MB8-18878

RAD File / Dossier de la SAR : MB8-18878 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision September 24, 2020 Date de la décision Panel Me Patricia O'Connor Tribunal Counsel for the persons who are the subject of the appeal Me Arvin Afzali Conseil des personnes 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 is a citizen of Honduras. She appeals a decision of the Refugee Protection Division (RPD) rendered on August 6, 2018, denying her claim for refugee protection. [2] The Appellant claims to fear persecution in Honduras from her former same-sex partner. She also fears risk of harm as a result of her sexual orientation. She submits that the RPD erred in finding her evidence lacked credibility and erred by failing to assess whether she established a sur place claim. [3] I allow the appeal; I find that the RPD erred by failing to address whether the Appellant established a sur place claim which is determinative of the appeal. Pursuant to s. 111(1) (c) of the IRPA, I refer the matter to the RPD for redetermination by a differently constituted panel. BACKGROUND [4] The Appellant claims to fear persecution from family members in Honduras because she is bisexual. [5] The Appellant also claims to fear her former girlfriend XXXX, with whom she lived from XXXX 2015 to XXXX 2016. In XXXX 2016, she went to stay with another friend after she was assaulted by XXXX XXXX XXXX also threatened to kill her after they broke up and the Appellant was threatened by XXXX friends. [6] On XXXX XXXX XXXX 2016, the Appellant left Honduras and went to the United States where she claimed asylum. [7] On XXXX XXXX XXXX 2017, the Appellant made her way to Canada where she made a refugee claim. [8] While mindful of the SOGIE Guidelines,1 the Appellant's claim was denied by the RPD based on overriding concerns with the credibility of the evidence. DETERMINATIVE ISSUE [9] The Appellant raises several issues on appeal. I consider that the determinative issue on appeal is whether the RPD erred by failing to consider a sur place claim. SCOPE OF THE RAD APPEAL [10] The RAD reviews decisions on a standard of correctness after conducting an independent assessment of the evidence before it.2 Deference may be required when the RPD enjoys a meaningful advantage in the assessment of the credibility of oral evidence.3 I have applied the correctness standard in the present case. ANALYSIS Sur place claim [11] The Appellant states that she fears her ex-partner XXXX in Honduras who threatened to kill her and subjected her to intimate partner violence. She also claims to be bisexual and says that she fears mistreatment by family members and others because of her sexual orientation. While mindful of the SOGIE Guidelines, the RPD dismissed the claim, finding that the Appellant did not credibly establish her allegations.4 [12] The Minister intervened in the case before the RPD, arguing that the Appellant is not credible. To support this assertion, the Minister submitted documentary evidence which included a copy of the Appellant's Facebook page. The Minister noted that the Appellant had recently deleted photos of her husband which were replaced by photos depicting the Appellant extending her arm towards another woman and placing her hand on the woman's buttocks. She also posted intimate photos of women. [13] It is not contested that the Facebook page belongs to the Appellant. Likewise, it is not contested that she modified her Facebook page, adding photographs which include women displaying affectionate gestures towards each other and the Appellant placing her hand on the buttocks of another woman. [14] On appeal, Counsel argues that notwithstanding the credibility concerns identified by the RPD, the Panel member erred by failing to assess whether the Appellant established a sur place refugee claim as a result of the information posted to her social media page following her departure from Honduras XXXX XXXX XXXX 2016.5 [15] I agree that the RPD erred by failing to assess the Appellant's sur place claim. [16] A "sur place" refugee is an individual who was not a refugee when leaving his or her country of origin but who becomes a refugee at a later date. As noted by the Federal Court in Kyambadde, this may arise "either because of some circumstance arising in the country of origin during the absence or because of some action of the individual while outside his country."6 [Emphasis added] [17] Section 96 of the UNHCR Handbook offers the following guidance: A person may become a refugee "sur place" as a result of his own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be in particular to whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities.7 [Emphasis added] [18] Turning to the present case, the RPD found that the Appellant's story of risk of harm from her former same-sex partner and extended family members is generally not credible and dismissed the claim. This being said, the RPD took no issue with the Minister's evidence which included information gleaned from the Appellant's Facebook page. As noted above, the Appellant concedes that she uploaded photographs of herself and other women displaying intimate gestures, following her departure from Honduras. [19] The audio recording of the RPD hearing reveals that the Panel member did confront the Appellant with information found in her Facebook page, challenging her to respond to the Minister's position that she had placed the photographs on her Facebook page in order to bolster her claim that she is at risk in Honduras based on her sexual orientation.8 However, once the RPD determined that her evidence lacked credibility, the inquiry ended and a sur place claim was not assessed. [20] With respect, this is where the RPD erred in its analysis. [21] It is well established that previous adverse credibility findings are not to be imported into the assessment of the sur place claim. Even if the RPD determined that the Appellant's allegations lacked credibility and she was opportunistic by posting the photographs to her Facebook page after leaving Honduras to create the impression that she is involved in same-sex relationships, it was still incumbent on the RPD to determine whether the evidence from her Facebook page can establish a genuine and well-founded fear of persecution for a Convention ground.9 Such a determination is based on a forward-looking assessment. This requires careful questioning of the Appellant and an analysis of her situation within the particular context of Honduras where documentary evidence describes the situation of sexual minorities as "precarious"10 given persistent social discrimination and physical violence directed at LGBTI persons.11 CONCLUSION [22] The appeal is allowed. Based on my independent analysis, I conclude that the RPD erred by failing to assess the Appellant's sur place refugee claim which is determinative of the appeal. Pursuant to ss. 111(1)(c) of the IRPA, I refer the matter back to the RPD for redetermination by a differently constituted panel. (signed) Patricia O'Connor Patricia O'Connor September 24, 2020 Date PO/lp 1 Chairperson's Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender identity and Expression, May 1, 2017 [SOGIE Guidelines]. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), paras. 78, 103. 3 Ibid, paras. 58, 59 and 70. 4 Exhibit RPD-1, RPD Record, RPD Decision, paras 59-60. 5 Exhibit RPD-1, RPD Record, Basis of Claim, Question 2(e), p. 30. 6 Kyambadde v Canada (Citizenship and Immigration) 2008 FC 1307, para 15. 7 The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, HCR/1P/4/ENG/REV.3 8 Audio recording of the RPD hearing at 2:11. 9 Ye v Canada (Citizenship and Immigration) 2015 FC 21, paras 15-16. 10 National Documentation Package (NDP) for Honduras, 31 March 2020, tab 2.8: ?Honduras: Information Gathering Mission Report. Immigration and Refugee Board of Canada. February 2018. 11 NDP for Honduras, 31 March 2020, tab 2.1: ?Honduras. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020, p. 19. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-18878 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français