TB8-20392

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 File / Dossier de la SAR : TB8-20392 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 20, 2018 Date de la décision Panel T. Card Tribunal Counsel for the person(s) who is(are) the subject of the appeal Daniel Tilahun Kebede Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the "Appellant") is alleging to be a citizen of Eritrea and is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. DETERMINATION [2] The appeal is dismissed. BACKGROUND [3] The Appellant alleges that he is a citizen of Eritrea. The Appellant served in national service between August 1994 and January 1996. Afterwards he opened a small bar. The Appellant was asked by the government to spy on patrons of the bar. He refused and was detained between 17 December 1999 and 5 May 2000. [4] Later, the Appellant worked in a motel. Around 26 November 2015, a worker named XXXX XXXX rented out a room to Pentecostal religion followers. The Appellant was also detained on 10 January 2016, but was released later that day. Later in February 2016, the Appellant was asked to re-enter national service. Instead, the Appellant obtained a United States (US) visa in XXXX 2016 and fled. [5] The Appellant made a US refugee claim, but left on XXXX XXXX 2017 before a decision was made. The Appellant then made his Canadian refugee claim, which was refused by the RPD on the grounds his claim was not found to be credible. NO NEW EVIDENCE OR ORAL HEARING [6] The Appellant did not submit any new evidence to be considered under s.110(4) of the Immigration and Refugee Protection Act (IRPA). No analysis of new evidence is therefore required. [7] As an oral hearing can only be held where there is new evidence that has been admitted, and since there is no new evidence in this case, no oral hearing is required. ISSUES IN APPEAL [8] The Appellant argues the following issues in his appeal: a. The RPD erred in its analysis and subsequent negative credibility finding concerning the Appellant's exit from Eritrea. b. The RPD erred in its assessment of the Appellant's evidence and evidence in the National Documentation Package1 (NDP) regarding the risk of re-conscription into national service to the Appellant. c. The RPD erred in drawing negative credibility findings regarding the Appellant listing religion as a basis of claim in the US claim, while not doing so in the Canadian claim. d. The RPD was too microscopic in a number of its negative credibility findings. e. The RPD failed to consider the Appellant's sur place claim, and the contention that the Appellant would face a serious possibility of persecution if he were returned to Eritrea on account of being a failed refugee claimant. [9] I find credibility to be the determinative issue in this case. ANALYSIS [10] I have conducted an independent analysis of the evidence concerned, including reviewing the RPD hearing, as well as considering the Appellant's Memorandum,2 the RPD Decision3 and the Appellant's Basis of Claim (BOC) form as amended4 amongst other documents. Appellant was not credible overall [11] In reviewing the Appellant's testimony and documentary evidence, a pattern of inconsistent, contradictory and at times evasive evidence emerges. The RPD noted a number of inconsistencies, including failing to mention doing military service on his Schedule A,5 and providing different school names and graduation years on his Schedule A compared to his oral testimony. [12] The RPD Member asked the Appellant during the first hearing about the issues with the Schedule A. Here, the Appellant's answers to the RPD's questions continued to be inconsistent and evasive, with it not even being clear whether or not an interpreter interpreted the form to the Appellant or not. This adds to the picture of evasiveness in the Appellant's evidence. [13] The Appellant also did not disclose working for a motel within the 10 years before his refugee claim on his Schedule A, despite the fact that it was the scene of one of the major difficulties with the authorities that he alleges took place. The Appellant submitted that as he put that he was a businessman, as an owner of a bar, and a shareholder of a motel consecutively, this satisfied that he had disclosed he worked at the motel. [14] I disagree with the Appellant's submissions. Firstly, the form asks for the names of companies involved, which were not disclosed. Secondly, the Appellant needed to separate out that these were two different businesses at two different times, rather than combining them. Thirdly, the Appellant had the assistance of Counsel, who could have assisted in providing any amendments to these documents but did not. The inconsistencies, the vagueness of how the form was completed and the attempt to combine the businesses together add to the picture of evasiveness about the Appellant's evidence. [15] The Appellant was also inconsistent when testifying about being asked to spy on his bar customers and his subsequent detention by the authorities for refusing to do so. The Appellant changed his testimony during the first hearing about how much he knew about the patrons in his bar. [16] After having reviewed the evidence and testimony available, I concur with the RPD's overall finding that the Appellant was not credible about his account and was evasive. Appellant does not face a serious possibility of persecution [17] Further to the issue of general credibility, there is the issue about whether the Appellant would face a serious possibility of persecution for leaving Eritrea illegally and for avoiding re-conscription. [18] In relation to the evidence about re-conscription, I note that one of the reasons the RPD refused the Appellant's claim was a failure to present the paper notification of re-conscription. The Appellant did not have the document, and stated he did not have the notice because he did not think of it. The RPD found this to be not credible, especially given that the Appellant did provide other documentary evidence about his case that was less relevant. [19] I concur with the RPD's analysis, and note that the Appellant did not attempt to submit the re-conscription notice as post-hearing evidence. When this is combined with the other adverse credibility findings, I concur with the RPD's negative credibility finding that the Appellant has not proven, on a balance of probabilities, that he was even ordered back to national service. [20] Further to this, I note the Appellant's submissions about re-conscription and conditions of conscription found in the NDP. I do concur that there are those in Eritrea who may do national service for far longer than 18 months as stated in Eritrean law, and can do so up to age 65. The Appellant was 43 at the time of the RPD hearings. [21] However, I am also mindful of reports in the NDP that indicate that it is far from certain that returnees are apprehended upon return for evasion of national service. I am also mindful that the Appellant has stated he already completed two years of national service, and so is not someone who has always evaded service. [22] I take note of the United Kingdom (UK) Home Office report6 in relation to returnees who evaded national service, and were also failed refugee claimants. The report details that there are certainly instances of those who are detained, or at least put back into service, but that there are just as many, if not more, who enter and live in Eritrea without such ill-treatment. The Chief Executive Officer (CEO) of a Non-Governmental Organisation (NGO) operating in Eritrea reported: "...thousands of Eritrean people, including the organisation's staff, who have left military service or left the country illegally do return to Eritrea and many are able to do their private business without harassment. This reality is attested to by resident Ambassadors and others. From our extensive discussions with Ambassadors and senior representatives of five European embassies, there is a wide gap in terms of hearing and understanding the reality of human rights concerns. For example one of our staff members left Eritrea illegally for Sudan for economic reason. After a couple of years he returned to start a business and faced no negative consequences. The organisation knows of a further three economic migrants who have since returned from the UK without fear or consequence."7 [23] I also note that there were no allegations of harm coming to the Appellant's family members still in Eritrea. The NDP does make reference to the government harming family members of those who evade military service. The absence of such allegations further indicates the Appellant is not wanted for military service as claimed. [24] I also note that the Appellant lived 20 years in Eritrea without being wanted for re-conscription, even during incidents where he allegedly had other difficulties with the Eritrean government. [25] I find that when combining all of these factors together, along with the earlier adverse credibility findings, the Appellant faces, at best, a mere possibility of persecution, and not a serious possibility of persecution, which is the standard to be met in assessing risk of persecution. [26] I find the RPD did not err in its assessment of the Appellant's risk of persecution, including his sur place claim, and uphold its findings accordingly. CONCLUSION [27] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection pursuant to s.111(1)(a) of the IRPA.8 (signed) "T. Card" T. Card December 20, 2018 Date 1 Exhibit RPD-1, RPD Record, Exhibit 10, National Documentation Package (NDP) for Eritrea, 30 April 2018. 2 Exhibit P-2, Appellants' Record, Pages 23-47. 3 Ibid., Pages 2-19. 4 Exhibit RPD-1, RPD Record, Pages 22-50. 5 Ibid, Pages 63-66. 6 Exhibit RPD-1, RPD Record, NDP for Eritrea, 30 April 2018, Item 8.6, UK Home Office Fact Finding Mission, February 2016, at Section 9.14. 7 Ibid, at Section 9.14.1. 8 S.111(1)(a), Immigration and Refugee Protection Act, S.C. 2001, c.27. [IRPA]. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-20392 RAD.25.02 (September 18, 2018) Disponible en français 6 RAD.25.02 (September 18, 2018) Disponible en français