TB8-06238

RAD File / Dossier de la SAR : TB8-06238 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 Toronto, ON Appel instruit / entendu à Date of decision July 28, 2020 Date de la décision Panel N. Kaufman Tribunal Counsel for the person who is the subject of the appeal Yitzhak Lewin 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 (Appellant), a citizen of Jamaica, appeals a decision of the Refugee Protection Division (RPD), dated February 13, 2018, rejecting her claim for refugee protection on the basis that the claim lacks credibility. She alleges that she fears persecution and harm due to her sexual orientation as a lesbian. She argues that the RPD erred, and asks the Refugee Appeal Division (RAD) to substitute a positive determination or remit the matter to the RPD for redetermination. DETERMINATION [2] I dismiss the appeal because I find that the RPD was correct that the Appellant is neither a Convention refugee, nor a person in need of protection.1 ROLE OF THE RAD [3] The Appellant appears to argue that the decision is to be reviewed on a standard of reasonableness.2 That is incorrect. My role is to consider all the evidence and decide if the RPD made the correct decision.3 BACKGROUND Appellant's allegations [4] The details of the Appellant's allegations are found in the Basis of Claim form (BOC) narrative,4 and in her testimony at the hearing. Briefly, she alleges that she is 55 years of age, and is a citizen of Jamaica who is a lesbian. She alleges that she was aware of her attraction to females since she was in high school. She tried dating males, but it did not feel right and her relationships did not last very long. She alleges that she had one same sex relationship that lasted 7 months to one year beginning in or about the mid-1980's, and ending when a neighbour, who was interested in her, saw her and her partner (XXXX) hugging and kissing in public at a shopping mall. She states that, after that incident, her life was in constant chaos, and that she was spat upon and threatened by both males and females, leading her to move from the area where she lived. The Appellant states that she had two other short-lived same sex relationships in Jamaica after her relationship with XXXX. She testified that she applied for a United States visa in about 2004, but was turned down. She alleges that in 2005, she was attacked and almost raped by two men who said that they would "fix my lesbianism." She also alleges that, in 2007, she was threatened with a firearm when she refused the advances of a man. She also alleges that, in 2007, while driving home, she was followed by a car, but managed to evade that car. Two days later, she found a note in her mailbox stating "lesbian bitch." She connects the note with the incident in which the car was following her. [5] In 2010, she applied for and was granted a Temporary Resident Visa (TRV) to work in Canada. She has remained and continued to work in Canada on a TRV which was renewed in 2013 and most recently expired in 2017. She states that she applied for permanent resident status but her application was declined. She then applied in 2017 for refugee protection in Canada. The Appellant alleges that life in Jamaica is "living hell" and is dangerous for lesbians and gays, and that going back will cost her life and is like a death sentence. RPD's findings [6] The RPD found that the determinative issue was credibility. It found that the Appellant was not credible regarding central aspects of her claim because of material and unexplained inconsistencies between the Appellant's testimony and statements made by the Appellant in documents supporting her claim, and because of unexplained omissions of material allegations from her BOC narrative. The RPD concluded that the Appellant attempted to mislead the RPD about her sexual orientation by concealing a long-term common-law relationship with a man, and that this undermined her credibility, both as to her sexual orientation, and as to the events described by the Appellant. The RPD found that the events described by the Appellant did not occur, and that the Appellant had not established on a balance of probabilities that she is a lesbian or that she had been in same-sex relationships in Jamaica or in Canada. Appellant's arguments [7] The Appellant argues that the RPD erred in its credibility assessments by misunderstanding and misinterpreting oral evidence; wrongfully giving little or no weight to cogent documentary evidence and witness letters; and in failing to properly consider and apply Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guideline).5 NO NEW EVIDENCE IS ADMITTED AND NO ORAL HEARING CAN BE HELD [8] The Appellant's claim was heard on December 5, 2017. Written submissions requested at the hearing were received on January 22, 2018 and the claim was rejected on February 13, 2018. [9] Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) provides that new evidence can only be admitted on appeal if it: (a) arose after the RPD decision; or (b) was not reasonably available at the time of the decision; or (c) could not reasonably have been expected in the circumstances to have been presented to the RPD before the decision. If the evidence meets one or more of the subsection 110(4) requirements, I must decide if the evidence is new, credible, and relevant (the Singh/Raza requirements) before I can accept it.6 I can only hold an oral hearing if new evidence is admitted, and if the new evidence raises a serious issue of credibility of the Appellant, and is central to the decision, and is determinative.7 [10] The Refugee Appeal Division Rules (RAD Rules) state that appellants must provide a written statement indicating whether they are relying on any new evidence and whether they are requesting that a hearing be held, and that their memorandum must include full and detailed submissions regarding how any new evidence meets the requirements of subsection 110(4) of the IRPA, how that evidence relates to the appellants, and why the RAD should hold a hearing under subsection 110(6) of the IRPA if a hearing is requested.8 [11] In the Appellant's written statement concerning new evidence, the Appellant states: "I am presenting evidence referred to in section 110(4) of the...IRPA. The new evidence I am presenting is N/A. I explain in my Memorandum at page 0, how this evidence meets the requirements of subsection 110(4) of the IRPA and how that evidence relates to the appellant(s)."9 In the Appellant's written statement concerning a hearing at the RAD, the Appellant states: "I am presenting evidence referred to in subsection 110(4) of the ... IRPA. I am requesting that a hearing be held under subsection 110(6) of the IRPA. I explain in my Memorandum at page ___, why the Division should hold a hearing under subsection 110(6) of the IRPA."10 [12] Although the written statements suggest that new evidence is being submitted, there is no new evidence submitted with the Appellant's Record, and no application has been made to submit new evidence pursuant to rule 29 of the RAD Rules. There is no reference in the Appellant's memorandum to new evidence, and no mention of a request for an oral hearing or why such a hearing should be held. [13] The requirements for the admission of new evidence and for the holding of an oral hearing are not satisfied. No new evidence is admitted on this appeal. Since no new evidence is admitted, no oral hearing may be held. ANALYSIS OF THE MERITS OF THE APPEAL [14] The RPD found that the Appellant did not establish her sexual identity as a lesbian because her evidence was not credible. The determinative issue on this appeal is the credibility of the Appellant. For the reasons that follow, I find that the RPD was correct in its credibility findings. [15] In assessing the credibility of the testimony of the Appellant, I am mindful that sworn testimony is presumed to be truthful. However, that presumption is rebuttable where testimony features inconsistencies, implausibilities, material omissions or other reasons to doubt its truthfulness. For the reasons set out below, I find that the presumption of truthfulness has been rebutted. [16] I am also mindful of the SOGIE Guideline11 dealing with proceedings involving sexual orientation and gender identity and expression (SOGIE), which I have carefully considered. I have considered possible challenges faced by the Appellant in presenting evidence pertaining to SOGIE, and I recognize, as set out in the SOGIE Guideline, that an individual's testimony may be the only evidence of their SOGIE where, in a given case, corroborative or additional evidence is not reasonably available. In this case, the Appellant did not demonstrate reluctance to discuss her SOGIE. The Appellant did not state that she was having any difficulty remembering details. In cases involving SOGIE as in other cases, decision-makers may draw negative inferences from material inconsistencies, omissions or contradictions that have no reasonable explanations. In the circumstances of this case, there appear to be no cultural, psychological or other barriers that explain the inconsistencies and omissions mentioned in these Reasons. The Appellant spoke of testifying bringing back memories and pain and of having been depressed and stressed about the possibility of returning to Jamaica, but the Appellant has not testified to receiving treatment for psychological issues and no psychological report or other evidence has been submitted. RPD's credibility findings Appellant's undisclosed common law relationship undermines Appellant's credibility [17] The Appellant stated in her BOC narrative that she has come to accept herself as a lesbian. She stated that, after failed relationships with men, which she pursued in order to please society, she knows that she will never have a sexual interest in any man, and that her relationships with men did not last very long.12 The Appellant confirmed this in her testimony at the hearing, stating that her longest relationship with a male lasted about four months in 1981.13 However, in her XXXX 2013 application to renew her Canadian Temporary Resident Visa (TRV), the Appellant stated that she had previously been in a common-law relationship with XXXX from July 19, 1998 until October 28, 2012.14 When asked to explain the discrepancy, the Appellant stated that she never lived with XXXX; that he was just a friend; that she was not sure why she had completed the TRV application that way; and that she did not know "where my mind was...at the time." She testified that XXXX was one person who understood what was going on with her, and was just "a cover for my whole ordeal that was going on back in Jamaica" and was listed as the person to contact in case something happened to her.15 [18] The RPD found that the Appellant's explanation for this clear inconsistency was unreasonable, and I agree. The Appellant confirmed that she is the one who completed the TRV renewal application. This renewal application was completed when she had already been in Canada since 2010, and was no longer working at XXXX where she worked when she first came to Canada, so her explanation that XXXX's name was on her renewal application as the person XXXX could contact in Jamaica if something were to happen to her does not make sense. If XXXX was simply a friend, there is no reasonable explanation for him to be listed on the TRV renewal application, particularly since their relationship was specifically described by the Appellant on the application as a common-law relationship that had ended before the renewal application was completed. In the TRV renewal application, the Appellant gave specific and precise dates for when the common-law relationship with XXXX began and ended. She declared that she answered all questions in the application fully and truthfully. As the RPD noted, the Appellant's native language is English and she is university educated. I find no error in the RPD's analysis of this issue at paragraphs 8 to 17 of the RPD's Reasons, and agree with that analysis. [19] The Appellant argues that the RPD "did not get it right" by misunderstanding and misinterpreting the Appellant's oral testimony compared to the information that is on the TRV renewal application.16 The Appellant argues that the Appellant could not have been in a common-law relationship with XXXX while here in Canada, and that she has been in Canada since 2010.17 I disagree. The Appellant stated in the TRV renewal application that she had been in a common law relationship with XXXX from July 1998 until October 2012. There is no reason why such a relationship, which the Appellant stated had existed for 12 years before she left to work in Canada, could not have continued to exist for 2 more years while the Appellant worked here under the first work permit. The RPD did not misunderstand or misinterpret the Appellant's testimony; rather, it did not believe that testimony. [20] I therefore agree with the RPD that the Appellant did not satisfactorily explain the inconsistency between her BOC narrative and hearing testimony and the information she provided in her TRV renewal application. I find it is more likely than not that the information provided on the TRV renewal application was accurate because, at that time, the Appellant still believed that she would be able to obtain permanent residency in Canada based simply on having worked here.18 She had no reason at that time to conceal her long-term common-law relationship with XXXX. However, when her permanent residency application was denied, her ability to remain in Canada hinged on her asylum application, which is based on her alleged sexual orientation as a lesbian. I agree with the RPD that the Appellant attempted to mislead the Board by failing to declare her relationship with XXXX in her BOC and in her testimony at the hearing. I also observe that, although the issue of this inconsistency was clearly and directly raised by the RPD at the hearing on December 5, 2017, the Appellant, who was represented by counsel, did not seek to provide any evidence from XXXX following the hearing, either with the written submissions provided to the RPD on January 22, 2018, or in the 65 days after the hearing and before the RPD issued its decision on February 13, 2018, and no such evidence was submitted in connection with this appeal. [21] The Appellant's claim is based on alleged fear of persecution and risk of harm resulting from her sexual orientation as a lesbian. Her testimony about that orientation is at the heart of her claim and the assessment of that claim. This significant inconsistency, for which no reasonable explanation was provided, substantially undermines her credibility generally, and as it relates to her alleged sexual orientation. It also undermines her testimony about the other events of alleged threats and harm upon which her claim is based. Like the RPD, I find, on a balance of probabilities that the other events described by the Appellant and alleged to have occurred while she was in a common-law relationship with XXXX (the attack in 2005 and the two incidents in 2007) did not occur. Failure to disclose Canadian same sex relationship in BOC narrative [22] During questioning by her counsel at the hearing, the Appellant testified that she had one same-sex partner (XXXX) since coming to Canada in 2010, with the relationship having started in April 2014 and ended in February 2015, and which the Appellant characterized as intimate, sexual and serious. When asked why this relationship was not mentioned in her BOC narrative, the Appellant testified that the BOC was all related to what happened in Jamaica and her fear in Jamaica, not what happened in Canada, and she did not think of mentioning it in the BOC. When the RPD pointed out that the Appellant's claim was based on establishing that she is a lesbian, and asked if she did not think that demonstrating that she had a relationship with a woman in Canada would be a way of doing that, the Appellant responded that she never really thought of it, and that she had been depressed and stressed about the possibility of going back to Jamaica. [23] The RPD found that the failure to mention the alleged same-sex relationship in Canada was a material omission, which undermined the Appellant's claim to have had such a relationship and her alleged sexual orientation. The RPD pointed out that the instructions to claimants found on the BOC form state "INCLUDE EVERYTHING THAT IS IMPORTANT FOR YOUR CLAIM. INCLUDE DATES, NAMES AND PLACES WHEREVER POSSIBLE"19 (block capital letters and bold font are used in the form). In the sections of the form dealing with the reasons for the claim, the claimant is instructed to explain their answers "in detail" and to "[i]ndicate dates, names and places, wherever possible."20 The Appellant declared on her BOC that the information provided was complete, true and correct.21 I agree with the RPD that this alleged relationship, if real, was material and should have been mentioned. Any stress experienced by the Appellant at the prospect of a return to Jamaica does not reasonably explain why the Appellant would not understand that the existence of such a relationship would be material to her claim. No BOC amendment was submitted before the hearing. In these circumstances, the failure to mention the relationship in her BOC undermines the credibility of the allegation that such a relationship occurred, which also undermines the Appellant's alleged sexual orientation. [24] Similarly, the Appellant testified at the hearing that she had two other short-term same-sex relationships in Jamaica after the end of her relationship with XXXX in the mid to late 1980's.22 These alleged relationships were also not mentioned in the Appellant's BOC narrative, which, for the same reasons, undermines the credibility of the allegation that such relationships occurred and the Appellant's alleged sexual orientation. Relationship with XXXX [25] The Appellant testified that she had a 7 to 12-month relationship with XXXX in the mid-1980's that ended when they were seen by a neighbour hugging and kissing in a shopping mall. The RPD noted that there was no corroborating documentary evidence with respect to that alleged relationship, and found that the explanation for the events was not reasonable because, given the prevailing attitudes and violence in Jamaica toward sexual minorities, the Appellant would have been placing her life in jeopardy by engaging in such activity in a public location. In essence, this is a finding of implausibility, and it is one that may not be justified, since individuals with diverse SOGIE may engage in activities that might put them at risk in their environment.23 I also recognize that, in some cases, corroborative evidence may not be available in cases involving SOGIE. The Appellant was not asked if she had attempted to obtain evidence from XXXX, or if she had photographic or other corroborative evidence of their alleged relationship. Therefore, I place no reliance upon the absence of corroborative evidence of the alleged relationship between the Appellant and XXXX or upon the erroneous plausibility finding made by the RPD regarding the public conduct. [26] However, the adverse credibility findings referred to above are more than sufficient to rebut the presumption that the testimony of the Appellant is truthful. In assessing the evidence in its totality, and in particular, the credibility concerns identified above, I find, on a balance of probabilities, that the alleged relationship with XXXX did not occur. Other arguments by Appellant RPD did not rely upon delay in applying for refugee protection [27] The Appellant argues that the RPD erred by failing to examine the evidence relating to the Appellant's delay in applying for refugee protection in Canada.24 While the RPD identified delay in applying as an issue to be addressed at the hearing, it did not rely upon that issue in its Reasons for denying the claim. As such, the issue is not before me and I have not considered it. RPD did not ignore documentary evidence [28] The Appellant argues that the RPD "ignored" or "disregarded" relevant letters and documentary evidence that contradict its conclusions.25 The personal documentary evidence in question consists of three letters, one from XXXX, one from XXXX, and one from XXXX, all of whom are friends of the Appellant from Jamaica, two of whom currently live in Canada.26 The letter from XXXX states that she and the Appellant knew each other in high school, they lost contact, they came in contact again years later and the Appellant admitted to XXXX that she was a lesbian. The letter from XXXX states that the author has known the Appellant for 15 years, that their friendship grew over the years to the point that the Appellant disclosed to the author that she is a lesbian. The letter from XXXX states that the author is a friend of the Appellant since 1999 and that she found out one day that the Appellant was a lesbian. [29] The Appellant argues that one of the letters is "signed and notarized by a XXXX XXXX XXXX XXXX in St. Andrews, Jamaica," presumably referring to the letter from XXXX,27 since it is the only letter originating in Jamaica. There is nothing in the letter from XXXX to indicate that it is a sworn, notarized document or that it is anything other than a letter. The letters "XXXX XXXX XXXX XXXX XXXX" appear below the signature of the author of the letter followed by what may be a signature, but there is nothing in the document to indicate that the contents of the letter were sworn or affirmed to be true or to indicate who administered any oath or affirmation. The document is described only as a letter by counsel in their covering letter,28 and when submitting the document as evidence at the hearing.29 I am not satisfied that this document is a notarized, sworn, or affirmed statement. [30] The RPD did not ignore or disregard the three support letters. The panel considered the letters at paragraph 30 of its Reasons. It noted that the letters are not in affidavit form and the panel was unable to question their authors. The RPD found that the Appellant's attempt to mislead the RPD by failing to disclose her 14-year common-law relationship with XXXX caused the panel concern as to the credibility of this documentary evidence, as a result of which the RPD placed little weight on the letters. These letters are unsworn statements disclosed on the day of the hearing from individuals who did not attend the hearing and could not be questioned by the RPD (even though two of them live in the G.T.A.). I recognize that written statements need not be sworn, and that there is no requirement that witnesses be available for cross-examination. However, the authors of the letters have no personal knowledge of the Appellant's sexual orientation independent of what the Appellant told them. They are reporting what the Appellant is said to have told them, and the Appellant's credibility has been significantly impugned. I agree that the Appellant's attempt to mislead the RPD by failing to disclose her common-law relationship with XXXX and the other credibility issues already identified also cause concern as to the credibility of this documentary evidence. I find no error in the RPD's treatment of these letters. This is not at all similar to cases cited by the Appellant30 in which tribunals have ignored independent medical testimony as to the nature of physical and emotional disabilities suffered by a claimant that are compatible with circumstances related by a claimant. I find that they are entitled to little weight, and that they are insufficient to overcome the adverse credibility findings previously identified. The adverse credibility findings eliminate the need to consider objective country conditions [31] The Appellant argues that a claimant can still be a convention refugee or a person in need of protection even if they are not a credible witness, and the RPD did not consider the documentary evidence.31 The RPD was not required to consider the country documentary evidence as to the treatment of lesbians and other sexual minorities in Jamaica because it found that the Appellant is not a lesbian. Therefore, there is no link between the Appellant and potential persecution or mistreatment of persons with diverse SOGIE in Jamaica. SOGIE Guideline [32] The Appellant argues that the RPD failed to properly consider and apply the SOGIE Guideline. As stated previously, while I agree that the RPD erred in not properly applying the SOGIE Guideline to its findings regarding the evidence surrounding the relationship between the Appellant and XXXX, that error is not determinative. I have considered and applied the SOGIE Guideline to my consideration of this appeal. The significant findings that undermine the credibility of the Appellant and her claims are based on material inconsistencies, contradictions and omissions that are not reasonably explained or impacted by the considerations reflected in the SOGIE Guideline as applied to this case. Conclusion regarding credibility [33] I have carefully considered all the evidence, including listening to the full hearing recording and reviewing the transcript of that hearing. As part of that process, I have considered not only the identified credibility issues and concerns, but also the testimony of the Appellant and evidence supporting her claim, which I have considered through the lens of the SOGIE Guideline. The burden of proof is on the Appellant to establish her claim. I find that the identified credibility issues and concerns, taken cumulatively, undermine the credibility of the Appellant and her allegations to the point that there is insufficient credible evidence to establish the Appellant's claim. I find that the Appellant has not established on a balance of probabilities that she is or would be perceived to be a lesbian. SUMMARY [34] Having reviewed the totality of the evidence, and having considered the arguments of the Appellant, I find that, with the exception of minor, non-determinative credibility findings referred to above, the RPD properly considered and assessed the evidence and that its findings regarding the credibility of this claim were correct. [35] The Appellant has not established that there is a serious possibility of persecution on a Convention ground, or that, on a balance of probabilities, she would personally be subjected to a danger of torture or face a risk to life or a risk of cruel and unusual treatment or punishment on return to Jamaica. CONCLUSION [36] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) N. Kaufman N. Kaufman July 28, 2020 Date 1 Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended. 2 Exhibit P-2, Appellant's Record, Appellant's memorandum, paras. 12-26, pp. 70-75. 3 Canada (M.C.I.) v. Huruglica, 2016 FCA 93, at para. 103. 4 Exhibit RPD-1, RPD Record, Exhibit 2, Basis of Claim form (BOC) narrative, pp. 17-21. 5 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 IRPA, Effective date: May 1, 2017, (SOGIE Guideline). 6 Canada (M.C.I.) v. Singh, 2016 FCA 96 [2016] 4 FCR 230 (Singh); Raza v. Canada (Citizenship and Immigration) 2007 FCA 385 (Raza); Nteta-Tshamala v. Canada (M.C.I.), 2019 FC 1191, at para. 25. 7 IRPA, subsection 110(6). 8 Refugee Appeal Division Rules, SOR/2012-257 (RAD Rules), rules 3(3)(d) and (e), and 3(3)(g)(iii) and (v). 9 Exhibit P-2, Appellant's Record, Written Statement concerning New Evidence at the RAD (Rule 3(3)(d)(i) of the RAD Rules), p. 64. 10 Ibid., Written Statement concerning the Hearing at the RAD (Rule 3(3)(d)(ii) and (iii) of the RAD Rules), p. 65. 11 Supra, at note 5. 12 Exihibit P-2, Appellant's Record, BOC narrative, p. 17. 13 Exihibit P-2, Appellant's Record, Transcript of RPD hearing (Hearing Transcript), p. 33, line 39 to p. 34, line 18. 14 Exhibit RPD-1, RPD Record, Exhibit 5, questions 10, 11, pp. 82-83. 15 Hearing Transcript, p. 42, line 5 to p. 44, line 18. 16 Exhibit P-2, Appellant's memorandum, para. 6, at p. 68, and para.11B, at p.69. 17 Ibid., p. 71 at para. 14 and pp. 72-73 at para. 20. 18 Exhibit P-2, Appellant's Record, Hearing Transcript, p. 45, lines 16-41. 19 Exhibit RPD-1, RPD Record, Exhibit 2, BOC form, p. 12. 20 Ibid., pp. 12-13. 21 Ibid., p. 25. 22 Exhibit P-2, Hearing Transcript, p. 31, line 11 to p. 33, line 19. 23 SOGIE Guideline, para. 7.5.1. 24 Appellant's memorandum, p. 71, at para. 14, p. 74, at para. 21, and p. 75 at para 25. 25 Ibid., p. 69 at para. 11C and p. 76 at para. 28. 26 Exhibit RPD-1, RPD Record, Exhibit 7, pp. 165-170. 27 Ibid., p. 168. 28 Ibid., p. 165. 29 Exhibit P-2, Appellant's Record, Hearing Transcript, p. 12, line 22 to p. 13, line 11. 30 Ibid., Appellant's memorandum, para 29, p. 76. 31 Ibid., paras. 32-35, p. 77. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-06238 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