TB4-06494

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 : TB4-06494 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 26, 2014 Date de la décision Panel C. Forbes Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dilani Mohan Barrister & Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre Reasons and Decision [1] XXXX XXXX XXXX XXXX XXXX (the Appellant), a citizen of Cameroon, has appealed a negative determination of the Refugee Protection Division (RPD) issued on April 4, 2014. He has submitted new evidence in support of his appeal. The Appellant is asking that an oral hearing be held pursuant to subsection 110(6) of the Immigration and Refugee Protection Act (IRPA) in Toronto, Ontario. In addition, the Appellant asks that the decision of the RPD be set aside and substituted with a positive decision under ss. 96 or 97 of the IRPA. DETERMINATION [2] Pursuant to section 111(1)(c) of the IRPA, the Refugee Appeal Division (RAD) refers the matter back to the RPD for redetermination. BACKGROUND [3] The Appellant alleges that he was first attracted to a man at the age of 14. He had his first same-sex relationship in 2007 with a fellow student named XXXX while attending the University XXXX XXXX, despite being aware of the hatred and violence towards homosexuals in Cameroon. [4] The Appellant alleges he met XXXX on a path behind the student residential houses on an evening in June 2009. XXXX was able to flee; however, the Appellant was allegedly attacked by a group of people because they identified him and XXXX as homosexuals. The beating was interrupted by an elderly man coming down the path who alerted the police. The police took the Appellant and two of the attackers to the police station. The police chastised the Appellant and placed him in a cell overnight after the attackers informed the police that XXXX and the Appellant were well-known homosexuals. The Appellant left the station the following morning and went to his cousin who sought treatment for his wounds from a friend who was a nurse because the Appellant feared further repercussions because of his homosexuality, if he attended a hospital. The Appellant received further threats and made the decision to leave university and return to his familial home in XXXX and enrol in school. However, the story of what occurred in XXXX reached residents of XXXX, and the insults and mistreatment of him continued. [5] The Appellant alleges that, during the Christmas season of 2010, he was recognized by a man outside of a bar who accused him of being homosexual. This resulted in, once again, being beaten by a group of men because of his homosexuality. His mother insisted he file a report of the incident, and she accompanied him to the police station. She informed the police officer that the Appellant had been attacked and beaten. The officer asked the Appellant if he was homosexual. The police officer refused assistance and blamed the Appellant's mother's verbal aggression towards him for his refusal to take a report of the incident. [6] Family members, in Canada, the United States and Cameroon, who were shocked by his mistreatment and feared for his life, sought ways to assist him in leaving Cameroon. The Appellant secured a student visa and left Cameroon arriving in Canada on XXXX XXXX, 2012. The Appellant filed for refugee protection on October 30, 2013. [7] The Appellant had a refugee determination hearing on December 23, 2013, with written reasons issued on April 4, 2014. The Minister submitted disclosure and participated in the hearing. In its decision, the RPD found that the Appellant's allegations that he was homosexual were not credible. [8] Appeal pleadings were received on July16, 2014, and a granting of an extension of time on September 8, 2014 for the perfection of the appeal was allowed. [9] The Minister did not participate in the appeal. Admissibility of Evidence Submitted on Appeal [10] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [11] It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.1 The merits of accepting this evidence are addressed by the Appellant in the Memorandum. [12] In addition to his own affidavit, the Appellant provided seven pieces of evidence to the RAD for consideration as new evidence. The pleadings requested an oral hearing on this new evidence. [13] The Appellant asks the RAD to admit the following documents as new evidence: a) Copy of fax sent to XXXX XXXX and XXXX XXXX;2 b) Affidavit of XXXX XXXX XXXX XXXX XXXX, dated June 14, 2014;3 c) Affidavit of XXXX XXXX, dated June 29, 2014;4 d) Copy of Appellant's father's professional identity card;5 e) Statement from XXXX XXXX;6 f) Statement from XXXX;7 g) Email from XXXX XXXX with letter from XXXX XXXX XXXX8 [14] Given that the matter will be returned to the RPD for redetermination and given that the RAD's decision was based on the issue of credibility, performing an analysis on whether or not the evidence was admissible as new evidence was moot, as the Appellant will have the opportunity to present this evidence at his next hearing. ROLE OF THE RAD [15] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,9 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision.10 [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error".11 [16] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,12 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [17] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [18] The RAD focused on the following issue in assessing this appeal: Did the RPD err in ignoring evidence? [19] The Appellant argues that the RPD provides six examples of areas in which his testimony was found not credible. These examples relate to his relationship with XXXX, the attack in XXXX, his delay in seeking protection, the murder of XXXX XXXX XXXX, and his knowledge of the LGBT community and resources in Canada. The examples can be classified as those that relate to the Appellant's sexual orientation and those that relate to his persecution in Cameroon. [20] The RPD made negative credibility inferences regarding the Appellant's evidence that he is a homosexual and that he was involved in a same-sex relationship. The RPD drew negative credibility inferences regarding the alleged attack on campus because of his homosexuality and medical treatment he alleges to have received. The RPD found that the Appellant had not provided any corroboration of the alleged serious injuries that he sustained. In its reasons and decision, the RPD's negative credibility findings led it to conclude that the Appellant was not a homosexual fleeing persecution in Cameroon. [21] Although not argued in the pleadings, a review of the record13 shows a letter sent by email to the Appellant from his mother, XXXX, that clearly speaks of the Appellant's homosexuality and his choice to love another man, an attempt at "killing" the Appellant and the death of a young boy discovered to be a homosexual in XXXX and the lack of police action. A close review of the transcript of the hearing14 and the reasons for decision15 show that, while the RPD member and the Minister's counsel in attendance questioned the Appellant on an additional email sent to the Appellant16 from his sister, XXXX, and submitted as evidence, they clearly ignored the evidence included in the letter from the Appellant's mother. The RAD finds this error to be problematic. Addressing this evidence by questioning the Appellant and giving him an opportunity to answer questions posed to him would have assisted the RPD in its credibility concerns. [22] The RPD is not required to refer to each and every piece of documentary evidence before it. However, the more important the evidence not specifically mentioned and analyzed in the Board's reasons, the more willing the Federal Court is to find that the RPD made an erroneous finding of fact without regard to the evidence,17 and the same reasoning seems applicable to the RAD's review of the RPD's reasons. [23] Furthermore, the more important the evidence that is not mentioned and analyzed in the tribunal's reasons, the more willing a Court will be to infer that findings of fact were made without regard to the evidence.18 [24] In the RAD's view, when the RPD reaches a conclusion that is related to or contradicted by a particular document, the RPD should explain its reasons for giving little or no weight to that evidence. [25] The RAD finds the RPD erred in its treatment of the evidence. Further, the RPD did not adequately address nor factor into its analysis the totality of the evidence before it, specifically the above-noted documentation from the Appellant's mother concerning his alleged sexual orientation and the risk that he would face should he return to Cameroon. Accordingly, the RAD finds that this decision must be set aside. DISPOSITION AND REMEDY [26] Section 111(1) of IRPA allows the RAD to: a) confirm the determination of the Refugee Protection Division; b) set aside a decision and substitute a determination that, in its opinion, should have been made; or c) refer the matter back to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate. [27] The RAD can make the referral described in 111(1)(c) only if it was of the opinion that the decision was wrong in law, in fact, or in mixed law and fact, and the RAD cannot make a decision to confirm or substitute the RPD's decision without hearing evidence that was presented to the RPD.19 LGBT Involvement in Canada [28] The RAD finds that, in the case at hand, with regards to the Appellant's allegations that he is a homosexual and the RPD's undertaking an analysis of his sexual orientation, the RAD cautions the RPD that using statements regarding his interest in and participation in the gay community in Toronto constitutes a plausibility finding that is based on unacceptable stereotype. They assume that a gay man would immediately find out about the gay community in Canada when he arrived in this country and presumably frequent LGBT "clubs" or be involved openly in the "LGBT groups or organizations." [29] As stated by Mr. Justice Barnes:20 The inappropriateness of using stereotypes of this sort is reflected in several decisions of this court including Dosmakova v. Canada, 2007 FC 1357, [2007] FCJ no 1742 where Justice Eleanor R. Dawson observed at para 12 "that plausibility findings cannot be made on the basis of stereotypical attitudes or projected behaviours that is unsupported by the evidence". [30] The RAD noted that, under s. 111(1)(b), it has the jurisdiction to substitute a determination that should have been made. The RAD noted that several credibility issues were raised in the evidence presented at the hearing and throughout the proceedings, including: the Appellant's delay in claiming, the timing of the Appellant's claim, his criminal charge and the timing of his refugee claim and the discrepancies and inconsistencies in his evidence. [31] The RAD noted that the RPD is in the best position to make a finding on the credibility of a claimant given that they have the opportunity to hear directly from a claimant at the hearing. The RAD's ability to hold a hearing is limited to new evidence. The new evidence presented did not address the above-noted credibility concerns. Given the credibility concerns above, the RAD finds that it is not in a position to substitute its own determination for that of the RPD, and it cannot find the Appellant to be a Convention refugee or a person in need of protection. As such, the RAD refers the matter back to the RPD for a de novo hearing. DISPOSITION [32] Based on a review of the totality of the evidence, given that credibility issues have been raised based on the RAD's review of the evidence, and given that the RPD is in the best position to make credibility findings, the RAD refers the matter back to the RPD for redetermination, as per s. 111(1)(c) of IRPA. [33] The appeal is allowed. (signed) "C. Forbes" C. Forbes November 26, 2014 Date 1 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 2 Exhibit P-2, Appellant's Record, Tab 4B. 3 Exhibit P-2, Appellant's Record, Tab 4C. 4 Exhibit P-2, Appellant's Record, Tab 4D. 5 Exhibit P-2, Appellant's Record, Tab 4E. 6 Exhibit P-2, Appellant's Record, Tab 4F. 7 Exhibit P-2, Appellant's Record, Tab 4G. 8 Exhibit P-2, Appellant's Record, Tab 5A. 9 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 10 Ibid., Huruglica, para 54. 11 Ibid., Huruglica, para 55. 12 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 13 Exhibit RPD-1, RPD's record, p. 109, Exhibit 5, Disclosure from counsel; Exhibit P-2, Appellant's record, p. 194. 14 Exhibit P-2, Appellant's record, pp. 16 to 87. 15 Exhibit RPD-1, RPD's record, pp. 3 to 13; and Exhibit P-2, Appellant's record, pp. 2 to 13. 16 Exhibit RPD-1, RPD's record, p. 108, Exhibit 5, Disclosure from counsel. 17 Dessie, Worku v. M.C.I. (F.C., no. IMM-3927-11), Mactavish, December 19, 2011; 2011 FC 1497, para. 7-8. 18 Cepeda-Gutierrez, Carlos Arturo v. M.C.I. (F.C.T.D., no. IMM-596-98), Evans, October 6, 1998. 19 IRPA, Section 111(2). 20 Latsabidze, Sergo v. M.C.I. (F.C., no. IMM-3456-12), Barnes, December 6, 2012; 2012 FC 1429. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-06494