Docket: IMM-571-16
Citation:
2016 FC 912
Ottawa, Ontario, August 10, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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PHILIPA SHERIKA
FERNANDER
THELJA PINDER
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicants appeal the decision of the
Refugee Appeal Division [RAD] dated January 13, 2016, pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27
[IRPA], which held pursuant to subsection 111(1)(a) of the IRPA, that the
Applicants are neither Convention Refugees nor persons in need of protection.
II.
Background
[2]
The Applicants are lesbian women from the
Bahamas who have been in a same-sex common-law relationship for around three
years.
[3]
The Applicants fear persecution in the Bahamas
on the basis of their sexual orientation. Due to the homophobic environment in
the Bahamas, the Applicants tried to hide their sexual orientation and
relationship from members of the general public for years, wanting to avoid
verbal abuse, discrimination, harassment, and physical assault experienced by
other homosexuals in that country whose sexuality was exposed.
[4]
Given the homophobic environment in the Bahamas,
as well as threats and attacks that the Applicants were facing from Philipa’s
ex-girlfriend, the Applicants fled to Canada on July 25, 2015, filing a claim
for refugee protection with immigration authorities immediately upon arriving.
[5]
The Applicants’ refugee hearing was held before
a member of the Refugee Protection Division [RPD] on September24, 2015. By
decision dated October 16, 2015, the RPD rejected the Applicants’ refugee
claim.
[6]
Following the rejection of their claim, the Applicants
filed an appeal to the RAD. In their Appellant's Record, the Applicants
provided additional evidence corroborating their sexual orientation and
same-sex common-law relationship, including letters of support which were not
provided to them until after the rejection of their claim.
[7]
By decision dated January 22, 2016, the RAD
refused to admit the corroborating documentary evidence filed in support of the
appeal in that the evidence failed to meet the test in subsection 110(4) of the
IRPA, rejected the Applicants’ appeal, and upheld the RPD decision rejecting
the claim. The RAD found that the support letters did not arise after the
rejection of the Applicants’ refugee claim and they did not establish that the
documents were not reasonably available to them prior to their hearing before
the RPD.
[8]
Moreover, the RAD found that even if the
documents met the requirements of subsection 110(4), they would be refused or
given no weight for lack of credibility.
[9]
Though the Applicants' claim for refugee
protection and appeal was rejected by the RPD and RAD respectively, the
Applicants’ position is that they continue to fear persecution and risk to
their lives in the Bahamas because of their sexual orientation and same-sex
common-law relationship.
III.
Issues
[10]
The issues are:
A. Was the RAD’s decision reasonable in refusing to consider alleged
new evidence under subsection 110(4) of the IRPA?
B.
Was the RAD reasonable in conducting its section
97 analysis of the Applicants’ claim?
IV.
Standard of Review
[11]
The Federal Court of Appeal has clearly
indicated that this Court should review RAD decisions on a standard of
reasonableness, including the issue of exclusion of evidence under subsection
110(4) of the IRPA (Canada (Minister of Citizenship and Immigration) v
Huruglica, 2016 FCA 93 at paras 26-35; Canada (Minister of Citizenship
and Immigration) v Singh, 2016 FCA 96 at paras 22-30).
[12]
The Court should only interfere if the reasons
do not evince justification, transparency, and intelligibility and fall beyond
the range of acceptable outcomes (Agraira v Canada (MPSEP), 2013 SCC 36
at paras 51-53).
V.
Analysis
A.
Was the RAD’s decision reasonable in refusing to
consider alleged new evidence under subsection 110(4) of the IRPA?
[13]
The Applicants’ argue that the RAD unreasonably
found that new evidence filed in support of the appeal providing additional
corroborative evidence of the Applicants’ sexual orientation and relationship
did not meet the requirements under subsection 110(4) of the IRPA, warranting
intervention in light of centrality of the Applicants’ sexual orientation to
the claim.
[14]
The Applicants further argue that the RAD erred
by conflating the question of when the support letters were received with the
question of when they were requested. The Applicants’ uncontradicted evidence
was that the letters were received after the RPD hearing, in late November,
2015. The RAD did not doubt this evidence. Yet the RAD refused to accept the
evidence, based on its incorrect assumption that the letters were not sought
until after the hearing. The RAD stated:
[39] With the greatest of respect to the
Appellants, the fact that they did not seek these letters until after the
rejection of their refugee claim does not mean the letters were unavailable.
[15]
However, the RAD found, at paragraphs 64 and 65
of their decision:
[64] Section 3(3)(g) of the RAD Rules
requires the Appellants to make full and detailed submissions regarding the
errors that are the rounds of the appeal, and where those errors are located.
[65] Here the Appellants have not challenged
the RPD’s many credibility findings; they simply argue that those findings do
not apply to their sexual orientation. While the RAD will address that argument
below, it notes here that the RPD’s credibility findings were determinative of
the Appellant’s refugee claims. The Appellants have not pointed out any errors
in the findings that were made, and there is no basis for the RAD’s appellate
intervention with respect to those findings.
[16]
The Applicants have failed to address, let alone
challenge, the RPD’s negative credibility findings, or the RAD’s confirmation
of those findings, and in doing so failed to deal with the determinative issue.
[17]
The RAD reasonably found that the Applicants “did not seek these letters, until after the rejection of
their refugee claims”. While the timing of the generation of the letters
is certainly ambiguous, the RAD reasonably concluded that the Applicants failed
to establish that these materials were not reasonably available to them prior
to October 16, 2015, and therefore failed to satisfy the test under subsection
110(4) of the IRPA.
[18]
Moreover, the Applicants provided no reasonable
basis as to why their past misrepresentations – specifically, manipulation of
documentary evidence – should not colour their subsequent attempts to submit
such evidence: a refugee claimant’s negative credibility can extend to all of
their evidence, including documents, and can extent to requests to their
acquaintances to corroborate allegations already found to be not credible (Moriom
v Canada (Minister of Citizenship and Immigration), 2015 FC 588 at paras
24-27).
B.
Was the RAD reasonable in conducting its section
97 analysis of the Applicants’ claim?
[19]
The Applicants argue that in concluding that the
RPD’s general credibility findings implicitly incorporated a rejection of the
Applicants’ sexual orientation and their same-sex common-law relationship, the
RAD reached a unreasonable determination, given that at no point in the
decision does the RPD articulate a rejection of either the Applicants’
self-identification as lesbians, nor the conjugal nature of their same-sex
relationship with one another.
[20]
Moreover, the Applicants state that there was
objective country documentation and other evidence on the record which could
have supported a determination that the Applicants as lesbian women in a
same-sex relationship were protected persons as contemplated under subsection
97(1) of the IRPA. Despite this, neither the RPD nor the RAD conducted a
separate subsection 97(1) analysis of this evidence, appearing to assume that
the findings under section 96 were automatically applicable to those under
subsection 97(1).
[21]
However, the RPD set out the Applicants’
allegations and found as follows in paragraphs 3, 36 and 41 of its decision:
[3] The
Claimants allege that they are a lesbian couple. The alleged that if they
return to the Bahamas and express their sexual orientation they will face
persecution. The Claimants traveled to Canada together on July 25, 2016, and
made refugee claims upon arrival in Toronto airport.
[36] After carefully assessing the evidence
and counsel’s submissions, the Panel finds on a balance of probabilities that
the Claimants are not credible. This is a global finding: in the Panel’s
view the Claimants are simply not credible witnesses and the Panel does not
believe them. The negative inferences drawn, particularly in respect of their
provision of fraudulent letters, lead the Panel to conclude that the Claimant’s
allegations are false…
[41] For the foregoing reasons, the Panel
finds that the Claimants have not established their allegations on a balance of
probabilities with credible or trustworthy evidence.
Emphasis added
[22]
Accordingly, the Applicants failed to establish
that they are a lesbian couple on a balance of probabilities, a necessary
precondition to assessing the merits of their claim pursuant to both section 96
and 97 of the IRPA. At paragraph 72 of the decision, the RAD held that:
[72] While it is true that the RPD did not
make a specific finding with respect to the Appellants’ sexual orientation, the
RAD concludes that the RPD’s global credibility finding must be understood as
addressing this matter. The issue of sexual orientation was at the very core of
the Appellants’ refugee claim; the RPD made clear that it did not believe any
part of that claim. It did make a positive finding of national identity, based
on the Appellants’ original passports; it then disbelieved the remainder of the
Appellants’ refugee claims. In the RAD’s view, this can only be understood to
mean that the RPD did not accept the Appellants’ claim to be lesbian and in a
lesbian relationship.
[23]
The RAD’s decision is reasonable.
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