TC1-21878

RAD File / Dossier de la SAR : TC1-21878 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 of decision March 22, 2022 Date de la décision Panel Daphnée Ouellet Tribunal Counsel for the person who is the subject of the appeal Razgar Hasan 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] I allow this appeal. [2] The Appellant, XXXX XXXX XXXX XXXX XXXX XXXX, is a 29-year-old male of Muslim faith and Jordanian nationality hailing from the town of XXXX XXXX, Balqa Governorate, Jordan. He self-identifies as a gay man who holds non-conforming agnostic religious views, and claims to fear discrimination, violence and other harm from community members and the Jordanian authorities for that reason if he returns. [3] The Appellant also claimed, in his initial Basis of Claim (BOC) narrative filled by a ghost immigration consultant, that he was involved in anti-government demonstrations in 2018 and that he was arrested and detained twice by security forces who questioned and tortured him about his political views and affiliations. [4] The Minister intervened before the RPD to raise several concerns with regard to the Appellant's credibility, in particular relating to the facts contained in his initial BOC narrative which were contradicted by evidence from his social media showing that he had been actively posting online during the periods he claims to have been detained. [5] The Appellant's allegations and the Minister's submissions have been summarized comprehensively by the RPD at paragraphs 3 to 12 of its reasons. [6] The Refugee Protection Division (RPD) found that the Appellant had not credibly established the material elements of his claim regarding his involvement in anti-government demonstrations, and that previous attempts at providing false information for immigration purposes undermined his general credibility, including with regard to his sexual orientation which was disclosed only after the Minister's intervention raising credibility concerns about this claim.1 [7] These RPD findings are all contested on appeal.2 The Appellant argues that the RPD failed to correctly apply the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC Guidelines).3 [8] I find that the determinative issue before the Refugee Appeal Division (RAD) relates to credibility. I will explain below why I find that the RPD erred in its assessment of the Appellant's credibility with regard to his sexual orientation and, ultimately, came to the wrong conclusion. [9] The Minister has not intervened before the RAD. SCOPE OF THE APPEAL [10] The role of the RAD is to intervene when the RPD is wrong in law, in fact, or in fact and law. Despite the Appellant's reference to the standard of reasonableness, I reviewed the decision of the RPD by applying the correctness standard.4 I find that the RPD had no meaningful advantage as I have reviewed both the audio-recording and transcripts of all 7 hours and 45 minutes of the Appellant's testimony before making my own determination on his credibility. ANALYSIS [11] On my own assessment, I find that the RPD incorrectly assessed the credibility of the Appellant's sexual orientation (see below - i.). I have examined the totality of the evidence, including country conditions, and consider that there is more than sufficient and credible evidence on the record to support that the Appellant will face a serious possibility of persecution or risk to his life on that basis if he returns to anywhere in Jordan. Therefore, the RAD can bring finality to the claim (see below - ii.). For this reason, I have not examined the other RPD conclusions or arguments put forth by the Appellant. [12] The SOGIESC Guidelines5 were taken into account when considering the process of the hearing, the facts in this case, and in examining whether the RPD erred in its conclusions. i. The RPD Incorrectly Assessed the Credibility of the Appellant's Sexual Orientation [13] The RPD considered that the Appellant had not credibly established the material elements of his claim relating to his sexual orientation owing to previous attempts at providing false information for immigration purposes which undermined his general credibility (a), and the fact that his sexual orientation was disclosed only after the Minister's intervention (b). [14] I do not agree with these findings, and I will explain why. a) Explanations for providing false information in immigration processes [15] The RPD first considered the fact that the Appellant had previously applied for visas to the United States (US) and Canada, and in both cases provided false information about his employment, education and family ties upon the advice of a local agent, to bolster his chances at successfully obtaining a visa. It considered the Appellant's explanation that he did not care about providing false information in his visa applications because it was his only hope of leaving Jordan but found it rather indicative of a "relaxed approach to telling the truth in service of personal ends"6, which greatly undermined his overall credibility. [16] On appeal, the Appellant submits that he was trying to leave Jordan because of the problems he was facing, which included wanting freedom and economic opportunities as he mentioned in his oral testimony.7 It is argued that it is common for agents to falsify evidence and write false information to get their client a visa given that they get paid when the visa is issued. [17] I agree with the Appellant. [18] First, it is established that a refugee claimant may need to lie in order to obtain a visa and make a refugee claim in Canada.8 Moreover, it has been found in many instances that relying on misrepresentations made to visa officers to impugn credibility was an error.9 In the same vein, in Orelien10, Mahoney, J. A. stated: "That a person has sought to emigrate strikes me as a feeble basis for questioning the credibility of that person's evidence of fear of persecution at home."11 I agree with this perspective. [19] This is particularly so, in the present case, because the Appellant has provided a detailed, personalized and credible account regarding his non-linear self-discovery, and his subsequent experiences a gay man in Canada since 2020, after coming to Canada in XXXX 2019 and experiencing freedom away from the oppressive and religiously conservative socio-political context in which he had lived his entire life. I find the Appellant's testimony fully consistent with the SOGIESC Guidelines explaining that self-awareness and acceptance may present as a gradual or non-linear process.12 I will mention later why I find that he has also sufficiently explained his delay in disclosing this until XXXX 2021 (see below: b). [20] The Appellant's testimony is also accompanied by personal and in some cases highly explicit supporting evidence of his various encounters with same-sex partners since coming to Canada.13 Yet, the RPD made no reference to this, which was an error given that it had the strong potential to contradict its findings. The RPD had a duty to consider the evidence in its entirety, with an open mind, before making findings on the value to be placed on critical elements of the evidence.14 In my opinion, the RPD's failure to mention this evidence entirely shows that it discounted probative corroborating evidence on the sole basis that it found the allegations not credible. [21] What is more, the Appellant's current same-sex partner also testified at the hearing, and both provided entirely consistent, detailed and spontaneous testimony which confirmed the manner in which they met, how their relationship developed, how often they see each other, as well as a detailed history of his partner's own path to self-discovery and acceptance, and their hopes for the future.15 The RPD dismissed this on the basis that he had made variable references to himself as both a bisexual man and a gay man when testifying. It found this inconsistent and did not accept his explanation on the interchangeable use of these terms that he is generally more attracted to male partners. It therefore rejected this testimony as an "attempt to bolster a false refugee claim".16 [22] I find that the RPD adopted circular reasoning by rejecting this probative evidence primarily based on its prior determination that the Appellant was not credible and attempting to bolster his refugee claim because he had previously lied. [23] In my opinion, although the Appellant did not purport that he had fully developed self-awareness and self-acceptance of his SOGIESC prior to applying for his visas and attempting to leave Jordan, this inevitably played a role in the growing frustration and feeling of oppression which he described throughout his testimony in a detailed and personalised manner. [24] In particular, he testified that he knew all his life that he did not have any attraction to woman, that he was attracted to men, and that this was not allowed in the socio-religious context in which he lived.17 I find that this would undoubtedly have played a role in his decision to leave even if he had not come to a full realization or acceptance, at the time, of his sexual orientation or of the possibility of seeking asylum abroad on that basis.18 [25] It is true, as the RPD noted, that the Appellant had indicated poverty and economic opportunity as a primary motivation for wishing to leave Jordan, but there is nothing preventing an individual from having more than one reason for wishing to emigrate, in particular given the conservative and religious context of a small town such as the one the Appellant originates from (XXXX XXXX) which is reported, for example, as having a high prevalence of child marriages.19 [26] On my own review, I found that the recurring theme throughout his testimony to be that throughout his life he felt that he lived in a conservative and oppressive environment where he did not conform to expectations, including within his family and community, such as praying.20 [27] The RPD concluded that it preferred the Minister's submissions which argued that the Appellant's claim of being agnostic as element intertwined with his gradual self-realization of his sexuality was not credible because his social media contained a post where he had made a general reference to God ("Allah"). However, the Appellant's testimony about what it meant for him to be agnostic made it clear that it was not inconsistent with his beliefs: "I believe that there is one (1) God, that there is a creator, a God, but I don't believe in religions and up to now I don't feel that there is any religion that can persuade me of anything but I believe that there is a God."21 [28] It seems to me that the Appellant's definition of being an agnostic is consistent with most dictionary definitions, for example: "A person who believes that nothing is known or can be known of the existence or nature of God"22 and that the Minister's submissions lacked merit on this point. [29] The Minister did make relevant arguments regarding the inconsistent allegations set out by the Appellant in his initial BOC narrative pertaining to his participation in demonstration and subsequent detention in Jordan given that the Appellant's social media indicated otherwise, but I find that the RPD erred by letting this matter outweigh the rest of his evidence even if the Appellant embellished his claim, especially given that the record shows that the Appellant was initially assisted by a ghost immigration consultant who wrote out and translated the Appellant's narrative as indicated at Section 9 of his initial BOC.23 The latter then stopped taking the Appellant's calls after receiving the Minister's intervention and did not accompany him at the first sitting of the RPD hearing which, in turn, led to the adjournment of the hearing by the RPD Member given that the Appellant was clearly unaware of the Minister's intervention or provided with a copy of the Minister's submissions which had been sent to his "counsel".24 The Appellant argues that although he is responsible for his choices, the fact that he was cheated by this person who was the one to fill out the initial BOC narrative should have also been considered. I agree. [30] Given all this, I find that the RPD erred by giving too much weight to information provided by the Appellant in his visa applications and initial BOC, filled out by a ghost consultant who was also the one to translate the BOC narrative to the Appellant, and insufficiently considering the totality of the evidence which included detailed, personalized and credible testimony regarding his sexual orientation which was supported by probative corroborative evidence regarding his past same-sex encounters and testimony from his current same-sex partner. b) Delay in disclosing the Appellant's sexual orientation [31] The RPD took issue with the fact that the Appellant's sexual orientation was disclosed only in his amended BOC narrative, dated from April 2021, after the Minister's intervention. It considered that this timing undermined the credibility of these new claims as well as Appellant's overall credibility. [32] The Appellant argues that the RPD failed to consider that he feared disclosing this publicly, and that it was only after his current same-sex partner explained to him the importance of disclosing this and convinced him to put this forward at his hearing, that he decided to come forward. [33] I agree. [34] As indicated in the SOGIESC Guidelines, a reasonable delay may also arise out of an individual's reluctance to reveal their SOGIESC to a spouse or other family member, or in their realizing or accepting their SOGIESC.25 [35] In my opinion, though the RPD referred to the Guidelines in its reasons, it did not sufficiently consider the Appellant's background and the totality of the evidence presented in order to assess the reasonability of his behaviour, including the fact that he only disclosed additional information relating to his sexual orientation prior to his hearing. The RPD erred by disregarding the Appellant's explanation and relying on the Minister's argument that: "concern for one's safety is reasonably expected to outweigh any reluctance to disclose this information to a government authority"26 given that the Appellant did disclose all the relevant information in relation to his claim 10 days prior to the RPD hearing, in line with the RPD rules. [36] The RPD also made a finding based on the Appellant's statement that he already knew in XXXX XXXX that he was attracted to same-sex individuals which was incorrect. This is because the Appellant had explained that though he knew that he was not attracted to women previously, it was only once in Canada that he began to explore his sexuality and came to a place of self-realization and acceptance.27 The RPD seems to misunderstand the difference between being aware of one's own attraction to individuals of the same gender, and the gradual discovery, understanding and acceptance that can take several years to reach. [37] I am also guided by the SOGIESC Guidelines which explain that various factors such as religion, faith or belief system, will impact SOGIESC individuals' ability to recognize and act on their SOGIESC differently.28 [38] This is essentially what is being argued by the Appellant when he states that the RPD failed to grapple with the fact that the Appellant's behaviour was one of a man who has been raised in a conservative Islamic environment. I agree that this was a particularly relevant factor in this case given the fact that the Appellant originates from, and had always lived in, XXXX XXXX, a particularly conservative town in Jordan as mentioned above (cf. para. 25). [39] This is also consistent with the SOGIESC Guidelines which state that a SOGIESC individual may develop a well-founded fear of persecution after leaving their country of reference and that sur place claims can arise in situations where there is a change in an individual's SOGIESC, such as when an individual realizes that they are a SOGIESC individual or accepts themselves as such, after leaving their country of reference.29 [40] In the present case, given the reasonable explanation provided by the Appellant and the totality of the evidence on the record supporting his claim that he gradually came to the self-realization and self-acceptance about his sexuality, the delay in disclosing this was sufficiently explained and this was not grounds to dismiss the Appellant's amended narrative and highly probative supporting evidence tendered entirely on that basis. ii. The RAD Can Bring Finality to the Claim [41] Having found that the RPD erred in its conclusion, I must decide on a remedy, and if possible, bring finality to the claim. a) The Appellant has credibly established the material elements of his claim on the basis of his SOGIESC [42] Given the Appellant's extensive, detailed, personalized and consistent testimonies and documentary evidence tendered to support his claims that he is a gay man who gradually came to this self-realization and acceptance since coming to Canada, I find that these material elements of his claim are established, and I will examine his forward-looking risk on that basis. b) The forward-looking risk to the Appellant is established on the basis of his profile [43] Despite the absence of a specific law outlawing same-sex sexual relationships, it is reported that police use morality and public decency laws to target LGBTQI+ individuals. Among the provisions which can be applied to them, is Article 320 of the Penal Code:30 Anyone who commits an act incompatible with modesty or expresses signs incompatible with modesty in a public place or a public assemblage or by manner that could be seen by those in a public place shall be punished with imprisonment not exceeding 6 months or a fine not exceeding 50 Dinars. [44] Laws which in effect prohibit same-sex consensual relationships between adults are discriminatory and constitute a violation of the right to privacy. Their existence may have far-reaching effects on LGBTIQ+ persons' enjoyment of their fundamental rights. A law is also deemed persecutory where it reflects social and cultural norms which are not in conformity with international human rights standards, as enshrined in the Yogyakarta Principles.31 [45] Additionally, individuals who present in a way that is deemed incompatible with gender norms face various forms of discrimination and violence based on their sexuality both in the private and public spheres.32 Societal discrimination against individuals with diverse SOGIESC in Jordan is reported as prevalent, and they have been targets of violence and abuse, including rape, with little legal recourse against perpetrators. Discrimination in housing, employment, education, and access to public services is also reported.33 [46] Gay men who use dating applications, such as the Appellant, report being at risk of "blackmail, outing, and violence".34 [47] Further, the structures of family, tribes, and honour in particular within Jordanian society impact individuals with diverse SOGIESC who are viewed as a stain on the honour of the tribe and family. There have been cases of rape, blackmail, and detention in family homes. Activists emphasize that unreported violence within the family and tribe remains a deep concern.35 [48] Regarding honour-based violence and related crimes, country evidence sets out that while legislation against honour crimes exists, the enforcement is inadequate or sentencing very lenient, making the implementation of policies or guidelines limited. Various sources are reported saying the following: * Amnesty International's Annual Report 2020/2021 reports that domestic violence and so-called "honour" killings were both particularly prevalent in Jordan.36 * Sources note that "honour" killings tend to receive lenient punishments.37 * Despite some attempts at reform, reduced sentences for perpetrators of "honor crimes", remained in force.38 * Protective custody is reported as being often the only solution to protect someone at risk of honour-based violence.39 40 [49] Given this, I find that the objective evidence establishes that Jordanian authorities are ineffective in protecting those targeted for honour crimes and that protective measures may sometimes result in indefinite detention that cannot be challenged. [50] In sum, the objective evidence sets out that although Jordan is still a functioning state, there is a lack of willingness to adequately protect individuals with diverse SOGIESC and, in some cases, complicit in persecuting them. I find that the evidence on the record is sufficient to establish clear and convincing evidence that adequate state protection would not be forthcoming to the Appellant anywhere in Jordan. [51] In these circumstances, neither state protection nor an internal flight alternative (IFA) is available to the Appellant if he were to return. CONCLUSION [52] Based on the credible personal evidence adduced by the Appellant and its broad consistency with the documentary evidence, I conclude that the Appellant's sexual orientation will place him at risk if he returns to Jordan, and that he would face a serious possibility of persecution in the form of discrimination, harassment, honour-based violence or death, as outlined above, on account of his membership in particular social group (individuals with diverse SOGIESC). [53] Given the above, I consider that the Appellant has established a forward-looking risk if he returns to Jordan, that adequate state protection is not available to him, and that no viable IFA exists. DECISION [54] The appeal is allowed. I substitute my own decision that the Appellant is a Convention Refugee. (signed) Daphnée Ouellet Daphnée Ouellet March 22, 2022 Date 1 Exhibit RPD-1, RPD Record, RPD Reasons, paras. 13-44. 2 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 18-21. 3 Immigration and Refugee Board of Canada, Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC Guidelines), revised: December 17, 2021. 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 5 Immigration and Refugee Board of Canada, Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC Guidelines), revised: December 17, 2021. 6 Exhibit RPD-1, RPD Record, RPD Reasons, para. 20. 7 Transcript of RPD Hearing, May 10, 2021, pp. 10-15. 8 Ndagire v. Canada (Minister of Citizenship and Immigration), 2005 FC 1606 (CanLII), para. 13. 9Fajardo v. Canada (Minister of Employment and Immigration) (1993) 157 N.R. 392 (F.C.A.), followed in: Maheswaran v. Canada (Minister of Citizenship and Immigration), 2003 FC 910 (CanLII); Hedayati v. Canada (Minister of Citizenship and Immigration), 2006 FC 577 (CanLII). 10 Orelien v. Canada (Minister of Employment and Immigration) (1991), [1992] 1 F.C. 592 (C.A.) 11 Ibid., para. 36. 12 SOGIESC Guidelines, Section 3 - Understanding the challenges faced by SOGIESC individuals in establishing their SOGIESC 13 Exhibit RPD-1, RPD Record, Exhibit-14, pp. 38-52. 14 Ruiz v. Canada (Minister of Citizenship and Immigration), 2005 FC 1339, (CanLII), para 9. 15 Transcript of RPD Hearing, August 6, 2021, pp. 3-18 & 31-42. 16 Exhibit RPD-1, RPD Record, RPD Reasons, para. 42. 17 Transcript of RPD Hearing, May 10, 2021, p. 21. 18 Transcript of RPD Hearing, August 6, 2021, p. 4. 19 Exhibit RAD-1, National Documentation Package (NDP), Jordan, 17 December 2021, tab 5.1: ?A Study on Child Marriage in Jordan. Higher Population Council - Jordan. 2017, p. 58. 20 Transcript of RPD Hearing, May 10, 2021, p. 20. 21 Ibid. 22 Oxford English Dictionary/Lexico: https://www.lexico.com/definition/agnostic 23 Exhibit RPD-1, RPD Record, Initial BOC, p. 29. 24 Transcript of RPD Hearing, October 15, 2020 25 SOGIESC Guidelines, Section - 8.5.11 Delay 26 Exhibit RPD-1, RPD Record, RPD Reasons, para. 41. 27 Transcript of RPD Hearing, May 10, 2021, p. 22. 28 SOGIESC Guidelines, Section 3 - Understanding the challenges faced by SOGIESC individuals in establishing their SOGIESC 29 SOGIESC Guidelines, Section - 8.5.12 Sur place claims 30 Exhibit RAD-1, NDP, Jordan, 17 December 2021, tab 6.1: ?Jordan. Activism and Resilience: LGBTQ Progress in The Middle East and North Africa. Case Studies From Jordan, Lebanon, Morocco and Tunisia. Outright Action International, p. 1. 31 The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity were adopted in 2007 by a group of human rights experts and, although not binding, reflect well-established principles of international law. They reiterate that all human beings are born free and equal in dignity and rights. All human rights are universal interdependent, indivisible and interrelated. Sexual orientation and gender identity are integral to every person's dignity and humanity and must not be the basis for discrimination or abuse. See: International Commission of Jurists (ICJ), Yogyakarta Principles - Principles on the application of international human rights law in relation to sexual orientation and gender identity, March 2007; and also: UNHCR, Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 23 October 2012, HCR/GIP/12/01, p. 3. 32 Exhibit RAD-1, NDP, Jordan, 17 December 2021, tab 6.1: ?Jordan. Activism and Resilience: LGBTQ Progress in The Middle East and North Africa. Case Studies From Jordan, Lebanon, Morocco and Tunisia. Outright Action International, p. 3. 33 Exhibit RAD-1, NDP, Jordan, 17 December 2021, tab 2.1: ?Jordan. Country Reports on Human Rights Practices for 2020. United States. Department of State. 30 March 2021, p. 46. 34 Exhibit RAD-1, NDP, Jordan, 17 December 2021, tab 6.1: ?Jordan. Activism and Resilience: LGBTQ Progress in The Middle East and North Africa. Case Studies From Jordan, Lebanon, Morocco and Tunisia. Outright Action International, pp. 3-4. 35 Ibid. 36 Exhibit RAD-1, NDP, Jordan, 17 December 2021, tab 2.2: ?Jordan. Amnesty International Report 2020/21: The State of the World's Human Rights. Amnesty International. 7 April 2021. POL 10/3202/2021, p. 3. 37 Exhibit RAD-1, NDP, Jordan, 17 December 2021, tab 5.9: ?Jordan and the United Arab Emirates: Treatment of divorced women, including those living with their ex-husband, by family members and society; information on honour-based violence, including state protection (2015-August 2017). Immigration and Refugee Board of Canada. 15 September 2017. ZZZ105955.E, p. 6. 38 Ibid., p. 7. 39 Ibid., p. 9. 40 Exhibit RAD-1, NDP, Jordan, 17 December 2021, tab 9.1: Tribal law, including whether it allows murder as revenge; whether tribal law overrides the legal justice system, as well as areas it is applied; government protection (1988-May 2013). Immigration and Refugee Board of Canada. 31 May 2013. JOR104416.E, p. 7. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-21878 RAD.25.02 (August 20, 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 (August 20, 2021) Disponible en français