TB9-15999

RAD File / Dossier de la SAR : TB9-15999 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX (A.K.A XXXX XXXX XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision December 7, 2020 Date de la décision Panel Julie Ryan Tribunal Counsel for the person who is the subject of the appeal Adrienne C Smith 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] XXXX XXXX XXXX XXXX XXXX (A.K.A XXXX XXXX XXXX XXXX XXXX XXXX) (Appellant) is a citizen of Ghana. She appeals a decision of the Refugee Protection Division (RPD), dated June 4, 2019, rejecting her claim for refugee protection. The Appellant alleges that if she returns to her country, her community will physically assault or kill her, the police will not protect her because she is perceived to be a lesbian and claims to be seen as supporting lesbians. The Appellant confirms she is heterosexual. [2] The determinative issue in this appeal is whether the RPD erred in its assessment of the Appellant's credibility. The RPD found the Appellant was not a credible witness. The RPD did not believe the Appellant's story, because there were many omissions in her Basis of Claim (BOC) form and other inconsistencies with her oral evidence and documents filed in support of her claim. On appeal, the Appellant submits that the RPD failed to apply the principles of the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE)1; erred by making a microscopic analysis; and improperly assessing the documentary evidence. [3] There is another issue before the Refugee Appeal Division (RAD), the Appellant's affidavit refers to a possible denial of natural justice before the RPD, as a result of negligence of her former counsel. I also have counsel's response to the allegation on file. [4] From an administrative perspective, the Appellant did not provide proof of service on her former counsel or the waiver of privacy as per the IRB Practice Notice - Allegations Against Former Counsel2 as part of the perfection of her appeal. On October 26, 2020, the RAD registry requested that the Appellant provide proof of service on her former counsel. On November 5, 2020, her counsel acknowledged receipt of that request, and advised a response would be provided by November 20, 2019. The RAD, however, did not receive anything from the Appellant. As per my direction, on November 26, 2019, the RAD registry requested a copy of proof of service and the Appellant's waiver of privacy as per the previously mentioned IRB Practice Notice by December 2, 2020. On December 2, 2020, the Appellant's responded to my request with the proof of service and counsel's response was received. In addition, the response indicated that while the Appellant was not formally raising the issue of counsel competence, this did not change the Appellant's submissions that there were omissions made on the basis of advice given to her by her previous counsel, and that according to this response she was credible about explaining this. Attached to the response was the written notice sent by email dated July 22, 2019, by the Appellant's current counsel to the Appellant's former counsel, and his written response dated August 1, 2019, they received. The Appellant's former counsel did provide submissions, so he was aware of the allegations against him, and he served his response to the Appellant as he did to the RAD. I am satisfied that the Appellant served her former counsel as per the practice notice but she did not provide official written release of privilege, including solicitor-client privilege, to the extent necessary to allow former counsel to respond to the allegations as per the IRB practice notice. With the steps taken to serve former counsel and his response to those allegations of omissions, even without written waiver of client privilege she has granted her former counsel the ability to respond. The Appellant provided her former counsel's response and does not ask the RAD not to consider them. [5] While I agree that the Appellant's memorandum of arguments makes no stand-alone arguments of grounds of appeal of the allegation of denial of natural justice and focuses solely on the grounds of appeal previously mentioned. I have before me a sworn affidavit by the Appellant alleging a denial of natural justice against her formal counsel. There was notice given to her former counsel and her former counsel responded to the Appellant's affidavit. There is enough before me to identify this ground of appeal despite it not being clearly articulated based on the proof of service on the Appellant provided to her former counsel and his response she also received on August 1, 2019. [6] Despite her official lack of written waiver of solicitor-client privilege as per the IRB Practice Notice, she formally served him notice and gave him the opportunity to respond to her affidavit which he did. The lack of waiver of solicitor-client privilege does not in my view affect the outcome of my decision in this appeal or my ability to consider the new evidence before me. In addition to this, as outlined by Justice Blanchard in Canada (Citizenship and Immigration) v. Mahjoub,3 where a litigant relies on legal advice as an element of his or her claim or defence, the privilege which would otherwise attach to that advice is lost. I find that by raising the conduct of their former counsel before the RAD in the Appellant's affidavit, the Appellant in the circumstances of this appeal impliedly waived any right to solicitor-client privilege. I am also guided by Justice Manson in Mofreh v. Canada4 despite the facts in that case differing from this appeal, the main issues are the same, the Appellant being copied to her former counsel's response to the RAD, and was therefore fully aware of her former RPD Counsel's intention to respond to the Applicants' allegations referred to in her affidavit. The Appellant in the present case made no objection at any point in time to this response and as of December 2, 2020, provided former counsel's response to the RAD to presumably consider. I will, therefore, assess the Appellant's affidavit and former counsel's response as new evidence and address the issue of whether the Appellant suffered a denial of natural justice before the RPD, because of the negligence of her former counsel, as part of my overall credibility assessment. [7] For the reasons that follow, the RPD did not specifically demonstrate how the SOGIE Guideline applies in their reasons for decision, they did not need to apply the SOGIE Guideline because it does not apply to this present case. The RPD's assessment of the Appellant's credibility, and documentary evidence, was correct. The Appellant has not shown that it is more likely than not that she is perceived to be lesbian, or that she would engender that perception by allegedly working for and assisting of persons accused of being lesbian if she were to return to Ghana. I also find that the Appellant has not demonstrated that her former counsel inadequately represented her and, there is no reasonable probability that her former counsel's inadequacy influenced the RPD's decision; therefore, I do not find a breach of natural justice was made. DECISION [8] I dismiss the appeal and confirm the decision of the RPD, for other reasons, that the Appellant is neither a Convention refugee nor a person in need of protection. ROLE OF THE RAD [9] My role is to look at all the evidence and decide if the RPD made the correct decision.5 NEW EVIDENCE [10] The Appellant specified she wishes to introduce new evidence6 to the RAD. She makes no explanation in the Memorandum why the RAD should allow this new evidence. The Appellant's affidavit in part presents new evidence and I also have her former counsel's response to the affidavit she filed; therefore, I will consider whether these documents should be admitted as new evidence. There are two documents to consider: a) The Appellant's Affidavit sworn July 15, 2019;7 and b) Former Counsel's response to allegations of negligence and Schedule "A" attachment 8. The evidence presented is accepted in part [11] According to the law,9 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [12] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.10 [13] I accept part of the information in the affidavit, namely paragraphs 12 to 23, as meeting the statutory requirements for admissibility of new evidence and the jurisprudential factors of newness, relevance, and credibility. The information in the affidavit was not before the RPD at rejection and the Appellant could not have expected the interactions with her former counsel regarding the completion of her BOC and the information she provided to her former counsel in order to complete her BOC to be a concern for the RPD. The document appears to meet the factor of credibility on its face and is relevant, as the information in evidence a) speaks to the allegation against her former counsel and goes in part to the heart of this appeal. Item a) in part is, therefore, accepted as new evidence. Specifically, I admit paragraphs 12 to 23 of item a)11 because they meet the Singh and Raza12 factors while the remainder of the document does not. [14] I also accept item b) in part, specifically the former counsel's reply submissions, as meeting the admissibility factors of newness, relevance, and credibility. With the allegations being made in item a), it is also fair to allow the former counsel's response filed to be assessed. I accept item b) as it does meet the Singh and Raza13 factors. I do not accept the Schedule "A" of item b)14 as the document predates the RPD reasons for decision; it was already before the RPD as seen in the received stamp dated September 7, 2017; and it is also found in the RPD record. The Schedule "A" of item b) is, therefore, not admissible. REQUEST FOR ORAL HEARING [15] The Appellant has requested a hearing to be held under subsection 110(6) of the IRPA and requests that the hearing be held in English but makes no explanation in the Memorandum why the RAD should hold a hearing under subsection 110(6) of the IRPA.15 [16] Generally, the RAD must proceed without a hearing, based on the RPD proceedings. The RAD only has discretion to hold an oral hearing when there is additional documentary evidence and three statutory conditions are met. In this appeal, the Appellant is requesting that the RAD convene an oral hearing; however, there is no reason provided by the Appellant as to why one is needed. [17] I considered whether there is justification for a RAD hearing based on the information before me. I found the parts of the Appellant's affidavit admitted as new evidence meet the criteria for admission as new evidence. I do not find that evidence in those paragraphs raises an issue with respect to the credibility of the Appellant that is serious overall. It is not central to my decision, in the sense that I weigh the new evidence along with the remaining credibility evidence, and it is only one of several factors that would justify the rejection of the claim. I conclude that it is not necessary to examine this affidavit or to further question the Appellant at an oral hearing at RAD. The request for an oral hearing is denied. ANALYSIS The RPD did not error by not applying the SOGIE Guideline [18] To address the first argument of the Appellant, while the RPD did not demonstrate how the SOGIE Guideline was applied when assessing the credibility despite demonstrating sensitivities in the line of questioning. It is also not normally sufficient to simply state that it was considered as was done in this case.16 The SOGIE Guideline acknowledges the phenomenon of perceived or imputed sexual orientation.17 However, in this case, the RPD did not need to apply the SOGIE Guideline because specifically section 8.3 is not applicable to the circumstances of this case because they did not believe the core story and neither do I. As my reasons for decision continue, I will include how I assess the SOGIE Guideline to this appeal and despite the RPD not applying it, I will demonstrate that the RPD did not need to and neither do I and therefore it is not material to my decision or weigh in the Appellant's favour. RPD analysis of Appellant's credibility is correct Omissions and inconsistencies in BOC [19] The Appellant submits that the RPD erred in impugning the Appellant's credibility based on microscopic findings. The RPD found that the Appellant omitted relevant information from her BOC: the full names of the lesbian couple she was friends with; the names of the agents of persecution; the fact that she was threatened around 30 times before she was attacked; and that she was approached by her agents of persecution after the attack and they told her she was being monitored. These are individually assessed below. Omission of names [20] The Appellant submits that the RPD erred by making microscopic findings. The first issue I will address is the RPD finding that the Appellant omitted the names of her two lesbian friends in Ghana. The BOC reflects the Appellant noted XXXX and her partner.18 While testifying the Appellant said the names of the two lesbians, she befriended in Ghana are XXXX XXXX and XXXX XXXX XXXX, noting it was not an English name.19 She also said they were Asians from Nepal. The Appellant was also asked why she did not write the full names of the lesbian couple she was friends with or XXXX last name. She responded they didn't ask her.20 In response to why XXXX name was not in her BOC at all, the Appellant responded, she wasn't asked.21 [21] I agree with the RPD that the Appellant did omit the full names of the two lesbians she claims to have befriended; however, she did note XXXX and her partner in her BOC. While an omission, she was able to identify the names of the two women during the testimony. The RPD made the correct decision in concluding that the Appellant omitted the full names of the lesbians in her BOC form. Omission of names of agent of persecution [22] Again, the Appellant does not make any specific submissions on this finding despite overall arguing that the RPD erred by making microscopic findings. The Appellant did not identify in her BOC the names of the agents of persecution. During her testimony she said she fears a group of people in Legon, the community where she lived in Ghana, who said they would kill her and would let no one know about it.22 When further questioned by the RPD, as to whom the group was, she said there are a lot of them, one is called XXXX, one called XXXX, another name which I could not understand on the audio recording and another one called XXXX (sp).23 Since it's a group and she did not know all their names, she decided to mention a group24 and not name any in the BOC. When asked whether she knew anything about people in this group, she then mentioned someone else by the name of XXXX was one in XXXX.25 [23] The evidence demonstrates that the Appellant omitted other significant information in her BOC specifically the names of her agents of persecution. Her explanation to the RPD as to why she did not identify the names of these specific individuals in her community was again because she was not asked to. Her testimony demonstrates to me that she made a clear decision not to name any of the group because she did not know all their names. While I believe she could have identified some of them in her BOC form, she chose not to. The burden rests with the Appellant to prove her claim despite benefiting from the presumption of truth. In this case, I do not accept her explanation as to why she could not have provided more information in her BOC regarding the names she did know. I am interpreting her explanation ("they did not ask me") to be referring to the port of entry officer in Toronto and possibly her former counsel, though her testimony was not overly clear on this point. Noting that the questions are not meant to be specific in the BOC form to allow a claimant to provide their individual experience and reasons why they are seeking refugee protection, the BOC form does request specific information. Namely that the claimant's declaration as a claimant - DECLARATION A - must declare that the information she has provided in the BOC form is complete, true, and correct. She declared that she was able to read English and that she fully read and fully understood the entire content of this form and all attached documents. Her declaration has the same force and effect as if made under oath. The Appellant signed her declaration on September 6, 2017,26 and she did not use an interpreter. The Appellant used an interpreter for the hearing and her BOC form signed on September 6, 2017, was put before her by her former counsel. She was again showed page 10 of the BOC form and confirmed at the beginning of her hearing that despite not completing the form without an interpreter she confirmed she read it, understood it, and it is her signature on the form and the information in her BOC was complete, true, and correct.27 At no time did she testify that the questions in her BOC were not understood. For example, I find the Appellant omitted answers in question 2(b) as she did not provide the specific dates, or explain that she was threatened several times, or give the names of her assailants. Additionally, her Schedule "A" did not include most of the omissions identified by the RPD. I find, therefore, the Appellant omitted the names of her agents of persecution and this omission is significant as it goes to the heart of her claim. Without their identities initially, there is no way of knowing or comparing what she initially wrote in her BOC form to her testimony to test the credibility of her story at the RPD. [24] There is also contradictory evidence before me that could suggest that the Appellant once had a misunderstanding with some neighbours due to this issue of lesbianism in her purported cousin's (cousin) statutory declaration.28 The cousin's statutory declaration mentions that once the Appellant's neighbours used a sharp object believed to be scissors to hit her head which resulted in blood profuse from the head and she was taken to the hospital and treated. However, the cousin was not there to witness this attack and as such, I conclude that this information was given to her by the Appellant herself. Also, the cousin only makes mention of the Appellant once having a misunderstanding with some neighbours and there is no mention of ongoing threats to the extent the Appellant has described in her oral testimony. This declaration leads me to believe the Appellant's attackers were not just people in her community but were in fact her neighbours. I believe this is what she told her cousin which adds to her omission being relevant. This calls into question the Appellant's credibility with regard to basis for her allegation. The overall omission from her BOC and the contradictory evidence from her cousin, calls into question the credibility of the Appellant's allegations concerning the persecutors and the overall attack. The RPD made the correct decision in concluding that the Appellant omitted the names of her agents of persecution in her BOC form when she otherwise could have. Appellant omitted in her BOC that the community has threatened her or that she faced 30+ incidences she alleges and that she was approached by her agents of persecution after the attack and told she was being monitored [25] The Appellant argues that the RPD failed to note she testified that she did not remember the number of times she was threatened but agreed to 30 after several promptings from the RPD member. The Appellant accepts that she did not provide consistent dates of her attack, but she argues that the inconsistency was minimal; she was off by a month. [26] The Appellant did not identify in her BOC the fact that she was threatened around 30 times before she was attacked or that she was approached by her agents of persecution after the attack and they told her she was being monitored. Regarding these findings, she testified that her community first warned her in November 2016, around 11 o'clock one morning not to be friends with these two lesbians and if she didn't listen to their advice, she is also one of them. She clarified they were not advising her, they were threatening her, if she did not listen, they would do something to her. When they started talking to her, the first month, it was every other day. She eventually testified that it was more than 30 times that she was approached by this group from her community. She said she did not count but many times. She tried to explain to them and thought they believed her and did not take them seriously but when it continued, she took them seriously. When asked why her being approached about 30 times is nowhere in her BOC form, the Appellant said she mentioned that they approached her several times, she was not asked specifically by the RPD at her hearing.29 When asked to point out where in her BOC, it even said she was approached several times, the Appellant did not know but restated that she mentioned that they approached her several times but that she did not specify the number of times they approached her. [27] She then confirmed the last time they approached her was at the end of January, she could not remember the exact date, but it was after Christmas. She said she was out and about when five people approached her, telling her that they had told her several times to stay away from the two women and she must come back. She described the attack as they were talking and one of them took her head with scissors, she tried to call for help, they put her down and cut her hair. She saw blood coming from her head, they told her that next time they would kill her, and no one would ever know about it. They told her from now on, their ears and eyes were on her, all over the country and she should be ready and prepared to die anytime.30 It was pointed out to her that she identified in her BOC form that the incident took place on February 24, 2017, and she was asked why there were two different days being said at the hearing. She responded that she was confused by the dates, but she knows it was after Christmas or New Years, at the time she was not herself because she was afraid all the time and she did not know what was going on. Lastly, she said she sought medical attention at a big hospital and got local herbs for treatment for the head injury she sustained. I also noticed in item a) the Appellant only refers to the incident taking place in the early new year of 2017.31 On this issue, her cousin's statutory declaration32 also refers to a misunderstanding her cousin had once with some neighbours due to this issue of lesbianism. [28] While I am prepared to concede the inconsistency of a month for the date of the attack is minor, the fact remains, I have three different dates/times that this attack could have taken place. The fact that she did not identify in the BOC form that she was threatened more than 30 times to me is a very serious omission which carries significant weight. There is nowhere in her BOC form that indicates she was approached several times and her actions to these several threats or following the only alleged attack on her does not make sense to me and there is nothing to support her oral testimony. On appeal, the Appellant's item a) suggests her narrative is incomplete due to her former counsel's negligence. I will address that later in my reasons. It makes no sense why the Appellant who claims to have been threatened as much as 30 times if not more, would continue to put herself in that position by continuing to be friends with this lesbian couple until the time she left Ghana on XXXX XXXX, 2017. It also does not make sense that she would wait for so long to leave Ghana after the attack in early 2017 to leave or end her friendship with these two women. By arriving in Canada on August 22, 2017, she remained in Ghana without any further attacks for approximately six to seven months, went to Kumasi despite saying they knew she went. None of her actions support the fear she alleges. The Appellant also did not identify that she was approached by her agents of persecution after the attack and they told her she was being monitored, this is also a significant omission and weighs heavily against the Appellant's credibility. [29] It is also important to note that the Appellant's cousin's statutory declaration never mentions the Appellant faced ongoing threats at all let alone in the range of 30 times. Interestingly, however, the declaration does state that as a result of the Appellant's friendship with "these lesbian couples" resulted in unrest in their family. She states that some of the community people extended strong warnings to the family to warn the Appellant to desist from mingling with their family members and as a result her family was further warned that if they failed to do anything about the Appellant's connection to the said lesbians, she may be killed without any trace of her body and the cousin was personally vilified and maligned by three guys due to the Appellant's relationship with the lesbian couple.33 This declaration does not support the Appellant's testimony as the Appellant never mentioned her family was threatened, approached or warned that she should stay away from the lesbian couple. The fact that the Appellant did not mention her family involvement, further leads me to believe the cousin's statement is self-serving and embellished but contradicts each other's versions of events. For these reasons and others identified in my reasons, I do not place weight on her cousin's affidavit on this issue. [30] Lastly, it is clear to me that the Appellant knew being gay or lesbian is illegal in Ghana as her testimony suggests that she told the lesbian couple early on to be careful because of such. Despite that knowledge, and alleged numerous ongoing threats and attack, according to her testimony, she continued her friendship with these two lesbians. This also makes no sense to me and also calls into question the genuineness of her alleged imputed sexual orientation and her claim to be seen supporting lesbians. I do not believe the Appellant's story about these incidences and therefore draw a negative credibility inference. The RPD made the correct decision in concluding that the Appellant omitted the 30+ threats in her BOC form. No evidence of seeking medical assistance in Ghana [31] Another important factor for the basis of claim is that she alleges she received medical assistance in Ghana for her injuries. There is no documentary evidence of her going to any hospital in Ghana to seek medical assistance after being attacked in XXXX 2017. She testified that her attacker took a pair of scissors and cut her hair. She said she saw blood, so she went to the hospital, it was a "big" hospital and she used a herbal treatment. This was a concern for the RPD but not the overall reason for why this claim did not succeed. In item a), however, the Appellant states she sought traditional herbal treatment at a local hospital because she feared going to a public hospital and involving the police. The Appellant's arguments at paragraph 47 of the Memorandum of Appeal34 is wrong in part as to how it recounts the testimony because it contradicts what the Appellant told the RPD. While the treatment of her injuries is consistent, the Appellant testified to going to a big hospital and made no mention of it being local, public or that she feared involving the police. The Appellant's testimony is inconsistent. Presumably, had she gone to any hospital, there would be some documentary evidence of her doing so, there is none to corroborate her testimony. [32] The Appellant's cousin's statutory declaration which states, "my cousin once had a misunderstanding with some neighbours due to this issue of lesbianism and they almost killed her. Once the parties used some sharp object regarded to be scissors to hit her head which resulted in blood profuse form the head. She was taken to hospital and was finally treated."35 In my view, she could have been able to access and provide supporting documentary evidence of the fact that she sought medical attention in Ghana through her cousin who not only provided her an affidavit, but she has spoken to at least three times since she left Ghana according to other areas of her testimony. Overall, the Appellant has omitted very important information from her BOC form and could not reasonably explain why she did not include the details of the heart of her claim. Her ongoing excuse for omitting this information is that she was not asked about it which leads me to her identifying in item a) that links this due to negligence of her formal counsel. Allegation of former counsel conduct, on negligence [33] On the issue of the allegation of a breach of natural justice by her former counsel due to negligence, I reject the indirect allegation. There is a strong presumption that the counsel's behaviour is within the wide range of reasonable professional assistance. It is only in extraordinary circumstances that the incompetence leads to the conclusion that there was a breach of procedural fairness.36 To do that, it is necessary for the Appellant to demonstrate that there is a reasonable probability that, but for the errors of his counsel, the result of the proceeding would have been different.37 [34] The Appellant's testimony is unclear to me as to who did not ask her, she was interviewed by the Canada Border Services Agency (CBSA) and asked questions, and she filled out her BOC form. Her consistent response that "they did not ask her" does not point to her former counsel not asking specific questions which, in my view, is not relevant. The questions for her to ask are outlined in the BOC form itself which she signed was the correct information and she confirmed she read and understood, the English form. I have before me the questions38 the CBSA officer asked her when she entered Canada and made a refugee claim and the confirmation that the BOC form and other forms were provided to her to complete39 and filed with the RPD. [35] In item a) the "who" did not ask her about specific details becomes clearer to me, she specifies that she entered Canada with a false passport which she declared to the immigration officials at the airport when examined, upon making a refugee claim, she was given forms to fill out; her interview with immigration officials was short and they did not ask her about specific details.40 I acknowledge that the Appellant then shifts the blame to her former counsel in item a) she specifies that she met with her former counsel to complete the BOC narrative and he did not ask her specific questions like how many men attacked, how many times she had been threatened or XXXX and XXXX full names. His focus was the information she had told the immigration officers at the airport and advised her the information had to be the same.41 She acknowledges her former counsel told her the narrative was short and should contain more details but blames the fact that they ran out of time as it was due the same day and she could give more details at the hearing.42 Despite having met with him twice afterwards and being told she would have to provide specific details at the hearing, she claims to have never been advised she could amend her BOC to include more details. Had she been advised; she would have done so.43 She also states she was able to explain the details at her hearing without hesitation. [36] Her former counsel has provided a response to item a) and the alleged allegations of negligence. Former counsel outlined he asked her at least 3 times (September 6, 2017, September 12, 2017, and April 25, 2019)44 for additional information, but the Appellant never provided it to him. He affirms he never counselled the Appellant to leave details of her narrative to the day of her hearing but advised her statement had to be consistently provided to the CBSA at the airport and that she could include more details in the narrative than just the summary of account from the point of entry notes.45 He further states he advised her they could amend the narrative and if she received any further information she could send it to him for an amendment. Lastly, he did not amend the Appellant's BOC narrative simply because he was not provided with any additions from her to amend the BOC narrative.46 [37] I reiterate, the Appellant confirmed she read and understood the English BOC form, she was represented by her former counsel of choice and counselled that she needed more information and could amend her BOC form if she presented more information to her former counsel. Her former counsel claims he was surprised by her testimony at her RPD hearing, despite the fact that he made submissions on the relevant issues, such as the omissions, and included the testimony she had made. His actions and submissions on the determinative issue of credibility demonstrated that he acted in the Appellant's favour. Furthermore, his response to the indirect allegations against him, also demonstrates he shared his version of events and how he adequately represented the Appellant. Former counsel can only represent their clients to the best of the information that is provided to them. In this situation, I do not find fault of the former counsel or negligence on his part. I also do not find any fault of the immigration officer who has no stake in whether or not this Appellant is found to be a Convention refugee or not. I conclude that the Appellant, omitted key information in her BOC and narrative and I do not find her oral testimony as to why she did that a reasonable explanation. From my perspective, her omissions and overall inconsistency of evidence, seriously call into question her basis of claim and she did so knowingly and in the omission of not identifying specific names of the group, consciously made the decision not to include them. The Appellant has not convinced me in her testimony or through documentary evidence filed that I should believe her. It is not reasonably probable that the RPD decision would have been different for this issue. Despite the omissions not being before the RPD, there are many other contradictions, lack of probative evidence and lack of effort on her part to get any evidence to support her claim. I do not believe the RPD would have concluded differently. Based on the above findings, the Appellant was not prejudiced by her former counsel, and did not suffer a denial of natural justice before the RPD, as a result of the negligence of her former counsel. Appellant has not proven her link to the lesbian couple is more than assisting them and them paying her for it [38] The Appellant submits the RPD did not raise credibility with respect to the Appellant's friendship with the lesbian couple which, she argues, is the core basis of her claim. I find that the Appellant has not proven her relationship with the lesbian couple to the extent she testified and there is other supporting evidence to support at best a business type relationship that she appears to use to her benefit in Canada. I agree with the Appellant that the alleged friendship with the women could constitute a material aspect that is previously untouched by the other credibility findings of the RPD but I do not agree that she has established the nature of her relationship with them clearly which lead to the reasons she left Ghana and is seeking protection for the reasons below. The relationship is not determinative on its own. [39] The Appellant testified about her friendship with XXXX and XXXX. She said their friendship began when she initially met them at a big festival in Ghana, and they came to ask her about what was going on. They had met in the middle part of 2015.47 This led to them having a friendship for over a year, from the time they met until she left Ghana, whereby they were together every day. She said at first they wanted to learn and she was teaching them, but they also went out to watch ball games, partied to the market to buy groceries because they did not know the language and she was interpreting for them. She came to find out they were in a relationship together because they told her. She expressed to them to be careful because this type of relationship was not accepted in Ghana. Aside from the Appellant knowing these two women, there were two other Ghanaian women they were friends with. The Appellant said the community came to know about the two lesbians through those other two Ghanaian women they were talking to, who ended up spreading around the community thoughts of the Appellant's sexual orientation as lesbian. The Appellant was also asked why she did not provide any proof of her friendship with these two women, her response was that since she left Ghana, she only spoke to them once through the person she travelled with to leave Ghana. She has not spoken to them again. She does not have their number. She also clarified that "when I was in Ghana they were just friends and talking verbally not through the phone. Since, I left Ghana, I don't know if they moved or still there."48 Lastly, when asked about whether she asked anyone in Ghana to look for them, she said because she does not talk to anyone in Ghana and she does not know who knows these two women, she could not ask them to contact them for her.49 When faced with the fact that the Appellant's cousin in Ghana had provided her an affidavit and why could she not ask her cousin to locate these friends, she responded her cousin had only met them once at church when she introduced the women to her cousin and her cousin does not know where they live.50 She added that she does not trust anyone there so she could not.51 [40] The Appellant made no effort to locate these two women and her relationship to them is the basis of her claim. She herself claims to have been friends with them for over a year and other than their names, that they did not know the language being spoken in Ghana and that they were from Nepal, there is nothing else about these women that would make me believe the relationship the Appellant had with them would lead her community to believe she was a lesbian because they were or because she supported them with interpretation services for personal financial gain. Her cousin's affidavit on this issue was not based on her experience but what seems to be hearsay from the Appellant which does not add to the believability of the story. There is inconsistency in the Appellant's overall story and in the documentary evidence filed to support her basis of claim, particularly when faced with the cousin's declaration. For example, the cousin's affidavit contradicts the Appellant's testimony regarding whether her cousin had met the lesbian couple or not. The Appellant said her cousin met them in church once. The cousin's statutory declaration states that "The said lesbians identity and/or name was never revealed to me and due to the fact that the act of lesbianism is illegal in Ghana, the couples hardly show up in public in order to avoid attack from the public".52 Also, this statutory declaration indicates, "7. Somewhere in January /February 2017, XXXX XXXX XXXX XXXX XXXX XXXX (my cousin, herein) became a friend to a lesbian couple who were living in our community here in Accra. The said couples were said to be Asians."53 This directly contradicts the Appellant's testimony that she had met the lesbian couple in the middle of 2015 and not in early 2017 as the cousin's declaration states. Another example of contradiction is the fact that the Appellant claims to have gone in public every day with the lesbian couple while her cousin states the fact that the act of lesbianism is illegal in Ghana, the couples hardly show up in public in order to avoid attack from the public.54 [41] Even if she had financial gain from a relationship with two lesbians, other than her testimony, the contradictory evidence of when this friendship started is not credible evidence of her being friends with the alleged lesbian couple to the extent of time she claims or that there was ongoing imputed sexual orientation on her because of this friendship. While her testimony clearly links her many threats and sole attack to be as a result of her friendship with these two lesbians, she continues to be friends with them until she leaves Ghana and is not attacked again after early 2017 which is not consistent with her testimony that she was continuously threatened more than 30 times due to this friendship. Her alleged fear, if true, could not have been that serious if she continued a friendship with these two women that would place her in danger and it is inexplicable how it stopped all of a sudden after early 2017 since she confirmed she did stop her relationship with the lesbian couple. In this case, I would have expected corroborating evidence because her testimony calls into question her credibility and her actions make no sense. I, therefore, do not believe she had this relationship with a lesbian couple to the extent that she would be perceived as a lesbian or to be seen as supporting lesbians, and as a result the basis for her claim is not credible on the balance of probabilities. The RPD findings were not peripheral. The reason for looking at the cumulative findings is to determine if the whole story regarding the relationship with the lesbians is credible because it is material and the basis for her claim. In this case, the Appellant's story which is the basis for her claim is not credible. RAD need not apply SOGIE Guideline when imputed sexual orientation is not credible or believed [42] In this appeal, I turn to whether I need to apply the SOGIE Guideline. I do not find the Appellant has proven that she is perceived to be someone with diverse SOGIE because of an alleged association with two foreign lesbian women who were in Ghana that I do not find credible. Without the perceived diverse SOGIE, there is no application of the SOGIE Guideline required by me or the RPD decision maker had that conclusion been found. Therefore, in my view, section 8.3 of the SOGIE Guideline does not apply to her. The RPD was correct not to apply the SOGIE Guideline. The RPD properly assessed the documentary evidence Cousin's affidavit is inconsistent with the Appellant's oral testimony [43] The RPD addressed the documentary evidence. The RPD addressed the Appellant's cousin's affidavit in their reasons for decision noting the affidavit was detailed and partially spoke to what the affiant personally experienced. From my understanding, because it was sworn, the RPD placed a substantial amount of weight on this affidavit. The RPD found, however, that this affidavit was not enough to outweigh the other concerns outlined in their reasons regarding the Appellant's credibility. The Appellant submits that the RPD's reasons reflect a flawed assessment of the evidence as it placed high significance on microscopic findings and only conducted a cursory assessment of the highly relevant piece of evidence that corroborated the Appellant's claim (cousin's affidavit). [44] The cousin's affidavit was addressed above in many areas of my reasons and for those previously mentioned reasons, I find the RPD erred, on a balance of probability, for placing substantial weight on this affidavit because it contradicts the Appellant's oral testimony on key important facts including those regarding her imputed sexual orientation. I find the cousin's affidavit is not credible and also calls into question the overall credibility of the basis for this claim. This RPD error, however, does not change the overall fact that their credibility finding was correct. Argument's on evidence not filed or before the RPD is not considered by the RAD [45] The Appellant submits that although the Appellant did not provide mental health-related evidence about the impact of trauma on memory, this does not obviate the decision maker from assessing the context of a claim that may explain why the testimony is disjointed or disorganized. There is no evidence of any additional documentation or testimony by the Appellant's inexplicable disjointed or disorganized testimony and I do not believe the Appellant's arguments at RAD should be considered. It is clear from my overall assessment of the evidence before me, the Appellant's testimony was not credible. SUMMARY [46] Had the omission of names been the only omission, I would have found it to be a minor omission, nonetheless, once added to the other omissions made in this BOC, it becomes cumulative. Omitting the full names of the two lesbians is the start of many omissions which speaks to the heart of the claim, omission of her persecutors again basis for claim, and the consistent excuse she uses throughout her hearing is that she was not asked those questions points to the Appellant's story not being credible. As a result of the cumulative omissions and my other findings aforementioned, the RPD was correct in their finding that the Appellant was not credible. I have conducted my analysis under section 96 of IRPA due to the Appellant's alleged membership in a particular social group (persons perceived to be a lesbian in Ghana) and the clear link to the 1951 Convention relating to the Status of Refugees. Since this Appellant has failed to establish the credibility of her allegations, I find there is no serious possibility that she will face persecution in Ghana related to an imputed sexual orientation. For the aforementioned reasons, there is no need to conduct a separate section 97 analysis. I also find there is no breach of natural justice due to former counsel negligence. The RPD was correct. CONCLUSION [47] I dismiss the appeal and confirm the decision of the RPD, for other reasons, that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Julie Ryan Julie Ryan December 7, 2020 Date 1 Chairperson's Guideline 9: Proceedings before the Immigration and Refugee Board of Canada involving Sexual Orientation and Gender Identity and Expression (SOGIE), Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the IRPA, 1 May 2017. 2 Practice Notice - Allegations Against Former Counsel, signed by Richard Wex, Chairperson, August 27, 2018; in force September 10, 2018. 3 Canada (Citizenship and Immigration) v. Mahjoub, 2011 FC 887 (CanLII) at paragraph 10. 4 Mofreh v. Canada (Immigration, Refugees and Citizenship), 2019 FC 97 at paragraphs 30-31. 5Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 6 P-2, Appeal Record, Written Statement Concerning New Evidence at the RAD, page 4. 7 Ibid., Affidavit of XXXX XXXX XXXX XXXX XXXX sworn July 15, 2019, pages 19-22. 8 P-3, Former Counsel response, Former counsel's response to allegations of professional negligence, pages 1-9. 9 Subsection 110(4) of the IRPA. 10 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 11 Ibid., supra note 6, pages 20-21, paragraphs 12-23. 12 Ibid., supra note 10. 13 Ibid. 14 RPD-1, RPD Record, Schedule "A" of item b) pages 15-16. 15 Subsection 110(6) of the IRPA. 16 Ibid., supra note 14, RPD reasons for decision, page 4, paragraph 4. 17 Ibid., supra note 1, section 8.3. 18 Ibid., supra note 14, Basis of Claim (BOC), Schedule A, page 15, paragraph 3. 19 RPD Audio recording from May 23, 2019, proceeding, 29:39 to 30:37. 20 Ibid., supra note 19, 31:38. 21 Ibid., 32:02 22 Ibid., 23:43. 23 Ibid., 25:13. 24 Ibid., 26:16. 25 Ibid., 27:11. 26 Ibid., supra note 14, page 21. 27 Ibid., supra note 19, 06:30 to 07:48. 28 Ibid., supra note 14, Statutory declaration of XXXX XXXX XXXX, Appellant's cousin, pages 70-71, paragraph 13. 29 Ibid., supra note 19, 52:02. 30 Ibid., 55:16 to 59:16. 31 Ibid., supra note 6, Appellant's affidavit, page 20 paragraph 8. 32 Ibid., supra note 28. 33 Ibid., page 71, paragraphs 15 -17. 34 Ibid, supra note 6, Memorandum of Appeal, page 36, paragraph 47. (Note, the paragraphs are not in order throughout the memorandum). 35 Ibid. supra note 28. 36 Nagy v. Canada (Citizenship and Immigration) 2013 FC 640. 37 Jeffrey v. Canada (Minister of Citizenship and Immigration), 2006 FC 605; Zhu v. Canada (Public Safety and Emergency Preparedness), 2017 FC 626. 38 Ibid., supra note 14, Minister's Delegate notes, August 22, 2017, pages 31-33. 39 Ibid., page 30. 40 Ibid., supra note 6, page 20, paragraph 9. 41 Ibid., supra note 6, page 21, paragraphs 12-15. 42 Ibid., supra note 6, page 21, paragraph 16. 43 Ibid., supra note 6, paragraph 20. 44 Ibid., supra note 8, pages 1-2, paragraph 6; page 3, paragraph 11, and page 6, paragraph 24. 45 Ibid., supra note 8, page 2, paragraph 9. 46 Ibid., supra note 8,page 6, paragraph 27. 47 Ibid., supra note 19, 32:45. 48 Ibid., 42:08 49 Ibid., 44:00. 50 Ibid., 45:14. 51 Ibid., 45:51. 52 Ibid., supra note 28, page 70, paragraph 10. 53 Ibid., supra note 28, page 70, paragraph 7. 54 Ibid, supra note 28, page 70, paragraph 10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-15999 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français