TB6-06313

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 : TB6-06313 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 Personne(s) en cause XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 19, 2016 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Maureen Silcoff 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 FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of the Republic of Kenya (Kenya), is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside and substitute the negative determination with a positive determination or in the alternative, that the matter be referred back to a different member of the RPD for re-determination. The Appellant submitted new evidence in support of his appeal. He did not request an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [2] This appeal is allowed. Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. Background [3] The Appellant alleges that he is gay. He became aware of his sexuality in 2010. He had a number of relationships with different men. He hid his sexuality in Kenya because gays are not tolerated. The Appellant is well known in Kenya due to his XXXX career as a XXXX. [4] On XXXX XXXX, 2015, the Appellant was speaking with XXXX, a fellow XXXX. Their conversation was overheard by XXXX, another male XXXX. XXXX insulted the Appellant as a gay and then ran away. On the morning of XXXX XXXX, 2016, people carrying crude weapons appeared along with XXXX at the Appellant's window. They shouted threats and homophobic insults. The Appellant escaped to the home of a friend at a distance of 150 kilometres. The Appellant remained one week but did not inform his friend of his sexuality. [5] On XXXX XXXX, 2015, the Appellant went to the home of his parents. He did not inform his parents that he is gay. On XXXX XXXX, 2015, people, including those who had appeared at his window in September, appeared at the home of his parents. They informed his mother that the Appellant is gay when she asked why they had come to their home. His mother screamed that the crowd could take the Appellant and do what they wanted with him. The Appellant escaped from his parents' home to the home of his sister, XXXX, in Nairobi. XXXX assisted the Appellant in making his travel arrangements to Canada. [6] The Appellant arrived in Canada on December 3, 2015 and made a claim for refugee protection on February 9, 2016. [7] The Appellant had a refugee determination hearing on April 12, 2016. In a written decision issued on April 26, 2016 the RPD rejected the claim. The RPD member found that the Appellant was not a credible witness. Appeal pleadings were received on June 8, 2016. In his appeal the Appellant argues that the RPD erred in its decision in three ways: i) by failing to assess whether the Appellant is gay; ii) in its credibility findings and iii) in its assessment of personal corroborative evidence as related to his credibility. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [8] As provided for in section 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD, and may accept documentary evidence and written submissions from the Minister and refugee claimant. Section 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [9] The Appellant submitted the following new evidence with his Appellant's Record: a) The May 13, 2016, up-dated, National Documentation Package (NDP) for Kenya. b) A police report from The Kenya Police Service, date XXXX XXXX, 2016. c) A letter from XXXX XXXX, XXXX XXXX XXXX XXXX XXXX from XXXX XXXX, dated XXXX XXXX, 2016. [10] The RAD is following the guidance in the Federal Court of Appeal (FCA) decision of Singh, 2016 FCA 96, on March 29, 2016, in determining the admissibility of new evidence under section 110(4) of the IRPA. The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in section 110(4). [11] If the proposed new evidence meets the tests set out in the statutory requirements the RAD will then go on to assess the FCA's considerations in Raza with the exception of materiality which is to be considered only in relation to section 110(6) of the IRPA. [12] In the case at hand, the Appellant argues that the RAD should rely on the most up-to-date evidence contained in document a), the May 13, 2016 NDP for Kenya, as it relates to sexual orientation human rights abuses. For the following reasons the RAD does not accept this document. The NDP for Kenya, December 23, 2015, was entered as evidence for the Appellant's claim.1 The up-dated NDP for Kenya, May 13, 2016, has only one new document, the United States (U.S.) Department of State (DOS) report, dated April 13, 2016. The RAD has carefully compared the DOS report in the NDP for Kenya, December 23, 2015 and the DOS report in the NDP for Kenya, May 13, 2016. The RAD finds there is no significant difference in information provided in the reports as they relate to sexual orientation human rights abuses. Therefore, even though the document post-dates the rejection of the Appellant's claim it does not pass the newness test as articulated in Raza and is, therefore, not admitted into evidence. [13] The Appellant submits that document b), a police report from The Kenya Police Service, date XXXX XXXX, 2016, indicates that the Appellant's sister has received threats about him. The RAD accepts the police report in that the incidents reported on in the report occurred after the RPD's decision was made. The RAD will assess the weight to be given to the report within the analysis below. [14] The Appellant submits that document c), a new letter from XXXX XXXX, his XXXX XXXX XXXX XXXX XXXX, provides an updated opinion which speaks to the Appellant's mental health which could have affected the Appellant's ability to testify. The letter emphasized the RPD's error in failing to take an original report into account prior to reaching a credibility determination. Although the letter is dated after the RPD's decision on the Appellant's claim, the RAD does not accept the letter from XXXX XXXX for the following reasons. The RAD finds that similar information was provided for the Appellant's hearing by way of a letter from a psychiatrist at the XXXX XXXX XXXX XXXX XXXX XXXX, Dr. XXXX XXXX XXXX XXXX.2 Therefore, even though the letter passes the 110(4) test it does not pass the newness test as articulated in Raza and, therefore, is not admitted into evidence. ROLE OF THE RAD: [15] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,3 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. ANALYSIS OF THE EVIDENCE Did the RPD err in its credibility findings? The Appellant's application for a Canadian visa [16] The RPD found there were credibility issues regarding inconsistencies in the Appellant's visa application which the RPD found were not reasonably explained. The mailing address on the application [17] For example, the RPD found it unreasonable that the Appellant used his parents' mailing address on his Canadian visa application when, at the time he completed the application, his parents had rejected him because his sexual orientation had been disclosed to them. [18] The Appellant submits that the RPD's finding is improper because he, the Appellant, testified before the RPD that no mail ever came to his parents' home and he had used the same address in the past for all his other visa applications. [19] For the following reasons the RAD, respectfully, does not agree with the RPD's finding. [20] According to the recording of the hearing, the Appellant testified that he had an agent in Nairobi who always dealt with his visa applications. When the RPD asked the Appellant why he had not put his own address on the application, the Appellant testified that the agent picked up the visas in Nairobi because he, the Appellant, lived at a distance of two hundred kilometres from Nairobi. The RPD then asked if the agent always put the Appellant's parents' PO (post office) box on his visa applications. The Appellant responded in the affirmative and then added that the agent sometimes put his, the agent's, own mailing address. When the RPD asked the Appellant about signing the visa application, the Appellant testified that he did so when he was hiding at his sister's home in Nairobi. Upon being asked, the Appellant testified that he remained in his sister's Nairobi home from XXXX XXXX, 2015 until XXXX XXXX, 2015. The Appellant's Canadian visa application, provided as evidence to the RPD, was signed on October 15, 2015.4 This evidence supports the Appellant's testimony that he was in Nairobi from early XXXX 2015 until he left the country in early XXXX 2015. The Appellant provided evidence that he was a competitive XXXX who travelled to many countries in the past many years to compete.5 Copies of his passports, provided as evidence before the RPD, provide evidence of numerous visas for various countries.6 The RAD, therefore, finds it reasonable that the Appellant engaged an agent who obtained travel visas for him, that the same PO box was used for the visa applications and that the visas were picked up in Nairobi, not mailed the his parents' postal box. The RAD, thus, takes no negative inference that the address of the Appellant's parents was used on his visa application at a time when his parents were aware of and strongly disapproved of his sexual orientation. The names of the Appellant's siblings on the visa application [21] The RPD noted in its reasons that the Appellant listed two siblings on his Canadian visa application and eight siblings on his Basis of Claim (BOC) form, none of which coincided with those of the visa application. The RPD found the Appellant's explanation, that he never found it important to list all his siblings on his visa application, to be unreasonable. [22] The Appellant submits that he testified at his hearing before the RPD that an agent completed the Canadian visa form and the same agent had successfully assisted him in previous visa applications so he did not think it was important. The Appellant argues further that the RPD did not, in its reasons, reject that his siblings are, indeed, his siblings. [23] RAD concurs with the Appellant. The RAD's reasons follow. [24] As indicated above, according to the recording of the hearing the Appellant testified that he used the services of an agent when applying for a visa. When asked a number of times, the Appellant testified that he did not consider it important to list all of his siblings on the visa application. While it may not be appropriate to not correctly complete a visa application, the RAD finds it reasonable that the Appellant did not list all of his siblings on his visa application given that he depended upon an agent and he had had previous successful visa applications. In any case, the RAD finds the inconsistency between the Canadian visa application and the BOC, regarding the Appellant's siblings, to be peripheral to the Appellant's claim for refugee protection. The name of the Appellant's sister [25] The RPD indicated in its reasons that the Appellant had testified that "XXXX XXXX" on his visa application is the same person as "XXXX XXXX" listed in his BOC. The RPD found the Appellant's explanation for the discrepancy, that he did not find the use of different names important, to be nonsensical. The RPD also found the Appellant's explanation for the discrepancy in the address of this sister, that one was her husband's address, to be unreasonable given that the instructions on the application asked for a present address. [26] The Appellant provided no submission on these findings. [27] For the following reasons the RAD, respectfully, cannot agree with the RPD in its negative credibility findings in this particular instance. [28] According to the recording of the hearing, the Appellant explained during his testimony that the family uses the name XXXX for his sister, whose name is XXXX. He also testified that on one form he used his sister's married name and on another her maiden name. Upon being asked by the RPD, the Appellant testified that he did not consider it important to be consistent with his sister's name on the two forms. When asked, the Appellant testified that he had provided her husband's work address on one of the forms because his sister often visits there and where she picks up mail. Although consistency is preferred, the RAD finds that the Appellant provided reasonable explanations. In any case, the RAD finds that the RPD's negative credibility findings in this instance were the result of a microscopic analysis of the evidence. The jurisprudence has long held that it is a reviewable error for the RPD to conduct a microscopic analysis of evidence adduced in support of a refugee claim. The Appellant's sister's first knowledge of his sexual orientation [29] The RPD found that the Appellant provided confusing and contradictory testimony about when he first told his sister that he was gay. The RPD found the Appellant lacking in credibility with respect to his sister's knowledge of his sexual identity. [30] The Appellant submits that there was nothing confusing about his testimony regarding coming out to his sister. He argues that he simply explained that he understood the RPD's question about coming out as being about his sexual activities as opposed to indicating that he was gay. [31] Having listened to the recording of the hearing, the RAD appreciates that the Appellant did not directly answer the RPD's question regarding when he first told his sister about his sexual orientation. The RAD also acknowledges the deference it should show to the RPD's finding. Nonetheless, for the following reasons, the RAD finds it cannot recognize and respect the RPD's finding. [32] When the RPD asked the Appellant when he first told his sister he was gay, he testified that he told her, in detail, the day he arrived at her home on XXXX XXXX, 2015. He testified further that his sister had been aware of his sexual orientation before then but not any of the details. The RPD indicated to the Appellant that it did not understand his answer and then repeated the question. The Appellant provided similar testimony, that is, that his sister had been aware he was gay but not that he was active. The RPD again asked when he had told his sister he was gay. The Appellant testified that he told her on XXXX XXXX but she knew his sexual orientation before then. Although the Appellant did not directly answer the RPD's question, the RAD reasonably believes that in his testimony the Appellant was distinguishing between his sister's awareness of his sexual orientation and her knowledge of his sexual activities. The RAD, thus, draws no negative inference from this particular testimony. The incident with Ngatia [33] As indicated above, the Appellant alleges that while he was flirting with his male friend XXXX, another XXXX, XXXX, overheard their conversation and insulted the Appellant as being gay. The RPD found the Appellant's account of the incident to be cursory and lacking detail. [34] The Appellant made no submission regarding this finding. [35] The RAD finds that the RPD's credibility findings as being such that the RAD cannot recognize, respect or support them despite the RPD's advantage of having heard the Appellant's testimony in the hearing room. The RAD's reasons follow. [36] According to the recording of the hearing, upon being asked, the Appellant testified that the initial incident that caused problems occurred on XXXX XXXX, 2015 when he was with a colleague and they were overheard flirting by XXXX, another XXXX. When asked where this had happened the Appellant testified that they had just finished a training session in the town of Nyahururu. When asked to identify the man with whom he had been flirting, the Appellant testified that it was XXXX XXXX, who was not a very good XXXX. When asked if XXXX is gay, the Appellant testified that the XXXX admired him and he admired XXXX and they sometimes flirted with one another. When the RPD repeated the question, the Appellant testified that he thought XXXX was gay because of the way they spoke to one another. The RPD then asked the Appellant to explain what XXXX overheard. The Appellant testified that they were talking naughty talk while they were planning to meet later. He testified further that they planned to meet for coffee and he was not sure of the English word that XXXX overheard in their naughty talk. The RAD notes that the Appellant had the assistance of an interpreter during his Port of Entry (POE) interview,7 and requested an interpreter for his hearing before the RPD.8 According to the recording of the hearing, the Appellant indicated at the beginning of the hearing that he would proceed in English and have the interpreter on stand-by. When the Appellant indicated during the testimony under discussion that he was not sure of the English word for some of their "naughty talk", he did not ask for the assistance of the interpreter. The RAD does not find the Appellant's explanation, that he was not sure of the English interpretation, to be obfuscation. The RAD notes that a number of times during the hearing that the Appellant indicated that he was unsure of an English word or the translation of something. The Appellant was not asked to give any further description of the "naughty talk". The RAD reasonably believes that XXXX briefly overheard a flirtatious conversation between the Appellant and XXXX that led him to make his discriminatory remark to the Appellant. The RAD draws no negative inference for the Appellant's simple description of what occurred during this first incident. What happened to XXXX [37] The RPD found that while it was possible, the Appellant provided no explanation for what happened to XXXX or why he, the Appellant, was the only target. [38] The Appellant submits in his appeal that he cannot be expected to know what became of XXXX who was simply another XXXX. The Appellant argues that there is no evidence that he maintained contact with XXXX. [39] The RAD finds that the RPD's credibility findings as being such that the RAD cannot recognize, respect or support them despite the RPD's advantage of having heard the Appellant's testimony in the hearing room. The RAD's reasons follow. [40] According to the recording of the hearing, the Appellant testified that he did not contact anyone from his XXXX group to inquire about XXXX. The RPD asked the Appellant if he had made inquiries through his lawyer. The Appellant responded in the negative and then testified that he communicated with his sister. When asked, the Appellant testified that he did not know if XXXX continued to XXXX or if people had come after XXXX. The RPD then asked the Appellant why he thought the group only came after him, the Appellant. The Appellant was not provided the opportunity to respond. The RPD then asked the Appellant if his sister contacted anyone at his XXXX club. He testified that she contacted someone but she obtained no information. He explained that his sister was fearful to continue to make inquiries about XXXX for fear that she would come to harm because she would be seen to be supporting the Appellant. [41] The RAD finds the Appellant's explanations reasonable. Although the Appellant was not asked why he had made no contact with anyone from his XXXX group, the RAD infers from other of the Appellant's testimony that he was fearful for his life and avoiding his former XXXX group. The RAD also finds it reasonable that the Appellant's sister refrained from making further inquiries about XXXX for fear of reprisals. In addition, the RAD finds that the RPD did not ask the Appellant why he was the only target. As stated above, the Appellant was not provided an opportunity to respond to the RPD's question in this regard. In any event, the Appellant did not allege that he was the only target, he testified that he did not know what happened to XXXX. The RAD, therefore, draws no negative inference from the Appellant's lack of information regarding XXXX whereabouts. The Appellant's movements after the incident of XXXX XXXX, 2015 [42] The RPD found the Appellant's explanations for returning to the community where he lived after having been threatened by a group, rather than going to Nairobi where he had sympathetic family members, was unreasonably explained. [43] The Appellant submits that while it may have been unwise and risky, there is nothing implausible about going to stay with his parents where he thought he would have no problems. [44] For the following reasons, the RAD, respectfully, cannot agree with the RPD. [45] According to the recording of the hearing, the Appellant testified that he first stayed a week with a friend, XXXX, a distance of 150 kilometres from Nyahururu. He explained that he left there because he had not informed XXXX of his sexual orientation or the specific reasons for his problems. He explained further that XXXX knew members of the XXXX community and he, the Appellant, feared that XXXX would come to learn of his sexuality. When asked, the Appellant testified that he then went to his parents' home. He explained that their home is not in Nyahururu, where the incident of XXXX XXXX occurred, but was at a distance of 20 kilometres. When asked why he would go to the same area where the problem had occurred, the Appellant testified that he wanted to find out what was going on and if things had cooled down. When the question was repeated, the Appellant testified that although it was a short distance to the town where the incident occurred he thought he would be safe at his parents' home. The Appellant also testified that while on his way to his parents' home he sought the advice of his lawyer. He testified that although his lawyer advised him to seek safety out of the country, it had not crossed his mind to leave Kenya. He repeated his earlier testimony that he thought things would cool down. [46] In hindsight the RAD appreciates that choosing to relocate to his parents' home was a risky choice. However, the RAD finds that the Appellant provided reasonable explanations for doing so. He was not, at that time, considering leaving the country. He was a little distance from where the incident of XXXX XXXX had occurred and he hoped that the situation would cool down with time. When counsel asked the Appellant why he returned to this location, the Appellant testified that he wanted to find out what was now going on. The RAD notes that the Appellant testified that he was well-known in Kenya as a successful runner. The RAD notes that the Appellant had spent one week, without incident, at a location 150 kilometres from Nyahururu. The RAD, therefore, finds it reasonable that the Appellant could more easily find out what was now going on from the location of his parents' home. The RAD also finds it reasonable that the Appellant believed he would now be safe at a distance of 20 kilometres from Nyahururu. The RAD draws no negative inference from the Appellant's actions of choosing to stay with his parents a week after the incident of XXXX XXXX XXXX Photographs of houses belonging to the Appellant [47] In his amended BOC narrative,9 the Appellant alleges that after he arrived in Canada he learned that his home had been destroyed by fire. As evidence for his claim, the Appellant provided three photographs of houses.10 One photograph depicts the front of a large, modern home. A second photograph depicts the back wall of a compound with a house beyond the back wall. The third photograph is of a building in flames. The RPD found that the Appellant misrepresented his evidence by not providing any context to the photographs he submitted. [48] The Appellant submits that the RPD's credibility concerns are based upon the RPD's false assumptions and not anything the Appellant actually stated. [49] For the following reasons the RAD finds that the Appellant's submission has merit. [50] According to the recording of the hearing, the Appellant testified that he provided one photograph of a house that is an investment property. He testified further that he rents this home to a banker and, when asked, he testified that this was not the house that was burned down. When asked why he had provided this photograph, the Appellant explained that he wanted to show that he had a good life and investments back in Kenya and that he came to Canada only for his safety. The Appellant testified that the other photograph was a home he built for himself on his parents' property. He testified that this was the house that was burned down. [51] While the Appellant may not have clearly labelled the photographs when they were submitted, the RAD finds that he provided a reasonable explanation as to why he provided photographs of two different houses which he owns in Kenya. The RAD, therefore, does not find that the Appellant misrepresented the evidence. The location to where the Appellant fled after staying with his friend XXXX [52] The RPD found the Appellant's account of where he went inconsistent and lacking in credibility. [53] The Appellant made no submission on this finding. [54] The RAD finds that the RPD's credibility findings as being such that the RAD cannot recognize, respect or support despite the RPD's advantage of having heard the Appellant's testimony in the hearing room. The RAD's reasons follow. [55] In his BOC narrative the Appellant alleges that on XXXX XXXX he left the home of his friend XXXX and "went to [his] parents"11. According to the recording of the hearing, the Appellant was asked about one of the photographs of a house, discussed above. He testified that it was a home that he built in his village so that when he visited with his parents he had a place to stay. He testified further that the house was 50 metres from his parents' home and it was where he slept when he visited his parents. Later in the hearing, the RPD asked the Appellant why he had not, in his BOC, distinguished between his parents' home and his home. The Appellant testified that his house is at his parents' place. He explained that in Kenyan families it is traditional that your parents provide you with some of their land where you can build your own house. While the Appellant could have, in his BOC, distinguished between the two homes on his parents' property, the RAD finds the Appellant provided a reasonable explanation as to why he referred to the locale as his parents'. The RAD, thus, draws no negative inference from the Appellant's testimony in this regard. Credibility [56] The RAD has considered the psychiatric report provided by the Appellant,12 which states that the Appellant has difficulty concentrating and has physical sensations of anxiety including feeling very tired all the time. [57] Having heard the recording of the hearing before the RPD, the RAD notes that the Appellant, many times, asked for clarification or rephrasing of a question. However, the RAD does not find that this was an attempt to avoid answer any questions. The RAD finds the Appellant's testimony was given in a straightforward and spontaneous manner. The RAD notes that the Appellant readily provided details of certain situations, such as how he recognized XXXX by the particular clothing he wore on the two occasions XXXX appeared in a group. The Appellant made no apparent attempts to embellish his claim. There were no obvious contradictions between his oral testimony and information contained in his BOC. Evidence The affidavits provided by the Appellant's sister13 [58] The RPD placed no weight on the two affidavits provided by the Appellant's sister for his hearing. The RPD noted that while the sister listed her address as Nairobi, the affidavits were sworn in Nyahururu. According to the recording of the hearing, the Appellant was asked why his sister had travelled a distance to Nyahururu to swear the affidavits. He testified that he had asked his sister to deal with his lawyer in Nyahururu when obtaining the affidavits and that she was willing to do so. The RPD found the Appellant's explanation lacking in common sense. The RPD also found that "the Appellant's affidavit lists his sister's address in Nairobi at a time when she was not yet living there." [59] The Appellant submits that there is nothing unreasonable about his sister going to see a lawyer in another town given that this is the locale of the lawyer with whom the Appellant dealt with in the past. The Appellant also submits that the RPD's finding regarding the sister's address is improper given that a P.O. Box in Nairobi is listed on the Affidavit. [60] For the following reasons the RAD agrees with the Appellant. [61] According to the recording of the hearing, the Appellant testified that before he went to Nairobi he disclosed his sexual orientation to his lawyer and advised his lawyer of the problems he was having. He testified that his lawyer advised him to leave the country for his safety. The RAD infers that the Appellant actions indicate that he has confidence in his lawyer and, therefore, the RAD finds it reasonable that the Appellant would advise his sister to deal with a person whom he trusts. The RAD notes that the two affidavits affirm that the Appellant is homosexual. Given the independent documentary evidence regarding the laws regarding homosexuals and the attitude towards homosexuals,14 the RAD finds it reasonable that the Appellant's sister chose to deal with the legal confidant of the Appellant. [62] The RAD finds there is nothing on the Record regarding the Appellant's sister having a different address than that of Nairobi. [63] The RAD finds that there is nothing on the face of either affidavit to make it doubt their authenticity. The affidavits support the Appellant's allegations. The RAD, therefore, assigns significant evidentiary weight to these documents. The Kenya Police Report15 [64] For the following reasons the RAD assigns significant weight to this document. [65] There is nothing on the face of the document that leads the RAD to doubt its authenticity. [66] The police report indicates that the Appellant's sister has been receiving threats because she assisted the Appellant and requests for the Appellant's whereabouts. The RAD notes that according to the recording of the hearing the Appellant testified, as stated earlier in these reasons, that his sister feared retribution because of her support for the Appellant. Did the RPD err in not assessing the Appellant's sexual orientation? [67] The Appellant submits that the RPD did not assess whether he is gay. He argues that the RPD focused on what it deemed to be problematic evidence and reached negative credibility findings. [68] The RAD agrees with the Appellant. The RPD made no clear finding regarding the Appellant's sexual orientation. The RAD, accordingly, will do so. [69] The RAD finds, on a balance of probabilities, that the Appellant has established that he is homosexual. The RAD bases this finding on the Appellant's oral testimony and the documentary evidence provided by the Appellant to support this allegation. None of the RPD findings were based on an assessment of the demeanor or manner in which the Appellant gave testimony and so there are no credibility findings that require deference. Objective Basis for the Claim [70] The RAD will now consider the objective evidence with respect to country conditions in Kenya with regards to homosexuals. [71] The Operational Guidance Note from the United Kingdom (UK) provides the following information. The penal code criminalizes "carnal knowledge against the order of nature," which is interpreted to prohibit consensual same-sex sexual activity and specifies a maximum penalty of 14 years" imprisonment. A separate statute specifically criminalizes sex between men and specifies a maximum penalty of 21 years" imprisonment.16 [72] The Department of State (DOS) report and a report from Freedom House both provide similar information regarding the illegality of homosexuality and also indicate that discrimination against lesbian, gay, bisexual, and transgender persons is a problem.17 [73] A report from the Equal Rights Trust; Kenya Human Rights Commission, states the following. Among the root causes of the disadvantages faced by many LBGTI individuals are the high levels of stigma and prejudice which prevail against those whose sexual orientation or gender identity does not conform to societal norms. The absence of explicit protection from discrimination in Kenyan law and the existence of legal norms which have been interpreted as criminalising further entrench stigma and discrimination against LGBTI persons. Moreover, criminalisation makes LGBTI persons vulnerable to police harassment and extortion. Prejudice and a lack of legal protections together contribute to a climate where LGBTI persons are disproportionately vulnerable to physical violence, verbal abuse, the destruction of property, as well as discrimination in access to public services - including healthcare in particular - and employment. Many LGBTI people feel they cannot be open about their sexual orientation or gender identity for fear of prejudice, discrimination, harassment and violence.18 [74] A report from the Refugee Documentation Centre of Ireland indicates that sexual minorities are harassed by the police seeking to blackmail or extort money from them.19 [75] The RAD finds that current country conditions support the Appellant's allegations that there is a serious possibility that he would be persecuted in Kenya based on his sexual orientation. Determination [76] After carefully considering the RPD decision and carrying out its own analysis of the record, the RAD determines that the RPD erred in in its credibility findings, as submitted by the Appellant. Based on its own analysis of the record, the RAD finds that the Appellant has established, with credible evidence, a well-founded fear of persecution in Kenya based upon his sexual orientation. CONCLUSION [77] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee, as he has a well-founded fear of persecution on the basis of his sexual orientation. This appeal is allowed. (signed) "Lesley Mason" Lesley Mason August 19, 2016 Date 1 Exhibit RPD-1, RPD's Record, exhibit 3, National Documentation Package (NDP) for Kenya (December 23, 2015). 2 Exhibit RPD-1, RPD's Record, pp. 251-254. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 4 Exhibit RPD-1, RPD's Record, pp. 182-204. 5 Ibid., pp. 207-226. 6 Ibid., pp. 54-115. 7 Exhibit RPD-1, RPD's Record, pp. 29-45. 8 Ibid., page 21, question 10(b). 9 Exhibit RPD-1, RPD's Record, pp. 228-229. 10 Exhibit RPD-1, RPD's Record, pp. 244-246. 11 Exhibit RPD-1, RPD's Record, pp. 13-26. 12 Ibid., pp. 251-254. 13 Ibid., pp. 238-239. 14 Exhibit RPD-1, RPD's Record, exhibit 3, NDP for Kenya (December 23, 2015), , items 1.4, 2.1, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6. 15 Exhibit P-2, Appellant's Record, p. 148. 16 Exhibit RPD-1, RPD's Record, exhibit 3, NDP for Kenya (December 23, 2015), item 1.4. 17 Ibid., item 2.1. 18 Ibid., item 6.1. 19 Ibid., item 6.5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-06313