TB7-22558

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 / Dossier de la SAR : TB7-22558 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 13, 2018 Date de la décision Panel Nadra Qadeer Tribunal Counsel for the person(s) who is(are) the subject of the appeal Dariusz Wroblewski Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the Appellant) is a citizen of Tanzania and appeals the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] The Appellant, in his statement, indicates that he is submitting new evidence as per subsection 110(4) and is requesting a hearing as per subsection 110(6)1. However, there is no new evidence on file and there are no submissions related to any new evidence. [3] The Appellant is requesting that the Refugee Appeal Division (RAD) allow his claim and find that he is a Convention refugee or person in need of protection, or refer the matter back to the RPD for redetermination before a differently constituted panel. Background [4] The Appellant alleges that he is bisexual. He began a same-sex relationship with "SA" whom he met on the street in 2011. While working for a XXXX XXXX in 2015 and travelling, the Appellant called a friend back in Tanzania and learned that his former partner outed him, telling people that he was gay and sharing pictures of the Appellant in the community. [5] The Appellant made an inland claim for refugee protection in September 2015. His claim was heard by the RPD on September 14, 2017 and denied in a written decision on October 16, 2017. Determination [6] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (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 [7] 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 Appellant's Arguments [8] The Appellant submits that the RPD erred in the following ways: a. The RPD failed to consider all of the evidence before coming to a decision; b. The RPD was microscopic when assessing the documents submitted by the Appellant, applying a Western standard in assessing the document; c. The RPD erred in finding contradictions where none existed; d. The RPD erred in its assessment of the relationship the Appellant alleges to have had in Canada; e. The RPD ignored the objective country conditions, and; f. The RPD displayed bias in its credibility assessment. RPD Findings [9] The RPD found the determinative issue to be credibility. Specifically: a. the RPD found the Appellant's police documents contained anomalies that lack credibility; b. the Appellant was inconsistent regarding his testimony about his same-sex partner in Tanzania, and; c. the Appellant's evidence regarding his same sex partner in Canada was insufficient. Analysis of the Appeal The Appellant's police documents are fraudulent [10] The Appellant submitted evidence that he is wanted by the police in Tanzania due to his same-sex relationships4. His evidence before the RPD was that he was outed by a former lover and this was reported to an Islamic organization5 who, in turn, reported him to the police. [11] He argues that the RPD was microscopic in its assessment of the police document submitted. There were two police documents submitted and the RPD found in one that there were typos in the pre-populated areas of the document6. I do not agree with the Appellant's submission that the RPD examination of the police document was microscopic. The document is purportedly issued by the High Court in Zanzibar on XXXX XXXX XXXX 2015 compelling the Appellant to present himself in court and answer a charge. The pre-populated title of the document contains misspellings, including "aprehension" for apprehension and "Cout" for court, and the RPD found this document lacking in credibility. The Appellant's argument before the RAD related to applying a western standard to the document. While this may be relevant to areas of a document subject to human error when completing the form (i.e. handwritten sections), I find the problems with the document emanate from the form itself, with errors that are highly unlikely given it is issued by the high court. I see no error in the RPD finding. [12] I have reviewed this document and find there are other anomalies with the document. The Appellant is charged under section "159 of the Penal Act No.6/2004 law of Zanzibar." According to the objective evidence found in the National Documentation Package (NDP) for Tanzania, Zanzibar's Penal Decree Act No. 6 of 2004 lists section 150, 151, 153, and 154 as the appropriate and relevant sections of the Act7. The section cited in the Appellant's document, section 159, is not listed as a relevant section for charges related to same-sex acts. I find the Appellant's credibility is undermined by his ability to present a false document. [13] The RPD also made findings related to the letter from the Association for Islamic Mobilization and Propagation (AIMP)8. The RPD had the meaningful advantage of examining the original letter in the hearing and found that the stamps on it appeared to be printed by a computer rather than a wet seal. The RPD found the document to be fraudulent on a balance of probabilities. [14] The other police document submitted by the Appellant was weighed by the RPD and found to be lacking in credibility based upon the proclivity of the Appellant to submit other fraudulent documents. While the Appellant submits this is in error, I do not agree. It is open to the RPD to weigh the evidence. [15] I have considered the police document issued by the Tanzanian police9. It is originally issued in Swahili and attached is a translator's declaration10. The translation into English contains misspellings and nonsensical sentence structure. It is difficult to ascertain what the police order says exactly based upon the poor translation. Reviewing the police order, there does not appear to be any reference to same-sex activity in the police order and no reason is given in the order as to why the Appellant is being compelled to report to the Madema police station on XXXX XXXX, 2015. There is also no address listed for the Appellant or for the Madema police station where the Appellant is required to report. [16] It was the Appellant's testimony that his ex-partner SA went to the Islamic organization and informed them of his sexual orientation and they, in turn, informed the Appellant's mother and the police. Having conducted my own independent assessment of the documents, I find the documents are lacking in credibility on a balance of probabilities. I have considered the affidavit from the Appellant's mother which corroborates the events in Tanzania and I find this piece of evidence does not outweigh the credibility concerns related to the official documents submitted by the Appellant. No apprehension of bias [17] The Appellant argues that the RPD applied its negative credibility findings to other documents and this not only is wrong in law but demonstrates a reasonable apprehension of bias. I have listened to the entire hearing and I do not agree with this submission by the Appellant. I find that this allegation from the Appellant is frivolous. [18] At no time during the hearing did the Appellant, who had counsel, make such an allegation. No allegation was raised at the earliest opportunity. [19] It is well established that allegations of bias must meet a very high threshold. As stated in Zhu,11 ... An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation. It challenges the integrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard ... [20] The RPD made findings in its reasons on inconsistencies in the documents submitted and the testimony of the Appellant. This does not demonstrate a reasonable apprehension of bias. The RPD's approach to questioning the Appellant was courteous, respectful, and pointed. It is the duty of the Panel to ask questions. That the RPD found inconsistencies in the Appellant's evidence and drew conclusions from problems with the evidence in its decision does not demonstrate a reasonable apprehension of bias in my view. The Appellant's evidence regarding his same sex relationship was lacking in credibility [21] The Appellant takes issue with the RPD findings related to his testimony about his same-sex relationship with SA as well as his relationship with a man here in Canada. [22] The Appellant argues that there is no difference in his testimony regarding his feelings about SA and the RPD took both a microscopic and unfair approach. I have reviewed the testimony of the Appellant during the hearing as well as the evidence presented in his BOC. In the Appellant's narrative he specifically states, "I did not consider myself in love with [SA] but I was fond of him."12 When asked during the RPD hearing if he "fell in love with [SA]," the Appellant testified "Yes...he cared about me, he's the reason I started having sex with men."13 In my view the Appellant specifically stated and qualified his feelings about SA in his BOC saying he was not in love with SA and yet he stated the contrary in his hearing. I disagree with the submissions made by the Appellant and find that there is a difference in the Appellant's testimony. [23] The Appellant submitted a letter from his male partner in Canada to corroborate his same-sex relationship with "RM".14 The Appellant submits this letter confirms they have a same-sex relationship. However, a review of the letter does not indicate that the two are in any kind of romantic relationship. When this was put to the Appellant, he testified that the relationship became romantic in 2016 and the letter was issued in 2015. I find the Appellant did not provide corroborative evidence of his same-sex relationship in Canada where he reasonably could. While he provided testimony as to why his partner could not attend the RPD hearing, he provided no statements from his partner as to their relationship. [24] The Appellant also takes issue with the RPD's findings on changes made to his BOC. I will not be addressing these arguments as I find them to be non-determinative. [25] The Appellant argues that the RPD erred in finding there was insufficient evidence to support his claim. I do not agree with this submission. The RPD demonstrated in its reasons the areas in which it found the Appellant was lacking in credibility. The RPD then demonstrated that it considered the remaining evidence, such as photographs and letters from support organizations, and found that these were insufficient in overcoming the credibility concerns already raised in this claim. I see no error in this approach and find the RPD was correct in weighing the evidence. The RPD was not obligated to examine objective country conditions [26] The Appellant submits that the RPD erred by not considering the objective country conditions for same-sex activity in Tanzania. The RPD based its decision on the determinative issue of credibility. There is no obligation to examine objective country conditions when credibility was the issue. I find no error in the RPD assessment. [27] In summary, I find the RPD correctly analyzed this claim basing its findings on the credibility of the Appellant and his associated evidence. Significant aspects of the evidence were lacking in credibility and this undermined the Appellant's overall credibility. The appeal is dismissed. Conclusion [28] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (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 Appeal is dismissed. (signed) "Nadra Qadeer" Nadra Qadeer November 13, 2018 Date 1 Exhibit P-2, Appellant's Record, at p. 12A 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 RPD-1, RPD Record, Exhibit 6, at pp.122-124 5 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 126 6 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 122. 7 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) Tanzania 31 March 2017, Response to Information Request (RIR), Immigration and Refugee Board of Canada. item 6.4. 8 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 126 9 Exhibit RPD-1, RPD Record, Exhibit 6, at pp. 123-124. 10 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 127. 11 Zhu v. Canada (Citizenship and Immigration), 2013 FC 1139, at para. 2. 12 Exhibit RPD-1, RPD Record, Exhibit 2, BOC narrative at page 18. 13 Audio 01:34 14 Exhibit RPD-1, RPD record, Exhibit 5, at p.81. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-22558 RAD.25.02 (September 18, 2018) Disponible en français 8 RAD.25.02 (September 18, 2018) Disponible en français