TB4-03715

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 File No. / N° de dossier de la SAR : TB4-03715 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 1, 2014 Date de la décision Panel Deborah Morrish Tribunal Counsel for the person(s) who is(are)the subject of the appeal Robin Edoh Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre Reasons and Decision [1] XXXX XXXX XXXX XXXX XXXX (the Appellant), a citizen of Ghana, is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and substitute its own positive decision, or to refer his claim back to the RPD for redetermination by a differently-constituted panel. An oral hearing is requested. The Minister has not intervened on the appeal. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the oral decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant is a 30-year-old citizen of Ghana, who is a trained Christian Pentecostal pastor. He alleges that he was insulted, mistreated, booed and threatened with death because of his sexual orientation as homosexual. He fears church members, his family, and members of the community. He alleges that, on XXXX XXXX, 2012, a mob action was to be taken against him because he had made sexual advances to a male member of the congregation by the name of XXXX, during which the Appellant hugged and fondled him. XXXX rejected him and exposed his sexual orientation. This encounter took place in XXXX 2012. The church congregation decided to launch an investigation into the incident. The Appellant had also been granted a Temporary Resident Visa to visit Canada in XXXX2012. He decided not to wait for the outcome of the investigation and left Ghana on XXXX XXXX, 2012, arriving in Canada the following day. He made a claim for refugee protection in January 2014. [4] The Appellant's claim for refugee protection was heard on March 24, 2014. The RPD rendered written reasons for decision, rejecting the claim, on April 8, 2014. The RPD found that the Appellant did not establish, on a balance of probabilities, his identity as a homosexual man nor the credibility of the events which he alleges precipitated his flight from Ghana. The Pleadings [5] The Appellant submits in a Statement provided on appeal, pursuant to RAD Rule 3(d), that the RPD erred in issues of fact and in an issue of law. The Appellant states that he is submitting new evidence, however, all of the evidence submitted was evidence that was before the RPD and is not new pursuant to s. 110(4). Given that it already forms part of the RPD record, it has been considered. [6] The Appellant has requested an oral hearing. The RAD has been empowered by Parliament to confirm the decision of the RPD, to substitute a determination that the RAD believes that the RPD should have made or to refer the matter back to the RPD to be reheard. Section 110(6) also provides that the RAD may consider holding an oral hearing in limited circumstances when "new" evidence, which meets the meaning of "new" for the purposes of the RAD, is set out in s. 110(4). If evidence does indeed meet the s. 110(4) test, the RAD considers the evidence in the context of the following factors: credibility, newness, relevance and materiality. There is no provision for the RAD to hold an oral hearing in any other circumstances. In appeals where the test for "new" evidence is met, the RAD may hold an oral hearing. Given that there is no new evidence provided for the RAD's consideration in the case at hand, this request for an oral hearing is denied. [7] In his record, the Appellant has provided an Affidavit. In his Affidavit, the Appellant sets out the facts of his claim. It is submitted that it was unfair for the RPD to have concluded that his evidence lacked credibility. It also states that the Appellant testified at his hearing that he travelled to South Africa and South Korea for religious reasons and that the RPD erred in concluding that he had been granted a visa to South Korea but had never travelled there. The Appellant states that he had provided credible evidence corroborating his testimony such as documentation from the XXXX XXXX XXXX XXXX XXXX corroborating his membership there, a letter of support from his pastor with whom he resides in Canada and documentary evidence chronicling the homophobia which exists in Ghana. He concludes by stating that the RPD was "perverse, unreasonable, unfair and capricious" and that the reasons are insufficient and inadequate to support the decision. [8] In the Appellant's Memorandum, it is submitted that the RPD failed to consider reasonable explanations offered by the Appellant "in describing his sexual preference and his encounter with XXXX, his church congregation and the entire community in Ghana". The Memorandum does not point out specific examples in the evidence and findings of fact which demonstrate this. It is also submitted that the RPD committed a fundamental error when it failed to place weight and trust on the documentary evidence before it. [9] The RAD finds that the Memorandum is deficient, as it does not point out specific examples of errors in the RPD decision which demonstrate this as required by RAD Rule 3(g). Nevertheless, I will go on to assess the RPD's reasons and determine if they are eligible. The RPD's Findings [10] As directed by the recent Federal Court decision in Iyamuremye1, the RAD has considered the totality of the evidence, including the CD recording of the RPD hearing, the RPD's decision and the evidence that was before the RPD when this decision was made. While not as clear as it could be, a reading of the RPD reasons as a whole indicates that the Appellant's behaviour since the encounter with XXXX is indicative of a lack of subjective fear. The implication of his actions was sufficient enough to damage the credibility of the claim and lead the RPD to find that his credibility was so significantly damaged by these actions that the RPD did not believe the Appellant's sexual identity as alleged. [11] To begin, the Appellant's delay in making a claim for refugee protection after his arrival in Canada is, in the RAD's view, quite significant. While the RPD comments on this delay, there is no clear finding with respect to the length of the delay, which is more than one year. In addition, the date of claim is erroneously stated in the RPD's reasons as being in "XXXX 2012", which could obviously be considered as a typographical error given that his date of departure from Ghana was XXXX 2012. [12] The Appellant was questioned about why he failed to make a refugee claim at the airport upon his arrival in Canada. The Appellant reasonably explained that he did not know what to do, that he was afraid of being treated differently had it been known that he was gay, and, in any event, he arrived with a valid Temporary Resident Visa. This explanation may have been sufficient had the Appellant made his claim in a relatively short period of time thereafter; however, he did not approach an immigration office for more than one year to make the claim. Instead, he applied to renew the visa and testified that he did not know what to do, that he did not know that he could ask for refugee status at the airport upon arrival, that he was phoning home in an effort to find out, and that he had to wait for 16 weeks to find out whether his visa had been renewed. It was not until XXXX 2013 that he consulted an immigration consultant. [13] It was open to the RPD to find that, given that the Appellant was an educated pastor who is fluent in the English language and with travel experience, he would have presumably had the skills to make enquiries as to how to make a refugee claim and to have done so even before coming to Canada. Given that he had not claimed refugee status, once his visa expired, he could be deported; the RAD finds that his behaviour is not indicative of an individual who credibly fears for his life back in his country of origin. [14] Another element of the Appellant's behaviour which also erodes his credibility is the fact that, although he had a Temporary Resident Visa from XXXX XXXX XXXX 2012, he did not leave Ghana until there were only three days remaining during the six-month period he could have travelled. The Appellant's Basis of Claim (BoC) form states, at question 2(f), that, in the beginning, the congregation did not believe the allegations against him, but when XXXX father gathered pastors from surrounding churches to interview XXXX, he confirmed the advances that the Appellant had made to him. However, it was not until XXXX 2012, some six months later, that the pastors decided to confront the Appellant. [15] It appears that it took the church congregation about six months to deliberate on the matter before summoning the Appellant and threatening him with being paraded naked around the community. The RPD asked the Appellant why he did not seek safety sooner. The Appellant explained that he did not know where to go, had already paid an agent and needed time to find the funds to travel. While not stated as clearly as it could have been, it is apparent that from a reading of the reasons that this explanation was inadequate and that the RPD drew a negative inference from the Appellant's failure to leave Ghana as soon as he knew that the church investigation was being launched and that his safety was in danger. The RAD concurs with this finding, given that the Appellant is a mature adult who is educated and who had international travel experience. [16] The RPD also takes notice of the fact that the Appellant provided untrue information to Canadian Immigration officials when applying for the visa in the first place. The Appellant applied for the visa on XXXX XXXX, 2012, and it was issued on the same day. However, other than stating that he was following the agent's instructions, there was no satisfactory explanation proffered by the Appellant to explain why he would have had to have been untruthful to Canadian officials by telling them that he was accompanying the chief of a traditional area as an aide so that the chief could visit a friend for one week. The RAD finds that it is not unusual for those seeking asylum to provide whatever information necessary to Canadian officials abroad in order to secure their departure from their country of origin. As a result, the RAD finds that this evidence does not further detract from the Appellant's credibility with respect to the alleged reasons why he left Ghana. [17] He also testified that he got a hint from one of the members of the congregation that the church was against him in XXXX 2012. When asked by the RPD why this point does not appear in his BoC form, the Appellant stated that he thought that it was irrelevant. Furthermore, when asked when he began to think that his life was in danger, he stated XXXX XXXX, the day he was confronted by the congregation. The RAD finds that this inconsistent evidence, which is not adequately explained by the Appellant, negatively impacts the credibility of the facts as alleged. [18] The RPD found that, prior to coming to Canada, the Appellant had numerous visas affording him an opportunity to travel from Ghana. Although multiple applications to visit the U.S. and the U.K. had been denied, the Appellant had been granted visas to South Africa which he had visited three times. He had been granted visas to Spain in 2012, which he did not use to travel because, due to the investigation being carried out by the church at the time, it refused to sponsor him. In the BoC (page 23 of the Appellant's record), it states: At the commencement of the investigation in XXXX, I decided to have an alternative plan just in case the matter became widespread on the community. One of the senior pastors who was sympathetic with my cause decided to send me to South Korea for religious duties. I knew what would happen to me if the church members decided to take it further. [19] Citizenship and Immigration Canada (CIC) documents completed at the time of his claim indicate that the Appellant did, in fact, travel to South Korea on XXXX XXXX, 2012 and returned to Ghana on XXXX XXXX, 2012. It is clear that the Appellant did travel to South Korea and return to Ghana during a period of time when the investigation into his encounter with XXXX was taking place. Given that the reasons for the re-availment were not canvassed by the RPD, insufficient evidence exists for the RAD is unable to make any findings in this regard [20] While not as clear in its reasons as it could have been, it is evident that the RPD assigned little weight to a letter from XXXX XXXX XXXX2 or to a welcome letter and membership card from the LGBTQ community center known as "XXXX XXXX"3. With respect to the XXXX letter, as the Appellant testified at the RPD hearing, the XXXX has no first-hand knowledge about the Appellant situation in Ghana given that he only knows that which the Appellant has told him. It is for that reason, along with a lack of compliance with the RPD Rules on witness applications, that a last-minute request to hear testimony from the Pastor was denied. The RPD accepted that the Appellant was a member of the XXXX and that he attended a support group there but that the RPD does not find that this establishes his sexual orientation. The RAD concurs with this conclusion given the lack of credible fear suggested by his previous actions. [21] The Appellant also argues that the RPD erred in law by not considering the totality of the evidence before it; however, no specific examples of the RPD's failure to make findings on a certain area of evidence were provided. Having considered the RPD's reasons, the oral evidence provided at the hearing and the documentary evidence, the RAD finds that there is no substantive indication that the RPD did not consider all of this evidence. In the absence of a clearer demonstration of the RPD's shortcomings, the RAD finds that the RPD did not err in law because it did consider the totality of the evidence before it. [22] A recent judicial review of the RAD decision in Alvarez4 elucidates the role of the RAD. The decision refers to the broad powers of the RAD as not being limited to considering whether the conclusion of the RPD was reasonable. The court suggests that as an administrative tribunal, the RAD should not apply a "standard of review" which is a judicial standard but rather a "standard of intervention". In applying this standard to questions of fact or questions of fact and law, the RAD should be assessing the findings for a palpable and overriding error. The purpose of the RAD is clearly not to provide a de novo hearing but to show deference to the RPD who heard the evidence first-hand in reviewing the findings of fact based on an examination of the entire body of evidence. The RAD finds that, in the case at hand, the RPD has approached a palpable and overriding error by focusing the questioning and the incumbent findings on the more peripheral issues such as delay in claiming, delay in leaving Ghana, the address of the claimant's residence in Ghana or the basis on which he obtained a Temporary Resident Visa. It would have been more relevant to the basis of the claim if, for example, the RPD had sought testimony with respect to the precipitating event, more details regarding the alleged agents of persecution or the level of knowledge or reactions of the Appellant's sexual orientation by his parents and brothers. However, even in the absence of such evidence, the RAD finds that the accumulation of all findings made by the RPD restrain the RAD from referring the matter back to the RPD or substituting the determination. Having assessed the entirety of the evidence, the RAD concludes that the RPD reasons for decision do not rise to the level of palpable and overriding error. CONCLUSION [23] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Deborah Morrish" Deborah Morrish August 1, 2014 Date 1 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494. 2 Exhibit C-7 3 Exhibit C-2 4 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 FC 702. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-03715