MB8-05795

RAD File No. / No de dossier de la SAR : MB8-05795; MB8-05796 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision January 15, 2020 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the persons who are the subject of the appeal Me Ron Shacter Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] Ms. XXXX XXXX, you and your minor child are Cameroonian citizens. You stated that you fear persecution in your country by reason of your sexual orientation, namely, that you are a person identified as being lesbian, and you fear that you will be subjected to torture, imprisoned and murdered if you return to Cameroon.1 [2] The Minister of Public Safety and Emergency Preparedness (the Minister) intervened in your refugee protection claim and submitted that Article 1F(a) of the Refugee Convention applied to you and that you should be excluded from and deprived of protection under section 98 of the Immigration and Refugee Protection Act (IRPA). The Minister also indicated that he was intervening regarding your credibility as well.2 [3] The Refugee Protection Division (RPD) found that you were complicit in crimes against humanity committed by the general directorate of national security (DGSN) and that, consequently, you should be excluded from the protection afforded to refugees. It also found that you had not established your sexual orientation as a lesbian and that, consequently, you had failed to demonstrate a reasonable chance of persecution in respect of your minor son within the meaning of section 96 or the existence of a risk of harm within the meaning of subsection 97(1) of the IRPA.3 [4] In your memorandum of appeal, you submit that the RPD erred by excluding you, first of all because there was no evidence of complicity on your part, and next because the RPD ignored evidence that corroborated your testimony to the effect that police officers with administrative responsibilities cannot conduct raids against the civilian population. You also submit that the RPD erred in its analysis of your sexual orientation, first of all because it did not take into account the Chairperson's Guideline 9, and next because it misconstrued or ignored the evidence corroborating your own statements. You finally submit that the RPD erred by rejecting your minor son's refugee protection claim.4 [5] I found that the RPD erred by considering you to have been complicit in crimes against humanity. That being said, I found that it did not err by concluding that you had not established your sexual orientation as a lesbian and by rejecting your minor son's refugee protection claim. In the paragraphs that follow, I will explain to you why I came to these conclusions. In light of these conclusions, even though I found that the RPD committed an error, I conclude that you have not established a reasonable fear of persecution for you and your minor son in the event that you return to live in Cameroon. Consequently, your appeal is dismissed. ANALYSIS OF THE APPEAL [6] The role of the Refugee Appeal Division (RAD) is not to carry out a de novo consideration of refugee protection claims, but to determine whether the RPD erred as alleged.5 I have conducted my own analysis of the record, notably by reading the transcript of the hearing before the RPD6 and considering the Chairperson's Guideline 9.7 I find that the correctness standard of review must be applied.8 A. The Refugee Protection Division erred by excluding you [7] The Supreme Court of Canada decision in Ezokola sets out the framework of analysis for complicity in the commission of crimes against humanity.9 [8] An individual will be excluded from refugee protection for complicity in such crimes if there are serious reasons for considering that she voluntarily made a knowing and significant contribution to the crime or criminal purpose of the group alleged to have committed the crime. This contribution need not be substantial, but to be significant, it must be something other than an infinitesimal contribution. An individual may be complicit without possessing the mens rea required by the crime itself, knowledge being sufficient to incur liability. Ultimately, there must be a link between the individual's conduct and the criminal conduct of the group to which they belong.10 The analysis of factors serving as a guide in assessing whether an individual has voluntarily made a significant and knowing contribution to a crime or criminal purpose is highly contextual. The RPD must appropriately assess whether the individual voluntarily made a significant and knowing contribution to the crimes against humanity in question.11 [9] You submit in your memorandum that there was no proof of complicity on your part and that the RPD excluded you merely on the basis of your association with the group committing the crimes in question, failing thereby to meet the test set out in Ezokola. Specifically, you submit that the RPD never examined the question of how you had contributed to the abuses committed by the DGSN and that it instead relied on the fact that you were in an XXXX while members of the LGBTQ were being arrested and on the fact that you stayed in your job up until you came to Canada. You also submit that you demonstrated before the RPD that you did not share a common purpose with the police officers who were committing abuses against the members of that community, and that you actually tried to facilitate the release of the detainees by using XXXX recommendations.12 [10] In its decision, the RPD indicated that complicity depends on the existence of a common purpose and the knowledge that each party had of the purpose of the organization. It also explicitly made reference to the factors established by the Supreme Court in Ezokola with respect to complicity. And it ultimately considered that you were directly involved in the division of the organization responsible for crimes against humanity, this notwithstanding your assertion that you worked mostly for the XXXX XXXXof the XXXX. In that regard, the RPD found that you tried to minimize your involvement and mitigate the motives for your participation in the raids targeting sexual minorities in Cameroon. And it did not find you credible with respect to your attempts to liberate detainees.13 Summarizing its reasoning, the RPD wrote that it concluded, on a balance of probabilities, that your main duties were XXXX in nature. That being said, it also found that because XXXX were dispatched during the raids, there was a connection between yourself, the other XXXX and staff members of the XXXX XXXX, and the raids targeting sexual minorities in Cameroon.14 [11] Based on my own analysis of the record, the RPD erred by excluding you when there was not sufficient reason to conclude that you made a knowing and significant contribution to the crimes and criminal purpose of the XXXX. Even though you acknowledged that you were aware of the crimes committed against members of the LGBT community and even though you continued to work as a XXXX XXXX and XXXX until you left for Canada, in my opinion, in its analysis, the RPD imputed to you a contribution to the criminal purpose of the XXXX that is not reflected in the evidence on the record. In other words, I find that the mere fact of you being in an ambulance at the time of the raids against sexual minorities in Cameroon does not establish the existence of a significant contribution to the crimes and criminal purpose of the police officers who were carrying out these raids. It should be noted here that the RPD did not find that the XXXX was in itself a criminal organization.15 I would add that it has not been established that, by your duties as a nurse and police inspector, you were acting in a manner unfavourable to the persons who were being detained at the time. That, in my opinion, distinguishes you from the individual who, in Sarwary, was excluded because his duties and activities demonstrated a significant contribution to the criminal purpose of his organization, as he was interrogating prisoners, several of whom were tortured; in addition, he was involved in prisoner transfers and in charge of a large staff.16 B. You did not establish that you were a lesbian [12] Although the Guidelines issued by the Chairperson are not binding, the RPD, like the RAD, must nonetheless apply the principles enshrined in them in a meaningful way.17 [13] A human being's sexual orientation is a fundamental dimension of their identity, and it is important for to be sensitive overall not only to the sexual practices themselves, but to the society's disapproval of appearances, attitudes or behaviours considered not to conform to its standards and cultural values.18 If, for example, a person states that they are homosexual or lesbian, one must take that fundamental dimension of their identity into account for the purpose of understanding their fear if they had to return to live in their country of citizenship, bearing in mind that the test for establishing a well-founded fear of persecution is prospective.19 It is up to the person responsible for deciding the refugee protection claim to decide whether or not the definition in the Refugee Convention is met, in light of all the evidence.20 [14] In your memorandum, you submit that the RPD erred in its analysis of your sexual orientation, first of all because it did not take Chairperson's Guideline 9 into account, and next because it misconstrued or ignored the evidence corroborating your own statements.21 [15] In its decision, because of numerous adverse inferences undermining your credibility, the RPD found that you had not established your sexual orientation. It also analyzed the documents you entered into evidence, but concluded either that they should not be given probative value or that they were insufficient on their own to establish your sexual orientation.22 [16] In my opinion, the RPD did not err when it found that you had not established that you were a lesbian. First, it indicated that it had taken Chairperson's Guideline 923 into consideration and it was not necessary for it to support each element of its reasoning with a specific reference to the Guideline.24 Next, in my view, its analysis of the facts and the evidence is in accordance with the principles laid down in Chairperson's Guideline 9. Specifically, based on my own analysis of the record, there is no indication that the RPD was insensitive to the potential challenges facing you in establishing your sexual orientation.25 [17] While it is true that an individual may be reluctant to discuss their sexual orientation and that decision-makers may not base their decisions on stereotypes or inappropriate assumptions,26 it was entirely open to the RPD to conclude that your testimony and the documents you submitted in evidence did not establish your sexual orientation as a lesbian. It should be noted that testimony about same-sex relationships that is vague and lacking in detail may support a negative credibility inference. The same is true for the omission of significant events or details.27 [18] In addition, during your testimony, when the RPD asked you whether, in 2011, you were scared when your girlfriend was killed, you replied that you were a little scared but that she had not reported you, so you did not seek asylum when you subsequently visited XXXX, among other places; and you then returned to your country.28 Then later, with a Canadian visa in hand, it took you some time before you came to Canada. I am of the opinion that your conduct demonstrates an absence of subjective fear and is inconsistent with that of a person who truly fears for her life. [19] As for the documents you presented in evidence,29 I find that your argument to the effect that the RPD did not properly assess them is unfounded. A decision-maker may reach a conclusion regarding the weight to be given to a document after having assessed credibility or probative value or both.30 Moreover, it is open to the RPD not to give probative value to assessments or reports based on underlying elements found not to be credible.31 Lastly, evidence is not assessed in isolation from the overall claim for refugee protection. Where the claimant's personal testimony is not credible, it is reasonable for the RPD to have credibility concerns with the documentary evidence submitted to support the claim, and the RPD may give it only minimal weight.32 In my opinion, that is exactly what the RPD did, and its decision was very clear in that regard. [20] As you have not established your sexual orientation as a lesbian fearing persecution, a risk to your life or a danger of torture in your country, the RPD did not err by rejecting your minor son's refugee protection claim, which was based on your own. CONCLUSION [21] For these reasons, I set aside the RPD's determination in part, namely the part in which the RPD found that you, XXXX XXXX XXXX, should be excluded under section 98 of the IRPA. [22] Moreover, I determine that you, XXXX XXXX XXXX, are not a refugee under section 96 or a person in need of protection under section 97 of the IRPA. [23] Finally, I confirm the RPD's determination in part, specifically, that your minor son, XXXX XXXX XXXX XXXX, is not a refugee under section 96 or a person in need of protection under section 97 of the IRPA. [24] Your appeal is dismissed. (signed) Alain Bissonnette Me Alain Bissonnette January 15, 2020 Date IRB translation Original language: French 1 Basis of Claim Forms, which are reproduced at pages 79 to 108 of the digital version of the Refugee Protection Division (RPD) record. The documents that you presented in evidence are reproduced at pages 109 to 211, 472 to 566 and 760 to 812 of the digital version of the RPD record. 2 The Notice of Intervention and the documents presented in evidence by the Minister are reproduced at pages 567 to 759 of the digital version of the RPD record. 3 RPD Reasons and Decision, December 1, 2017, French version, pages 12 to 46, English version, pages 47 to 78 of the digital version of the RPD record. 4 Appellants' memorandum, May 6, 2018, pages 91 to 98 of the digital version of the appeal record. 5 Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. Kanawati v. Canada (Minister of Citizenship and Immigration), No. IMM-6486-18, Norris, January 3, 2020; 2020 FC 12, paragraphs 23 and 24. 6 Transcript of RPD hearing held on September 8, 2017, 49 pages. Transcript of RPD hearing held on October 5, 2017, 68 pages. 7 Immigration and Refugee Board of Canada (IRB), Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, effective May 1, 2017. This guideline is available on the IRB's website. 8 Canada (Citizenship and Immigration) v. Huruglica , No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 9 Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678. 10 Hadhiri v. Canada (Minister of Citizenship and Immigration), No. IMM-130-16, Le Blanc, November 18, 2016; 2016 FC 1284, paragraph 20. Mata Mazima v. Canada (Minister of Citizenship and Immigration), No. IMM-2817-15, Le Blanc, May 13, 2016; 2016 FC 531, paragraphs 43 to 46. 11 Canada (Minister of Citizenship and Immigration) v. Badriyah, No. IMM-3172-15, Roussel, September 2, 2016; 2016 FC 1002, paragraphs 23 to 27. 12 Appellants' memorandum, supra, endnote 4, paragraphs 11 to 16. 13 RPD Reasons and Decision, supra, endnote 3, paragraphs 30 to 54 and 76 to 79. 14 Ibid., paragraph 55. 15 Ibid., paragraph 35. 16 Sarwary v. Canada (Minister of Citizenship and Immigration), No. IMM-3911-17, Le Blanc, April 24, 2018; 2018 FC 437, paragraphs 46 to 49. 17 Kaké v. Canada (Minister of Citizenship and Immigration), No. IMM-7741-14, Shore, July 10, 2015; 2015 FC 852, paragraph 37. Michel-Querette v. Canada (Minister of Citizenship and Immigration), No. IMM-5919-18, Pentney, June 18, 2019; 2019 FC 827, paragraph 7. 18 United Nations High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/12/09, October 23, 2012, unpaginated, paragraphs 5 to 9, 15 and 23. This document is available on the UNHCR website. Although these guidelines are not imperative in nature, I consider them to be invaluable to the RPD and Refugee Appeal Division and worth consulting. 19 Emezieke v. Canada (Minister of Citizenship and Immigration) , No. IMM-4453-13, Locke, September 29, 2014; 2014 FC 922, at paragraph 30. James Hathaway and Michelle Foster, The Law of Refugee Status. Second Edition, Cambridge, Cambridge University Press, 2014, 693 pages, at pages 161 to 169. 20 Duversin v. Canada (Minister of Citizenship and Immigration), No. IMM-3714-17, Gagné, May 1, 2018; 2018 FC 466, paragraph 34. 21 Appellants' memorandum, supra, endnote 4, paragraphs 20 to 29. 22 RPD Reasons and Decision, supra, endnote 3, paragraphs 96 to 102. 23 Ibid., paragraph 4. 24 Idimogu v. Canada (Minister of Citizenship and Immigration), No. IMM-3298-18, Pentney, March 26, 2019; 2019 FC 375, paragraph 18. 25 Ibidem. 26 Chairperson's Guideline 9, supra, endnote 7, sections 3.3 and 6.1. Enam v. Canada (Minister of Citizenship and Immigration), No. IMM-1735-17, Brown, December 7, 2017; 2017 FC 1117, paragraphs 32 and 33. 27 Chairperson's Guideline 9, supra, endnote 7, sections 7.6.1 and 7.7. 28 Transcript of RPD hearing held on September 8, 2017, pages 32 and 33. 29 Notably the letter of support from the organization XXXX and the letter from the medical clinic of the XXXX XXXX XXXX XXXX [XXXX XXXX XXXX XXXX], which are reproduced at pages 487 to 490 of the digital version of the RPD record. 30 Magonza v. Canada (Minister of Citizenship and Immigration), No. IMM-1506-18, Grammond, January 7, 2019; 2019 FC 14, paragraphs 16 to 26. 31 Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, paragraph 24. 32 Ogaulu v. Canada (Minister of Citizenship and Immigration), No. IMM-3862-18, McDonald, April 30, 2019; 2019 FC 547, paragraph 26. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-05795; MB8-05796 RAD.25.02 (April 4, 2019) Disponible en français 5 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 4, 2019) Disponible en français