeal refer to an interpreter that speaks English. This is not a situation that typically warrants an interpreter. [19] I have listened to the hearing. The RPD member spoke clearly and repeated questions when the Appellant did not understand or respond to the questions. For a majority of the hearing, I would estimate 95%, the Appellant was able to understand and respond to the questions asked by the RPD panel member. The RPD member instructed the Appellant to let her know if she did not understand a question or needed it repeated. I do note that two times the RPD Member asked the Appellant questions and counsel for the Appellant asked the Appellant to repeat her answer as he either did not hear or understand the answer provided by the Appellant. [20] The only time when it appears there was a problem with communication was when the RPD Member asked the Appellant a question about the sexual orientation of her past partner. The Appellant was asked if she knows what the sexual orientation is of her past partner. The Appellant indicated "No" she does not. Counsel for the Appellant then interrupted the RPD member saying the Appellant did not understand the question. This did not appear to be the case. Counsel for the Appellant then suggested, before the RPD Member or the Appellant could respond, that perhaps the Appellant "may not know" what the sexual orientation of her partner is. It was at this point in the hearing that the counsel suggested that his client may need an interpreter suggesting a "communication problem" and that the Appellant "doesn't seem to understand the Member most of the time."8 It is abundantly clear to me that there was no communication problem. This interaction takes place 36 minutes into the hearing when no other communication problems had previously existed. The hearing also proceeds after this with no communication problems. [21] While the Appellant argues that the problem with the communication lies with the difference in accents between Ghanaian and Canadian English, I do not find this to be the case in this circumstance. Furthermore, the counsel's interjections and suggestions regarding what the Appellant understood or did not understand was not expressed by the Appellant and undermines the testimony of the Appellant. It is clear the Appellant understood the RPD questions and responded. While the Appellant in her affidavit explains that she did not understand the questions and that there was a communication problem, it is clear from my review of the hearing that this is not the case. The Appellant did not indicate this to the RPD during the hearing. The RPD member clarified and repeated questions whenever necessary, which was infrequent. In my view not only is there no breach of procedural fairness but there was no communication problem. Failing to put contradictions to the Appellant [22] The Appellant submits that the RPD breached procedural fairness by failing to put a contradiction between her testimony and her documents to her during the hearing. The RPD in its reasons found that the Appellant's testimony during the hearing regarding the address on the envelope for the documents is her son's friend directly contradicts her own evidence that the address is actually listed as her own. I do not find this to be a breach as the evidence relied upon by the RPD comes directly from the Appellant. The Appellant was questioned by the RPD and her counsel on the origin of the documents that were mailed to her and the evidence of her children being in hiding. She provided evolving testimony and failed to indicate at any time that the address was her own but, rather, a "friend of her son's". In this circumstance, the RPD was not required to confront the Appellant on evidence that is known to the Appellant and supplied by the Appellant. This concern was already raised by the RPD in the hearing and the Appellant had an opportunity to respond. I find there was no breach in this regard. The evidence that the children are in hiding is not credible [23] The Appellant was questioned repeatedly on the issue of the origin of her documents and her evidence that her children are in hiding due to her sexual orientation being revealed. The RPD found her testimony evolving and also found that it contradicted her own evidence in her Schedule A form. I see no error in this analysis and agree with the findings made by the RPD that the evidence that her children are in hiding due to her problems is lacking in credibility. The RPD erred by not referring to the psychologist report [24] The Appellant submits that the RPD erred by not considering the contents of the psychologist report. While I agree that it was an error for the RPD to not refer to the psychologist report in its reasons, a review of the hearing indicates that the RPD was aware of the report and questioned the Appellant on the content of the report. [25] The report indicates that the Appellant does suffer from stress-related symptoms.9 Conducting my own independent analysis, I find that while this may be the case, it may not be for the reasons the Appellant is asserting in her refugee claim. [26] The report also refers to the Appellant "being exposed to traumatic events in Ghana" and feeling safe now that she has come to Canada.10 This contradicts the Appellant's BOC narrative that indicates her sexual identity was only revealed approximately one year after her arrival in Canada. I find the report not only contradicts the Appellant's evidence but does not overcome the credibility problems related to her claim. Peripheral issues and corroboration [27] The Appellant argues that the RPD based its negative credibility findings on peripheral matters in some cases and also made erroneous findings related to the lack of corroborative evidence from her partners and children. I have considered these arguments in relation to Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression11 and the particular relevance of section 7.2 related to corroborative evidence. [28] While I agree that the RPD did make weak findings related to the lack of corroborative evidence that I cannot support; such as the lack of effort to locate her partner, and the lack of evidence to corroborate her relationships, I do not find these errors to be fatal, nor are they determinative. [29] More importantly the RPD did consider the central incident which precipitated the Appellant's refugee claim in Canada. Specifically the Appellant describes in her BOC narrative that her partner in Ghana was caught kissing a woman in Accra, Ghana. She was apprehended and beaten by a mob and as a result dropped her cellphone. Intimate photos of the Appellant and her partner were on the phone and people present at the time "immediately" recognized the Appellant.12 It was this incident that led to her being outed and wanted in Ghana. [30] The RPD found this incident implausible. I too find this implausible and see no error with the RPD finding. The Appellant submitted that it was because she lived in the area and was a "teacher" that she was recognized in the photos. The Appellant does not challenge this finding by the RPD and I find, when considering these circumstances that the incident as described is lacking in credibility on a balance of probabilities. [31] The Appellant was unable to name anyone in particular who recognized her and only described being recognized by the photo. Given the nature of the photos as described by the Appellant, and without having the photos submitted as evidence before the RPD, I find it highly unlikely that this could have happened. [32] The Appellant takes issue with the findings made by the RPD related to her photographs submitted, stating that the Appellant herself is not recognizable in one and that the photos do not establish the relationship between the Appellant and her partner. I agree with the findings made by the RPD that the photos do not establish the relationship as the nature of a relationship cannot be verified via a photograph. The photographs are not probative to establish the relationship as alleged. The Appellant did not know the sexual orientation of her partner [33] The RPD drew a negative inference from the Appellant not knowing her partner's sexual orientation. When asked if she knew how her partner identified, the Appellant said she did not. This finding is not contested by the Appellant, except as an issue of communication which I have found not to be substantiated. The Appellant alleged that she was with her partner since 2015. The RPD found it unreasonable that the Appellant would not know how her partner identifies. I agree with the RPD that this is lacking in credibility. The Appellant provided testimony about how they met, and what they did together. That she would not know the sexual orientation of her partner is lacking in credibility in my view. [34] Given the credibility concerns addressed by the RPD and having considered the arguments made by the Appellant in this appeal I find that I agree with the findings made by the RPD. The Appellant is lacking in credibility regarding the determinative aspect of her claim. Most importantly, I have found the RPD did not breach procedural fairness and there was no communication issue between the Appellant and the RPD. For these reasons the appeal is dismissed. CONCLUSION [35] Having considered the entire record, I find that I agree with the conclusion drawn by the RPD that the Appellant is lacking in credibility. As a result there is no serious possibility that the Appellant would be persecuted, or would be personally subjected, on a balance of probabilities, to a danger of torture or to a risk to life or a risk of cruel and unusual treatment or punishment in Accra. Disposition [36] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. The RPD decision is confirmed and the appeal is dismissed. (signed) "Nadra Qadeer" Nadra Qadeer August 1, 2018 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Ibid, at paras 69-74, and X (Re), 2017 CanLII 33034 (CA IRB). 4 Exhibit P-2, Appellant Record, at pp. 77-81. 5 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in Singh, 2016 FCA 96, at para 64. 6 Exhibit P-2, Appellant's Record, Memorandum of Argument, at pp. 111-112, para 56. 7 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 51. 8 Audio 36:59. 9 Exhibit RPD-1, RPD Record, Exhibit 7 at p. 120. 10 Ibid, at p. 117. 11 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 9: Proceedings before the Immigration and Refugee Board of Canada involving Sexual Orientation and Gender Identity and Expression, May 1, 2017. 12 Exhibit RPD-1, RPD Record, Exhibit 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-15989