TB9-15130

RAD File / Dossier de la SAR : TB9-15130 Private Proceeding / Huis clos Reasons and decision ? Motifs et decision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXXXXXXa.k.a. XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision June 29, 2020 Date de la décision Panel Madeleine Schwarz Tribunal Counsel for the persons who are the subject of the appeal Adrienne Smith Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX XXXX (Appellant) is a citizen of Saint Vincent. He claims he is gay and has been in a same-sex relationship with XXXX XXXX (the partner) in Canada since XXXX 2018. The Appellant fears he could be killed by his father, or persecuted by police, if he returns to Saint Vincent. He appeals a decision of the Refugee Protection Division (RPD), dated May 23, 2019, rejecting his claim for refugee protection. [2] The Appellant came to Canada in 2009 and made a refugee claim in XXXX 2019, after he was advised by his pastor to seek assistance regarding his lack of status. The RPD found that while the Appellant may face some risk if he returned to Saint Vincent, the risk did not amount to persecution, and concluded the Appellant lacked a subjective fear because of his delay in making a claim. [3] The Refugee Appeal Division (RAD) allows the appeal and finds that the Appellant is a Convention refugee. NEW EVIDENCE [4] The Appellant seeks to enter new evidence that relates to his same-sex relationship with his partner. I have considered whether each document falls within the parameters of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and the Raza/Singh1 factors. [5] The Appellant has submitted an affidavit sworn on XXXX XXXX XXXX 2019.2 In it, he describes his relationship with his partner. Some of the material in the affidavit relates to the Appellant's relationship with his partner since his claim was rejected - paragraphs 1, 2, 5, 6 and 7 and Exhibits A to C. 3 [6] I accept these five paragraphs from his affidavit and Exhibits A to C as new evidence. [7] Exhibit A is a document compiling daily texts between the Appellant and his partner since the rejection of his claim between XXXX XXXX XXXX 2019 and XXXX 2019. Exhibit B is a selection of photographs of the Appellant and his partner taken in XXXX and XXXX 2019. Exhibit C is a letter from the Appellant's partner describing their ongoing relationship. All three documents arose after the rejection of the Appellant's claim and relate to events that have taken place after the rejection. I find they therefore were not reasonably available at the time of the RPD rejection. [8] In addition, I find the documents are new, having arisen after the RPD rejection. I find they are credible, in that they are attached to a duly sworn affidavit of the Appellant. The text messages document is a print out of the text messages that the Appellant sent to him and I find this print out reliably lists the text messages. The photos appear to depict the Appellant and his partner at a number of different events, and the Appellant has indicated time and place or people. The letter from the partner is signed and provides his address. The three documents are relevant as they go to the key issue in this case, namely, the Appellant's sexual orientation. [9] I find paragraphs 3 and 4 of the Appellant's affidavit provide further detail and clarification on testimony given by the partner during the RPD hearing. I find the information within these two paragraphs was within the personal knowledge of the Appellant and was therefore reasonably available at the time of the rejection of his claim. I therefore do not admit these two paragraphs. I note, however, that these two paragraphs are submissions rather than new evidence, and I will consider them as such. [10] I dismiss the application for an oral hearing under subsection 110(6) of the IRPA as I find I can review the new evidence without an oral hearing. ROLE OF THE RAD [11] I have conducted my own analysis of the RPD and Appellant's Records to determine whether the RPD erred.4 I have applied a standard of correctness. [12] This appeal raises allegations of persecution on the basis of sexual orientation. I have considered the Sexual Orientation and Gender Identity and Expression (SOGIE) Guidelines5 and taken into account the social and cultural context of the Appellant and the sensitive nature of the allegations. ANALYSIS [13] The Appellant argues that the RPD erred in its assessment of the Appellant's sexual orientation, erred in finding the Appellant did not establish a subjective fear, and erred in finding there was no evidence presented to show a lack of state protection. The SOGIE Guidelines [14] I agree with the Appellant that the RPD findings do not conform to the SOGIE Guidelines, despite the member stating the Guidelines were considered. [15] The RPD found the Appellant's description of how he came to recognize he was gay and how he came to terms with his sexual orientation did not establish that he was gay. The RPD found the fact that he hung out mostly with boys and did not want to go out with girls was not sufficient evidence that he was gay. The member found it more likely than not that the Appellant was just shy. [16] The RPD member ignored much of the Appellant's narrative and testimony about how he began to realize he was gay, and failed to consider that there are no standard sets of criteria that establishes whether a person is gay. The particular circumstances of the person must be considered. The Appellant's narrative and testimony about his sexual orientation goes far beyond not going out with girls when he was young. The Appellant was a teenager when he began to feel confused and miserable and uncomfortable. He explained he grew up in a family and in a society that does not tolerate different sexual orientations. He highlighted confrontations at school with students and teachers, as well as scolding and teasing from his father and siblings at home. I find the Appellant provided sufficient evidence that he began to understand he was gay in his teen-age years, and that he faced difficulties at home and school because of this. [17] The RPD member found the Appellant's casual same-sex relationships on a cruise ship were more likely experimental, and did not indicate that the Appellant was gay. The RPD's reasons are vague on how it came to this conclusion, though the member seems to focus on the fact that the Appellant was not attached to any one person. This too is contrary to the SOGIE Guidelines. The RPD makes assumptions on how the Appellant should behave as a gay man, rather than assessing how the Appellant did behave. I find it credible that the Appellant, a young man away from home for the first time, would have had casual sexual encounters with men and not have settled into a relationship with one individual. The Appellant's same-sex relationship in Canada [18] I find the RPD member was wrong to give essentially no weight to the letter from the Appellant's partner, as well as the partner's testimony, both of which confirm their same-sex relationship. The partner was unable to provide details on how many siblings the Appellant had, how he came to Canada, and his past relationships during the RPD hearing.6 The member noted the fact that the partner is also a refugee claimant in Canada, from the same part of the world and close in age to the Appellant, and concluded that the partner would want to help the Appellant. The RPD also noted that the partner said the Appellant was talkative, while the member found the Appellant to be quiet and kept to himself. On the basis of these findings, the RPD came to the conclusion that the Appellant was not in a same-sex relation with the partner in Canada.7 [19] I find the RPD's conclusion on this matter is not justified and lacks intelligibility. The fact that the partner would want to help the Appellant does not lead to the conclusion that their same-sex relationship is not authentic. The fact that the Appellant is more talkative in private with his partner, and quieter during a formal refugee hearing, does not lead to the conclusion that the same-sex relationship in not credible. [20] I have considered the Appellant's narrative and testimony, and the partner's initial letter and testimony that was before the RPD. Contrary to the RPD, I find the Appellant did establish, on a balance of probabilities, that he and the partner were, at the time of the RPD hearing, in the beginning stages of a same-sex relationship. I accept that the partner, at that time, may not have known very much about the Appellant's history and background. [21] I have also considered the new evidence I have admitted, particularly the letter from the partner and the text messages. I find the new evidence is credible and provides corroboration of continuing same-sex relations between the Appellant and the partner in Canada. Delay in filing a refugee claim [22] I note the Appellant has a 10-year delay between arriving in Canada and filing his refugee claim, which can be indicative of a lack of subjective fear. Delay is not necessarily a determinative factor. I find the Appellant has provided a reasonable explanation for his delay in filing a claim. I find the delay in applying for refugee protection is not relevant to the Appellant's subjective fear of persecution if he is returned to Saint Vincent. State protection [23] The RPD concluded that the Appellant had not rebutted the presumption that states can protect its nationals. The member based her reasons on the fact that "nothing ever happened to [you]." The RPD reasoning is wrong. As the Appellant correctly notes, the Appellant does not need to establish that he has been persecuted in the past. The refugee definition is forward-looking. The RPD failed to consider this. [24] In his narrative, the Appellant states that gays and lesbians live in self-denial and have low self-esteem. He notes that homosexuals cannot live openly, and they fear they could be seriously harmed or killed. He indicated he fears his father will kill him. He also noted that he will not get police protection because the police themselves do not protect or assist gay individuals. Objective documentary evidence in the National Documentation Package confirms reports of mistreatment of members of the LGBTQ community by the police in Saint Vincent. 8 I find the evidence confirms that, on a balance of probabilities, there is no legal recourse of protection for individuals with diverse sexual orientation. CONCLUSION [25] The RAD allows the appeal. Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) Madeleine Schwarz Madeleine Schwarz June 29, 2020 Date 1 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385; Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] FCR 230. 2 Exhibit P-2, Appellant's Record, at pp. 11 - 12. 3 Ibid., at pp. 13 - 46. 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157. 5 Immigration and Refugee Board of Canada, 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, Effective Date: May 1, 2017. 6 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 5, para. 12. 7 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 5, paras. 11-12. 8 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Saint Vincent and the Grenadines (March 29, 2019), Item 2.1: Saint Vincent and the Grenadines. Country Reports on Human Rights Practices for 2018, United States. Department of State, 13 March 2019; and Item 6.1: Situation ad Treatment of Sexual Minorities, Including Societal attitudes, availability of state protection and support services (2014-November 2015), Immigration and Refugee Board of Canada, 1 December 2015, Response to Information Request (RIR) VCT105354E. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-15130 RAD.25.02 (April 04, 2019) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 04, 2019) Disponible en français