MB8-02730

RAD File No. / No de dossier de la SAR : MB8-02730 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, QC Appel instruit / entendu à Date of decision September 19, 2019 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the person who is the subject of the appeal Me Moriba Alain Kone 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 OVERVIEW [1] This is the appeal filed by XXXX XXXX XXXX XXXX, a citizen of Togo, against the decision of the Refugee Protection Division (RPD) rendered on December 20, 2017, rejecting his refugee protection claim. [2] The male appellant, who is 23 years old, claims that he is persecuted because he is gay. He states that he was caught while having sex with his boyfriend on January 3, 2015. This incident was considered to be a scandal, and both of the young men were beaten up. The male appellant's parents subsequently insulted and rejected him, and his boyfriend was dragged naked and stoned to death. The male appellant submits that, on June 16, 2015, his uncle helped him leave the country for Ghana, where he remained in hiding while taking steps to obtain a visa to Canada. Several months went by, in part because his uncle was unable to pay for the application. Finally, he arrived in Canada on XXXX XXXX, 2016. As a gay man, he would fear for his life if he were to return to Togo. [3] The male appellant is asking that the Refugee Appeal Division (RAD), and I refer in extenso to page 27 of the memorandum: [translation] Set aside the negative decision rendered on December 20, 2017, in RPD File No. MB7-00222, by IRB member Jeannine Beaubien-Duque (RPD), who determined that the female claimant is neither a Convention refugee nor a person in need of protection; Order a new hearing before the RAD; Directly recognize that the female appellant is a Convention refugee; And Make any other order that this panel deems appropriate. [sic] [4] The male appellant is not asking to present new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA),1 and as previously mentioned, he is requesting that a hearing be held under subsection 110(6) of the IRPA. [5] On appeal, the male appellant submits the following arguments: 1. Did the RPD err in finding that the male appellant is not credible, using a higher standard of proof and excluding all the evidence? 2. Did the RPD breach procedural fairness? [6] With respect to the first item, the male appellant notes a number of points that I will address in my analysis. [7] The Minister's representative did not intervene on appeal. DETERMINATION [8] Under paragraph 111(1)(a) of the IRPA, the RAD confirms the RPD's determination, namely, that XXXX XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. [9] The appeal is dismissed. HOLDING OF A HEARING BEFORE THE REFUGEE APPEAL DIVISION [10] The male appellant is asking the RAD to hold a hearing pursuant to subsection 110(6) of the IRPA. Subsection 110(6) of the IRPA provides that the RAD may hold a hearing if, in its opinion, there is new admissible evidence that meets the three conditions set out therein.2 In this case, I am of the opinion that there is no cause to hold a hearing since no new evidence has been submitted and found admissible pursuant to subsection 110(4) of the IRPA. [11] For this reason, the request to hold a hearing before the RAD is denied. ANALYSIS Scope of the appeal [12] For questions of fact, of law and of mixed fact and law, the RAD must apply the standard of correctness in accordance with Huruglica.3 [13] I conducted an independent analysis of all the evidence on the record, after listening carefully to the hearing, in order to form my own opinion on this refugee protection claim and to determine whether the decision rendered by the RPD is correct. [14] The RAD would like to point out that it considered Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. [15] Having reviewed all the testimonial and documentary evidence on the record, the RAD makes the same finding as the RPD, namely, that the male appellant is not credible. [16] The male appellant is of the opinion that the RPD failed to properly assess his credibility and that the effect on the decision is that the male appellant would not be persecuted in his country. [17] The very essence of this case lies in the male appellant's credibility. [18] Having listened to the recording, I must note that the male appellant's testimony was not very thorough; he provided vague and incomplete answers. [19] The first topic in the memorandum is the evidence. The male appellant notes that the RPD did not analyze all the evidence. He relies on the fact that the RPD failed to demonstrate that the male appellant did not establish his identity as a gay man, conducted a simplistic analysis based on stereotyping the situation in that country, based its decision on third-party behaviour and that the documents were not given any probative value. [20] The RPD's reasons indicate that it was implausible that the male appellant's friends caught him in the act while he was having sex with his lover and that his testimony lacked detail concerning the stoning of his lover. The reasons also state that there was a lack of credibility in his allegations that his family did not know where he was hiding, even though he was staying with an uncle, and that the male appellant's passport contained wet stamps, which contradicts that he allegedly stayed in Ghana for a year and a half. [21] The RAD would like to begin by pointing out that the male appellant described part of his life with little intensity, acuity or feeling. It should be noted that his problems began with the alleged incident of January 3, 2015. He was detached while recounting everything surrounding this central element, which is the source of his problems. As a result, the RAD cannot give any credibility to those day-long incidents. [22] He testified that it was the birthday of his lover, XXXX, on January 3, 2015, and that they were celebrating. At the same time, the male appellant had an important soccer practice in preparation for a game the following day. Given that the captain and his teammate noticed that the male appellant did not show up for practice, they arrived at XXXX home unannounced and caught them having sex; at this point, the explanations provided by the male appellant do not hold water. The RPD member asked the male appellant why the captain did not try to reach him on his cellphone. He testified that the team was looking for him. The male appellant then stated that he uses his cellphone, but added that they did not reach him then. It is ironic that the male appellant did not show up for practice and that there was no communication to determine what had happened to him and that after the practice, when it was too late, they tried to look for him or even go to his lover's home. It is inconsistent. The club's coach and his teammate did not try to search for him at his parents' home, at his place, but rather snuck into his boyfriend's residence unexpectedly, even though this relationship was kept secret. He added that they probably went to his home, but that they decided to go to XXXX home. [23] What is more ironic and contrary to his testimony on homosexuality in his country, which is taboo, prohibited and condemned, is that the male appellant and his lover started to hug one another and make love after they had eaten and drunk. Although the male appellant described a situation in which homosexuality is despised, they did not think about locking the front door of the home where they were, even though they were frolicking and having sex. He then alleged that he was bullied by the two individuals and was able to flee the area. [24] That is where the problem lies. The sequence of events presented to the panel is hardly acceptable. He had an important practice in the afternoon for a game the following day. The appellant did not show up, no one had heard from him, his trainer did not contact him to find out why he was absent, and then they went to look for him. In addition, the male appellant and his lover had sex without ensuring that they had locked the front door to protect themselves. That is almost implausible in the situation and conditions in which homosexuality is punishable and not tolerated or accepted in Togo. In the circumstances, a simple warning would have been helpful for the two young men to have locked the door. [25] This incident in the male appellant's account and the explanations provided significantly undermine his credibility. It undermines the case, and I have doubts about this relationship and his sexual orientation. [26] Another point raised in the appellant's testimony concerns the horrible way in which his lover, XXXX, was stoned to death. Apparently, after his relationship with the male appellant was discovered, XXXX was dragged into the street, and the residents in the neighborhood threw rocks at him until he died. The male appellant's uncle gave him this tragic news. When asked whether newspapers had reported this incident, the male appellant answered in the negative, despite the interest in the story. No evidence was filed in that regard. The male appellant then continues his account by stating that he called XXXX on his cellphone. Noticing that an error was made, he states that he wanted to verify whether his lover had died. When the panel asked him whether he had contacted XXXX family to tell them about the death of their only son, he responded no. This conduct is surprising because he wanted to contact XXXX, even though he knew that he was dead, and he did not tell XXXX parents, who had just lost their only son. That undermines his case. [27] Another point raised at this hearing concerns the male appellant's absence from the family home. He testified that after the incident of January 2015, his uncle, who had helped him with all his steps, allowed him to stay in a small apartment until he could find a solution. During the five-month period when the male appellant was in hiding, his parents did not know anything. He states that he left the country for Ghana from XXXX 2015 until XXXX 19, 2016, that is, absent from his country for over a year and a half. His uncle hid the appellant's whereabouts from his parents. He claims that he did not come out of hiding, but subsequently acknowledged that he had gone to the embassy for his Canadian visa and to obtain his passport. In the documents filed on the record, there is an acceptance from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX to complete a bachelor's degree in XXXX. What is surprising in his testimony is that the male appellant did not know where he had to study. When he was told that he has to study in Rimouski, he appeared to be shocked. He stated that he did not know that it was a city. He did not know in which province the city of Rimouski was located. Moreover, during the hearing, he was also unfamiliar with the city of Bas-Saint-Laurent. He added that people speak English in that city and lastly, that he was unsure about what had transpired. [28] The RAD is astonished to hear the appellant's comments about his future university in Canada. Despite the fact that he stated that his uncle, with the help of a man, had prepared everything for him, it should be noted that he had an interview at the Canadian embassy in Accra and that the authorities must have asked him a few questions about going to Canada. When he arrived at the Montréal airport, the appellant was most likely asked about his studies in Rimouski. [29] In spite of all this, more importantly, the male appellant's passport contains wet stamps. There is an exit stamp from Togo on XXXX XXXX, 2015, a return to Togo on XXXX XXXX, 2015, and finally, he left on XXXX XXXX, 2016, for Canada via London. The stamps in his passport contradict the account and testimony heard at the hearing. I can only conclude that the male appellant returned to Togo from XXXX XXXX, 2015, until his final departure on XXXX XXXX XXXX 2016. Once again, this significantly undermines the account submitted. This negates the fear of his family and society in general. In addition, he required protection from Canada on January 9, 2017, after several weeks in Canada. This delay in claiming undermines his subjective fear. [30] The RAD will analyze another point raised in the male appellant's memorandum. He states that the RPD used a western approach (French) in analyzing the male appellant's situation while disregarding the social realities in Togo. He refers to his parents' specific address and imagines that French solutions were used in this case. With respect for the contrary opinion, the RPD addressed questions to the male appellant concerning the forms that he himself presented to the Canadian authorities to obtain his visa. A form requires the addresses of individuals, an email address, etc. It is not a Western concept, let alone French; it is unclear why the Canadian authorities' questions would be considered to be French. In any event, the male appellant or someone else satisfactorily completed the forms because the male appellant obtained the required visa. [31] The second point raised in the memorandum concerns procedural fairness. He notes that the RPD did not keep the documents provided and that it ignored or rejected all the evidence. The evidence submitted contains primarily photographs, Facebook exchanges and letters of support. The photographs do not show that the male appellant is gay, the Facebook exchanges are weak evidence and the letters of support have not been authenticated. There is a medical prescription, which is illegible. [32] The RAD is of the opinion that considering the testimony, errors, implausibilities and contradictions concerning the place of residence, the documentary evidence submitted cannot offset these weaknesses. I am of the opinion that there was no breach of procedural fairness in this case. [33] Accordingly, the RAD is of the opinion that the RPD did not err. [34] For the reasons set out in this decision, the RAD is of the opinion that the RPD rendered the correct decision. REMEDY [35] For these reasons, the RAD confirms the RPD's determination that XXXX XXXX XXXX XXXX is neither a "Convention refugee" under section 96 nor a "person in need of protection" under section 97 of the IRPA. [36] The appeal is dismissed. (signed) Michel Jobin Me Michel Jobin September 19, 2019 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act (S.C. 2001, c. 27). 2 M.C.I. v. Singh, 2016 FCA 96, paragraph 51. 3 Canada (Citizenship and Immigration) v. Huruglica, Bujar (FCA, No. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-02730 RAD.25.02 (April 4, 2019) Disponible en français 9 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 (April 4, 2019) Disponible en français