TB7-19467

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 / Dossier de la SAR : TB7-19467 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date(s) of hearing September 12, 2018 Date(s) de l'audience Date of decision September 21, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are) the subject of the appeal Ashley Erin Fisch Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the "Appellant"), a citizen of St. Vincent and the Grenadines (St. Vincent), appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted new evidence in support of this appeal. The Appellant is not requesting an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. BACKGROUND [2] The Appellant alleges that she has been sexually abused, physically abused and is at risk due to her sexual orientation should she return to St. Vincent. Fuller details may be ascertained by reading the Basis of Claim (BOC) form1 and the attached narrative, and by listening to the audio recordings of the hearings. RPD's Reasons [3] In its reasons, the RPD found that the Appellant failed to establish her identity as a lesbian and that the Appellant was not a credible witness. [4] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. Appellant's Issues [5] The Appellant raises four issues at the RAD: a. Did the RPD err by failing to consider the Chairperson's Guidelines 4 and 9? b. Did the RPD err in making negative inferences on credibility due to the panel's failure to apply the above Guidelines? c. Did the RPD err by failing to make a finding concerning the brother's letter? ANALYSIS Determinative Issue [6] The determinative issue in this appeal is the Appellant's credibility and her identity as a lesbian. Standard of Review [7] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.2 Admissibility of New Evidence [8] The Appellant submitted new evidence with her Appeal Record. [9] Subsection 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 his 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 of his refugee claim. [10] If the proposed new evidence does meet the requirements of subsection 110(4), I must then apply the analysis set out in the Federal Court of Appeal's decision in Raza3 as subsequently modified by the same court's decision in Singh;4 effectively, I will assess the credibility and relevance of the evidence in order to determine whether it is admissible. [11] The Appellant submits a copy of a text message conversation between herself and a woman named XXXX. The text messages are dated between XXXX XXXX, 2017 and XXXX XXXX, 2017. This conversation began two days after the negative decision of the RPD was signed. [12] Counsel argues that this document meets the initial statutory requirement of subsection 110(4). I concur with that argument. However, once allowed under subsection 110(4), the evidence must then be evaluated by the Raza5 factors which are credibility and relevance. [13] In regards to relevance, there is no argument that, if this document is credible, it would certainly be relevant. But is it credible? [14] It appeared to me that the conversation was simply too convenient. The Appellant was, overall, found not to be credible by the RPD. Rather than shroud the truth, what the panel was saying is that the Appellant is a liar. The panel believed that the Appellant was not telling the truth when she related parts of her story. An example of the panel's concern includes the fact that the Appellant did not make a claim for more than seven years in Canada. The Appellant first met her lawyer in January 2015, but the Appellant feared what might happen if she disclosed her sexual orientation to him, believing that counsel would judge her because that counsel was from Africa where the people are "traditional". This explanation was found to be not credible as the Appellant seemed to have no issue telling her second lawyer about her sexual orientation, even though he too was African. The Appellant's explanation for this was that she felt more comfortable with the second lawyer, than the first. [15] Being a lesbian is the root of the Appellant's entire claim. Her not telling her lawyer (the first one) that she was a lesbian makes no sense on a logical basis; however, cultural issues may just account for this issue. I will therefore give the benefit of the doubt to the Appellant on this one. [16] Going back to the new evidence and given the timing and the content of this text conversation, I find that it concerns me. It is simply too convenient. If the Appellant provided a similar conversation which occurred before the decision, then it would have been probative before the RPD. I find it difficult to believe that, if the Appellant is a lesbian, this conversation is the only such conversation via text that she has had in the seven or eight years she has been in Canada. It is my suspicion, based on the above, that this conversation was manufactured for the sole purpose of contradicting the RPD decision. [17] The IRPA speaks to the RAD receiving evidence in subsection 171(a.3) as follows: (a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; [18] In these particular circumstances described above, I am unable to make a decision on the admission of this new evidence and am requiring an oral hearing in order to establish the value of this evidence and as to whether I will admit it. I am doing so because if the evidence is admitted, it may prove to be so probative as to change the decision of the Board. I am requiring witness testimony to support the allegations. Oral Hearing [19] On Wednesday, September 12, 2018, an oral hearing was held in Toronto. In attendance were the Appellant, her counsel, a witness named XXXX XXXX XXXX and a senior representative of the XXXX XXXX by the name of XXXX XXXX, the author of a support letter6 on file at the RPD. The witness, Ms. XXXX, is a social worker who works in a volunteer capacity at the XXXX and who has intimate knowledge of the Appellant. [20] As the witness was required elsewhere at 10 am, I agreed to counsel's request to question the witness first. [21] When asked when the witness first met the Appellant, her response was that they met at XXXX in late XXXX 2017, where the witness was volunteering and the Appellant was attending the club. The two hit it off immediately. According to testimony of the witness, that same day, the Appellant initiated a kiss between the two of them. The witness testifies that she was taken by surprise by the kiss but enjoyed it. They began a texting relationship that night; however, the relationship did not blossom any further. They remain good friends. [22] The witness was asked whether, in her capacity as a volunteer counselor at XXXX, she believed that everyone who joins XXXX is a true member of the LGBTQ community. To my surprise, the witness testified, "no, unfortunately not". I followed up on that reply and asked her to clarify. The witness confirmed that, in her opinion as a counselor at XXXX, there are people who join and attend the XXXX for no other purpose than to support a refugee claim and who are not, in the opinion of the witness, persons of a diverse sexual orientation. The witness went on however to testify that she was 100% certain that the Appellant in this case was a true member of the LGBTQ community. [23] The witness is a trained "facilitator" at XXXX with three years of experience at that job. She is also a member of the LGBTQ community herself. She believes that with her experience as a facilitator and her lifestyle, she is capable of determining whether a person is truly LGBTQ or not. [24] When asked about the text messages in question, which were not between herself and the Appellant but were between the Appellant and another individual, the witness testified that such intimate text messages were similar to those between herself and the Appellant in XXXX 2017. In other words, the witness confirmed that the Appellant had engaged in the sending and receiving of intimate text messages prior to the messages being submitted as evidence, now. [25] Counsel pointed out to me that even though the Reasons and Decision were signed two days before the text messages in question were sent, those Reasons and Decision were not actually sent out by the Board until two days after the text messages were sent. This fact clearly relieves my concern over the timing of the evidence in question. [26] This factor alone is sufficient reason to allow the new evidence into the appeal. It was not available prior to the decision of the RPD and is very probative. The evidence is allowed. Arguments [27] Counsel argues that the panel failed to properly consider the Chairperson's Guidelines 9 and 4, although Guideline 9 was briefly referred to in the Reasons and Decision but was devoid of critical considerations. [28] Counsel points out that in Guideline 4, section D expressly states that "women refugee claimants face special problems in demonstrating that their claims are credible and trustworthy". Counsel argues that the panel totally overlooked this fact when determining the credibility of the Appellant. [29] Counsel further argues that the panel ignored the Guideline statement that "[w]omen refugee claimants who have suffered sexual violence may exhibit a pattern of symptoms referred to as Rape Trauma Syndrome". In this particular case, the Appellant has testified to having suffered incest, sexual abuse and physical abuse at the hands of family members and of a trusted church elder. These facts were not even considered by the panel or at the least the panel made no reference to these facts in the Reasons and Decision. [30] Further, counsel argues that the panel failed to consider the SOGIE Guideline 9 in any meaningful manner, mentioning the Guideline only once and in relation to the delay in claiming. [31] Counsel points out the following sections from the Chairperson's Guideline 9 which deals with the issue of sexual orientation, gender identity and expression (SOGIE). 7.4 Inconsistencies 7.4.1 Cases involving individuals with diverse SOGIE are no different from other cases before the IRB in that decision-makers may draw a negative inference from material inconsistencies or contradictions in the evidence that have no reasonable explanations.27 Decision-makers should examine whether there are cultural, psychological or other barriers that may reasonably explain the inconsistency. For instance, it may be difficult for an individual who has concealed their SOGIE to disclose and discuss it with government authorities at a port of entry, which may give rise to an inconsistency between information from the port-of-entry interview and testimony at a hearing.28 Decision-makers also need to be careful that the inconsistencies are not based on stereotypes or inappropriate assumptions.29 7.5 Implausibility findings 7.5.1 Implausibility findings must not be based on stereotypes. For example, it may be plausible that an individual with diverse SOGIE has engaged in heterosexual encounters.30 It may also be plausible that an individual with diverse SOGIE has engaged in activity that might put them at risk in their country of reference.31 7.6 Vagueness 7.6.1 Testimony about same-sex relationships that is vague and lacking in detail may support a negative credibility inference;32 however, decision-makers should examine whether there are cultural, psychological or other barriers that may explain the manner in which the testimony is delivered. When making a vagueness finding in a case involving an individual with diverse SOGIE, a decision-maker must, as in other cases, provide specific reasons to support a finding that the testimony is not comprehensive or fulsome.33 7.7 Material omissions 7.7.1 Omissions from testimony of significant events or details relating to the life of an individual with diverse SOGIE may, as in other cases, support a negative credibility assessment if there is no reasonable explanation for the omission.34 Decision-makers should examine whether there are cultural, psychological or other barriers that may reasonably explain the omission. [32] Counsel argues that the Appellant's highly traumatic life experiences have led to both psychological and other barriers that undoubtedly impacted her ability to present her claim before the Board. [33] The panel noted what it considered to be an inconsistency. The Appellant had written in her narrative that she had an opportunity to get away from her sexual abuses (in coming to Canada); however, the panel noted that the Appellant had not encountered such abuse for ten years prior to coming to Canada. When the inconsistency was put to the Appellant, she testified that "it never goes away" (emotional trauma). The panel found that "emotionally the trauma of abuse never goes away for some victims...but this was not what the claimant was making reference to in her typed-written narrative." [34] Counsel argues that contrary to the panel's finding, it was precisely these daily thoughts of sexual abuse that the Appellant was anxious to get away from in St. Vincent. [35] Further, the panel inferred a negative credibility finding based on a misconception of what occurred during testimony. The panel implied that the Appellant wrote one thing in her narrative and then said something completely different in her oral testimony, regarding when the Appellant told her mother of the Appellant's SOGIE. [36] The Appellant testified that in 2014, her mother knew for certain that the Appellant was a lesbian but also testified that she had told her mother of her sexual preference "when I was younger". As counsel argues, the panel made no mention of a contradiction on this issue, but rather simply asked questions, received answers and moved on, thereby depriving the Appellant of any opportunity to explain any perceived contradictions. [37] Counsel points out that the panel wrote, "the panel confronted the claimant with the fact that in the handwritten BOC form, she had stated that at age XXXX she informed her mother that she had feelings for girls, and was physically assaulted and hospitalized, whereas she was now testifying that her mother became aware of her sexual orientation in 2014." [38] However, the evidence (hearing) shows that the Appellant did in fact add to her testimony regarding the 2014 incident, that she had told her mother that she liked females "when I was younger". [39] Counsel argues that the implication of the Appellant's testimony at this point is that when the Appellant first advised her mother ("when I was younger"), the mother more likely than not simply disbelieved the Appellant. I find that argument to be reasonable considering the confusion faced by most adolescent children regarding issues of sexuality. [40] I find that the panel misconstrued the testimony on this issue and further that the panel failed to give the Appellant an opportunity to make a reasonable explanation to the panel for any credibility concerns that the panel had, justifiably or not. [41] Counsel argues that the panel further misconstrued oral and written evidence in regards to the Appellant's story of when and how her brother, in Canada, found out about the Appellant's sexual orientation. [42] To shorten this a little, the panel believed there to be a "circular response" to the question of when the Appellant's brother knew of her sexual orientation. The Appellant testified that upon her arrival in Canada, the brother who lives in Canada, was unaware of her sexuality. The panel asked how that could be so if the Appellant's cousins knew about it and were spreading the news throughout St. Vincent. The Appellant simply testified that she believed he did not know because he was constantly asking her why she was not dating or why she did not have a boyfriend. [43] The testimony of the Appellant on this issue was not "circular" and was very reasonable. The panel erred in making a negative inference in this issue. [44] Over all, the determinative issue in this appeal is the Appellant's sexuality. When one considers the testimony of the Appellant, the testimony of her witness, the evidence adduced and especially the "new evidence" along with the support, in person, of the staff of XXXX, which is itself highly unusual, it becomes clearly evident that, on a balance of probabilities, this Appellant is a lesbian. Summary [45] The Criminal Code of Saint Vincent and the Grenadines at section 148 reads as follows: Section 148. Any person, who in public or private, commits an act of gross indecency with another person of the same sex, or procures or attempts to procure another person of the same sex to commit an act of gross indecency with him or her, is guilty of an offence and liable to imprisonment for five years. (ILGA May 2015, 91-92) According to Equality Network, a Scottish NGO that "aims to bring about equality and improve the human rights situation of lesbian, gay, bisexual, transgender, and intersex (LGBTI) people in Scotland" (Equality Network n.d.a), St. Vincent and the Grenadines rejected the 2008 recommendation of the UN Human Rights Committee to repeal laws that criminalize same-sex sexual activity between consenting adults (Equality Network n.d.b). According to a 2011 UN Human Rights Committee report, authorities from Saint Vincent and the Grenadines indicated that "[i]n the context of the moral, societal and cultural make-up of the State, there was currently no desire to revisit" existing legislation on the criminalization of LGBT sexual activity (UN 23 Sept. 2011, para. 29). ... According to the CAFE director, "[there] are reported cases of the police humiliating homosexuals in their custody, which deters LGBT Vincentians from approaching the police when they need protection" (CAFE 26 Feb. 2014). The same source states that "it is doubtful that the police would be helpful" if LGBT people reported cases of harassment to them (ibid.). Further and corroborating information on police treatment of LGBT people could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. Country Reports 2014 notes that "[n]o laws prohibit discrimination against a person on the basis of sexual orientation or gender identity" (US 25 June 2015, 11). The Director of CAFE similarly stated that there is "no legal protection or recourse" to address discrimination of LGBT individuals in Saint Vincent and the Grenadines (CAFE 26 Feb. 2014).7 [46] The Appellant is now known by many in Saint Vincent as a gay or lesbian individual and would, on a balance of probabilities, face discrimination in almost every field of human rights which would, in my opinion amount to persecution due to her sexual orientation (member of a particular social group). [47] As homosexuality is illegal in Saint Vincent, there is a risk, albeit it small, that the Appellant could be prosecuted but more importantly, there is no state protection for her should she require it. Disposition [48] For the above reasons, the RAD has found that the RPD decision will not stand. CONCLUSION [49] Pursuant to paragraph 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. (signed) "David Lowe" David Lowe September 21, 2018 Date 1 Exhibit RPD-1, RPD's Record, Exhibit 2, at pp. 35-50. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 4 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 5 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 6 Exhibit RPD-1, RPD's Record, at pp. 201-203. 7 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Saint Vincent and the Grenadines, 31 March 2017, at item 6.1 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-19467 RAD.25.02 (August 08, 2018) Disponible en français 12 RAD.25.02 (August 08, 2018) Disponible en français