TB3-05613

RAD File No. / N° de dossier de la SAR : TB3-05613 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXX XXXXX XXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 6, 2013 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jerome Fanmi Olorunpomi 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] XXXXX XXXXX XXXXX, a citizen of St. Lucia, has appealed a negative determination of the Refugee Protection Division (RPD) dated July 19, 2013. DETERMINATION [2] Pursuant to ss. 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) sets aside the determination of the RPD and substitutes it with the determination that the Appellant is not a Convention refugee nor is he a person in need of protection, and that there is no credible basis for the claim. BACKGROUND [3] Mr. XXXXX (the Appellant) alleges that he is a homosexual. The Appellant alleges that he and his partner (Mr. XXXXX) were found having sex by Mr. XXXXX family and other members of the community on XXXXX, 2003. The Appellant alleged that both were assaulted but managed to escape. The Appellant fears physical harm or death at the hands of homophobic persons in St. Lucia including his and Mr. XXXXX family members, and members of the general public. [4] The Appellant left St. Lucia on XXXXX, 2003 and came to Canada. The Appellant made his claim for protection some ten years later on April 25, 2013. [5] The Appellant's refugee determination hearing spanned two sittings (July 2 and July 19, 2013). Oral reasons were delivered at the end of the second sitting. In its reasons, the RPD panel found the following: 1. The Appellant has failed to establish that he is a gay man, as he was found not to be a credible witness regarding central aspects of his claim. 2. The Appellant's near ten-year delay in claiming was egregious, and the RPD assigned a negative inference as to the Appellant's subjective fear and credibility as a witness. 3. The RPD drew a negative inference as to the Appellant's credibility as a witness and subjective fear based on his relationship with a woman in Canada. 4. Contradictions in the Appellant's responses when interviewed upon his entry to Canada in 2003 confirmed that the Appellant was living with his children and their mother in a common-law relationship until the time he arrived in Canada and not until 1998, as the Appellant alleged in his Basis of Claim (BoC) form. 5. Given that the Appellant was living with his common-law partner until he left for Canada and that he was never involved in a homosexual relationship with Mr. XXXXX, the RPD found that the incident of the assault in XXXXX of 2003 never occurred. [6] An Appeal Record was received by the RAD on September 6, 2013. The Appellant's counsel alleged that the RPD made several errors of fact and law including: 1. The RPD erred in law by failing to assess the reasonable explanations offered for the failure to claim refugee status at an earlier date. 2. The RPD erred in its finding of fact that the Appellant's relationship with a woman in Canada undermined his sexual orientation. 3. The RPD erred in fact and law by assigning a negative inference to the contradictions between the Appellant's testimony and his interview responses upon arrival in Canada, as this was found to be microscopic, and the RPD did not factor in the Appellant's distrust of persons in authority. 4. The RPD erred in law by failing to place weight on the documentary evidence before it. The RPD failed to regard the totality of the evidence before making its decision. [7] The Appellant did not provide any new evidence in its pleadings. The Appellant asks that the RAD set aside the determination and find that the Appellant is a Convention refugee or a person in need of protection, or to refer the matter back to the RPD for re-determination. STANDARD OF REVIEW [8] The RAD focused on two issues in assessing this appeal: a) Did the RPD err in law in its treatment of the evidence before it (failure to consider Appellant's explanation for delay, microscopic analysis, and failure to consider the totality of the evidence)? b) Did the RPD err in fact in its finding that the Appellant was not a homosexual? [9] In assessing and selecting the appropriate standard of review, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,1 which take into account the list of factors in Dunsmuir.2 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. These factors include: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context. [10] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and, as such, these factors are very relevant to the relationship between the RPD and the RAD. [11] Based on the guidance in Newton, the RAD focused on the factors listed below to determine the standard of review. The Supreme Court of Canada, in Khosa,3 noted that the factors in deciding the standard of review are not a checklist of criteria: a contextualized approach is appropriate in deciding which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and the RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue. [12] Both the RPD and the RAD derive their jurisdiction from and interpret the same statute: the Immigration and Refugee Protection Act (IRPA). Section 162 of IRPA gives each Division the same powers, including the Refugee Protection Division, "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." With respect to the respective roles of the RPD and RAD in the context of IRPA, the powers of each Division are the same, although their roles are not the same. It is the primary role of the RPD to hear testimony, review evidence and determine a claim on its merits, while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [13] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact;4 however, the presence of a right of appeal in and of itself does not warrant a correctness standard of review given the proscribed relationship between the RPD and the RAD, and the limits imposed on the RAD in IRPA highlighted below. [14] The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.5 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD must conduct a hearing6 and assesses the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [15] In contrast to the RPD's authority to assess a claim for protection, IRPA limits the RAD's ability to consider evidence. The RAD is not a tribunal of first instance but reviews decisions made by the RPD or considers the decision in light of new evidence. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.7 The RAD's authority to consider new evidence and hold hearings in the case of appeals brought by a refugee protection claimant, unless responding to evidence presented by the Minister, is limited to evidence that arose after the rejection of the 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.8 Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.9 [16] Given that the RPD has held a hearing on the totality of the evidence, given that the RPD has heard from the Appellant directly at a hearing, and given that the RAD's authority to consider new evidence is limited in IRPA, the RPD is in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton, at paragraph 82, where it indicates with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".10 [17] Newton concludes that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere".11 Newton adopts the definition of "reasonableness" in Dunsmuir. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process of the RPD, and that the RPD's decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.12 [18] In the case at hand, the Appellant alleges that the RPD made errors of fact regarding the evidence presented. As such, the RAD afforded the RPD with deference and considered the reasonableness of the determination for errors of fact. [19] The Appellant also argued that the RPD made errors of law in failing to take into account all of the evidence presented, including the Appellant's explanations for concerns in his testimony, and its microscopic treatment of the evidence. As outlined above, both the RAD and the RPD have similar expertise with respect to IRPA, their home statute. Given that the alleged errors fall within the specialized expertise of both the RPD and the RAD under s. 162 of IRPA, the RAD finds that the correctness standard applies to the analysis of the alleged errors of law. ANALYSIS OF THE MERITS OF THE APPEAL [20] As identified above, based a review of all of the evidence and pleadings in the appeal, the RAD focused on two issues in assessing this appeal: a) Did the RPD err in law in its treatment of the evidence before it (failure to consider Appellant's explanation for delay, microscopic analysis, and failure to consider the totality of the evidence)? b) Did the RPD err in fact in its finding that the Appellant was not a homosexual? ERRORS IN LAW Explanations for Delay [21] The RPD found the Appellant's delay in claiming was egregious, which undermined the Appellant's subjective fear as well as his credibility. The Appellant's counsel argued that the RPD failed to take into consideration the explanations offered by the Appellant for his failure to claim refugee status. A review of the RPD's reason revealed that the RPD carefully considered the issue of delay in claiming, and assessed the Appellant's explanations on pages 3 and 4 of the written reasons. While the Appellant may disagree with the weight the RPD placed on his explanations for his delay, there is no evidence before the RAD to support the claim that the RPD failed to take into consideration the Appellant's explanations. [22] The RPD found the delay was egregious and undermined the Appellant's subjective fear and credibility. The delay in claiming was approximately ten years, and the Appellant's explanation was that he did not trust anyone; he did not know what to do, and he was afraid. The Appellant maintained that these explanations were applicable from the time he arrived up until the Appellant met his counsel in April of 2013. The RPD rejected these explanations given that the Appellant did not have legal status in Canada two weeks after his arrival, and he was aware that he could be deported at any time to a place where he feared for his life. The Appellant also did not make any attempts to seek legal advice on his protection options in ten years despite coming to Canada with the expressed purpose of seeking protection because of his sexual orientation. [23] The RPD factored the Appellant's education and personal background into its assessment of the reasonableness of his explanations. The RAD noted that the Appellant's personal profile or circumstances did not support his claim that he did not trust anyone, and he did not know what to do. The Appellant had a cousin in Toronto, had the mother of his child in Toronto, had dated gay men in Toronto, and had attended and been a volunteer at the Pentecostal Church. The Appellant had completed 8 - 9 years of schooling, spoke English, and was part of an extended Caribbean community. Given that the Appellant was able to get out and make social connections with various individuals in the community, the RAD finds it was reasonable for the RPD not to place weight on the Appellant's explanations for his failure to make any efforts to seek protection in Canada for 10 years. [24] The RAD noted that the Appellant displayed a remarkable initiative in following-up on his counsel's suggestion to become involved in the XXXXX XXXXX Centre. The Appellant became a member, attended a group for gay refugees, and even followed-up a presentation by Rev. XXXXX XXXXX by attending the Rev. XXXXX church. The Appellant was able to arrange to have his photo taken with notables such as Toronto's XXXXX, Rev. XXXXX, and XXXXX XXXXX. The Appellant's behaviour after he made his claim in 2013 is not consistent with his explanations that he did not trust anyone; he did not know what to do and was unable to seek assistance before April of 2013. The Appellant did not provide any evidence of any changes in his circumstances which would account for the sudden boost in confidence and ability to network within Toronto's Lesbian, Gay, Bisexual and Transgender (LGBT) community. The Appellant's behaviour undermined the Appellant's explanations for his egregious delay in claiming. [25] Delay points to a lack of subjective fear of persecution.13 The Federal Court has also held that delay could be a consideration in finding a claimant not to be credible.14 The RAD is cognizant that a delay in claiming may not in and of itself sufficient to reject a refugee claim; however, based on a review of the jurisprudence and the particular circumstances of the case before the RPD, the RAD finds that it was reasonably open to the RPD to find that the near ten-year delay in claiming was egregious and was sufficient to undermine the subjective fear and the credibility of the claim, as per Espinoza,15 where Justice Rouleau found that the more inexplicable the delay, the greater the probability that subjective fear is absent. [26] Given the analysis performed by the RPD, including the weighing of his explanations for the delay in claiming, and given the jurisprudence, the RAD finds that the RPD did not err in assigning little weight to the Appellant's explanations for his delay in claiming. In addition, the RAD finds that the RPD provided transparent and justified reasons to support its finding that the Appellant's behaviour did not support his claim that he left St. Lucia in fear of his life and that he came to Canada for protection as a gay man, as his behaviour was not consistent with the behaviour of someone who fears for his safety. As such, the RAD finds that the RPD did not err in its treatment of the Appellant's evidence regarding the delay and the RPD's findings that the delay undermined the Appellant's subjective fear and his credibility were reasonable. Weight on Documentary Evidence [27] The RPD placed no weight on the letters in support of the Appellant's sexual orientation given that the contents of the letters were based on the Appellant's own self-reported claims that he was gay. In the pleadings, the Appellant's counsel cited the Toro16 decision that failing to regard the totality of the evidence is an error in law. [28] A review of the recording of the hearing and the RPD's reasons indicates that the RPD questioned the Appellant on some of his documents, and did put its mind to the documents provided in support of the Appellant's sexual orientation.17 The RPD made clear findings regarding the weight it placed on the documents. As such, the RAD finds that the RPD did not err in law by not regarding the totality of the evidence before it. [29] The RAD then considered whether or not the RPD erred in its finding not to place weight on the documents. The RPD indicated that it placed no weight on these documents, as they were based on the Appellant's own assertions that he was gay. The RPD found that the Appellant was not credible, and therefore it placed no weight on documents based on the word of the Appellant. The RPD found that the Appellant's allegations of being a gay man were undermined by his egregious delay in claiming which undermined the Appellant's subjective fear, the Appellant's lack of credibility as a witness based on his relationship with a woman in Canada, and inconsistencies in his allegations regarding his relationship with a woman in St. Lucia. The RAD finds that these findings were reasonable. As such, it was reasonably open to the RAD to give the documents provided by the Appellant no weight as the contents of the claims were based on the Appellant's self-reported claim of being gay. [30] Given the credibility concerns identified by the RPD in its reasons, the RAD finds that the RPD did not err in putting no weight on documents that were based on the Appellant's self-reported statements about his sexuality. As such, the RAD finds that the RPD did not err in law by failing to take into consideration the totality of the evidence before it as alleged in the pleadings. Findings that the Appellant was Not a Homosexual [31] The RPD found that the Appellant was not a homosexual based on his lack of subjective fear (egregious delay in claiming), his inconsistent evidence related to his relationship with a woman in St. Lucia, and his relationship with a woman in Canada. Counsel argued that the RPD erred in its treatment of the evidence and the Appellant's explanations regarding the concerns. [32] The issue of the delay in claiming was addressed above; however, it bears repeating that the RPD found that the Appellant's egregious delay in claiming undermined his subjective fear of being a homosexual who feared beatings and death in St. Lucia. [33] The RPD found the inconsistent evidence as to his relationship with a woman in St. Lucia provided by the Appellant (interview upon arrival in Canada and BoC/oral testimony) undermined his claim that he was ever in a homosexual relationship in St. Lucia, and that the alleged incident of XXXXX 2003 never took place. Counsel argued that it erred though its microscopic analysis and by drawing a negative inference to the Appellant's explanation. [34] The RPD had before it evidence from the Minister18 in the form of FOSS notes which were completed upon the arrival of the Appellant in Canada in XXXXX of 2003 which indicated: "coming to see his first cousin whom he has not seen since 1998. Is in a common-law relationship and lives with his partner and their two kids (6 & 4)". The RPD confronted the Appellant with the fact that the FOSS notes did not conform to the BoC Narrative which indicated that the Appellant ended his relationship with XXXXX in 1998. [35] The RAD considered counsel's argument that this issue was microscopic or not. The RAD noted that the issue of the Appellant's relationship with XXXXX before his coming to Canada was central to his claim, as it relates to his credibility as a witness, the credibility of his claim of being gay, and the credibility of his being the victim of an attack before he came to Canada. Given that the issue of with whom the Appellant lived before he came to Canada is not microscopic, as it did not amount to a combing through of the evidence and a search for trivial errors or inconsistencies as counsel argued, based on Gebremichael.19 [36] The RAD reviewed the recording with particular attention to the interchange between the Appellant and the RPD on this issue. The RAD noted that the Appellant provided several different explanations for the discrepancy between his BoC and the FOSS notes. These explanations included: the Appellant misunderstood the question of the Immigration Officer (I thought he asked me if I was married); the Appellant could not remember the question asked by the Officer; the Appellant did not know who to trust; the Appellant did not know what to do; the Appellant did not know who to talk to; the Appellant lied when he told the Immigration Officer that he was in a common-law relationship, as he was afraid that, if he said he was gay, he would be returned to St. Lucia. The RPD rejected the Appellant's explanation as it did not make sense. [37] The RAD noted that the Appellant provided several different and conflicting explanations for why his FOSS notes indicated that he was in a common-law relationship and lived with XXXXX until his arrival in Canada. The Appellant stated that he misunderstood the question, and later on he explained that he could not remember the question asked. The Appellant testified that he could not confirm that the information in the Officer's notes was correct but later indicated that he had lied to the Officer. Given the inconsistent explanations, the RAD finds that the RPD's finding that the Appellant was providing misleading evidence to try to overcome the concern was reasonable. The RAD also finds that it was reasonable for the RPD to place more weight on the contents of the Officer's notes given the unreasonable explanations provided by the Appellant. [38] Given the information in the FOSS notes, the RAD finds the RPD's finding that the Appellant was living with a female common-law partner until his arrival in Canada was reasonable as it was transparent and justified by the credible evidence before the RPD. Given that the Appellant was found to be living with a woman until his arrival in Canada, the RPD's findings that the Appellant was never involved in a homosexual relationship with XXXXX XXXXX in St. Lucia and that the XXXXX 2003 incident never happened were also reasonable. [39] The RPD found it unreasonable that the Appellant engaged in a relationship with a woman in Canada to make his mother happy. Counsel argued that having a relationship with a woman in Canada does not diminish the Appellant's sexuality as a gay person as it was done to please his mother. In the Appellant's case, he was found having sex with a man, and he testified that his mother and most everyone in his community knew this. He also confessed to his mother that he was gay. The Appellant came to Canada because he knew it was safe here for gays. The RPD concluded that it made no sense that the Appellant would try to change who he was to please his mother given that she knew that he was gay and helped him leave St. Lucia. The Appellant did not provide any evidence from his mother to attest to the fact that she wanted him to please her by entering into a relationship with a woman in Canada. [40] The Appellant maintained a hidden homosexual relationship with XXXXX for some 17 years in St. Lucia. He was willing to have a clandestine homosexual relationship that he knew would not please his mother under her own roof. In addition, the Appellant testified that he went against his mother's wishes and discontinued his relationship with XXXXX in St. Lucia, after the relationship had produced two children. The Appellant did not engage in any relationships with women in Canada between mid-2006 and April of 2013. The Appellant did not provide evidence of the existence of his mother, or evidence that she had asked him to give up his sexual orientation such as a letter or affidavit. Given the Appellant's history in engaging in behaviour in St. Lucia which would not please his mother, it was reasonably open to the RPD to assign a negative credibility inference to the Appellant's explanation that he engaged in a relationship with a woman in Canada to please his mother. [41] In addition, the RAD finds that the RPD's finding that the Appellant's behaviour in having a relationship with a woman in Canada and fathering a child here undermined his subjective fear was also reasonable given that the Appellant was in Canada where he was free to express his sexual orientation. There was no need for him to continue the pretence that he was heterosexual. [42] As outlined above, the RAD finds that the RPD reasonably placed no weight on the Appellant's evidence in support his claim of being gay in Toronto was reasonable. The Appellant's contact with the XXXXX XXXXX Centre was made only after a referral by his counsel. As outlined above, the claims in the documents concerning the Appellant's sexual orientation were based on the Appellant's own self-disclosed statements about his sexuality. The Appellant was found not to be credible by the RPD; therefore, the RPD's finding not to place weight on the documents which supported his sexual orientation was reasonable. [43] The RPD's reasons were silent on the photos; however, photos in and of themselves cannot attest to a person's sexual orientation and allegations, and therefore the RPD did not err in not commenting on them. [44] The RAD noted that a man who alleged that he was the Appellant's partner attended the second sitting of the hearing. Counsel did not make a formal request that this person provide testimony as a witness. [45] Given the totality of the evidence, including the serious concerns with the Appellant's subjective fear based on his egregious delay in claiming, and concerns with the credibility of the Appellant's allegations, the RAD finds that the RPD's findings that the Appellant was not a homosexual man were reasonable. SUMMARY AND DETERMINATION [46] The RAD found that the RPD's determination that the Appellant was not a homosexual man and that he did not have a well-founded fear of persecution or harm in St. Lucia was reasonable. [47] For the reasons outlined above, the RAD substitutes the RPD's determination with its own determination that the Appellant is not a Convention refugee, nor is he a person in need of protection as per Section 111(1)(b) of IRPA. [48] Given that the Appellant was found not to be a homosexual and that the alleged incident of harm was not credible, the RAD also finds that there was no credible or trustworthy evidence upon which it could have made a favourable decision as per Subsection 107(2) of IRPA. [49] The RAD dismisses the Appeal. (signed) "Daniel McSweeney" Daniel McSweeney November 6, 2013 Date REFUGEE APPEAL DIVISION / CLAIMANT'S APPEAL / HOMOSEXUAL / DELAY IN MAKING A CLAIM / SUBJECTIVE FEAR / CREDIBILITY / MALE / SET ASIDE AND SUBSTITUTE THE DETERMINATION / SAINT LUCIA 1 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 2 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 3 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 4 IRPA, s. 110 (1). 5 IRPA, s. 107. 6 IRPA, s. 170. 7 IRPA, s. 110(3). 8 IRPA, s. 110(4). 9 RAD Rule 57. 10 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 11 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95. 12 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 13 Castillejos, Joaquin Torres v. M.C.I. (F.C.T.D., no. IMM-1950-94), Cullen, December 20, 1994. 14 Bello, Salihou v. M.C.I. (F.C.T.D., no. IMM-1771-96), Pinard, April 11, 1997. 15 Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003; 2003 FC 1324. 16 Toro v. Canada (Minister of Employment and Immigration), [1981] 1 F.C. 652 (C.A.). 17 RPD's Record, Exhibits C-2 to C-6. 18 RPD's Record, Exhibit 6, Minister's Disclosure and FOSS Notes, pp. 75-82. 19 Gebremichael, Addis v. M.C.I. (F.C., no. IMM-2670-05), Russell, May 1, 2006; 2006 FC 547. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-05613