TB9-25555

RAD File / Dossier de la SAR : TB9-25555 TB9-25556 / TB9-25557 / TB9-25558 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 18, 2019 Date de la décision Panel James Sloan Tribunal Counsel for the persons who are the subject of the appeal Kingsley I Jesuorobo Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] What follows are my reasons for confirming the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board (Board) finding that the Appellants are neither Convention refugees nor persons in need of protection because they have a viable internal flight alternative (IFA) in Cape Town, South Africa. [2] The adult Appellants were born in Zimbabwe, though they no longer hold Zimbabwean citizenship. All of the Appellants have lived in South Africa for many years and have citizenship there. [3] In 2012, XXXX XXXX (the male Appellant) learned that his family, who live in Zimbabwe, had come to believe that his wife, XXXX XXXX (the female Appellant), was a witch. The allegations became known in Johannesburg where the Appellants lived and, beginning in 2014, the female Appellant began to receive death threats. She was followed home by unknown people on two occasions and an unknown woman attempted to pick up one of their children at her school. [4] In XXXX 2016, the female Appellant was accepted to begin her studies in Toronto in XXXX 2018; however, her application for a Canadian visa was rejected. Instead, the Appellants obtained US visas and travelled there, arriving on XXXX XXXX, 2018. On May 2, 2018-some seven weeks before their US visa was to expire-they crossed into Canada irregularly. [5] The Appellants claim that they are all at risk due to the harm that they are likely to suffer upon return because of the rumours about the female Appellant being a witch that are circulating in Johannesburg and the surrounding townships. [6] Five days before the RPD hearing, the Appellants amended their claim to express a fear of xenophobia in South Africa, which they believe has developed since they arrived in Canada in May 2018. The female Appellant claims to have been subjected to verbal abuse and to have lost her job due to preferential treatment for native-born South Africans and the male Appellant claims to have suffered from discriminatory hiring practices. DETERMINATIVE ISSUE [7] The determinative issue in this case is the existence of a viable IFA. Because I have found that Cape Town provides the Appellants with a viable IFA, I need not address the issue of credibility-other than as it pertains to the Appellants' evidence on the viability of the IFA. STANDARD OF REVIEW [8] In my review of the RPD's decision, I will apply a standard of correctness.1 This is not a case where the RPD enjoyed a meaningful advantage in making its findings.2 ANALYSIS [9] The RPD found that Cape Town provides a viable IFA for the Appellants. The Appellants argue that the RPD erred in making this finding.3 [10] The Federal Court has made clear that the onus is on the Appellants to demonstrate that it is unreasonable to seek refuge in a different part of their country before resorting to international protection.4 The Federal Court of Appeal has held that, in determining the viability of an IFA, a two-pronged test must be considered. First, the Board must be satisfied, on a balance of probabilities, that there is no serious possibility of persecution in the part of the country where it has suggested an IFA may exist.5 Second, the conditions in the part of the country proposed as an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimants, to seek refuge there.6 As I will outline below, I find that both prongs of the test are met. [11] The RPD stated that it had considered the Gender Guidelines in assessing the claim and the Appellants have not contested this. I note that, to the extent they are applicable to this appeal, I too have considered them. 1. Is Cape Town a viable IFA? First Prong: Is there a serious risk of persecution in the proposed IFA? [12] The RPD noted that the Appellants' evidence was that the rumours relating to the female Appellant being a witch put her at risk in Johannesburg and townships nearby. When asked how someone would know she was rumoured to be a witch in Cape Town, the female Appellant testified that she did not know. The RPD also considered a claim that the male Appellant had been followed in Zambia leading to an automobile accident, which was said to be linked to rumours that the female Appellant was a witch. It noted that this was omitted from the Basis of Claim (BOC) and that the female Appellant's explanation for this omission was not reasonable. Moreover, the claim that the car accident was related to the rumours about the female Appellant being a witch were speculative. The RPD concluded that there was no credible evidence to show that the Appellants had been pursued outside Johannesburg. [13] In reply to an argument by their counsel that the female Appellant might be recognized by someone she knew from Johannesburg in Cape Town with the result that the accusations that she was a witch would resurface there, the RPD noted that Cape Town had a population of 4.4 million people and found that there was no more than a mere possibility that this might occur. Appellants' counsel also argued that the source of the rumours that the female Appellant was a witch was the male Appellant's family and that the Appellants should not be expected to sever ties with family members. The RPD found that it would be reasonable to take precautions not to expose their whereabouts to the members of the family who might spread witchcraft accusations. [14] As to the xenophobia claim, the RPD stressed that this was omitted from the Appellants' joint BOC narrative until five days before the hearing, when they submitted an amendment. Noting that the adult Appellants had been successful in finding work and that they had not suffered physical attacks, the RPD found that their past treatment had not amounted to persecution. As to their future treatment in Cape Town, the RPD had regard to evidence submitted by the Appellants and found that it indicated that there had been some xenophobic attacks in Western Cape province (where Cape Town is located). However, it held that the evidence was not sufficient to result in a finding that the Appellants would face a serious possibility of discrimination amounting to persecution when they returned to Cape Town. It also noted that the eldest daughter of the adult Appellants (not one of the Appellants herein) was living and working in South Africa with no apparent problems. [15] At appeal, the Appellants make the following arguments: a. The witchcraft claim and the xenophobia claim must be considered separately. Even if the witchcraft claim was found not to be valid, the RPD still needed to consider the xenophobia claim. b. The RPD failed to specify an IFA location (as required in the Rabbani case7), failed to give the Appellants an opportunity to address the proposed IFA, and "oscilate[d] between a chosen location or locations and a vague spread of the proposed IFA to unknown part [sic] of the country."8 c. Because the RPD noted that xenophobia existed in South Africa and that Cape Town was no exception, it "misapplied the law on the IFA tests, and IFA principles, attempted unreasonably to broaden the IFA catchment area" making its analysis illogical9 and "injected confused tests into its IFA considerations".10 d. The RPD was wedded to the mistaken belief that Cape Town was "immune from xenophobic attacks" and the Appellants faced an uphill battle to change its mindset. e. Even if the RPD did not make any fatal error in its IFA analysis, its overall analysis was not logical: it was incongruous to find that foreign nationals are subject to xenophobic attacks in Cape Town but that the Appellants will not be susceptible to such attacks. They rely on objective documents,11 which they argue, show that xenophobia exists, is encouraged by high-ranking officials, and goes unpunished. f. The RPD misunderstood the Appellants' claim regarding witchcraft because it did not appreciate that the fear went beyond immediate relatives to the broader community. g. The RPD's finding regarding Zambia was a veiled credibility finding made without a proper credibility analysis and its finding that they were embellishing their evidence with the Zambia story was misplaced. They relied on the Federal Court case of Zaytoun.12 h. It would not be fair to expect the Appellants not to share their whereabouts with their family and friends. It relied on the Zamora Huerta case,13 where the Federal Court held that to expect the claimant to relocate within her country and not to share her whereabouts with family or friends was tantamount to requiring her to go into hiding. i. There was evidence acknowledged by the RPD that shows that their nationality would present them with hurdles or expose them to violence in Cape Town. j. It was an imposition of an excessive burden to conclude that the fact that the Appellants had not been attacked meant that they had nothing to fear. The jurisprudence is clear that they do not have to suffer past persecution; they need only show the possibility of future persecution. [16] I have considered the Appellants' arguments, but I find none of them to be convincing. I will briefly address each of them: a. It is true that the RPD must consider both of the claims; however, as noted above, it did so. b. An argument that the RPD did not identify the IFA-if that is the argument being made-is incorrect: the RPD referred to Cape Town as a possible IFA at the outset of the hearing.14 The argument that the RPD applied the wrong tests for IFA is very difficult to follow. No reasoned argument is put forward indicating the way in which the RPD misapplied or misunderstood the first prong of the IFA test, failed to give the Appellants the opportunity to address the IFA, or broadened the IFA "catchment area". Nor is it clear to me how the RPD might be said to have done so. The RPD did make mention of the country as a whole; however, this was not because it was suggesting that the whole country provided an IFA. Instead, it was relying on elements of the objective documentation that did not address itself to Cape Town specifically. c. There is nothing illogical or irregular about a finding that xenophobia exists in South Africa (including in Cape Town), but that the Appellants do not face a serious possibility of persecution in Cape Town. d. The Appellants misstate the RPD's findings. It did not find that Cape Town was "immune from xenophobic attacks"; to the contrary it found that there was xenophobia in Cape Town. Nor is there any evidence that the RPD held the "mindset" that Cape Town was a suitable IFA or that it had prejudged the issue. e. The RPD did not, as noted, find that there was no possibility that Appellants would be subject to xenophobia in Cape Town; that is not the test for persecution. Instead, it held that they had "not established with sufficient credible evidence that they would face a serious possibility of discrimination amounting to persecution in..."15 Cape Town. I find that the past harm the Appellants claimed to have suffered in South Africa due to their Zimbabwean nationality-e.g. the female Appellant was subjected to verbal abuse and lost her job and the male Appellant was disadvantaged due to discriminatory hiring practices-was discriminatory in nature; however, it was not sufficiently serious to amount to persecution. Moreover, the fact that they have worked successfully in South Africa for many years, leads me to conclude that their eleventh hour claim of discrimination in employment was an embellishment. As regards their future treatment, I have reviewed the documents referred to by the Appellants. The documents indicate that xenophobia does exist in South Africa, including in the Western Cape province, and that such xenophobic attacks have taken place against Zimbabwean nationals. However, they do not indicate that such attacks are so frequent in South Africa that there is a serious possibility that all Zimbabwean nationals living in Cape Town would be persecuted. I agree with the RPD that the fact that their eldest child has returned to South Africa to pursue her career in Johannesburg suggests that at least some Zimbabweans may live in South Africa without facing persecution. Given that I have found that not all Zimbabweans face persecution in South Africa, the question arises: based on the Appellants' profile, would they face persecution?16 In Balogh, the Federal Court referred to the claimant's "burden of establishing a link between the general documentary evidence and the applicant's specific circumstances." [citations omitted]17 Here the Appellants have made no argument that such a link exists and there is nothing in the evidence that would suggest a link between the Appellants' circumstances and persecution, either in the form of xenophobic attacks or xenophobic discrimination amounting to persecution. I agree with the RPD that the Appellants have not established that they would face a serious possibility of persecution (including discrimination amounting to persecution) in Cape Town. f. The Appellants do not elaborate as to how the RPD misunderstood the nature of the Appellants' fear that the female Appellant would be labelled a witch, as required by Rule 3(3)(g) of the RAD Rules.18 Based on my review of the RPD's decision, it is clear that the RPD did understand that the female Appellant's fear went beyond immediate relatives to the broader community. g. The RPD's finding that the Appellants were embellishing their claim by testifying about a car accident in Zambia that was omitted from their BOC narrative (without reasonable explanation) was indeed a credibility finding-and one with which I agree. However, it was not veiled. The RPD was clear about its misgivings as regards the credibility of the Appellants: "The Panel makes a negative credibility finding against the claimants for the omission of this incident."19 As such, the case of Zaytoun, where the Board had made no negative credibility findings against the claimant, is inapposite. h. If the Appellants are genuinely fearful that the male Appellant's family will attempt to spread rumours that the female Appellant is a witch (with the possible result that the family will be harmed or killed), I do not find that it would be unfair to expect them not to alert the male Appellant's family to their whereabouts in South Africa. The very purpose of their relocating from Johannesburg to Cape Town is to avoid being subjected to harm due to the rumours being spread by the male Appellant's family. To the extent the Appellants would want to be in touch with family members whose agenda is to have the family harmed (or, at least, have the female Appellant pilloried), they may do so without revealing their location. i. The Appellants do not state what evidence the RPD allegedly acknowledged to show that their nationality would present them with hurdles or expose them to violence in Cape Town. And I can find none-other than as discussed above. As I have observed, there is nothing illogical or contradictory about finding that xenophobic discrimination exists in South Africa and, at the same time, finding that the Appellants have not shown that there is a serious possibility they will be persecuted due to xenophobia in Cape Town. j. Finally, the Appellants are correct that it would be wrong in law to find that because the Appellants had not been attacked they have nothing to fear. Persecution is, of course, forward-looking. However, the RPD did not limit itself to the past treatment of the Appellants in arriving at its decision. It also considered their forward-looking fears. As have I. The Appellants have not shown that they face a serious possibility of persecution or a likelihood of harm under subsection 97(1) based on a perception that the female Appellant is a witch or on xenophobia upon their return to South Africa. Second Prong: Is the proposed IFA reasonable? [17] I find the RPD did not err in concluding that the conditions in Cape Town were not such that it would be unreasonable, in all the circumstances, for the Appellants to seek refuge there. The Federal Court of Appeal in Ranganathan20 has made clear that there is a very high threshold for the unreasonableness test in this context: [The unreasonableness test] requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. The absence of relatives in a safe place, whether taken alone or in conjunction with other factors, can only amount to such condition if it meets that threshold, that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized. This is in sharp contrast with undue hardship resulting from loss of employment, loss of status, reduction in quality of life, loss of aspirations, loss of beloved ones and frustration of one's wishes and expectations.21 [18] In finding that relocation to Cape Town would not be unreasonable, the RPD noted that the adult Appellants were "educated and have work experience both in South Africa and outside of South Africa, demonstrating they are resourceful and able to adapt to new surroundings."22 It found that while there may be preferential hiring practices in South Africa that could exclude the adult Appellants from certain work opportunities in Cape Town, they had started their own business in Johannesburg and no evidence had been provided to show that they would not be able to do so in Cape Town or find other employment there. It noted further that it had not been provided with any persuasive evidence that the Appellants would be unable to find accommodation in Cape Town. [19] First, the Appellants argue that the education, experience, resourcefulness and adaptability of the adult Appellants does not obviate "the ugly reality of the discriminatory and preferential hiring practices against immigrants in South Africa."23 They argue the RPD's analysis "smacks of contradiction"-if it admitted that economic problems and discriminatory hiring practices exist, how can the IFA be reasonable? Second, they argue that the RPD applied "a wrong standard" when it noted that it had not been provided with evidence to show that the adult Appellants would not be able to start their own businesses in Cape Town or find other employment. [20] I find neither of the Appellants' arguments to be persuasive. The point being made by the RPD was not that the characteristics it noted that the adult Appellants possessed somehow obviated the existence of preferential hiring practices in South Africa. Instead, its point was the Appellants were in a good position to find work, despite such practices, due to those characteristics. I agree. There is no contradiction in its reasoning. [21] The Appellants' second argument is unclear. They do not elaborate why they think the wrong standard was applied; nor do they propose an alternative standard.24 It is beyond dispute that burden of proof falls to the Appellants. The Appellants do not seem to be arguing against this. Instead, they merely note that the documentary evidence shows that businesses owned by foreigners may be subject to xenophobic attacks. The question of whether the Appellants would face a serious possibility of persecution upon return due to xenophobic attacks has been discussed and rejected at prong one above. [22] I agree with the RPD in its assessment of the adult Appellants' profiles. They are both very well educated: each adult Appellant has 18 years of education and holds a Bachelor's degree.25 Both have shown themselves able to find work in South Africa: the male Appellant worked without interruption between XXXX 2008 and XXXX 201826 and the female Appellant worked without interruption between XXXX 2007 to XXXX 2018.27 When the female Appellant lost a job, she was sufficiently resourceful that she began her own successful XXXX XXXX in South Africa, where she worked until the Appellants left the country.28 [23] The Appellants will have the disruption of finding and moving into new accommodation, finding new jobs, and the minor Appellants will need to start at new schools. This will be disruptive and cause them considerable inconvenience and it is deeply troubling that this will occur. However, none of these factors, individually or collectively, meet the test for unreasonableness set out by the Federal Court of Appeal in Ranganathan. CONCLUSION [24] Cape Town provides the Appellants with a viable IFA. I confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. The appeal is dismissed. (signed) "James Sloan" James Sloan November 18, 2019 Date 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 2 Ibid., at paras 69-74. See also Rosas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras 124-125, relying on Guo v. Canada (Citizenship and Immigration), 2017 FC 317, at paras 15-19 and Jeyaseelan v. Canada (Citizenship and Immigration), 2017 FC 278, at paras 19-21. 3 They also argue that the RPD erred in the standard of proof applied to the claim. The argument is not developed. To the extent their standard of proof argument applies to the RPD's IFA analysis, it is considered herein. The Appellants also posit a statement regarding the general principles that the Board should adhere to (Exhibit P-2, Appellants' Record, at p. 96-97, Legal Memorandum, at para 7). The purpose of this statement, which does not represent a reasoned argument, is unclear. It does not comply with the RAD Rules. Rule 3(3)(g) obliges an Appellant to provide "full and detailed submissions regarding ... the errors that are the grounds of the appeal [and] where the errors are located in the written reasons of the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing." (Refugee Appeal Division Rules, SOR/2012-257.) 4 Momodu, Cordilia Gift v. Minister of Citizenship and Immigration (F.C., no. IMM-656-15), Annis, December 9, 2015, 2015 FC 1365, at para. 6; Abdalghader, Bahi I Khaith v. Minister of Citizenship and Immigation. (F.C., no. IMM-5529-14), Noël, May 5, 2015, 2015 FC 581, at para. 22. 5 Rasaratnam, Sivaganthan v. Minister of Employment and Immigration. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991; [1992] 1 F.C. 706 (C.A.), at p. 710. 6 Thirunavukkarasu, Sathiyanathan v. Minister of Employment and Immigration. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993; [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 7 Rabbani, Sayed Moheyudee v. Canada (Minister of Citizenship and Immigration (F.C.T.D., no. IMM-236-96), Noël, January 16, 1997. 8 Exhibit P-2, Appellants' Record, at pp. 101-102, Legal Memorandum, at para 15. 9 Ibid., at p. 102, Legal Memorandum, at para 17. 10 Ibid., at pp. 101-102, Legal Memorandum, at para 15. 11 The documents consist of an Aljazeera report (see Exhibit RPD-1, RPD Record, Exhibit 17, at p. 356), an item from NEWS24 (Ibid., Exhibit 14, p. 346), a Timeslive report (Ibid., p. 341), a DailyNewsLive report (Ibid., p. 344) and a BBC News item (Ibid., Exhibit 17, p. 351). 12 Zaytoun v. Canada (Citizenship and Immigration), 2014 FC 939 (CanLII). 13 Zamora Huerta v. Canada (Citizenship and Immigration), 2008 FC 586 (CanLII), at para. 29. 14 Recording of the RPD Hearing, at mins 7-8. 15 Exhibit RPD-1, RPD Record, at p. 9, Reasons and Decision, at para 23. 16 As the Federal Court held in Olah: "persecution can be established by examining the situation of similarly situated individuals...". (Olah v. Canada (Citizenship and Immigration), 2017 FC 921 (CanLII), at para 14.) In making this statement, the Court relied on Saliban v Canada (Employment and Immigration), 205 FC 1128 (CanLII), at para 10 and Fi v. Canada (Employment and Immigration), 2006 FC 1125 (CanLII), at para 14. 17 Balogh v Canada (Citizenship and Immigration), 2016 FC 426 (CanLII), at para 19. 18 Rule 3(3)(g), supra, endnote 3. The Federal Court, in addressing the application Rule 3(3)(g), held: "The RAD cannot be faulted for failing to consider arguments that were never raised." (Hoch v. Canada (Citizenship and Immigration), 2018 FC 580 (CanLII), at para 8). The only indication that the Appellants gave as to the basis for their argument was a reference to pp. 45-52 of their record, i.e. their joint BOC narrative. 19 Exhibit RPD-1, RPD Record, at p. 7, Reasons and Decision, at para 15. The RPD noted earlier in the Decision that "there were credibility concerns" and that where they "impacted on the assessment of the IFA the panel note[d] them...." (Ibid., at p. 5, at para 9). 20 Minister of Citizenship and Immigration v. Ranganathan, Rohini (F.C.A., no. A-348-99), Létourneau, Sexton, Malone, December 21, 2000; [2001] 2 F.C. 164 (C.A.). 21 Ibid., at para 15. 22 Exhibit RPD-1, RPD Record, at p. 10, Reasons and Decision, at para 27. 23 Exhibit P-2, Appellant's Record, at p. 107, Legal Memorandum, at para 29. 24 At para 31 of their Legal Memorandum, the Appellants argue "that it amounted to an imposition of excessive burden on the appellants for the panel to have relied on the fact that they had not been attacked as basis to conclude that they had nothing to fear" (Exhibit P-2, Appellant's Record, at p. 108, Legal Memorandum, at para 31). They then made reference to a finding by the Federal Court to the effect that a claimant need not show that he or she would be persecuted. (Chowdhury v. Canada (Citizenship and Immigration), 2008 FC 18, at para 30). While these arguments follow arguments relating to prong two, it would appear that they relate to the first prong. They have been discussed above in relation to the first prong. 25 Exhibit RPD-1, RPD Record, Exhibit 1, at pp. 73 and 74. 26 Ibid., at p. 69. 27 Ibid., at p. 98. 28 Recording of RPD Hearing, at mins 23-25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-25555 TB9-25556 / TB9-25557 / TB9-25558 RAD.25.02 (April 04, 2019) Disponible en français 13 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.25.02 (April 04, 2019) Disponible en français