TB8-10506

RAD File / Dossier de la SAR : TB8-10506 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision September 24, 2020 Date de la décision Panel Ron Liberman Tribunal Counsel for the person who is the subject of the appeal Letebrhan Beyene Nugusse Barrister and Solicitor 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 citizen of St. Lucia, appeals a decision of the Refugee Protection Division (RPD) dated April 19, 2018, rejecting her claim for refugee protection on the grounds of credibility. I have conducted an independent analysis of all the evidence concerned, including the entire Appellant Record and the oral testimony. In reaching my decision, I have considered and applied the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (Gender Guidelines) and the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guidelines).1 I find that the RPD erred in its credibility findings, and that the Appellant is a Convention2 refugee under section 96 of the Immigration and Refugee Protection Act (IRPA).3 BACKGROUND [2] The Appellant alleges her life is at risk in St. Lucia because of her sexual orientation as a bisexual woman, and because she fears for her life at the hands of her former boyfriend and persons from the community of XXXX XXXX XXXX XXXX XXXX, St. Lucia. RPD findings [3] The RPD found the Appellant failed to establish her sexual orientation, on a balance of probabilities. The RPD found numerous credibility problems with the evidence of the Appellant, and that the affidavits and letters provided in support of her claim were insufficient to overcome its negative credibility findings. The RPD assigned little weight to a psychological report as it was based on self-reporting, and the Appellant had failed to establish the truth of the allegations made in it. Appellant's arguments [4] The Appellant argues that the RPD erred in its credibility concerns and denied the Appellant procedural fairness when it failed to put its concerns directly to the Appellant in the hearing. The Appellant also submits the RPD erred because it failed to examine the totality of the evidence before it decided the credibility of the claim. The Appellant submits the RPD then used this conclusion about the credibility of the Appellant to discount the credibility of all the evidence supplied; moreover, evidence of a new same-sex relationship in Canada suffices to establish that the Appellant is a Convention refugee. NEW EVIDENCE [5] The Appellant supplied three items of new evidence: a) An affidavit from her current same-sex partner in Canada, dated XXXX XXXX XXXX 2018; and, b) An affidavit from her friend in St. Lucia, dated XXXX XXXX XXXX 2018; and, c) A letter of support from a friend in Canada, dated XXXX XXXX XXXX 2018. [6] To decide whether to admit this new evidence, I must consider the requirements of section 110(4) of the IRPA4 to determine whether this is evidence that arose after the rejection of the claim, or was not reasonably available when the claim was rejected, or is evidence which the Appellant could not reasonably have been expected to present at the time of the rejection. If I find that the evidence meets the test in section 110(4), I must also, in order to admit it, determine that the evidence meets the modified factors of credibility, relevance and newness as specified in Raza5 and Singh.6 The Appellant is required to explain how the new evidence that has been provided meets the requirements of section 110(4), as is clarified in Tiodumo.7 [7] I find that item a) of the proposed new evidence arises from a relationship which commenced when the affiant met the Appellant in XXXX 2018 and their first date was a week later, that they "officially started dating"8 in XXXX 2018, and that the relationship was confirmed to be a serious one in XXXX 2018. Counsel submits that this new evidence was not available at the time of the hearing because the Appellant had not yet met her partner, therefore this is a new development which occurred after the hearing. [8] I find this submission of Counsel is in error because the relevant date for determining whether evidence is admissible under section 110(4) of IRPA is not the date of the RPD hearing; rather, it is the date on which the RPD rendered its decision. While the RPD concluded its hearings into this claim on September 25, 2017, the decision was only rendered on April 19, 2018. The affidavit does not state on what date in XXXX the relationship became a serious one. The evidence therefore does not establish whether the relationship became a serious one before or after the RPD decision. The affidavit also does not state the day in XXXX when the affiant and the Appellant first met, so I conclude that their first date occurred in XXXX 2018 or in XXXX 2018. [9] I find however that the Appellant could not reasonably have been expected to provide this affidavit prior to the RPD rendering its decision. The Appellant had provided evidence of her prior same-sex relationship at the RPD hearing. The Appellant could not reasonably have been expected to provide evidence of this new relationship to the RPD before it became serious, when she thought the RPD might allow her claim, based on the evidence she had provided at the hearing. Additionally, although it is unclear when in April the new relationship became serious, even if that occurred prior to the RPD rendering its decision, there would only have been a short period of time available to the Appellant after the relationship became serious to obtain an affidavit that she was in a same-sex relationship and file it with the RPD. I therefore find this affidavit meets the requirements of section 110(4). I also find it meets the modified Raza criteria. As an affidavit it is credible on its face and therefore meets the Raza criterion of credibility. It meets the criterion of relevance, since it is capable of proving that the Appellant is bisexual, and it meets the criterion of newness because it is potentially capable of contradicting the RPD's overall credibility findings. I admit this new evidence. [10] Item b) of the proposed new evidence also bears a date that post-dates the RPD decision. It refers however to occurrences in the Appellant's home village of XXXX XXXX XXXX XXXX XXXX on XXXX XXXX XXXX 2017 and during XXXX 2017. I find it does not meet the requirements of section 110(4), because these facts could reasonably have been provided in an affidavit prior to the RPD rendering its decision on April 19, 2018. The affidavit also states that her former boyfriend is still very much a threat to the Appellant, and that the community continues to harshly criticize her because of her sexual orientation, but I find these aspects of the affidavit all represent evidence that could reasonably have been provided to the RPD prior to its decision being rendered. Therefore, I find this affidavit does not meet the requirements of section 110(4). I do not admit it. [11] Item c) of the new evidence is a letter that is dated after the RPD decision, but I find the evidence in it relating to the threats from the Appellant's ex-boyfriend and the community could have been provided prior to the RPD rendering its decision. These aspects of the letter do not meet the requirements of section 110(4), and I do not admit them. The information relating to the Appellant's relationship with her new same-sex partner could however not reasonably have been provided, in my view, prior to the RPD's rendering its decision, for the same reasons as those applicable to item a). I therefore find this part of the proposed new evidence meets the requirements of section 110(4). I find it meets the Raza criterion of credibility because it is accompanied by identification for the writer and there is no evidence that would indicate it is not genuine. It meets the Raza criteria of newness and relevance because it adds new evidence to the appeal that is potentially capable of contradicting a finding of the RPD and of proving that the Appellant is bisexual. I admit this portion of Item c) of the new evidence. ORAL HEARING [12] The Appellant has requested that the RAD hold an oral hearing. [13] Section 110(6) of IRPA states that the RAD may hold a hearing if there is new evidence that raises a new issue with respect to the credibility of the person who is the subject of the appeal, that is central to the decision with respect to the refugee protection claim, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [14] I find the new evidence is insufficient, on its own, to be determinative of the refugee claim, in view of the RPD's many negative credibility findings, which I must evaluate together with this new evidence. For that reason, the RAD will not hold an oral hearing in this case. ROLE OF THE RAD [15] In accordance with the decision in Huruglica,9 when reviewing the decision of the RPD, I have applied a standard for my review of correctness while conducting an independent assessment of the entirety of the evidence before me. ANALYSIS Difference in name of same-sex partner in St. Lucia [16] The RPD found the Appellant's Basis of Claim (BOC) was inconsistent because it stated the name of her partner as "XXXX XXXX" or "XXXX",10 but in her subsequent disclosure the Appellant provided an affidavit from "XXXX XXXX"11 and provided a national ID card from St. Lucia for the affiant in that latter name. The Appellant also provided an amended BOC with the latter names replacing the name "XXXX". The RPD drew a negative credibility inference from this difference on two grounds. The RPD did so, firstly, because the Appellant had sworn in her BOC that her partner was "XXXX XXXX" and had only corrected her partner's names after receiving the affidavit and national ID card. Secondly, the RPD found it was unreasonable that the Appellant would spell the name of her partner incorrectly when she testified she had known her partner since elementary school, claimed to be in love with her, and had retained contact with her through the messaging service WhatsApp after coming to Canada. [17] Counsel submits these concerns of the RPD were not put to the Appellant at the hearing. In my independent assessment of the transcript of the oral testimony, I find that Counsel is correct. Furthermore, I find that at the beginning of the transcript,12 the name of the partner is stated as "XXXX" (phonetic) and that nowhere throughout the entire testimony does the RPD appear to refer to the partner as "XXXX", even though that is the name the RPD submits should have been used initially. In these circumstances, I am unable to fault the evidence of the Appellant and hold it against her testimony. Credibility of Bisexual Relationship [18] The RPD found the Appellant had omitted from her BOC two relationships with men which had each lasted at least a year and that when asked why, in view of the fact her same-sex relationship had lasted six months, the Appellant did not reply except to state that she is a bisexual person. [19] Counsel has responded that the oral testimony did not ask the Appellant this question. Moreover, the transcript discloses that the RPD asked the Appellant if she still believes she is a bisexual, not why. [20] I find the relevant section of the transcript reads as below:13 MEMBER: Okay. Now, having the perspective now, having had a few relationships with men as well as a relationship with women, do you now still think that you are a bisexual? CLAIMANT: I still believe I am a bisexual. MEMBER: So none of the relationships sort of persuaded you that that wasn't for you? CLAIMANT: No. [21] In my independent assessment, having examined the transcript of the oral testimony and the above passage, I find that the Appellant's testimony cannot be impugned where in my view the Appellant answered the question appropriately and that the RPD erred in doing so. [22] Regarding the omission of the two prior relationships from the Appellant's BOC, I find since she disclosed them in her oral testimony, and that testimony (as was submitted by Counsel) can be regarded as expanding on her BOC, the RPD erred in holding the omission from her BOC against the Appellant's credibility. [23] I do not hold either of these matters against the credibility of the Appellant. Limited details in BOC about relationship with same-sex partner in St. Lucia [24] In its Reasons, the RPD found there is limited detail in the Appellant's BOC about her relationship with her same-sex partner in St. Lucia and the development of that relationship, how often they were able to pursue the relationship, and notes that the RPD was therefore obliged to elicit further information from the Appellant at the hearing including where and how they were able to conduct their intimate relations without being discovered. [25] I agree with Counsel's submissions in this regard that the Appellant answered all the questions of the RPD about the development of this relationship without the RPD having identified any contradictions, and that this testimony of the Appellant can therefore be regarded as expanding on her BOC. For this reason, I do not hold this issue against the credibility of the Appellant. [26] The RPD also drew a negative inference against the credibility of the Appellant because of the testimony she gave as to why her same-sex relationship in St. Lucia ended. The RPD found the Appellant had not adequately explained how the end of their sexual relationship would solve the issues her partner's boyfriend had over the partner 'hanging out' with the Appellant and other single friends. [27] Counsel submits that the Appellant explained the matter, but that the RPD ignored her explanation. [28] I find Counsel is correct because the oral testimony does reflect that the RPD asked the Appellant how the end of their sexual relationship would solve the issues her partner's boyfriend had at the time, and that the Appellant explained that her partner had not stopped their relationship and that she had pulled away from all her friends. This section of the transcript is reproduced below:14 MEMBER: If he - if that was his problem, then how would just stopping your sexual relationship solve the problem? CLAIMANT: Well, like I mentioned earlier -- MEMBER: Which he wasn't even aware of. CLAIMANT: Like I mentioned earlier, she didn't just stop our relationship. In terms of that, she pulled away from all her friends. [29] I accept this explanation of the Appellant. [30] I note that the RPD also found some differences in the explanation given in the Appellant's BOC and her oral testimony as to why this relationship ended. In her BOC, the Appellant stated that her partner's boyfriend was angry that her partner was still seeing the Appellant, whereas her oral testimony indicated his anger was because the partner was spending time with friends more generally, including the Appellant, and he was concerned they might encourage her to cheat on him. I do not find that these statements are contradictory, because it is possible that they are both true. For that reason, I do not hold these differences in explanation against the credibility of the Appellant. Delay in claiming [31] The RPD found given that the Appellant had a multiple-entry visa to visit Canada, and her mother and sister were already there seeking protection, that it was unreasonable that she had not sought to flee to Canada at the earliest opportunity to avoid the threats arising from the disclosure of her sexual orientation and threats arising from domestic violence. The RPD found that because it was clear from her testimony that the Appellant believed she could not rely on the police to protect her, the Appellant's explanation that she would be safe in other parts of St. Lucia was unreasonable; the Appellant's testimony was that agents of harm knew where she worked and could follow her home from there; her explanation that she did not realize she was being followed "at first"15 was not reasonable. The RPD found this was further evidence of the Appellant's lack of credibility. [32] Counsel acknowledges that the Appellant did not leave St. Lucia until approximately two months after her sexual orientation had been disclosed. Counsel points out that the Appellant's testimony establishes that she moved to XXXX on the island first, and then to XXXX which is further away because she believed she would be safer there. Counsel submits that the RPD misapprehended the Appellant's explanation, which included that it was not until she moved to XXXX in an attempt to avoid the agents of harm that she realized she was being followed. [33] Delay in claiming may in some circumstances be indicative of a lack of subjective fear. I note that an inordinate amount of time did not elapse prior to the Appellant's departure for Canada, and I find it is not beyond the bounds of reasonable expectation that she might initially not have considered the possibility that she could be followed home from work. I also note that, despite her mother and her sister being refugee claimants in Canada at the time, the decision to leave the country where one lives is generally accepted as a decision that is not easy to make. I find that this implausibility finding of the RPD, to the effect that it was unreasonable that the Appellant did not leave St Lucia earlier, is therefore not made in the clearest of cases. I agree with Counsel that the RPD erred in finding that the Appellant lacked subjective fear in impugning the credibility of the Appellant on these grounds, and I find the delay is not indicative of subjective fear on her part. Corroborating evidence of same-sex relationship in St. Lucia [34] The Appellant supplied several items of documentary evidence in support of her claim: the affidavit of XXXX XXXX,16 the affidavit of XXXX XXXX,17 letters of support, a psychological assessment, letters from the lesbian, gay, bisexual, transgender, queer (LGBTQ) community, and supporting photographs. [35] The RPD found that the affidavits of XXXX XXXXand XXXX XXXX did not assist the Appellant in establishing her claim because the Appellant was not credible, and because the Appellants had not been called to testify at the hearing. [36] Counsel submits that the RPD erred because the RPD was required to examine the totality of the evidence before it in order to first determine whether the Appellant was credible, and Counsel has supplied case law in support of this contention. I agree with Counsel's submissions in this regard. [37] In this connection, although the RPD made negative credibility findings that there were inconsistencies between these affidavits and the testimony of the Appellant regarding her allegations of domestic violence, I find it is unnecessary for me to deal with those findings of the RPD, because the RPD erred when it based its findings on affidavits whose probative value it had rejected. [38] I find both the affidavits supplied support the allegations of the Appellant that she is bisexual. Although the affiants did not testify, which in my view reduces the total weight I can give to their affidavits, I give this evidence some weight. [39] The affidavits of the Appellant's mother and sister18 also support the allegation that the Appellant is bisexual. For reasons analogous to those above, I give the affidavit of the mother some weight. I find where the affidavit of her sister confirms this allegation, it is based mostly on information supplied by the mother. The RPD may accept hearsay evidence, but in my view this reduces the weight to be given to evidence, and I therefore give the affidavit of the sister lesser weight than I do to the affidavit of the mother. [40] I find the evidence that the Appellant attended the 519 Community does not prove that the Appellant is bisexual;19 similarly the photographs20 of the Appellant with other females and in attendance at the Pride Parade do not prove her sexual orientation. [41] The affidavit of the Appellant's new same-sex partner in Canada is strong evidence that the Appellant is bisexual. I reduce the weight given to this document because I have not had the opportunity to interview this witness, but I give it significant weight. [42] I also give some weight to the letter I have admitted into evidence regarding the Appellant's allegations that she is bisexual. As with the affidavit of the Appellant's mother, I have reduced the weight to be given to this letter because it is hearsay and because I have not had an opportunity to question the writer. Presumption of truthfulness [43] As the RPD acknowledged, the sworn testimony of an Appellant is presumed to be true unless the presumption is rebutted.21 In my independent assessment of the evidence, I have found no contradictions or omissions in the evidence before me that would cause me to reject the sworn evidence in the Record. [44] In view of this, and as I have found is corroborated by the affidavits in the Record and the new evidence, I find the Appellant has established her claim to be bisexual, and based on the uncontroverted evidence before me, her claim that she is at risk from members of her community in XXXX XXXX XXXX XXXX XXXX is credible. I therefore find there is a serious possibility that if returned to St. Lucia she would be unable to express her sexual orientation without being harmed. [45] In these circumstances, it is unnecessary for me to explore the Appellant's allegations of domestic violence at the hands of her former boyfriend in St. Lucia or the psychological report. STATE PROTECTION [46] The country conditions documents refer to "elements of homophobia" among elected officials and within the police force, and state the legislation in St. Lucia prohibits homosexual acts for both sexes under "indecency statutes."22 The Appellant testified that she approached the police in St. Lucia for protection but was rebuffed and told by a police officer that he could arrest her. [47] Based on the sworn testimony and the objective evidence referred to above, I find there is no adequate or effective state protection available to the Appellant at the operational level in St. Lucia, and that this applies to the entirety of the country since that is where the legislation applies. Accordingly, and based also on the testimony of the Appellant, there is nowhere in the country where she could flee and be safe. [48] The SOGIE Guidelines establish that the Appellant is a Member of a Particular Social Group (which may be characterized for instance as "Bisexual Persons in St. Lucia"). In view of my prior findings that the Appellant is at serious risk of harm if returned to St. Lucia because of her sexual orientation, and that there is no state protection and nowhere in the country where she could safely flee, I find the Appellant meets the requirements to be a Convention refugee. The Appeal is therefore allowed. DETERMINATION [49] Pursuant to section 111(1)(b) of the IRPA,23 the RAD substitutes the decision of the RPD that the Appellant is a Convention refugee. (signed) "Ron Liberman" Ron Liberman September 24, 2020 Date 1 Immigration and Refugee Board of Canada (IRB), Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution, Effective date: 13 November 1996; Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act (IRPA), May 1, 2017. 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 3 IRPA, SC 2001, c.27. 4 IRPA, section 110(4). 5 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 6 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230. 7 Tiodunmo v. Canada (Citizenship and Immigration), 2019 FC 1489. 8 Exhibit P-2, Appellant's Record, Affidavit of same-sex partner, at p. 33. 9 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 10 Exhibit RPD-1, RPD Record, Basis of Claim (BOC), at pp. 35-37. 11 Exhibit RPD-1, RPD Record, Affidavit of XXXX XXXX, at pp. 153-155. 12 Transcript of RPD Hearing on July 28, 2017, at p. 34. 13 Transcript of RPD Hearing on July 28, 2017, at p. 42. 14 Transcript of RPD Hearing on July 28, 2017, at pp. 52-52. 15 Exhibit RPD-1, RPD Record, at p. 22, para. 34. 16 Supra, at endnote 11. 17 Exhibit RPD-1, RPD Record, Affidavit of XXXX XXXX, at pp. 157-158. 18 Exhibit RPD-1, RPD Record, Affidavits of XXXX XXXX XXXX and XXXX XXXX XXXX, at pp. 200-203. 19 Exhibit RPD-1, RPD Record, at pp. 213-214. 20 Exhibit RPD-1, RPD Record, at pp. 161-173. 21 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (FCA). 22 National Documentation Package for St. Lucia (March 31, 2017), item 6.2: Situation and treatment of bisexuals, including social attitudes; availability of state protection, November 2011. 23 IRPA, section 111(1)(b). --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-10506 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