TC1-02523

RAD File / Dossier de la SAR : TC1-02523 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Date(s) of hearing February 9, 2022 Date(s) de l'audience Appeal considered / heard at Toronto, ON. Appel instruit / entendu à Date of decision March 22, 2022 Date de la décision Panel Christopher G. Harrison Tribunal Counsel for the person who is the subject of the appeal David P. Yerzy 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] The Appellant, XXXX XXXX XXXX XXXX XXXX XXXX is a citizen of Iraq. He appeals the decision of the Refugee Protection Division ("RPD") whereby his claim for refugee protection was denied. The Appellant asks the Refugee Appeal Division ("RAD") to set aside the RPD decision and to substitute its own determination that he is a Convention refugee within the meaning of the Immigration and Refugee Protection Act1 ("IRPA"). In the alternative, the Appellant asks that the RAD return the matter to the RPD for redetermination. [2] The Appellant has tendered new evidence under subsection 110(4) of the IRPA. Following perfection of the appeal, the Appellant served further new evidence under rule 29 of the RAD Rules and requested an oral hearing pursuant to subsection 110(6) of the IRPA. [3] The Minister did not intervene at the RPD. Following receipt of the application to submit additional evidence under rule 29 and considering the allegations contained therein,2 pursuant to the Alazar3 decision, the RAD notified both the Minister and the Appellant4 that the allegations raised constituted a claim based upon a new Convention ground, inviting the Minister to respond by way of filing Notice of Intervention. The Minister failed to respond and, as such, does not participate in the matter. [4] The oral hearing was held on February 9, 2022, with the Appellant and his counsel present. DETERMINATION [5] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee under section 96 of the IRPA. BACKGROUND [6] The Appellant is a citizen of Iran who grew up in Baghdad in a Muslim family. He has several siblings, including one brother A.A.5, who is alleged to be an agent of persecution. The Appellant (who was an aspiring musician) moved from Iraq to Jordan in 2014 where he was able to pursue a career in music. As Shia Muslims, his family disapproved of his musical interests causing him to take employment with a family member in the automotive industry. Following his relocation to Jordan, he met a woman who he eventually married. Although his wife was of Iraqi descent, she had obtained Jordanian citizenship via her previous marriage to a citizen of Jordan. The Appellant was introduced to Christianity via his wife who was Christian, though not at that time extremely devout in her worship. Together, the Appellant and his wife became more involved in the Christian faith and were, ultimately, baptized as Christians on XXXX XXXX, 2017. [7] The Appellant's conversion from the Islam faith to Christianity was somehow learned of by his family back in Iraq. In telephone conversations with family members, he was berated, insulted and threatened for this choice. I might add that, in addition to hostility towards his musical career aspirations, his family (excepting a sister) expressed hostility due to his having married a non-Muslim. [8] On XXXX XXXX, 2018, the Appellant alleges that he received a telephone call that his mother was very ill and had been hospitalized. He claims that A.A. advised that the Appellant was forgiven by both the brother and the mother and that his mother wanted to see him. He immediately flew to Iraq. He claims that when he deplaned and turned his telephone on, he got a call from his sister (who had remained positive towards and supportive of his life choices) who advised that the mother was not ill and that the whole incident was a ruse perpetrated by A.A. who intended to avenge the family honour by killing him. The Appellant immediately returned to Jordan where his brother called and, on learning that the Appellant was aware of the scheme, announced that it was his duty to kill the Appellant and that many others in the family agreed with him. [9] In XXXX 2018, the Appellant was invited to join a group of performers who were coming to Canada to XXXX XXXX XXXX XXXX. Following arrival in Canada on XXXX XXXX XXXX 2018, in January 2019, the Appellant claimed refugee protection based upon his religious conversion. ROLE OF THE RAD [10] My role is to review the RPD decision on a standard of correctness after having conducted an independent examination of the evidence.6 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard which may, in certain cases, allow me to defer to RPD findings. I do not believe the RPD enjoyed any such meaningful advantage in this appeal and all evidence from the RPD hearing has been taken into consideration in arriving at my decision. NEW EVIDENCE CONSIDERED [11] On appeal, the Appellant submits the following two online articles as new evidence: (i) "When Were Joseph and Mary Married?" dated September 20, 2013;7 (ii) "Were Mary and Joseph Married or Engaged at Jesus' Birth?" dated December 1, 2020.8 [12] Subsection 110(4) of the IRPA provides that new evidence can only be admitted on appeal if it arose after the RPD rejection of the claim, was not reasonably available at the time of the rejection or could not reasonably have been expected in the circumstances to have been presented to the RPD before the rejection. If the proposed new evidence meets one or more of the subsection 110(4) requirements, pursuant to the jurisprudential factors set out by the Raza decision, later modified by the Singh decision,9 I must then determine if the evidence is new, credible and relevant before it can be accepted. [13] The Appellant argues that these articles meet the requirements of subsection 110(4) of the IRPA because he could not have anticipated that the marital status of Jesus' parents would form an important (adverse) credibility finding.10 I agree with this submission and, turning then to the Raza and Singh factors, it is evident that the articles bring evidence that is new and relevant to the matter and would appear to emanate from credible sources. Accordingly, I find these articles to be admissible for purpose of the appeal. ADMISSIBILITY OF RULE 29 EVIDENCE [14] Following perfection of his appeal, the Appellant submitted further new evidence pursuant to rule 29 of the RAD Rules. The new evidence featured the Appellant's own affidavit, as well as four exhibits.11 In his affidavit, the Appellant alleges that, after the negative RPD decision but prior to the determination of his appeal, following a period of psychological anguish, he had come to the realization that he identified as a bisexual male which exposed him to further risk of persecution if returned to Iraq. This new evidence has not been considered by the RPD and, in essence, forms a new ground by which the Appellant claims refugee protection. [15] The Appellant has provided the following documents as proposed rule 29 evidence: (i) the affidavit of the Appellant sworn September 29, 2021; (ii) a psychiatric report dated XXXX XXXX, 2021; (iii) extensive notes from the Appellant's family physician; (iv) a support letter from an organization known as the XXXX XXXX XXXX XXXX XXXX XXXX (XXXX) which is active in the Lesbian, Gay, Bisexual, Transgender, and Queer ("LGBTQ") community; and (v) a support letter from an intimate same-sex partner, M.A. [16] Rule 29 allows the Appellant to make an application to provide documents which have not been previously provided. An application under rule 29 must include an explanation of how the document meets the requirements of subsection 110(4) of the IRPA and how the evidence relates to the Appellant.12 In determining the application, I must consider any relevant factors which includes the relevance and probative value of the documents, any new evidence the documents bring to the matter and whether the Appellant could have, with reasonable effort, provided the document with his Appellant's Record. [17] The Appellant submits that the rule 29 evidence: (i) concerns events that transpired after XXXX 2021; (ii) is relevant and material as it addresses a new ground for fearing persecution; (iii) the evidence is corroborated by both medical reports, a statement from and LGBT organization and a member of the public; and (iv) the National Documentation Package (NDP) for Iraq corroborates the risk to members of the LGBT community in Iraq. [18] All of these documents relate to the issue of a possible new ground by which Convention refugee status might be claimed, namely: the Appellant's sexual orientation. The documents are relevant and probative as they relate both to the Appellant's newfound sexual orientation, as well as the risk to members of the LGBTQ community in Iraq. The evidence is clearly new as it was not before the RPD for consideration. It could not have been provided at the time the appeal was brought as it was only after the appeal had been lodged that the Appellant's sexual orientation manifested itself. I find that this evidence meets the rest set out by rule 29 of the RAD Rules. [19] Subsection 110(4) of the IRPA allows for the introduction of new evidence in certain circumstances which includes where an appellant could not have reasonably been expected under the circumstances to have presented it prior to the RPD rejection. [20] In considering the admissibility of this new evidence, I have taken into account the Chairperson's Guideline 9 (SOGIESC) and, in particular, as it applies to disclosure of sexual orientation.13 [21] Given the timing of the Appellant's recognition of his sexual orientation and based upon the other factors discussed above, I am satisfied that the new evidence meets the requirements of subsection 110(4) of the IRPA. Next, I am required to consider the jurisprudential requirements for new evidence as set out in the Singh decision,14 which requires that the proposed new evidence be credible, relevant and new. Again, based upon the timing of the revelation, I am satisfied that it provides me with evidence that, subject to be tested, appears to be credible - particularly as there is corroboration from the medical field. All of the evidence is capable of proving a new Convention ground as the Appellant claims to be a member of a particular social group, namely: bisexual individuals, and I consider it to be new since, as discussed above, it was not reasonably available for presentation to the RAD at an earlier time. [22] Accordingly, I accept this new evidence under rule 29. As set out above, an oral hearing was held pursuant to subsection 110(6) of the IRPA at which time the Appellant provided further testimony with respect to the allegations. Prior to reviewing his testimony, I shall briefly set out the substance of the new evidence. ORAL HEARING CONVENED [23] Subsection 110(6) of the IRPA provides that the RAD may conduct an oral hearing in circumstances where new evidence raises a serious issue with respect to the Appellant, is central to the decision with respect to the refugee protection claim and that, if accepted, would justify allowing or rejecting the claim.15 ANALYSIS OF MERITS OF APPEAL Appellant's affidavit [24] In his affidavit, the Appellant deposed that he came to realize that he was bisexual in XXXX 2021.16 As a result of this realization, he started to be active on various internet dating applications and eventually met M.A. who he spoke with and ultimately agreed to meet.17 The Appellant and M.A. agreed to be friends only, but this friendship caused the Appellant, in XXXX 2021, to seek out men for sexual encounters.18 [25] The Appellant further deposed that, based upon his upbringing, these encounters resulted in feelings of guilt which he claims caused him to feel depressed and to attempt suicide on two occasions.19 As discussed in greater detail below, the contents of the affidavit were the subject of an oral hearing before the RAD. [26] Turning then, to the exhibits attached to the affidavit which included a letter from a psychiatrist, the notes of the Appellant's family physician, a support letter from the XXXX and a letter of support from M.A. [27] The psychiatrist's letter which appears as Exhibit A20 confirms that he was referred to the psychiatrist. The consultation occurred XXXX XXXX XXXX 2021, and notes that the Appellant is depressed and had attempted suicide on two previous occasions by overdose. The psychiatrist indicates that the Appellant reports his bisexuality to the doctor advising that he is bisexual, and fears being killed if he goes back to either Jordan or Iraq. A recommendation is made for psychotherapy by a qualified psychologist. [28] Exhibit B21 to the Appellant's affidavit is an extensive package of clinical notes prepared by the Appellant's family doctor. The notes date back to a period that well predates the RPD hearing and based upon these notes, it is possible to discern that the family doctor was, as a result of various physical symptoms, questioning whether the Appellant in some form of psychological distress or was under stress. This is a consistent theme throughout the doctor's notes. For example, in XXXX 2020, the Appellant reported that he was very anxious and, though no suicidal ideations were reported, the doctor's notes show that there was at least some concern for self-harm, as he was advised of certain steps to take should such ideations manifest themselves.22 [29] These signs of psychological stress continued to present following the rejection of the RPD decision. Approximately XXXX XXXX XXXX XXXX months after the claim was rejected, the Appellant attended his doctor's office at which time he reported that he was worried about his sexual orientation and that he had engaged in a same-sex encounter.23 This encounter was, according to the doctor's notes, triggering worry about social and family status.24 [30] The support letter from XXXX is authored by an individual who identifies himself as the "XXXX XXXX" and provides little information about the Appellant's situation, other than to say this person was assisting the Appellant with his "settlement needs".25 During the oral hearing the Appellant provided credible and compelling testimony as to his newfound sexual orientation [31] The purpose of the hearing was to review (and test) the credibility of the Appellant's evidence as set out in his rule 29 application. [32] The Appellant delivered his testimony in a spontaneous and straight-forward manner. Despite the sensitive and intensely private nature of the information discussed, he remained composed and provided his evidence in an entirely credible manner. Certain subjects he found difficult to talk about, however, as discussed below with respect to the SOGIESC Guideline, in my view, neither the divergence from the affidavit, nor the difficulty in openly articulating certain topics detracts from the Appellant's credibility. [33] The Appellant testified that he met M.A. through the online dating application Tinder and, following initial communications via that application, began to communicate via WhatsApp. Eventually, they agreed to meet at M.A.'s residence where sexual relations occurred. Though their relationship is not exclusive, and the Appellant has been with other men, he and M.A. continue to see each other, and the relationship continues to be sexualized. [34] There was one point of divergence between the Appellant's testimony and his affidavit. In his affidavit, he claims that he and M.A. were just friends and that his sexual encounters had been with other men. At the oral hearing, the Appellant went into much greater detail as to the nature of his relationship with M.A. Once again, I found his testimony to be credible, consistent and comprehensive. It is noteworthy that the Appellant is a married individual who comes from countries of reference where SOGIESC activity is marginalized and, indeed, criminalized. Taking into account the Appellant's personal, psychological, cultural and social factors (as the SOGIESC Guideline requires me to do), there can be no adverse inference drawn from the deviation between his testimony and his affidavit. [35] Similarly, I am not troubled by the fact that M.A. did not attend the hearing. The Appellant provided an explanation which I accept. Counsel submits that the Appellant's testimony was credible and stands on its own and the fact that M.A. did not attend the hearing was simply a matter of weight with respect to his letter. I accept that argument and, accordingly given the support letter of M.A. little weight. [36] As to the weight to be given to the medical reports, I note that in the case of such evidence, all too often, it emanates from the individual, as it is a form of self-report. However, the encounters which form the basis of the claim are of an inherently intimate and private nature and once can scarcely imagine how it could be otherwise. The elements of this fresh allegation that could be proven have been tested by means of the oral hearing. I have had an opportunity to probe the Appellant's allegations and have his evidence to be credible and compelling, and I find that he has established, on a balance of probabilities, that he is a member of a particular social group, namely: a bisexual male. Risk upon return to Iraq [37] The Appellant claims that he is afraid of being killed if returned to Iraq or Jordan. The RPD found that Jordan was not a country of reference for the Appellant.26 As such, my review of the Appellant's risk shall be confined to Iraq. [38] The most recent NDP for Iraq27 establishes that the Appellant's concern is well-founded. For example, the following information derives from the NDP: (i) while there is no formal legal prohibition against same-sex intimacy, there have been same-sex couples prosecuted on the basis of other criminal provisions such as prostitution and public indecency;28 (ii) there remains a significant threat of violence against people on the basis of same-sex desire or gender expression;29 (iii) despite the fact that Iran's civil code is silent on same-sex sexual behaviour, Sharia judges have been known to order executions of men and women for same-sex behaviour;30 (iv) police and militias have frequently kidnapped, threatened and killed LGBT people;31 (v) while consensual same-sex sexual acts between adults are not specifically prohibited in Iraq, the Penal Code prohibits sexual relations outside marriage, effectively criminalising all same-sex sexual behaviour as there are no provisions for same-sex marriage;32 and (vi) a person living openly as an LGBTI person will be at higher risk of treatment from the state which could amount to persecution or serious harm due to the state's failure to protect LGBTI persons from mistreatment at the hands of state actors, or punish officials for misdemeanours committed against members of the LGBTI community.33 [39] Referencing, once again the SOGIESC Guideline, the existence of laws that criminalize or suppress non-conforming sexual orientations may be indicative that an individual has a well-founded fear of persecution; being compelled to conceal one's sexual orientation constitutes a serious interference with fundamental human rights that may amount to persecution and an individual cannot be expected to conceal his sexual orientation as a means of avoiding persecution.34 [40] Based on the foregoing, I conclude that the Appellant is a Convention refugee who has a well-founded fear of persecution based upon his sexual orientation. Given this finding, it is unnecessary for me to consider the appeal insofar as the original RPD decision is concerned. CONCLUSION [41] The appeal is allowed. I set aside the determination of the RPD and substitute my own decision that the Appellant is a Convention refugee, pursuant to paragraph 111(1)(b) of the IRPA. (signed) Christopher G. Harrison Christopher G. Harrison March 22, 2022 Date 1 Immigration and Refugee Protection Act (S.C. 2001, c. 27), as amended. 2 Exhibit P-3, Rule 29 application (September 30, 2021). 3 Canada (Citizenship and Immigration) v. Alazar, 2021 FC 637 (CanLII). 4 RAD-1, Alazar - Notice to Appellant and Minister (October 4, 2021). 5 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision, pursuant to s. 5.3 of the Chairperson's Guideline 9. 6 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 7 Exhibit P-2, Appellant's Record, pp. 32-33. 8 Ibid., pp. 36-37. 9 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 (CanLII), as endorsed in Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII), [2016] 4 FCR 230. [Singh] 10 Exhibit P-2, Appellant's Record, Appellant's memorandum, at p. 58, para 90. 11 Exhibit P-3, Rule 29 application (September 30, 2021). 12 Refugee Appeal Division Rules, (SOR/2012-257), subrule 29(3). 13 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics. Update, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, IRB, Ottawa, Revised: December 17, 2021. [SOGIESC] 14 Singh, supra, endnote 9. 15 Immigration and Refugee Protection Act (S.C. 2001, c. 27), as amended, at subs. 110(6). 16 Exhibit P-3, Rule 29 application (September 30, 2021), at p. 4, para 4. 17 Ibid., at paras 5-6. 18 Ibid., at para 7. 19 Ibid., at paras 8-9. 20 Ibid., at pp. 7-8. 21 Ibid., at pp. 11-22. 22 Ibid., at p.19. 23 Ibid., at p. 22. 24 Ibid. 25 Ibid., p. 25. 26 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 6, para 17. 27 Policy on National Documentation Packages in Refugee Determination Proceedings, IRB, Ottawa, Effective date: June 5, 2019, at para. 6. 28 Exhibit RAD-2, National Documentation Package (NDP) for Iraq (November 30, 2021), item 6.1 at p. 1. 29 Ibid. 30 Ibid., at p. 2. 31 Ibid. 32 Ibid., item 6.3, at para 2.4.3. 33 Ibid., at para 2.4.12. 34 SOGIESC, supra, endnote 13. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-02523 RAD.25.02 (May 19, 2021) 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 (May 19, 2021) Disponible en français