MB6-07597

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : MB6-07597 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX XXXXXXXX XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision July 18, 2018 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the appellant(s) N/A Conseil(s) du (de la/des) appelant(e)(s) Designated representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre Edited by I. Bourgeau, July 13, 2018 REASONS AND DECISION INTRODUCTION [1] This is an appeal filed by XXXX XXXX XXXX XXXX XXXX XXXX against a decision of the Refugee Protection Division (RPD) rendered on November 24, 2016, rejecting his refugee protection claim. [2] The appellant is asking that the Refugee Appeal Division (RAD) set aside the RPD determination, allow his claim and grant him protection in Canada. [3] The appellant asked to submit new evidence, pursuant to subsection 110(4) of the Immigration and Refugee Protection Act1 (IRPA) and requested that a hearing be held, as per subsection 110(6) of the IRPA. [4] The Minister's representative did not intervene on appeal. DETERMINATION [5] Pursuant to subsection 111(1) of the IRPA, the RAD confirms the RPD determination, namely, that XXXX XXXX XXXX XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. [6] The appeal is dismissed. ALLEGED FACTS [7] The appellant's Basis of Claim Form (BOC Form) states that he is a citizen of Niger and was born on XXXX XXXX XXXX 1994. [8] In his BOC Form, the appellant alleges that in his country, Niger, homosexuals live in hiding and that homosexuality is not accepted in their culture. Homosexuals do not openly express themselves in his country. Discrimination and disapproval toward this community is deeply woven into the cultural and religious values of Niger. [9] The appellant came to Canada to study at the University of XXXX. He studied from XXXX 2014 to XXXX 2015; however, he did not reveal his intention to claim protection in Canada until September 15, 2016. [10] Should he return to Niger, he will be subjected to abuse as well as threats from the authorities and from society in general because of his alleged homosexuality. IMPUGNED DECISION [11] The RPD rejected the appellant's refugee protection claim after having determined, by reason of a lack of credibility, that he is not a "Convention refugee" or a "person in need of protection." [12] The RPD found that the appellant was repeating his short written account and that his answers were vague, hesitant and evasive. Furthermore, the RPD noted the long delay in filing a claim. APPELLANT'S ARGUMENTS [13] First, the appellant indicates that the panel erred in its assessment of his credibility. All the relevant information could be found in the BOC Form, even if the latter did not add an written account to support his claims. Second, he claims that repeating answers for the necessary questions is acceptable and finding otherwise would be prejudicial toward him. [14] He states that taking his time to answer a question is normal. He used the pronoun [translation] "we" rather than "them" and "they," which implies that he does not consider himself as part of the homosexual minority. He rejects this view. He indicates that the delay in filing a refugee protection claim was not unreasonable. Lastly, the appellant stresses that his former counsel failed to adequately prepare his record and did not submit all of the evidence. SCOPE OF THE APPEAL [15] For questions of fact and of law as well as of mixed fact and law, the RAD applied the standard of correctness in accordance with Huruglica.2 In assessing issues involving credibility of oral testimony, the RAD may apply the RAD's modified standard of reasonableness in those situations where the RPD enjoys a meaningful advantage in making credibility findings as per the decision in X (Re).3 [16] The panel conducted an independent analysis of all the evidence on the record for the purpose of forming its own opinion in regard to the refugee protection claim and to determine whether the RPD decision was correct. ADMISSIBILITY OF NEW EVIDENCE BEFORE THE RAD [17] The appellant is asking the RAD to admit several pieces of evidence pursuant to subsection 110(4) of the IRPA. This evidence includes a statement made by the appellant and photocopies of exchanges of correspondence, namely text messages via Facebook with six individuals. [18] The short statement made by the appellant, dated January 4, 2017, does not bring any new information to the record, and what is more, it is not a sworn statement. The other text message exchanges were made prior to the decision rendered on November 24, 2016. The appellant must show that the new evidence meets the requirements of subsection 110(4) of the IRPA, which states that the person who is the subject of the appeal may present to the RAD only evidence that arose after the rejection of their claim, that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented at the time of the rejection. These text messages do not meet the criteria of subsection 110(4); therefore, they are rejected. [19] Despite the fact that the statement was made after the RPD decision was signed, it does not respect the wording of subsection 110(4). Furthermore, it does not meet the jurisprudential test for analysis set out in Raza.4 The statement does not bring anything new to the record, nor is it relevant or credible, but rather only repeats the information that was already heard during the hearing before the RPD. [20] For these reasons, the RAD concludes that the written statement and the exchanges of correspondence via text messages are not admissible as evidence under subsection 110(4) of the IRPA. [21] Furthermore, the appellant is requesting a hearing pursuant to subsection 110(6) of the IRPA. This provision states that the RAD may hold a hearing if it is of the opinion that there is new admissible evidence which meets the three conditions listed therein. In this particular case, the RAD finds that there is no cause to hold a hearing given that the new evidence that the appellant wanted to present was found to be inadmissible under subsection 110(4) of the IRPA. [22] For these reasons, the request to hold a hearing before the RAD is denied. CORRESPONDENCE ON A SUBJECT OF CONCERN [23] On pages 335 and 336 of his memorandum, the appellant mentions concerning remarks which must be looked over and weighed with interest and discernment. [24] Paragraph 11 of the text titled memorandum states the following (the excerpt has been reproduced in extenso, with errors): "The appelant's counsel in the Refugee Protection Division, did not adequately prepare the appelant for his hearing. That is why he did not submit this proof before." [25] The RAD finds this allegation to be very concerning. As such, on May 15, 2018, the member wrote to the appellant's counsel for clarifications. The letter mentioned that a copy of the appeal memorandum should be sent to his former counsel to notify him. On a related note, the RAD asked to be informed of the steps taken to report the situation invoked to the competent authorities and the response(s) obtained following this report. [26] On May 17, 2018, the appellant was sent a letter which stated that he was being given a four-week extension in order to find himself a new representative and to provide a follow-up to the letter from May 15. [27] On June 8, 2018, the RAD wrote to the appellant's representative to offer him the opportunity to make submissions in this regard. A few days later, on June 14, the RAD received a letter from immigration consultant XXXX XXXX, who represented the appellant during the first proceedings. In his letter, the latter indicated that after signing the retainer, there were several meetings in order to prepare the case. As for the documents needed to support the evidence, the appellant [translation] "was always reluctant and did not want to provide further details other than those written in the original claim." After the negative decision from the RPD was issued, the appellant wanted to pursue appeal proceedings with the firm. However, due to lack of financial resources, the appellant was referred to Legal Aid. XXXX XXXX argued that he [translation] "always acted diligently, professionally and competently in XXXX XXXX XXXX XXXX XXXX XXXX case." [28] On June 19, 2018, the RAD wrote to the appellant and provided him with XXXX XXXX submissions and awaited his comments. [29] Finally, the RAD Registry received a letter from the appellant on June 22, 2018. In the second paragraph of his letter, the appellant indicated the following: [translation] "I never said that he was incompetent. It was my lawyer, XXXX XXXX (who is now retired), who stated on page 336 of the appeal that he thought he had failed to fully prepare me for the hearing, as he should have asked me to provide more evidence." He concluded his missive by stating that he did not provide further evidence because he was of the opinion that the messages from a person named XXXX were sufficient evidence for the panel. [30] The RAD concludes that after all the steps it took to clarify this very embarrassing situation, starting with the allegation that his representative was incompetent, the appellant ultimately withdrew his statement in the letter he submitted on June 22, 2018. Moreover, he did not provide any evidence of this alleged incompetence. ANALYSIS [31] After reviewing all the evidence on the record, both testimonial and documentary, the RAD's finding is identical to that of the RPD: that the appellant is not credible. [32] To start, the RAD would like to mention that the appellant's tone when he testified during the initial proceedings was that of someone who did not seem to care about his case. He was somewhat detached and there seemed to be a lack of interest concerning his alleged story. Furthermore, there were long and frequent pauses before an answer was given, which led to a neutral, indifferent and inconsistent testimony coming from nowhere. This is the first comment that the RAD would like to point out. [33] At the beginning of its analysis, the RPD stated that there was no written account filed with the BOC Form, which is unusual. The appellant mentioned that everything could be found in question 2 and onward of the form. This is not a fundamental issue because the appellant swears to complete the questions by giving suitable answers. [34] In paragraph 8 of the decision, the RPD stated that the appellant repeated the content found in his BOC Form almost word for word. The appellant states that this remark was inappropriate in the circumstances. With respect to the opposing opinion, the RAD carefully listened to the recording and must acknowledge that the latter restated the contents of his form almost to the letter. However, when the RPD member asked the appellant a question that was outside of the filed written account, he had a lot of difficulty answering and there were long pauses. This suggests that the testimony was memorized and reproduced during the hearing. The RAD is of the opinion that the RPD did not err in its analysis. [35] The appellant mentions another factor, which can be found at paragraph 9 of the RPD decision, regarding a criticism of his answers to the questions asked. He adds that his responses were not vague. However, as mentioned in the previous paragraph, the RAD notes that there were long pauses before the appellant answered the questions. For example, at the beginning of the hearing, the member asked the appellant about the time when his problems began. A first pause. He then added [translation] "problems?" Another pause. [translation] "What problems?" Which forced the member to repeat: [translation] "The reasons that led you to file a claim." Another example worth mentioning that supports these remarks pertains to his wandering speech about the Pride Parade, which is the highlight and culmination of activities of this event. The Pride Parade consists of a parade in downtown Montréal which brings together community, sports and cultural organizations to walk around the city. He testified that he frequented gay clubs and saunas in the city. He also participated in activities that were associated with the gay community. When asked when this parade took place, the appellant took a long pause to think before replying that it took place in August. He then added [translation] "I think." The appellant was then asked to provide further information about the parade. After another pause, the appellant stated [translation] "just a walk, lots of people." He added that he was not aware that he was walking in the Pride Parade downtown and that he simply continued walking. Considering that this parade unites hundreds of thousands of people in Montréal and that it is the ultimate place for gay diversity, the panel does not find it credible that the appellant, who claims to have frequented the gay scene in the city and wishes to free himself from his family and his community in Niger, is unable to answer this question more explicitly. The RAD is of the opinion that the RPD analysis concerning the appellant's answers is correct. [36] The appellant indicates that the RPD poorly analyzed the relationship between him and XXXX. He states in his short memorandum that the original panel indicated that the two were not the same age. The RAD finds the opposite in paragraph 13 of the RPD decision. [37] On another, more semantic, note, the appellant criticizes the RPD for having misunderstood and misused the personal pronouns [translation] "they" and "we." It was indicated in the answers of sub-question two that the applicant uses [translation] "I" and sometimes he uses "we" and "them" and "they." In his testimony, the appellant was distant with personal pronouns. This distance in his testimony could explain why he refrained from using "I." The appellant's testimony was very discreet; however, the RAD respects this method of discourse. While taking into consideration the guideline on sexual orientation, this type of testimony is inconsistent and poorly supports a refugee protection claim based on sexual orientation. [38] In regards to subjective fear, the appellant alleges that his student visa was valid until XXXX XXXX, 2018. It is not unreasonable to claim protection sooner because of one's legal status in Canada. Although it is true that the student visa was valid until XXXX 2018, the panel notes that the appellant has not been pursuing his studies for a long time and that, according to his written account, his fear has existed for a very long time. He has been aware since 2014 that being homosexual is not illegal in Canada. He has learned that people here are open-minded. Consequently, the RAD is of the opinion that the appellant took numerous months, even years-almost two and a half years-to claim protection in Canada, all the while fearing for his own life and safety in the event that he had to return to his country of nationality. The panel considers the long delay in filing a claim in light of the claimant's actions and behaviours. Despite the fact that his student visa was valid, he stated that individuals are tolerant and that homosexuals live with no difficulty. His record focuses solely on his sexual orientation. The appellant could have and should have consulted informed individuals and claimed protection much sooner, which he did not do. In this particular case, this greatly undermines his credibility. The panel is of the opinion that the RPD analyzed this factor properly. [39] The appellant makes one final argument: he states that his counsel before the RPD failed to adequately prepare him for the hearing. This sensitive factor falls within the responsibility of the organization that oversees the Immigration Consultants of Canada Regulatory Council. If the appellant believes that he was poorly prepared and poorly advised, he must file a complaint with the appropriate authorities. After presenting the appellant with the opportunity to express his point of view in regards to the allegations of the poor service rendered, the panel concludes that the appellant failed to present evidence of this and seems to have retracted his statements. Following his answers, the RAD is of the opinion that these allegations have no basis and that he failed to present new evidence. [40] For the reasons expressed in this decision, the RAD finds that the RPD rendered the correct decision. REMEDY [41] For these reasons, the RAD confirms the RPD determination, namely, that XXXX XXXX XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the same act. [42] The appeal is dismissed. Michel Jobin Me Michel Jobin July 18, 2018 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Canada (Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., No. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 X(Re), 2017 CanLII 33034 (CA IRB). 4 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB6-07597 10