Appeal- Immigration case

February 6, 2023

DATE

BETWEEN:

ENTER YOUR NAME

And

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

PROCEDURAL BACKGROUND

I filed a claim for the grant of refugee status with the Refugee Protection Division (R.P.D) who rejected his claim. The RPD claimed that my evidence lacked credibility and that I submitted fraudulent evidence. Consequently, I appealed the said decision to this Refugee Appeal Division (R.A.D), which also dismissed my appeal on or about March 16, 2021.

I therefore hereby submit this appeal of the RAD’s decision.  

FACTUAL BACKGROUND

I am a Ugandan national by birth. I fled Uganda for fear of persecution based on my sexual orientation as a gay man. I am in a loving relationship with another man (AB). We met in 2001 when I was supplying poultry to AB when he worked in a market. Our friendship grew to a romantic relationship. It is worth noting that I married my wife a year after meeting AB, just to appease my family. 

I managed to keep my relationship with AB secret for almost 16 years. My wife started having suspicions about me when she suspected I was cheating on her with another woman. On or about February 2, 2018, my wife, the village chairperson and other security personnel stormed AB’s at night where they found me and AB engaging in gay acts. Coincidentally, on the said night, the police were also conducting an operation to apprehend gay individuals in the society, after reports of a “controversial gay list” made way in the social media. AB and I were in the list.  

I was beaten and arrested. Seven days later, I was released after bribing the police. Thereafter, I went into hiding and made arrangements to leave Uganda. I obtained a Canadian visa and fled Uganda on or about June 7, 2019. I arrived in Canada two days later and initialed a claim for refugee protection thereafter. 

ARGUMENTS

RAD raised four issues, which it relied on to uphold RPD’s decision. The four issues were:

  1. Whether my News Magazine Article was Fraudulent,
  2. Whether I provided credible information regarding my relationship with AB,
  3. Whether I provided credible information regarding my arrest,
  4. Whether I provided credible information regarding the period I was in hiding.

  • Whether My News Magazine Article was fraudulent.

My arrest was documented in April 19 in ‘The Independent’, a newspaper in Uganda. I was not aware of the existence of the Article until AB later shared the article with me. I also had no idea whether the magazine was published online or not. 

The RAD upheld RPD’s decision that the newspaper article was fraudulent. According to the RAD, neither AB nor I were in the “controversial gay list” that made rounds in social media, which list made the police to arrest AB and I on the night of February 2, 2018. Furthermore, RAD upheld RPD’s decision that the article was fraudulent because it contained formatting issues from the rest of the magazine. RAD alleged it had conducted an online search of the article but did not find anything. 

In Huruglica v. M.C.I., 2014 FC 799, the Honourable Justice Phelan states that “[u]nlike judicial review, the RAD, pursuant to subsection 111(1)(b), may substitute the determination which ‘in its opinion, should have been made’ [and] the RAD must conduct an independent assessment of the application in order to arrive at its own opinion.”  I aver that the RAD should have conducted an independent assessment of all the evidence in order to determine whether the RPD’s decision was well‑founded in light of the evidence presented to the RPD, the appeal records, as well as any new evidence within the meaning of subsection 110(4) of the IRPA. RAD has therefore failed to conduct an independent assessment of my case but was largely influenced by RPD’s decision. 

In faulting the article for not containing certain features, the RAD implicitly concluded that the document is fraudulent. Fraud is a serious finding that must be grounded in the evidence Balyokwabwe v Canada (Citizenship and Immigration), 2020 FC 623 at para 45, citing Oranye v Canada (Citizenship and Immigration), 2018 FC 390 at para 24). Accordingly, RAD failed to provide sufficient evidence of the fraudulent nature of the article. 

  • Whether I provided credible information regarding my relationship with AB.

I have known AB not only as a friend, but also as a loving partner for over 16 years. I tried all I could to keep my relationship with AB secret. Every time I met AB, we refrained from sharing too much of our personal information because of the fears we had. We were only committed to make our relationship strong.

RAD upheld RPD’s decision that I was not genuine about my relationship with AB. According to the RAD, there is no way I would be that close with AB without knowing more personal information about AB. 

For a decision to be unreasonable, the applicant must establish that the decision contains flaws that are sufficiently central or significant. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, at para. 100. I aver that RAD’s decision regarding the credibility of my relationship with AB is unreasonable because they failed to consider the fact that our fears hindered us from sharing too much information about ourselves. Therefore, I could not reasonable know all details about AB. 

  • Whether I provided credible information regarding my arrest.

On the night of the arrest on February 2, 2018, AB and I were interrupted when we were making love. We quickly dressed up, when we realized what was happening. The door was forced open after we were already dressed up. Although we were not found having sex, the circumstances were such that it could be concluded that there were some questionable acts of intimacy that had just taken place. Accordingly, the beatings followed, then the subsequent arrest.

RAD upheld RPD’s decision that there were inconsistencies about the events that happened on the night of the arrest. According to the RAD it was not clear whether we were walked on having sex or whether they found us already dressed. 

A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. 

In the instant case, I provided an analysis of the events that happened on the night of February 2, 2018. However, the RAD sought to instead focus on minor inconsistencies.

  • Whether I provided credible information regarding the period I was in hiding.

After we were arrested on February 2, AB and I went to separate hiding around Lungujja in Kampala, Uganda. I never returned home and has never seen my wife since then. In the period I was in hiding, AB obtained an affidavit from the local chairperson, through a lawyer. I could not obtain it in person because I was in hiding and did not want to subject myself to the authorities. I have no idea how AB managed to get the lawyer to prepare the affidavit. During the RPD proceeding, I experienced instances of memory lapse where I appeared to give conflicting information about my whereabouts around that time. 

The RAD upheld the RPD’s decision that I did not provide credible information regarding details pertaining to my hiding. RAD alleges I provided conflicting information when I stated I have never seen my wife since leaving police detention, yet I stated that I had witnessed the birth of my child on or about June 3, 2018, before leaving Uganda. RAD also faulted my affidavit, which I obtained from the local chairperson. The RAD claimed that such evidence was not consistent with the fear that took me to hiding. 

The RAD must take a “generous approach” to the notion of materiality.” Khan v Canada (Citizenship and Immigration), 2020 FC 438 at para 34. I aver that RAD failed to give a general approach to the affidavit evidence I produced. It refused to probe the contents thereof and limited itself to its origin. 

  • Failure to address the genuineness of my previous relationship and inability to live freely in Uganda as a gay man.

The RPD failed to address my testimony about my previous relationship, and my testimony about my fear of police and my inability to live freely in Uganda as a gay man. When I was a boy, I had a partner, with whom I engaged in sexual relationship. I was always jealous and anxious when I saw the partner with other boys. I have never seen him since 2000. I also submitted my fears for the police, especially considering my sexual orientation. Furthermore, I provided proof of my attendance in gay related programs. For instance, I attended the Pride Toronto Festivities at the 519 center. 

The RAD refused to consider my testimony, holding that the RPD was right in not considering this testimony because of the alleged inconsistencies in the information I provided to them. The RAD also credited AB’s emails which he sent while he was in exile in Uganda. 

It was held in Singh v. M.C.I., 2014 FC 1022 that “when a claimant, who is deserving of a hearing, is refused one, serious issues of procedural equity are potentially implicated.” The Court in Sow v. M.C.I., 2015 FC 295, Barnes, concurred with the decision in Singh. The learned judge held that: 

An appeal to the RAD is not the equivalent of a Pre-Removal Risk Assessment [PRRA]. Indeed, it has been repeatedly held in this Court that a PRRA is not an appeal from an unfavourable refugee determination. The reasons for strictly limiting the receipt of new evidence in the context of a PRRA are mostly absent from those that apply to an appeal from a refugee determination.

 

In the instant case, I find RAD at fault for failing to consider my evidence and/or testimony.  

CONCLUSION

In light of the foregoing, I pray the RAD’s decision be reversed, and I be granted refugee protection. 

DATED:

 

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