TB9-14016

RAD File / Dossier de la SAR : TB9-14016 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 September 21, 2020 Date de la décision Panel T. Card Tribunal Counsel for the person who is the subject of the appeal Marcela D. Gonzalez-Rodriguez Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX (the "Appellant") is a citizen of Panama and is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. DETERMINATION [2] The Appeal is dismissed. BACKGROUND AND ALLEGATIONS [3] The Appellant is a citizen of Panama and alleges to be gay. The Appellant has considered himself to be gay since around 14 or 15 years old, but did not come out as gay until he was 22. [4] The Appellant experienced a number of incidents of discrimination and abuse, including at the hands of the police and his family. After an incident in 2013, the Appellant obtained a student visa to study English in Canada. The Appellant was in Canada for about XXXX months between XXXX 2013 and XXXX 2014, when he returned to Panama. [5] Upon return, the Appellant experienced a number of additional incidents of discrimination and abuse. One such incident involved being raped by some police officers. [6] In 2015, the Appellant got another student visa to go to Canada and study English. While in Canada on this occasion, the Appellant consulted with a couple of refugee organisations in Toronto about possibly making a claim. The Appellant did not tell either organisation about his sexual orientation. [7] The Appellant continued to stay in Canada and renew his visa. In XXXX 2017, the Appellant then met someone who told the Appellant he could make a refugee claim based on his sexual orientation. The Appellant made his claim in 2018. The RPD rejected the Appellant's claim on the basis he was not credible and was not gay as claimed. ADMISSIBILITY OF APPELLANT'S EVIDENCE SUBMITTED ON APPEAL [8] Confusingly, the Appellant stated that he was not relying on new evidence1 while simultaneously asking me to evaluate new evidence provided.2 No submissions under Rule 3(3)(g) of the Refugee Appeal Division (RAD) rules have been provided, as are required. Nevertheless, as additional documents have been provided which were not in the RPD Record, I am treating this as submission of new documents under s.110(4) of the Immigration and Refugee Protection Act (IRPA)3 The documents are as follows: a. Psychotherapy Report dated XXXX XXXX 2019.4 b. Article "Human Rights Situation of Transgender Persons in Panama" dated 22 October 2015.5 c. Article "Committee against Torture considers report of Panama" dated 4 August 2017.6 d. United Nations (UN) Article "Born Free and Equal" dated 2012.7 [9] S.110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of the claim or that was not reasonably available, or that he could not reasonably have been expected8 in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of s.110(4) and how that evidence relates to the Appellant.9 [10] In addition, if the new evidence meets one of the explicit legislative factors in s.110(4), then the second step of the analysis is for the Refugee Appeal Division (RAD) to apply the adapted Raza factors endorsed in Singh.10 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. Psychotherapy report rejected [11] In respect of the psychotherapy report, I note that both the interview to generate the report and the date of the report itself post-date the RPD decision date. However, it is not the publication date which determines whether something is new by post-dating the RPD decision date. It is the content of the proposed document. [12] In this case, the analysis of the Appellant's mental health is based on conditions that pre-date the RPD decision date. I therefore need to consider why the Appellant did not attempt to get an assessment or report before the RPD decision date, particularly given he had been living in Canada for three years before he even made his claim. The resources were available to the Appellant. It is for the Appellant, under Rule 3(3)(g) of the RAD Rules to explain this, and he has failed to do so. [13] Similarly, I have nothing before me to explain why the Appellant could not have been expected in the circumstances to have presented this report. Again, this is required under Rule 3(3)(g) of the RAD Rules. [14] In the absence of such explanations, I find that the proposed document does not meet the requirements of s.110(4) of the IRPA and is therefore rejected. Other documents rejected [15] In relation to the other articles, I note that all of these documents predate the RPD Decision. The articles were publicly accessible and I can find no reason why they were not reasonably available. The Appellant also had the assistance of paid Counsel and knew what all the live issues were. I find the Appellant could reasonably have been expected to present these documents. As previously stated, no arguments regarding the admissibility of these documents were made, as required under Rule 3(3)(g) of the RAD Rules. [16] I therefore find, on a balance of probabilities, that the remaining documents do not meet the requirements of s.110(4) of the IRPA. The proposed documents are therefore rejected. NO ORAL HEARING [17] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) of the IRPA that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.11 [18] As no new evidence has been accepted, the requirements of subsection 110(6) of the IRPA have not been met, and an oral hearing cannot be held. ISSUES IN APPEAL [19] The Appellant argued the following issues in his appeal: (a) The RPD erred by "...stereotyping the Appellant for his Masculine appearance."12 (b) The RPD erred by requiring corroborating documents. (c) The RPD erred in terms of which standard of proof needed to be applied when assessing the Appellant's evidence. (d) The RPD otherwise erred in finding the Appellant not credible. [20] I find the determinative issues are: a. Credibility b. The Appellant's sexual orientation identity. ANALYSIS [21] I have conducted an independent analysis of the evidence concerned, including reviewing the RPD hearing, as well as considering the Appellant's Memorandum,13 the RPD Decision,14 and the Appellant's Basis of Claim (BOC) form,15 amongst other documents. [22] I also bear in mind the Chairperson's Guidelines on Sexual Orientation and Gender Identity and Expression16 (the SOGIE Guidelines) in rendering this decision. Allegation of stereotyping has no merit [23] The Appellant has alleged that the RPD Member stereotyped him "...for his Masculine appearance."17 However, the Appellant does not say when during the hearing this comment was made. It is important to remember that it is for the Appellant to prove his case, and not to leave serious allegations like this hanging without proof. Instead, the Appellant's memorandum simply quotes caselaw about how stereotypes should not be used in assessing Lesbian Gay Bisexual Transgender Queer (LGBTQ) cases, without applying them to his case. [24] In making my independent analysis, I can find nothing in the RPD Hearing audio, nor the RPD decision, where this stereotype was allegedly said by the RPD Member. [25] I therefore find, on a balance of probabilities, that the RPD Member did not stereotype the Appellant in the manner alleged and that there is no merit to the Appellant's argument. Police report [26] The RPD made a number of adverse credibility findings against the Appellant. [27] Firstly, the RPD noted that in relation to the police report18 provided from Panama, this concerns an incident on XXXX XXXX 2013. The Appellant alleges that some people insulted and threatened him. The Appellant went to the police to complain. However, the police took the side of the other men, and instead insulted and mistreated the Appellant. [28] Before asking the Appellant to comment on the report, the RPD Member asked the Appellant if the report was accurate. The Appellant initially said yes, before saying the police changed the report. The RPD Member noted that the BOC does not mention the police changing the content of the report. [29] The report itself gives a different account, saying that two youths approached the Appellant with a firearm and robbed him. Nothing about a motorcycle, firearm or robbery was mentioned by the Appellant in his testimony or BOC, and the RPD Member asked why. The Appellant stated again that the police just changed the report to force him to withdraw his complaint. Again, the Appellant did not explain why the BOC did not mention this. I find the RPD was correct in drawing an adverse inference from this discrepancy. [30] The Appellant has argued that the RPD did not make a finding as to the authenticity of this report. I do not agree. The inherent discrepancies between the Appellant's version of events, and failure to mention the police alteration, creates a credibility problem that cannot be resolved, and makes both the report and the Appellant's evidence unreliable regarding this event. [31] The Appellant has also alleged that stress, anxiety and depression have had an effect in relation to this discrepancy. I find that while the Appellant may well have stress, anxiety and depression, these do not explain or account for the discrepancies explored here. Lack of evidence regarding same sex relationships [32] Further to this, I note that the Appellant made no mention of any of his previous same sex relationships. In testimony, the Appellant said he had two same sex relationships in Canada, and one in Panama. None of these were mentioned, and no statements or affidavits from any of these partners were provided. In relation to one of the boyfriends in Canada, the Appellant stated that one was going to give evidence at the RPD Hearing, and was in the building, but then backed out at the last moment as he was too nervous. Again, I stress that no application for a witness was made following Rule 44 of the RPD Rules. [33] I am mindful of the SOGIE Guidelines which do state that corroborating evidence may not be available. However, in this case, the Appellant has not provided an explanation nor indication that he has made an effort in getting corroborating evidence from either of the other previous same-sex partners. Moreover, the fact that the Appellant has not even mentioned any of these people in his BOC gives rise to even more concern about his credibility. [34] The Appellant may have difficulty in giving evidence, and sensitivity is required. However, this does not excuse him from giving evidence at all, and a reasonable explanation for the lack of evidence is still required. I find that the Appellant has not provided any explanation for the lack of corroborative evidence. [35] The lack of a formal requirement for corroborative evidence exists in refugee law because of the recognition that such evidence may not always be available. This is distinct from civil and criminal rules of evidence. The lack of a formal requirement for corroborative evidence is not meant to be a carte blanche excuse for an Appellant to simply make an unsubstantiated statement, cite the case of Maldonado19 regarding the presumption of truth, and then call it a day while making no effort or providing no explanation for any further evidence. [36] Finally, it is important to remember that it is for the Appellant to prove his case with the best evidence available. The Appellant has fallen far short of this requirement. Other credibility problems [37] The RPD also noted that the Appellant delayed three years between 2015 and 2018 to make his refugee claim. The Appellant stated he approached two organisations earlier about making a claim, but provided no evidence of this. The Appellant also stated he never told either organisation about his sexual orientation. [38] Even if the approach to other organisations were accepted, the delay in claiming is still substantial, and is a factor in assessing the Appellant's credibility. I find that the RPD did not err in drawing an adverse inference due to the delay in claiming, and note that this is not the sole reason for rejecting the Appellant's claim. [39] The Appellant also cited that the RPD erred in terms of which standard of proof needed to be applied when assessing the Appellant's evidence. I do not concur. I find that the RPD correctly found that the Appellant was not credible on a balance of probabilities for the reasons stated above. [40] The Appellant did not provide sufficient evidence to establish his claim, and did not provide sufficient reason why he did not provide the required evidence. It is the Appellant's claim to prove, not the RPD's or the RAD's to disprove. The additional credibility issues identified create additional problems, and when weighing the totality of the evidence before us, the Appellant is not credible on a balance of probabilities, and has not established his alleged sexual orientation, on a balance of probabilities. CONCLUSION [41] Having reviewed the entire claim, and having conducted my independent analysis, I find the RPD did not err in finding the Appellant not credible, and not to be gay as claimed. [42] Pursuant to s.111(1)(a) of the IRPA, the RPD's decision that the Appellant is neither a Convention refugee nor a person in need of protection is confirmed. [43] The appeal is dismissed. (signed) T. Card T. Card 21 September 2020 Date 1Exhibit P-2, Appellant's Record, Written Statement, Page 15, Paragraph 1. 2 Ibid., Paragraph 3. 3 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 4 Exhibit P-2, Appellant's Record, Pages 16-23. 5 Ibid., Pages 24-28. 6 Ibid., Pages 29-55. 7 Ibid., Pages 56-116. 8 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, Paragraph 51. 9 Refugee Appeal Division Rules, SOR/2012-257, rule 3(3)(g)(iii). 10 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385, cited in Canada (Citizenship and Immigration) v. Singh, [2016] 4 FCR 230, 2016 FCA 96, Paragraph 64. 11 Immigration and Refugee Protection Act, S.C. 2001, c. 27, subsection 110(6). 12 Exhibit P-2, Appellant's Record, Memorandum, Page 121, Paragraph 6. 13 Ibid., Pages 120-132. 14 Exhibit RPD-1, RPD Record, RPD Decision, Pages 3-15. 15 Ibid., Exhibit 2, Pages 16-30. 16 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective Date: 1 May 2017. 17 Exhibit P-2, Appellant's Record, Memorandum, Page 121, Paragraph 6. 18 Exhibit RPD-1, RPD Record, Exhibit 4, Pages 144-146. 19 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 FC 302. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-14016 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français