Docket: IMM-9703-23
Citation: 2024 FC 1535
Toronto, Ontario, October 1, 2024
PRESENT: The Honourable Mr. Justice A. Grant
BETWEEN: |
SAUMU KAJUNA AMANI |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] The Applicant, Saumu Amani, is a citizen of Tanzania. She sought refugee protection in Canada on account of her sexual orientation. She also experienced serious abuse at the hands of her ex-husband. The Refugee Protection Division [RPD] of the Immigration and Refugee Board found that elements of the Applicant’s refugee claim were not credible and rejected it on this basis.
[2] The Refugee Appeal Division [RAD] found that the RPD had erred in some respects, but ultimately confirmed its decision that the Applicant’s claim lacked credibility. The RAD decision is the subject of this judicial review.
[3] For the reasons that follow, I will dismiss this application for judicial review.
II. BACKGROUND
A. Facts
[4] The Applicant claims to fear persecution based on her sexual orientation as a lesbian woman. She also alleges a personalized risk from her abusive ex-husband.
[5] The Applicant was forced to marry her ex-husband in 2017. She divorced him in May 2019. Throughout their marriage, the Applicant’s husband was physically and sexually abusive. Ms. Amani reported the abuse to her father’s family, but was told that this was expected of married life. The abuse continued, and the Applicant attempted to report her husband’s abuse to the police. He denied all allegations and was released. He was then once again physically violent with the Applicant. At this point, Ms. Amani decided to leave her ex-husband.
[6] The Applicant sought refuge with her friend, who I will refer to here as KM. KM disclosed to the Applicant that she was bisexual, and the two began a romantic and sexual relationship.
[7] After some time, the neighbours began to notice the relationship, and reported the Applicant and her girlfriend to the street council committee. The committee called the Applicant and KM and warned them to end their relationship and “stop homosexuality”
. Despite this warning, the Applicant maintained her relationship with KM.
[8] Subsequently, the Applicant received a summons from the police, via the local government, which instructed her and KM to appear before the police on July 10, 2021. Ms. Amani testified that she intended to heed the summons, but the police raided KM’s house on July 10 and arrested her and the Applicant. They were taken to a police station and detained for seven days; while there, Ms. Amani and her girlfriend were beaten and “threatened to stop homosexuality”
. They were released on July 16, 2021.
[9] As a result of her arrest, Ms. Amani decided to flee Tanzania. She left on October 14, 2021 and arrived in Canada on October 15, 2021.
[10] The Applicant testified that, since coming to Canada, she has entered into a relationship with her Canadian girlfriend, Catherine Akida – although that information was not included in her Basis of Claim [BOC] narrative.
B. RPD Decision
[11] As noted above, the RPD rejected the Applicant’s claim for refugee status. The RPD found that the determinative issue was credibility, and found that Ms. Amani was not credible with respect to central aspects of her claim, including:
a)The fact that she had failed to mention in her BOC narrative that she had a same-sex partner in Canada;
b)The fact that the partner failed to appear as a witness at the hearing;
c)The fact that she had failed to obtain a support letter from her former girlfriend in Tanzania;
d)The fact that she had been summoned by police in Tanzania for same-sex acts;
e)The Applicant’s delay in leaving Tanzania.
The RPD determined that, due to its adverse credibility findings, the Applicant had failed to establish her profile as a lesbian, and failed to establish that she would face personalized risk in Tanzania at the hand of her ex-husband.
C. Decision under Review
[12] The Applicant appealed the RPD’s decision to the RAD. The RAD refused the appeal and confirmed the RPD’s determination that Ms. Amani was neither a Convention refugee nor a person in need of protection. The RAD found that the RPD had erred in a number of ways, including in failing to properly apply the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics [SOGIESC Guidelines]. However, the RAD confirmed many of the RPD’s findings on credibility, and ultimately agreed with the RPD that Ms. Amani had not established her profile as a lesbian woman, and had not established a risk from her ex-husband.
[13] As a preliminary matter, the RAD rejected new evidence submitted by the Applicant on appeal pursuant to section 110(4) of the Immigration and Refugee Protection Act [IRPA]. The Applicant tendered 1) a supplementary affidavit, dated April 10, 2023; 2) a letter from her former Tanzanian girlfriend, dated March 29, 2023; and 3) a letter from her mother, dated April 3 2023. The RAD found that the supplementary affidavit did not provide any new facts on appeal and instead contained arguments about why the new letters of support should be accepted; the RAD therefore considered the affidavit as submissions.
[14] The RAD found, regarding the letter of support from Ms. Amani’s former girlfriend in Tanzania, that although it was dated after the rejection of the claim, the evidence it contained arose prior to the rejection of the claim. As such, it was not new evidence. The RAD also found that the letter would have reasonably been available to the Applicant at the time of the RPD proceedings, given that the Applicant testified she had been in touch with the former girlfriend a week before the hearing. The RAD found essentially the same with regard to the letter from the Applicant’s mother. It rejected the Applicant’s argument that she did not ask her mother for a letter of support because of the emotional hardship it would have caused her, noting that Ms. Amani had a responsibility to put her best foot forward at the RPD. The RAD also noted that the Applicant was aware of the importance of providing supporting evidence. Therefore, it found that the mother’s letter was not new evidence in that it was reasonably available to Ms. Amani during the RPD proceedings.
[15] The RAD made the following findings with regard to the Applicant’s credibility.
[16] The RAD agreed with the RPD that the Applicant’s omission from her BOC, of her Canadian girlfriend, undermined her credibility. It found that the RPD erred by failing to refer to the photos and WhatsApp messages tendered by the Applicant in support of her SOGIESC profile. However, it went on to find that the photos and WhatsApp messages were insufficient, as the messages do not identify who the recipient woman is; and the photos do not identify the other woman. The RAD additionally took issue with the fact that the photos are date-stamped to have been taken at various points between 2020 (when the Applicant was still in Tanzania) and an unspecified date. The RAD member noted that “it is therefore not clear to me whether these photos relate to one alleged relationship, or two”
. The RAD further stated that because neither the RPD nor counsel questioned the Applicant on the photos or messages, it was unable to place significant weight on them, to establish that the Applicant is/was in a same-sex relationship in Canada or in Tanzania.
[17] The RAD also agreed with the RPD that the Applicant’s credibility regarding her Canadian girlfriend was undermined by the girlfriend’s absence at the hearing. The RAD member noted that the alleged girlfriend was also from Tanzania, had been in a same-sex relationship there, and had also been accepted in Canada as a Convention refugee. Therefore, the RAD member stated, “I would expect, as a result, that the Appellant's alleged girlfriend would appreciate the gravity of the Appellant's hearing to the success of her claim, including the value of appearing as a witness”
. The RAD noted that Ms. Amani provided shifting and inconsistent testimony regarding her girlfriend’s absence, and that the only reason the girlfriend was not available was because she might have been at school or on her way home, and Ms. Amani did not actively request that her girlfriend attend the hearing to help establish her claim. The RAD member concluded that this behaviour was “inconsistent with the testimony of the Appellant and the evidence of her alleged girlfriend that they are in a loving relationship”
.
[18] The RAD agreed with the RPD that the lack of a letter of support or other corroboration from the Applicant’s Tanzanian girlfriend undermined her credibility with regard to both the alleged relationship and her SOGIESC profile. The RAD noted that Ms. Amani testified that she had been in contact with her Tanzanian girlfriend the week before her RPD hearing, and did not offer an explanation as to why she had not asked for a letter. As noted above, the RAD stated that the Applicant displayed an awareness of the importance of providing supporting evidence for her claim and was represented by counsel, and thus rejected the argument that the Applicant would not have known to ask her former girlfriend in Tanzania for a letter of support.
[19] Similarly, the RAD agreed with the RPD that the lack of a letter of support from the Applicant’s mother undermined her credibility. The RAD member rejected the Applicant’s argument that she did not ask for a letter of support from her mother, because she did not want to cause her emotional distress, given that her mother had helped gather other supporting documentation for the claim. It equally rejected the Applicant’s submission that she felt that she had collected enough corroborative evidence, without a letter of support from her mother, given the centrality of her mother to her allegations and the fact that she was represented by counsel.
[20] The RAD additionally agreed with the RPD that Ms. Amani’s omission from her BOC, that she had been in hiding in Tanzania between the time of her release from detention and her departure for Canada (approximately three months), undermined her credibility. It further found that she omitted having been charged with an offence for engaging in same-sex acts in Tanzania, which also undermined her credibility.
[21] Finally, the RAD agreed with the RPD that the Applicant’s omission in her BOC, of her summons by the police for same-sex acts in July 2021, undermined her credibility that she was summoned and then arrested for engaging in same-sex acts with her Tanzanian girlfriend. The RAD noted the sworn evidence, both in the BOC and in RPD testimony, which was supported by corroborative documentary evidence, that Ms. Amani had been arrested and detained for seven days. However, the RAD took issue with the fact that the police summons that Ms. Amani ignored, which led to the raid that resulted in her arrest, was omitted from her BOC. It found that the summons was central to the Applicant’s narrative, as it was the genesis of her allegation that she was arrested and detained for a week. The RAD noted that the Applicant did not provide any explanation for why the summons was omitted from her BOC.
[22] Given the foregoing credibility findings, the RAD concluded that the Applicant failed to establish that she is in a genuine same-sex relationship in Canada, or that she was in a same-sex relationship in Tanzania. Because the Applicant testified that her sexual orientation began to manifest when she began her relationship in Tanzania, and due to the lack of other testimony regarding her SOGIESC profile, the RAD determined that Ms. Amani has failed to establish her SOGIESC identity.
III. ISSUES
[23] This matter raises the following issues:
IV. STANDARD OF REVIEW
[24] The parties do not dispute that the standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 23 [Vavilov]. In conducting a reasonableness review, a court “must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified”
(Vavilov at para 15). It is a deferential standard, but remains a robust form of review and is not a “rubber-stamping”
process or a means of sheltering administrative decision-makers from accountability (Vavilov at para 13).
[25] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to that facts and law that constrain a decision-maker”
(Vavilov at para 85). Reasonableness review is not a “line-byline treasure hunt for error”
(Vavilov at para 102). Any flaws or shortcoming relied upon must be sufficiently central or significant, to render the decision unreasonable (Vavilov at para 100).
V. ANALYSIS
[26] While I have concerns about one aspect of the RAD’s decision, its reasons were detailed and comprehensive. Read holistically, I have concluded that the RAD member’s reasons reveal a rational chain of analysis and a reasonable consideration of fact and law. My reasons follow.
A. It was reasonable for the RAD to refuse to admit the Applicant’s new evidence
[27] As a preliminary matter, it was reasonable for the RAD to refuse to admit the Applicant’s new evidence. The Applicant sought to submit: a) a letter from her former girlfriend in Tanzania, dated March 29, 2023; b) a letter from her mother, dated April 3, 2023; and c) a personal affidavit, sworn on April 10, 2023.
[28] Under s.110(4) of the IRPA, the RAD can only consider new evidence if it arose after the rejection of the RPD claim, if it was not reasonably available at the time of the RPD rejection, or if the claimant could not reasonably have been expected to have presented at the time of the RPD rejection.
[29] The RAD accurately observed that the personal affidavit did not constitute new evidence, as it did not contain new facts. Rather, it consisted of arguments as to why the other items of new evidence should be admitted. The RAD therefore reasonably considered the affidavit as submissions, and not as new evidence.
[30] The RAD’s decision not to admit the other new evidence was similarly reasonable. As the RAD member found, the content of both letters concern events that form the basis of the Applicant’s claim and therefore predated the RPD rejection. Additionally, despite the Applicant’s arguments to the contrary, the RAD carefully explained why, in its view, both letters would have been reasonably available to her prior to the RPD rejection. Regarding the letter from the Applicant’s mother, the RAD acknowledged that it can be very difficult for some SOGIESC claimants to obtain the assistance of their family members. That said, the RAD noted that the Applicant’s mother has continued to support her, even by gathering other documents in support of her claim. In these circumstances, the RAD found that the Applicant could reasonably have obtained a letter from her mother in support of her claim before the RPD.
[31] Finally, it was reasonable for the RAD to reject the Applicant’s explanation that she had not been able to obtain a letter of support form her former girlfriend, because the former girlfriend was in hiding. The RAD reasonably concluded that this explanation was contradicted by the Applicant’s testimony at the RPD, where she stated that she had remained in contact with her former girlfriend, that they had spoken just a week before the RPD hearing, and that her ex-girlfriend knew about and supported her efforts to obtain refugee protection in Canada.
[32] The RAD’s findings with respect to both of the letters submitted by the Applicant provided a rational basis for it to conclude that they were inadmissible on appeal. I am therefore unconvinced that the RAD’s consideration of the new evidence was unreasonable.
B. The RAD’s Credibility Findings were Reasonable
(1) The Police Summons
[33] The RAD agreed with the RPD that the Applicant’s failure to mention a police summons in her BOC undermined the credibility of her allegation that she had been arrested, detained, and beaten for engaging in same-sex acts.
[34] In her BOC, the Applicant explained that she and her girlfriend were called by the community street council committee, who warned them to stop engaging in same-sex acts, and to end their relationship. The Applicant further noted that on July 10, 2021, the police raided her former girlfriend’s home and arrested them both.
[35] The Applicant also provided two items of evidence related to these events. The first document is a summons dated June 6, 2021 requiring the Applicant and her ex-girlfriend to appear before the local government on June 18, 2021. The second is a police summons dated July 6, 2021 requiring the Applicants to appear at a police station on July 10, 2021. When asked why she did not mention the police summons in her BOC narrative, the Applicant replied that she had mentioned that they were called by the local government.
[36] On appeal, the RAD rejected the Applicant’s argument related to the omission of any reference to the police summons in her BOC narrative. Essentially, the Applicant explained that when she stated in her BOC that she had been “called”
by the authorities, this was also meant to refer to the police summons. It was reasonable for the RAD to reject this explanation. On my own review of the transcript from the RPD proceeding, I found the Applicant's testimony on the issue of the summons to have been somewhat confusing. At times she appeared to refer to the community summons, while at other times, she referred to the police summons and subsequent arrest. Having looked at the matter holistically, I conclude that it was reasonable for the RAD to reject the explanation provided by the Applicant – in fact, there was no reasonable way to “read in”
a mention of the police summons into her BOC narrative.
[37] The Applicant further argues that, regardless of whether the summons was mentioned in the BOC, this detail was peripheral to the important event that she did outline in the narrative, namely her arrest and detention. In “fixating”
on the question of the summons, the Applicant argues that the RAD failed to adequately justify its findings related to the arrest. In the circumstances, I do not agree for three reasons.
[38] First, the Applicant’s arrest was the precipitating event that led to her departure from the country – this was a pivotal moment in the Applicant’s narrative, and I simply cannot conclude that the RAD’s treatment of the summons represents a fatal flaw in its overarching logic: Vavilov at para 102.
[39] Second, the Applicant did mention that she was ‘called’ to appear before the street council committee, so it appears that on some level she recognized that the issuing of a summons was an event worthy of mention in her BOC narrative.
[40] Third, the RAD reasonably rejected the Applicant’s explanation for the failure to mention the summons. The explanation provided – that when she mentioned being “called”
to the community street council, this was also a reference to the police summons, does not accord with the plain language contained in the Applicant’s BOC narrative.
[41] I would also note that this was but one of many findings relied upon by the RAD. If this had been the sole basis on which the RAD rejected the Applicant’s appeal, it may have been concerning, but this was not the case.
(2) Evidence of the Applicant’s Relationships
[42] The RAD found that the RPD had erred in failing to consider a series of photos and WhatsApp messages that the Applicant had adduced to support her claim that she had been involved in two-same sex relationships. In considering this evidence, the RAD observed that the photos do not indicate the identity of the other woman, or where the photos were taken. Similarly, there is no indication in the WhatsApp messages of the identity of those involved in the chats. As a result, the RAD found that the photos and messages were of limited assistance to the Applicant in establishing the basis of her claim.
[43] It was reasonable for the RAD to draw these conclusions from the evidence. The RAD did not ignore this evidence, and it did not find it completely irrelevant to its determination. Rather, it found that the lack of any identifying information in the evidence rendered it insufficient to establish either of the Applicant’s relationships. I have no basis on which to find that this conclusion was unreasonable.
(3) The RAD’s findings on the Applicant’s Canadian girlfriend
[44] The RAD made two distinct findings with respect to the Applicant’s Canadian girlfriend. First, it agreed with the RPD that the Applicant’s failure to update her BOC to include details about her relationship in Canada undermined her credibility. Second, it affirmed the adverse inference drawn by the RPD related to the girlfriend’s failure to appear at the hearing as a witness. I find the first of the above findings was unreasonable. The second finding was, in the circumstances, reasonable.
[45] In advance of her RPD hearing, the Applicant submitted as evidence an email from an individual who she asserts is her Canadian girlfriend. Thus, at some point prior to the RPD hearing (the precise date is unclear from the Record), the Applicant provided an update to the RPD as to her situation, namely that she was in a relationship in Canada. While the email itself is quite vague and of limited probative value, I find that it does undermine the RPD’s findings related to the perceived omission from the Applicant’s BOC narrative – findings which were affirmed by the RAD.
[46] A similar situation arose in Osikoya v Canada (Citizenship and Immigration), 2018 FC 720 [Osikoya]. In that case, the Applicant also adduced evidence in advance of her hearing, related to her same-sex relationship in Canada. She similarly omitted to update her BOC narrative, and the RPD drew a negative inference from this omission. In finding this conclusion to be unreasonable, my colleague Justice Norris found (at para 43):
The RAD and the RPD do not mention Ms. Kandjii’s affidavit in their respective reasons. As a result, one might think that the first time anyone heard about Ms. Osikoya’s relationship with Ms. Kandjii was on March 15, 2017, the first day of the RPD hearing. If that had happened, it could have been a sound reason for the RAD (and the RPD) to doubt the genuineness of the relationship. But that is not what happened. The RAD’s conclusion that there was a “material omission” in the BOC that “goes to the heart of [Ms. Osikoya’s] claim for protection based upon her sexual orientation” is unreasonable given that the relationship had been disclosed in advance by other means and given the RAD’s failure to address Ms. Osikoya’s reason for not disclosing it sooner than she did.
[47] This reasoning is directly applicable to the situation that arises in this application. While the RAD did consider the photos and WhatsApp messages provided by the Applicant, it did not consider whether the email provided by the Applicant amounted to a disclosure of her relationship “by other means.”
[48] In arguing that the RAD’s findings on this issue were reasonable, the Respondent refers to Irivbogbe v Canada (Citizenship and Immigration), 2016 FC 710 at para 32. In that case, the applicant had similarly failed to update his BOC narrative to include details related to his Canadian relationship. However, there is no indication in that case that the applicant had submitted information about his Canadian relationship in advance of the hearing. I find, therefore, that the facts of this case bear greater similarity to Osikoya.
[49] However, unlike in Osikoya, I do not view the RAD’s error in this respect to constitute a fatal flaw in its reasons. While the RAD found that the omission undermined the credibility of the Appellant's allegation that she was in a genuine same-sex relationship in Canada, this was not the sole basis on which it arrived at this conclusion. The RAD provided numerous reasons for confirming the RPD decision, including other reasons related to the Applicant’s Canadian relationship. As I have found that these other aspects of the RAD’s decision were reasonable, I conclude that the RAD’s error on this issue does not undermine its reasons as a whole.
[50] For example, the RAD’s reasons related to the failure of the Applicant’s girlfriend to appear at her RPD hearing were careful and nuanced. The RAD acknowledged the Maldonado principle that sworn testimony is presumed to be true unless there is a reason to doubt its truthfulness. It further recognized that it is an error to make an adverse credibility finding merely on the absence of corroborative evidence.
[51] However, the RAD also correctly noted that where there is a valid reason to doubt the claimant's credibility, the lack of corroborating evidence, where no reasonable explanation is provided, can be a valid consideration when assessing credibility: citing Luo v. Canada (Citizenship and Immigration), 2019 FC 823, at paras 18-22.
[52] Having accurately summarized the prevailing jurisprudence on the issue of corroborative evidence, I find that the RAD’s reasons related to the failure of the Applicant’s girlfriend to appear as a witness were reasonable. They took into consideration the SOGIESC Guidelines, and they were rooted in the Applicant’s own testimony about her relationship and her explanation as to why the girlfriend did not attend the hearing. I see no error in the RAD’s consideration of this issue.
(4) The RAD’s findings on the Applicant’s Tanzanian girlfriend
[53] For similar reasons, I find that the RAD’s consideration of the lack of corroborating evidence from the Applicant’s Tanzanian girlfriend was reasonable. The RAD carefully considered the Applicant’s explanation as to why she did not provide any corroborative evidence from her Tanzanian girlfriend. It took into account the SOGIESC Guidelines on the issue of corroborative evidence and applied those Guidelines to the Applicant’s testimony. It demonstrated familiarity with the jurisprudence as to when corroborative evidence may be expected, and adequately justified its conclusion that this was a situation in which some corroborative information could reasonably have been expected from the Applicant’s Tanzanian girlfriend. As such, I find that the RAD’s determination on this issue was reasonable.
(5) The RAD’s findings on the events that followed the Applicant’s detention
[54] The RPD found that the Applicant had omitted from her BOC that she had lived in hiding in Tanzania from the period following her detention until her departure from the country. The RAD affirmed this finding. Moreover, in considering this aspect of the Applicant’s testimony, it also noted that she testified at the RPD hearing that she had been charged with an offence related to her sexual orientation. No mention of these charges is found in the Applicant’s BOC narrative.
[55] Once again, I find the RAD’s assessment of this issue to be reasonable. It accurately described the nature of these omissions and thoroughly explained why, in its view, they were significant. I do not accept the Applicant’s argument that it was implicit in her narrative that she was charged with an offence, or that the RAD was overly zealous in identifying this omission. In short, I cannot say that it was unreasonable for the RAD to identify, as an important omission, the Applicant’s failure to mention that she was criminally charged with offences related to her sexual orientation.
(6) The RAD’s findings on the lack of corroboration from the Applicant’s mother
[56] The RPD found that it was unreasonable that the Applicant did not ask her mother for a letter of support, given that her mother was aware of her refugee claim, supported her, and was in regular contact with her. The RAD affirmed this finding. For the same reasons that I have identified above, I find that this conclusion was reasonably available to the RAD. The RAD thoroughly set out all of the ways in which the Applicant’s mother has assisted and supported her. These facts, the RAD concluded, distinguished the Applicant’s situation from the cautions related to corroborative evidence that are set out in the SOGIESC Guidelines. I also find that the RAD’s assessment of this issue fell within the parameters developed in the jurisprudence on corroborative evidence: Luo at para 21.
(7) Should the RAD have given the Applicant an Opportunity to Respond to Its Concerns
[57] Finally, the Applicant argues that the RAD erred in failing to conduct an oral hearing into this matter, or in providing her with an opportunity to respond to its concerns. I disagree.
[58] First, the Applicant did not request an oral hearing, and on judicial review has made no specific arguments as to how the RAD erred in applying the legislative criteria that are a prerequisite to holding a hearing: IRPA s. 110(6). It is not sufficient to argue that the RAD should have held a hearing simply because “the central issue was credibility.”
[59] Second, this was not a situation where the RAD was required to give notice to the Applicant of the issues it was considering. Credibility was at the core of the RPD findings in this matter, and the RPD’s credibility findings were central to the Applicant’s submissions in support of her RAD appeal. The RAD largely limited its analysis to an assessment of the RPD’s credibility findings, and provided thorough reasons as to the aspects of the RPD decision that were correct, and other aspects of the decision that it found to be in error.
VI. CONCLUSIONS
[60] Assessing refugee appeals related to the credibility of claims based on sexual orientation is an exceptionally difficult task. While the decision under review in this matter was not perfect, the RAD engaged in a thoughtful and rational analysis of the RPD decision. It applied the principles contained in the SOGIESC Guidelines. It carefully considered each argument raised by the Applicant, and provided intelligible, transparent, and justified reasons for dismissing the appeal. As such, I have concluded that the RAD’s determination was reasonable, and I therefore dismiss this application for judicial review. Neither party proposed a question for certification, and I agree that none arises.
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