TB4-03236

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 : TB4-03236 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 14, 2014 Date de la décision Panel C. Forbes Tribunal Counsel for the person(s) who is(are)the subject of the appeal John Savaglio Barrister, Solicitor and Notary Public 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 (de la) ministre Reasons and Decision [1] XXXX XXXX XXXX XXXX (the Appellant) appeals a negative decision of the Refugee Protection Division (RPD) dated March 11, 2014. The Appellant has not submitted new evidence in support of his appeal. The Appellant is not asking for an oral hearing. The Appellant asks that the Refugee Appeal Division (RAD) set aside the negative decision of the RPD and accept his claim for refugee protection. In the alternative, the Appellant requests that his claim be referred back to the RPD and be reheard by a differently-constituted panel. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is neither a Convention refugee, pursuant to Section 96 of IRPA, nor is he a person in need of protection, pursuant to Section 97 of IRPA. BACKGROUND [3] The Appellant alleges that he is gay and, in order to conceal his gay activities, he became a Shia activist. He became actively involved and was appointed as XXXX XXXX in his local Imam Bargah in XXXX 2013. Because of his activities, he experienced problems with Sipah-i-Sahaba (SSP) and Lashkar-e-Jhangvi (LeJ) supporters and sympathizers. He received a threatening phone call in XXXX XXXX XXXX 2013. The caller identified himself as a soldier of the SSP and told him to stop being an activist or suffer serious consequences. He reported the incident to the police to no avail. The police refused to register his complaint and initiate any legal action against the caller because he could not identify him. During his political activities, he was involved in a same-sex relationship with a man named XXXX whom he met in XXXX 2008. On XXXX XXXX, 2013, four unknown armed goons of the SSP stopped and beat him and threatened him with serious consequences if he did not stop working for his Imam Bargah and the Shia. He received multiple injuries from the beating and required medical treatment. He reported the incident to the police at his local police station, but they refused to register his complaint despite being able to describe the assailants. Meanwhile, his family and people in his community became suspect of his relationship with XXXX. He and his boyfriend received a threatening phone call on XXXX XXXX XXXX 2013 from a LeJ supporter saying that his homosexuality with XXXX was known. He stopped going to the Imam Bargah, denied his homosexuality and ended his relationship with XXXX. He continued to be threatened that, if he continued his homosexual activities, he would be killed. Fearing death, he relocated to Lahore. He left Pakistan on December 17, 2013 with the help of an agent arriving in Canada on the same day. After his arrival in Canada, he learned that a Sunni cleric had issued a religious decree (fatwa) commanding his death. He has also learned that XXXX family also threatened to kill him for involving XXXX in homosexual activities. [4] On March 11, 2014, the RPD rejected the claim, finding that the Appellant is neither a Convention refugee nor a person in need of protection. [5] In its reasons, the RPD made the following findings: 1) The RPD accepted the Appellant's identity as a national of Pakistan. 2) The RPD drew a negative inference regarding the Appellant's credibility. 3) The RPD found the Appellant was not living in hiding from XXXX XXXX until XXXX XXXX XXXX 2013 in Pakistan and he was not threatened by the SSP, the LeJ, his boyfriend's family or the hardline Sunni cleric. 4) The Appellant has not provided sufficient credible evidence that he is a homosexual. 5) The RPD found that the Appellant has not established that he was active in the Shia community in Lahore. The RPD further found that he was not targeted for such activism. [6] The Minister did not intervene in this appeal. [7] In the case at hand, the Appellant alleges: 1) The RPD's drawing of a negative credibility inference from the Appellant's inconsistent testimony regarding when he had last resided at his home address in Pakistan was unreasonable, the RPD having microscopically examined the Appellant's testimony in this regard. 2) The RPD's drawing of a negative credibility inference from the Appellant's testimony regarding the XXXX XXXX, 2013 incident was unreasonable; the RPD having been unduly stringent and/or microscopic in its assessment of such testimony and evidence on the part of the Appellant. 3) The RPD's drawing of a negative credibility inference from inconsistencies arising out of his Port of Entry (PoE) notes was unreasonable; the Appellant having provided plausible explanations in respect of such inconsistencies. 4) The RPD's finding that the Appellant was not living in hiding from XXXX XXXX until XXXX XXXX XXXX 2013 in Pakistan, and its further finding that he was not threatened by the SSP, the LeJ, his boyfriend's family or the hardline Sunni cleric were unreasonable findings; such findings having been based on an unduly stringent and/or microscopic examination of the Appellant's testimony and evidence in this regard. 5) The RPD's refusal to assign probative weight and/or corroborative value to the Appellant's brother's affidavit and the affidavit from the friend, whom he lived with in hiding in Pakistan, was unreasonable. 6) The RPD's drawing of a negative credibility inference from the Appellant's failure to state that his fear of returning to Pakistan was based in part on his homosexual orientation, in his PoE notes, was unreasonable. 7) The RPD's drawing of a negative credibility inference from the Appellant's lack of knowledge of the XXXX XXXX was unreasonable, as there is nothing in the evidence that shows that this is a well-known organization. 8) The RPD's negative credibility inference from the Appellant's association with his effeminate boyfriend (XXXX) was unreasonable and involved a "narrow" and unenlightened view of homosexuality. 9) The RPD's finding that the Appellant was not homosexual was unreasonable. 10) The RPD's refusal to assign probative value or corroborative weight to documentation was unjustified and unreasonable. 11) The RPD's reliance on the Appellant's PoE notes was unduly stringent and/or microscopic; the Appellant having provided a plausible explanation for not having indicated his association with the Imam Bargah at the PoE, and the subject religious institution not technically having been a political, social, youth or student organization, trade union or professional association, in any event. 12) The Appellant submits the RPD's adverse credibility findings regarding the Imam Bargah letter in question were based in large part on unsubstantiated and/or speculative plausibility considerations. 13) The RPD's finding that the Appellant was not an active Shia in his community in Lahore, and its finding that he was not targeted for such activism, were unreasonable findings. 14) The RPD's refusal to assign any probative value or corroborative weight to the medical letter tendered by the Appellant in support of his refugee claim was unreasonable, the credibility concerns relied upon in this regard having been unreasonable, and the availability of fraudulent documentation from Pakistan as well as the Appellant's fraudulent Canadian Visitor's Visa (CVV) application, not having been valid bases for dismissing such medical letter, or for effectively finding that same was fraudulent. 15) The RPD's finding that the Appellant's profile was not such as to place him at greater risk than other Shia persons in Pakistan, was unreasonable. 16) The RPD's finding that the Appellant was neither a Convention refugee nor a person in need of protection was an unreasonable finding. STANDARD OF REVIEW [8] As outlined above, the Appellant alleges that the RPD made errors in its decision. The alleged errors concern credibility. [9] The Appellant submits that the RAD must consider whether the RPD's findings on questions of fact in the Appellant's claim meet the test of reasonableness as set out in the pleadings. The Appellant submits that such findings do not meet the requisite test. [10] The Federal Court, in Iyamuremye,1 addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. The reasonableness standard is concerned with the "existence of justification, transparency and intelligibility in the decision-making process" and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law, as per Dunsmuir.2 [11] In the pleadings, the Appellant submits that the RPD erred in its credibility findings and erred in the assessment of the Appellant's credibility. The RAD finds these errors deal with issues of fact and the RPD's treatment of the evidence before it. The appropriate standard of review on this issue is one of reasonableness. ANALYSIS OF THE MERITS OF THE APPEAL [12] The issue in this appeal is: Did the RPD make erroneous credibility findings? The RPD's Credibility Findings [13] The RPD found the Appellant was not living in hiding from XXXX XXXX until XXXX XXXX XXXX 2013 in Pakistan, and he was not threatened by the SSP, the LeJ, his boyfriend's family or the hardline Sunni cleric. [14] The Appellant submits that the RPD's drawing of a negative credibility inference from inconsistencies arising out of his PoE notes was unreasonable, the Appellant having provided plausible explanations in respect of such inconsistencies. The Appellant points to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status3 to support this argument. The Appellant also points to the decision of the Federal Court in Attakora4 to support this argument. [15] The Appellant alleges the RPD's drawing of a negative credibility inference from the Appellant's inconsistent testimony regarding when he had last resided at his home address in Pakistan was unreasonable. [16] The Appellant stated that he went into hiding after he was threatened by a Sunni cleric in the last week of XXXX 2013. However, when asked at the hearing where he resided in Pakistan, he testified that he lived at XXXX XXXX XXXX in Lahore until he left Pakistan on XXXX XXXX, 2013. The RPD pointed to the discrepancies between the address that he testified where he lived and that which was noted in his Basis of Claim (BoC) form. The Appellant responded that he did not understand the question and that he had not lived at that address since XXXX XXXX, 2013. He explained he thought the panel was asking where he had lived for the last 10 years. The RPD did not accept this explanation. The RPD asked the Appellant when the last time was that he resided at XXXX XXXX. He answered XXXX XXXX, 2013. [17] The RPD noted the Appellant stated in his PoE notes that he lived at Number XXXX XXXX XXXX until XXXX XXXX, 2013.5 When confronted with the discrepancy in his address noted above, the Appellant stated that he was living with a friend in XXXX, Lahore, from XXXX XXXX to XXXX XXXX and not at XXXX XXXX. The Appellant also provided a sworn affidavit6 from his friend which states that he lived at XXXX XXXX XXXX XXXX XXXX, Lahore, from XXXX XXXX until XXXX XXXX XXXX When asked about the inconsistency, the Appellant said that his agent told him to just answer the questions at the airport, then when he got a lawyer, he could tell the whole story. The RPD did not accept this explanation. The RPD drew a negative inference regarding the Appellant's credibility. [18] The RPD also found that, if the Appellant was in hiding when he left Pakistan for almost three months, it is reasonable to expect that this would have been noted when he was first making his claim in Canada as the RPD noted the question at the PoE asks a claimant to list all addresses where he has lived in the past 10 years. In this case, the Appellant noted at the PoE that he was living at home until XXXX 2013. [19] The RPD also drew a negative inference regarding the Appellant's credibility from his testimony that he last worked in Pakistan on XXXX XXXX, 2013, despite in his PoE notes, he stated that he continued working in Pakistan until XXXX XXXX, 2013.7 The Appellant's explanation once again was that his agent told him to just answer the questions at the airport; then when he got a lawyer, he could tell the whole story. He also explained that he did not expect to be stopped at the airport and thought he would be granted entry and not have to answer any questions about his refugee claim until later. He thought because he had a genuine visa he expected to be able to leave the airport without discussing his refugee claim and that he did not know why telling the truth about his employment would have been a problem for him at the airport. The RPD did not accept this explanation, as they found that, even if he was under pressure because he was not prepared to be stopped, it is reasonable to expect that he would have been able to answer the simple question about his employment. In addition, the RPD found that, if he did not work in Pakistan since XXXX because he was compelled to go into hiding, it is reasonable to expect that this would have been noted with consistency when he first made his claim in Canada. The RPD drew a negative inference regarding the Appellant's credibility. [20] In the RAD's view, the Appellant's address where he lived in Pakistan from XXXX XXXX to XXXX XXXX XXXX 2013 is a very significant element of his claim. The fact that the Appellant stated he was working when he had testified he was in hiding is also significant. These are not mere details, nor are the allegations trivial. The location where the Appellant lived in Pakistan and his ability to work when he stated he was in hiding goes to the heart of the claim. The Appellant stated that he moved from his home, stopped work and went into hiding, but his PoE notes do not reflect this evidence. The RAD finds that it was reasonable for the RPD to reject the Appellant's explanations, and it is reasonable to expect that he would have recalled where he lived and when he stopped working in Pakistan with consistency. The RAD finds that these significant inconsistencies supported the RPD's finding that the Appellant was not living in hiding from XXXX XXXX until XXXX XXXX XXXX 2013 in Pakistan, and he was not threatened by the SSP, the LeJ, his boyfriend's family or the hardline Sunni cleric. The RAD finds the RPD's negative credibility finding in this regard is transparent, justified and therefore reasonable. Affidavits [21] The RPD considered an affidavit from his brother that corroborates the events that the Appellant has detailed in his BoC8 and an affidavit from a friend which states that he was living in complete hiding from XXXX XXXX until XXXX XXXX.9 Since the RPD did not find the Appellant to be credible in respect of his allegations of threats by the SSP, the LeJ, his boyfriend's family or the hardline Sunni cleric, and that he was not living in hiding from XXXX XXXX until XXXX XXXX, 2013, it gave no weight to the affidavits given they were not disinterested parties in the proceedings. [22] The Appellant challenges these findings. The Appellant alleges RPD's refusal to assign probative weight and/or corroborative value to the Appellant's brother's affidavit and the affidavit from the friend whom he lived in hiding in Pakistan, was unreasonable. [23] The RPD did not question the authenticity of the affidavits; instead, it rejected them because it did not believe the Appellant's allegations of threats from the SSP, the LeJ, his boyfriend's family or the hardline Sunni cleric, and it did not believe the Appellant was in hiding from XXXX XXXX to XXXX XXXX XXXX 2013. The RPD, given credibility concerns, also found that the affidavits were not from disinterested parties in the proceedings. The RAD has already found that conclusion to be reasonable. As such, the RPD's decision to assign no probative value to the affidavits rests solely on another reasonable finding, and therefore is itself reasonable as well. The Appellant's Sexual Orientation [24] The RPD found that the Appellant has not provided sufficient credible evidence that he is homosexual. [25] The Appellant alleges that the RPD's drawing of a negative credibility inference from the Appellant's failure to state that his fear of returning to Pakistan was based in part on his homosexual orientation, in his PoE notes, was unreasonable. [26] The Appellant states that he is afraid of going back to Pakistan because he is gay and because he was an active member of the Shia community. He was being threatened by a hardline Sunni cleric, the LeJ, the SSP and the family of his boyfriend, XXXX. [27] The RPD considered the Appellant's interview at the PoE, and it made a negative credibility finding on the basis of his statements. The Appellant told immigration officers that he has problems with Shia and Sunni Muslims and that he is afraid of Sunni Muslim group(s). He did not mention any fear because he is gay or that he fears his boyfriend's family. He did not state at the PoE that he has a fear due to his sexual orientation, nor that he is afraid of his boyfriend's family. The panel confronted the Appellant with this inconsistency. His explanation was that he was only asked two or three questions, and he was told by the immigration officer to be brief and that he would have a chance to say more at his hearing. He also explained that his agent had told him he would have a chance to say everything at his hearing. The RPD rejected his explanation and found it not to be reasonable. The Appellant had testified that he chose to come to Canada because it was easy to get protection here and that Canada respects human rights. In the RPD's view, if the Appellant was coming to Canada for protection and he thought it was easy to get protection, he would not have any reason not to mention that he was gay and that he feared his boyfriend's family, if this were true. [28] The RAD finds the Appellant's PoE statement speaks to threats to his problems with Shia and Sunni Muslims and that he is afraid of Sunni Muslim group(s). He makes no mention of his sexual orientation or the problems he faced because of it in Pakistan. The Appellant did not present any persuasive evidence for his failure to include this information in his statement at his PoE. The RAD finds the information that he was gay and he feared his boyfriend's family that was omitted at his PoE is significant. It was reasonable for the RPD to expect this information to be offered at his PoE as the reason he was fleeing to Canada considering his understanding of the protection offered in Canada and its respect for Human Rights. In the RAD's view, this information is a very significant element of his claim and not mere details. The RAD finds the RPD's rejection of the Appellant's explanation for the significant omissions and adverse credibility finding with respect to these omissions is justified and reasonable. Association with his boyfriend [29] The RPD noted that the Appellant stated he could tell XXXX was gay because of his girly style and because XXXX was effeminate. The Appellant stated that this is how the SSP found out that he was gay, because XXXX was obviously gay and XXXX often came to pick up the Appellant. The RPD found this is not consistent with his allegations that he went to great lengths to conceal his homosexuality. For example, he did not go on the internet; he did not keep any correspondence from Zarghoon, and he pretended to be religious, all in an effort to hide his sexual orientation. The Appellant was asked, if he went to all of these efforts to hide his sexual orientation, why he would risk being seen often with a man who was obviously gay. His explanation was that he took the risk because he was in love with XXXX. The RPD did not accept this explanation as reasonable. The RPD found that because the Appellant had gone to great efforts to conceal his sexual orientation, it is reasonable to expect that he would not want to be seen with an obviously gay man even if he was in love with the man. [30] The Appellant submits that the RPD's negative credibility inference from the Appellant's association with his effeminate boyfriend (XXXX) was unreasonable. The Appellant submits that: a) the fact that the Appellant may have taken a number of precautions in attempting to conceal his homosexual orientation did not render inconsistent, implausible and/or inherently incredible his public association with XXXX, there having been no evidence on the record to indicate that the Appellant and XXXX had done anything more than merely being seen in public together. b) The RPD's contention that XXXX was "obviously gay" by mere virtue of his effeminate characteristics betrayed an unenlightened and/or narrow-minded view of homosexuality on its part, as did its expectation that the Appellant and XXXX would have necessarily and/or invariably maintained a completely clandestine relationship if they had indeed been homosexual. [31] The RAD does not agree with this argument. The RAD finds the RPD did not have an unenlightened view and/or narrow-minded view of homosexuality. The Appellant's own evidence was that he could tell XXXX was gay from his appearance and demeanour. The Appellant further stated that the SSP found out he was gay because XXXX often came to pick him up. The Appellant understood the ramifications from being a known homosexual and went to great lengths to conceal it, including becoming an activist for a group who strongly opposes homosexuality and supports death as a punishment for anyone who is homosexual. The RAD finds the RPD's negative credibility finding in this regard to be reasonable. Neengar Society [32] The Appellant submits that the RPD's drawing of a negative credibility inference from the Appellant's lack of knowledge of the Neengar Society was unreasonable. [33] The RPD noted the Appellant stated he was living as a homosexual man in Pakistan. He stated he hid his sexual orientation because he was afraid of being killed. The RPD drew a negative inference from the Appellant's lack of knowledge of the Neengar Society, a non-profit organization working in Pakistan for the rights of religious and sexual minorities and who provide emergency shelter to Lesbian, Gay, Bisexual and Transgender (LGBT) people who face threats.10 The RPD found that, if the Appellant was living as a homosexual in Pakistan and he was afraid for his life and his wish was for freedom, it is reasonable to expect that he would have been aware of the human rights organization, given his profile, and that it would offer protection if he needed it. The RAD does not agree. The Appellant did not put forth evidence that his profile, as a homosexual, was such that it would be expected of him to have knowledge of the Neengar Society, for example, being a LGBT activist. There is no persuasive evidence before the RAD to find that the Appellant's lack of knowledge of an organization is a determinative factor for not identifying him as a homosexual. The RAD finds the RPD's finding in this regard is unjustified and unreasonable. However, this finding does not affect the credibility assessment of the Appellant as to his sexual orientation as the other findings of the RPD were reasonable and are capable of sustaining their finding, irrespective of this error. The Appellant's Documentation [34] The Appellant submits the RPD's refusal to assign any probative value or corroborative weight to documentation from the XXXX XXXX XXXX XXXX XXXX, and the XXXX XXXX XXXX XXXX XXXX, as well as the Appellant's membership at the "XXXX" was unjustified and unreasonable. [35] The RPD accepted that the Appellant attended the XXXX XXXX XXXX, a well-known organization for the LGBT community in Toronto and became a member. The RPD also accepted that he made a donation to the centre. However, given credibility concerns, the RPD found that the Appellant's attendance at the XXXX was to support his refugee claim and not because he is a homosexual man looking for support in a new country. The RPD asked the Appellant why he went to the XXXX. His response was that his lawyer's assistant told him to go there. He was asked what he was getting from the XXXX. He stated that his English was "not too good; he could not understand too much; he could only figure out a little bit." As such, the RPD gave little weight to the Appellant being a member of the XXXX XXXX XXXX. [36] The Appellant also provided a receipt from XXXX XXXX XXXX XXXX XXXX.11 The Appellant testified that he went to the spa for anonymous sex with another man. However, given the credibility concerns and the fact that no other documentation was provided in support of the type of spa that the Appellant attended, the RPD gave little weight to the spa receipts. [37] The RAD finds the RPD reasonably placed little weight on the Appellant's evidence from the XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX in support of being gay in Toronto. The Appellant's contact with the XXXX XXXX XXXX was made only after a referral by his counsel's assistant. The XXXX membership does not confirm or deny the sexual orientation of the Appellant. The Appellant attends a support group; however, attendance cannot attest to the Appellant's sexual orientation. The RAD noted that the RPD did not make its findings on the sexual orientation of the Appellant solely on the evidence from the XXXX XXXX XXXX and the XXXX XXXX XXXX XXXX receipt. The RPD found the Appellant is not homosexual. The RPD assessed the totality of the evidence on the Appellant's sexual orientation, including his oral testimony, as well as the credibility of the Appellant's allegations in making the finding that the Appellant's allegations related to his sexuality were not credible. Shia Activist [38] The RPD found, on a balance of probabilities, the Appellant's reason for becoming active in the Shia community in Lahore is not credible. [39] The Appellant submitted the RPD's adverse credibility findings at paragraphs 24-27 were unreasonable for the following reasons and considerations: [40] The RPD's reliance on the Appellant's PoE notes was unduly stringent and/or microscopic; the Appellant having provided a plausible explanation for not having indicated his association with the Imam Bargah at the PoE, and the subject religious institution not technically having been a political, social, youth or student organization, trade union or professional association, in any event.12 [41] The Appellant submits the RPD's finding that the Appellant was not an active Shia in his community in Lahore, and its finding that he was not targeted for such activism, were unreasonable findings. [42] The Appellant stated that he was active in the Shia community in Lahore, and he was XXXX XXXX XXXX XXXX XXXX because of his longstanding volunteer services for the Imam Bargah, a congregation centre for Shia Muslims. The RPD asked the Appellant why he was so active in a religious community that called for homosexuality to be punished by death. The Appellant stated that he became active to hide his sexual identity. The Appellant proffered as evidence of his activities, a letter13 stating that he was XXXX XXXX of the XXXX XXXX XXXX XXXX XXXX Imam Bargah. The RPD found this statement to be inconsistent with what he stated at the PoE. The Appellant stated that he never belonged to any organization.14 When the inconsistency was put to the Appellant, he explained that he thought the question was asking him if he belonged to any terrorist organization. The RPD did not accept this explanation as reasonable. The question asks what organizations had he supported, been a member of or been associated with. The question asked to include any political, social, youth or student organizations, trade unions and professional associations. [43] Given the question asked and the explanation of what was requested in the question, the RAD finds that it was reasonable for the RPD to expect that, if the Appellant was an executive member of the XXXX XXXX XXXX XXXX XXXX Imam Baragah, he would have noted this at the PoE when given the opportunity. The Appellant's allegation of his belonging to a Shia organization in Pakistan is significant in that it is one of the key elements for the persecution or harm that he alleges, and the reason he alleges he ended his relationship with his boyfriend and denied his homosexuality. As such, the RAD finds the RPD drawing a negative inference regarding the Appellant's credibility in this regard is reasonable. [44] The Appellant submits the RPD's adverse credibility findings regarding the Imam Bargah letter in question were based in large part on unsubstantiated and/or speculative plausibility considerations. [45] The Appellant submits the RPD's assignment of little weight to the Appellant's acknowledged practice of the Shia religion in Canada as regarded his alleged activism on behalf of his Shia community in Lahore having been based on the aforementioned unreasonable credibility concerns, was accordingly also unreasonable. [46] The letter15 noted above from the XXXX XXXX XXXX XXXX XXXX Imam Bargah is dated XXXX XXXX, 2014. The Appellant is still listed as the general secretary. The RPD notes the Appellant states in his BoC form that the Allama of his Imam Bargah told him through a message not to set foot in the Imam Bargah because it was known that he was involved in homosexual activity.16 The banishment from his Imam Bargah happened in XXXX 2013. The Appellant was asked why the Imam Bargah still notes him as the XXXX XXXX when it had banished him in XXXX 2013. His response was that he did not know for sure, but perhaps they did not have a chance to XXXX XXXX XXXX XXXX XXXX and/or they were still using the old letterhead. The RPD did not accept this explanation as reasonable. The RPD noted the Shia religion strongly opposes homosexuality and, as described by the Appellant, supports stoning to death as a punishment. The Appellant was a known homosexual. The RPD did not find it plausible that they would still describe him as being the XXXX XXXX as this would go against the Shia religion. The RPD considered the Appellant's explanation that they were still using old letterhead, and it found this too implausible, as it would not take much effort to cross his name off if the Imam Bargah wanted to use the old letterhead. [47] The RAD finds the concerns noted about the letter were explored by the RPD, and it reasonably found the Appellant's explanation to be implausible. Given the Appellant's banishment from his Imam Bargah and his known homosexuality, the RAD finds the RPD appropriately applied little weight to the letter from the Imam Bargah and its finding that the letter is fraudulent is reasonable. As such, the RPD drawing a negative inference regarding the Appellant's credibility in this regard is justified and reasonable. [48] The RPD also considered the Appellant's association with a Shia organization in Canada and found this does not support that he was active and held an executive position in Pakistan. Even though he cannot be accepted as a homosexual, he still wants to do something for his religion. Given the credibility concerns, although the RPD accepted that he is practicing the Shia religion in Canada, the RAD finds the RPD reasonably gave the letter little weight in regards to his activism on behalf of the Shia community in Lahore. Medical Letter [49] The Appellant submits that the RPD's refusal to assign any probative value or corroborative weight to the medical letter tendered by the Appellant in support of his refugee claim was unreasonable, the credibility concerns relied upon in this regard having been unreasonable, and the availability of fraudulent documentation from Pakistan as well as the Appellant's fraudulent CVV application, not having been valid bases for dismissing such medical letter, or for effectively finding the same was fraudulent. While the RPD has a duty to examine the evidence presented in support of their claim rather than essentially ignoring it, the RAD finds that there are circumstances in which it would be reasonable for a panel to dismiss documents without extensive examination of the document itself. For instance, a panel may not be obligated to examine documents when a claimant has tendered documents in support of certain allegations where there is overwhelming evidence in the record to establish that the allegations were fraudulently made. In other words, a document tendered in support of false allegations may not need to be extensively considered. [50] The RAD is aware that a claimant's overall lack of credibility may affect the weight given to documentary evidence and, in appropriate circumstances, may allow the Board to discount that evidence.17 Submitting a false or irregular document may have an impact on the weight assigned to other documents provided by the claimant.18 [51] The RPD supported its negative credibility finding regarding the medical letter by considering that the Appellant admitted to using a smuggler to provide an application for a Canadian Visitor's Visa (CVV) using fraudulent documentation. The Appellant was putting himself forward as a married man when he applied for his CVV. [52] The RAD finds the RPD considered the documentary evidence noting that fraudulent documentation is readily available in Pakistan including hospital, school documents and police reports19 and concluded that if the Appellant was able to provide a fraudulent application for a CVV then it is reasonable to expect that he would have the means to provide a fraudulent medical letter. While the RPD considered the fact that fraudulent documents are easily obtainable, the RAD finds this was not an error as this was not the sole reason for giving the medical letter no weight. The RPD also gave it no weight in light of other reasonable adverse credibility findings and the fact that the Appellant had a history of not being truthful. [53] Furthermore, the RAD notes that the RPD found that the evidence of the Appellant was not credible on the central aspects of his claim. Even if the Appellant had suffered a beating in Pakistan, there was no persuasive evidence in the medical note that the injuries were the result of his sexual orientation or his Shia activism. The RAD finds the evidence in the medical note tendered by the Appellant does not overcome the totality of the adverse credibility findings made by the RPD. Situation in Pakistan Today for Shia [54] The Appellant submits the RPD's finding that the Appellant's profile was not such as to place him at greater risk than other Shia persons in Pakistan, was unreasonable. [55] The RAD does not accept this argument. The RPD considered at length the documentary evidence noted in the National Documentation Package20 that shows that many of the Shia persons who have been targeted in the past in Pakistan were community leaders and persons known to be active in the Shia community. There are more attacks against the Shia community in Baluchistan. The Appellant has no connection to Baluchistan or the Hazara community. The RPD noted there is sectarian violence in Pakistan between the Sunnis and the Shias, yet the documentation indicates that members of the Lashkar-e Jhangvi target Shias, but they typically target leaders, scholars and people of a high profile. [56] The RPD, given that the Appellant does not have a profile in the Shia community that would put him at greater risk than other Shia persons, found that the Appellant has not established that there is more than a mere possibility of persecution if he were to return to Pakistan. [57] The RPD considered the documentation from the Appellant that shows that the Shia minority make up around 20% of Pakistan's population of 180,000,000.21 Additional information notes the population as 193,000,000 and the Shia population to be 10-15%. The Human Rights Watch Report notes that in 2013, over 400 members of the Shia Muslim population were killed in targeted attacks that took place across Pakistan.22 As such, the RPD found that the incidents of attacks against the Shia minority are fairly small when compared to the population, and the documentary evidence does not support that a Shia, such as the Appellant, would have a serious possibility of persecution if he were to return to Pakistan today. The RPD found with regards to the Appellant's profile as a Shia activist, he was not such as to place him at greater risk than other Shia persons in Pakistan. The RAD finds the RPD accepted that the Appellant is associated with the Shia organization in Canada. The RPD, as mentioned above, accepted that the Appellant is practicing the Shia religion in Canada. The RPD reasonably found that the Appellant is not homosexual and found that he is not a Shia activist and/or leader in Pakistan and went on to consider his circumstances as a Shia if he were to return to Pakistan today. The RAD finds there was no persuasive evidence adduced to show that the Appellant holds any significant or known executive position in Canada that may put him at risk. Therefore, it was open for the RPD to consider the documentary evidence of ordinary Shia supporters. As such, the RAD finds the RPD reasonably assessed the forward-looking risk, and its findings in this regard were reasonable. Unduly stringent and/or microscopic examination [58] The Appellant submits the RPD findings having been based on an unduly stringent and/or microscopic examination of the Appellant's testimony and evidence and gave particular examples of this examination. The RAD is not persuaded by the Appellant's argument in this regard. The Appellant's allegations are that he is a homosexual and a Shia activist, which is central to his claim. The Appellant alleges the threats to his life continue since his arrival in Canada. The questions posed by the RPD were intended to assess the credibility of the Appellant's testimony and the credibility of the documents he submitted to support his claim. It was open to the RPD to test the credibility of the Appellant's evidence. Moreover, the Federal Court stated, in Bénéclerc,23 that the panel member can question the applicant energetically in order to, among other things, clarify the shortcomings in the evidence and to assess his credibility. The RPD relied on the totality of evidence before it in determining the Appellant was not credible. The RAD finds the findings of the RPD that were made went to material aspects of his claim; for example, the Appellant does not have a profile in the Shia community that would put him at greater risk than other Shia persons; he was not an active Shia in his community in Lahore, and he was not targeted for such activism, and the RPD's finding that the Appellant is not homosexual. As such, given the foregoing, the RAD finds that the RPD did not apply an unduly stringent or microscopic analysis. SUMMARY AND DISPOSITION [59] The RPD found that the Appellant was not threatened by the SSP, the LeJ, his boyfriend's family or the hardline Sunni cleric. Given the credibility concerns, the RPD found that the Appellant is not homosexual. As the RPD found, on a balance of probabilities, that the Appellant is not homosexual, the RPD further found that his reasons for becoming active in the Shia community in Lahore and that the Appellant had not established that he was active in the Shia community in Lahore. In addition, the RPD found he was not targeted for such activism. [60] In summary, the RPD made one finding regarding the Appellant's lack of knowledge of the Neengar Society that was not reasonable. As such, the RAD finds this error does not make the overall determination by the RPD unreasonable. The RPD made its overall determination that the allegations were not credible based on the inconsistencies, omissions and plausibility concerns in the Appellant's evidence, as well as concerns with the documents the Appellant provided. [61] The RAD finds that the RPD based its finding on the totality of the evidence relating to country conditions in Pakistan and took into consideration the profile of the Appellant. The RAD finds the RPD supported its findings with specific and clear reference to the totality of the evidence before it in concluding the Appellant did not have the profile alleged by the Appellant. [62] The RAD does not accept the Appellant's allegations that the RPD's findings were based on an unduly stringent and/or microscopic examination of the Appellant's testimony and evidence, nor does the RAD agree that the RPD's contested credibility findings are unreasonable. [63] The RAD finds that the RPD's decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. The RPD's decision that the Appellant is neither a Convention refugee nor a person in need of protection is a reasonable one. CONCLUSION [64] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee, nor is he a person in need of protection. This appeal is dismissed. (signed) "C. Forbes" C. Forbes July 14, 2014 Date 1 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494. 2 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, at para. 47. 3 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, reedited Geneva, January 1992, at 198 and 199. 4 Attakora, Benjamin v. M.E.I. (1989), 99 N.R. 168 (F.C.A.) [1089] F.C.J. No. 444, and subsequent cases. 5 RPD's record, Exhibit 1, CBSA/CIC package. 6 RPD's record, Exhibit 5. 7 RPD's record, Exhibit 1, CBSA/CIC package. 8 RPD's record, Exhibit 5. 9 RPD's record, Exhibit 5. 10 RPD's record, National Documentation Package (NDP) for Pakistan (January 31, 2014), item 6.2. 11 RPD's Record, Exhibits 5 and 8. 12 RPD's record, RPD's reasons, paragraph 25; and RPD's Exhibit 1, IMM 5669 p. 2 of 4, Question 9. 13 RPD's record, Exhibit 5. 14 RPD's record, Exhibit 1. 15 RPD's record, Exhibit 5. 16 RPD's record, Exhibit 2. 17 Songue, André Marie v. M.C.I. (F.C.T.D., no. IMM-3391-95), Rouleau, July 26, 1996. 18 Uddin, Nizam v. M.C.I. (F.C.T.D., no. IMM-895-01), Gibson, April 26, 2002; 2002 FCT 451. 19 RPD's record, NDP for Pakistan (January 31, 2014), item 3.6, Response to Information Request PAK103917.E, 13 December 2011. 20 RPD's record, NDP for Pakistan (January 31, 2014), items 2.2, 1.7. 21 RPD's record, Exhibit 4. 22 RPD's record, Exhibit 3. 23 Bénéclerc v. M.C.I., 2007 FC 266. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-03236