TB9-34375

RAD File No. / No de dossier de la SAR : TB9-34375 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 Montréal, Quebec Appel instruit / entendu à Date of decision November 5, 2020 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Richard M Addinall 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, a citizen of the Dominican Republic, is appealing against the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim. [2] In rendering its decision, the Refugee Appeal Division (RAD) took into account the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. [3] The appeal is dismissed for the reasons that follow. BACKGROUND [4] In his Basis of Claim Form (BOC Form), the appellant alleges that he fears for his safety in the Dominican Republic on the basis of his homosexuality. [5] The appellant left his country on XXXX XXXX XXXX 2017, to come to Canada. He claimed refugee protection here in January 2018. [6] As part of an addition to his BOC Form filed about 10 days before the hearing, the appellant alleges that he married a woman in Canada in XXXX 2018, and that they had a child born in XXXX XXXX. He now alleges that he is bisexual. [7] Following a hearing on November 7, 2019, the RPD rejected the refugee protection claim on the ground that the appellant's allegations were not credible. [8] Before the RAD, the appellant is submitting that the RPD erred in its assessment of his credibility for reasons that will be explained later under the Analysis section, if necessary. [9] For these reasons, the appellant is asking that the RAD set aside the RPD's determination and grant him refugee protection, or refer the matter to the RPD for re-determination. STANDARD OF REVIEW AND ROLE OF THE REFUGEE APPEAL DIVISION [10] The role of the RAD is to review RPD decisions applying the correctness standard of review after conducting its own analysis of the record in order to determine whether the RPD erred, as submitted by the appellant. ANALYSIS [11] The issue in this case is whether the RPD erred in its assessment of the credibility of the appellant's allegations. [12] After analyzing all the evidence before me, the RPD's reasons for decision and the appellant's submissions to the RAD, and after listening to the recording of the RPD hearing, I conclude that the answer to this question is no, for the reasons that follow. [13] First, upon listening to the recording of the RPD hearing, I must note that the appellant's testimony was generally imprecise and vague. [14] The RPD's decision is based on a number of contradictions and omissions in the submitted evidence which, in my view, can only undermine the credibility of the appellant's allegations. [15] I also find that these elements, taken cumulatively, are sufficient to undermine the appellant's essential allegations. They are as follows. [16] First, the appellant did not obtain any document that could corroborate his sexual orientation. [17] When the appellant was questioned about the male partner he had before leaving the Dominican Republic, he answered that he no longer has contact with that partner ever since he learned of the appellant's marriage in Canada. [18] However, the appellant took no steps to obtain any document whatsoever from that man in order to corroborate their same-sex relationship, even though the appellant did not marry until 10 months after he claimed refugee protection. [19] Furthermore, when the appellant was asked about how his male partner learned of his marriage in Canada, he answered that he did not know. In my opinion, the vague testimony on this point can only further undermine the appellant's credibility. It seems improbable in my view that the couple would not have had in-depth discussions on the matter, when they were common-law partners before the appellant left to come to Canada. [20] While refugee protection claimants are not required to file documents to corroborate their allegations, in the case at hand, because of the credibility issues that have been raised, the lack of any steps taken to obtain such documents undermines his credibility. [21] In addition, from the outset, the evidence submitted raised doubts regarding the appellant's sexual orientation. The appellant identified as a homosexual man when he was living in the Dominican Republic; he based his claim on that ground. Later, he identified as a bisexual man, due to his marriage to a woman in Canada. [22] In his memorandum, the appellant submits that he filed a document from XXXX XXXX regarding his termination (the appellant worked as XXXX XXXX XXXX from 2013 to 2016). He alleges that he was fired because of his homosexuality. However, upon reading this document, I note that it indicates that the appellant was fired due to "bad conduct". This document therefore does not confirm the appellant's sexual orientation. [23] Also, the appellant's testimony with respect to his visits to an organization that helps homosexual people in Canada was inconsistent and contradictory. [24] I consider this inconsistency to be significant, if not crucial, in assessing the appellant's lack of credibility. [25] The appellant testified that [translation] "at least 20 times" he visited an organization that helps homosexual people, at their location at 519 Bloor Street, in Toronto. [26] When the appellant was confronted with the panel's specialized knowledge (which the appellant's counsel agreed with) that there is no such organization at 519 Bloor Street, although there is one located at 519 Church Street, the appellant persisted in affirming that the organization is on Bloor Street. [27] However, the appellant was unable to name the organization. When asked how knew about it, the appellant answered that a friend told him he could learn [translation] "what it is to be gay" at the organization. The appellant was also asked how he first found out about the organization, to which he merely replied [translation] "a gay friend" but he was unable to name that person. It was only after the break, when questioned by his counsel, that the appellant finally indicated that the friend was named XXXX. [28] In my opinion, it is not credible that the appellant would be unable to name an organization he visited approximately twenty times, as he alleged. As the RPD noted, it also does not seem credible to me that the appellant would have needed to visit an organization to learn "what it is to be gay." I also note that the appellant filed no documents related to his visits to this supposed organization before either the RPD or the RAD. Moreover, when questioned as to why his friend XXXX did not come to testify for him, the appellant answered that he no longer has contact with him. [29] The appellant's wife did testify before the RPD. [30] The appellant's wife provided a short testimony. She was able to tell the panel only that the appellant told her about [translation] "having relationships other than with women." She quickly added [translation] "Who am I to judge whether it's right or wrong?" and also stated that the appellant is a good father to his family. I note that the appellant's spouse was unable to explain or provide details on her own reaction to what the appellant allegedly revealed to her. It appears improbable to me that the couple would not have had discussions on this important matter that were a bit more detailed. [31] In the appellant's memorandum, he submitted that the RPD erred by failing to consider the photographs filed in evidence that demonstrate that he participated in the gay pride parade in 2018 and 2019. [32] Even though the RPD made no mention of the photographs in its reasons, this does not invalidate its decision. I find that attending a gay pride parade as a spectator in no way demonstrates the appellant's sexual orientation. [33] Considering all of the above, I conclude that the appellant has failed to demonstrate that the RPD committed errors that would justify the RAD setting aside the determination. REMEDY [34] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the Immigration and Refugee Protection Act (IRPA) or a "person in need of protection" under section 97 of the IRPA. [35] The appeal is dismissed. (signed) Normand Leduc Normand Leduc November 5, 2020 Date IRB translation Original language: French RAD File No. / No de dossier de la SAR : TB9-34375 RAD.25.02 (January 2020) Disponible en français 3 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