MB7-06208

RAD File No. / No de dossier de la SAR : MB7-06208 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 April 24, 2019 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Souad Hamida Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION INTRODUCTION [1] The appellant, XXXX XXXX XXXX XXXX, a citizen of Benin, stated before the Refugee Protection Division (RPD) that after his arrival in Montréal, his brother discovered that he was homosexual and then told his family about it. This led his family and friends to reject him and turn their backs on him. He also stated that if he were to return to his country he would live in constant fear of being attacked or arrested.1 [2] The Minister of Immigration, Refugees and Citizenship (the Minister) intervened before the RPD and submitted that the appellant lacked credibility because, in fact, in his Facebook account it appears that he is still in contact with members of his family.2 [3] The RPD rejected the refugee protection claim, finding that the appellant was not credible with respect to his sexual orientation and alleged fear of reprisals should he have to go back and live in Benin.3 [4] The appellant submitted that being friends on Facebook did not mean he was still in contact with his brother. He stated that even though he felt betrayed by him, he did not want to cut off all contact, as he was trying to mend their relationship. Finally, he stated that the RPD could not undermine his credibility without submitting evidence to the contrary and that the RPD erred by rejecting his refugee protection claim.4 The Refugee Appeal Division dismisses the appeal. ANALYSIS OF THE APPEAL [5] After conducting my own analysis of the record, I find that the RPD enjoyed no meaningful advantage and it is the correctness standard of review that must be applied.5 After listening to the hearing recording,6 analyzing the evidence, and taking into consideration the Chairperson's Guideline 97 as well as the UNHCR Guidelines No. 9,8 I am satisfied that the RPD was correct in rejecting this refugee protection claim. Here is why. A. The appellant failed to establish that he is homosexual [6] Gender identity or sexual orientation is an essential component of human identity, and this issue must be addressed with sensitivity and diligence. The RPD may find that a person claiming to be homosexual is not credible, but it may not arrive at that finding without considering all the evidence, including that person's statements that that is indeed their sexual orientation. During a hearing, perpetuation of stereotypes must be avoided. It is appropriate to tactfully ask relevant questions and be understanding, not only of sexual practices as such, but also of societal disapproval of appearances, attitudes, and behaviours that are considered non-compliant with society's standards and cultural values.9 Throughout the hearing, the RPD did not rely on stereotypes and asked its questions in a respectful manner. In its decision, it states that it took into consideration the Chairperson's Guideline 9.10 [7] I am of the opinion that the RPD did not err in finding that the appellant had not established that he is indeed homosexual. At the hearing, the appellant responded to the RPD's questions about his first homosexual experience in Tunisia, and regarding his second homosexual experience in Montréal between XXXX and XXXX 2016. The RPD asked the appellant to explain whether or not he had evidence of the latter experience.11 These questions are relevant, and they help assess whether or not the appellant is a homosexual or a gay man.12 [8] It is true, under the Chairperson's Guideline 9, that the testimony may be the only evidence of sexual orientation, when no corroborating evidence is available.13 At the hearing before the RPD, however, the appellant stated that he had destroyed all interactions he had as part of that relationship between XXXX and XXXX 2016, but that he would contact the man in question again to demonstrate that the relationship had indeed taken place.14 Yet he submitted no evidence of this at the second part of his hearing before the RPD.15 Moreover, after the RPD gave him an extension at the second part of the hearing, the appellant still presented no evidence in this regard. [9] The onus is on the person claiming refugee protection to establish, on a balance of probabilities, the facts on which they base their claim, including sexual orientation.16 In his Basis of Claim Form (BOC Form), the appellant stated that he had come to Canada to complete a master's degree and [translation] "to freely experience his sexual orientation."17 When asked to submit evidence other than his own statement that he is homosexual to counter the doubt raised by the Minister's intervention that his family did not seem to have rejected him for his sexuality, the appellant introduced no evidence to prove that he is indeed homosexual. Yet he arrived in Canada in XXXX 2015, and it is now April 2019. In my opinion, in all that time, if the appellant were indeed gay and he came to a free country to freely experience his sexual orientation, he could have introduced such evidence. B. The Refugee Protection Division made a few errors [10] Although the RPD did not err in rejecting this refugee protection claim, I find it is necessary to point out that it asked certain questions and made certain comments that require correction. During the hearing, the RPD asked questions about sexual desires and practices the appellant had had during his adolescence.18 I am of the opinion that those questions were inappropriate, it being understood that the RPD enjoys no expertise whatsoever as a sexologist, psychologist, or even a psychoanalyst. Moreover, when it suggested to the appellant that he could introduce as evidence photographs or videos containing sexually explicit images,19 the RPD committed an error. In that respect, it should be noted that the Chairperson's Guideline 9 specifies that an individual should not be expected to establish their sexual orientation or gender identity through the use of sexually explicit photographs, videos or other visual material.20 CONCLUSION [11] For these reasons, I confirm the RPD's determination, namely that XXXX XXXX XXXX XXXX is not a refugee under section 96 or a person in need of protection under section 97 of the Immigration and Refugee Protection Act. [12] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette April 24, 2019 Date IRB translation Original language: French 1 The Basis of Claim Form (BOC Form) is reproduced at pages 9 to 18 of the Refugee Protection Division (RPD) record. 2 The Minister's notice of intent to intervene and the documents he introduced as evidence are reproduced at pages 113 to 122 of the RPD record. 3 RPD reasons and decision, May 15, 2017, pages 3 to 8 of the RPD record. 4 Appellant's memorandum, June 22, 2017, pages 10 to 15 of the appeal record. 5 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. Rozas del Solar v. Canada (Minister of Citizenship and Immigration), No. IMM-2645-17, Diner, November 14, 2018, 2018 FCA 1145. 6 Recording of the first part of the RPD hearing on March 7, 2017, 00:01 to 01:44:21. Recording of the second part of the RPD hearing on April 5, 2017, 00:01 to 31:03. 7 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, effective May 1, 2017. 8 United Nations High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/12/09, October 23, 2012, not paginated. This document is available on the UNHCR website. Although these guidelines are not binding, I am of the opinion that they are a valuable resource for the RPD and the RAD and are worth consulting. 9 Ibid., paragraphs 5 to 9, 15 and 23. 10 RPD reasons and decision, paragraph 16, page 5 of the RPD record. 11 Recording of the first part of the hearing, 36:00 to 50:30. 12 Chairperson's Guideline 9, supra, endnote 7, section 2.8: "Gay man: An individual who identifies as a man and whose physical, romantic and/or emotional attraction is primarily to other individuals who identify as men." 13 Ibid., articles 3.2 and 7.2.1. 14 Recording of the first part of the hearing, 50:30 to 51:20. 15 Recording of the second part of the hearing, 04:00 to 18:00. 16 Osikoya v. Canada (Minister of Citizenship and Immigration), No. IMM-5059-17, Norris, July 11, 2018; 2018 FC 720, paragraphs 60 and 61. Arreaga v. Canada (Minister of Citizenship and Immigration), No. IMM-996-13, Noël, September 25, 2013; 2013 FC 977, paragraph 45. 17 BOC Form, page 12 of the RPD record. 18 Recording of the first part of the hearing, 01:12:00 to 01:15:30. 19 Recording of the second part of the hearing, 16:30 to 18:00. 20 Chairperson's Guideline 9, supra, endnote 7, section 7.2.4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB7-06208 RAD.25.02 (April 04, 2019) Disponible en français 5 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