TB8-09258

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 : TB8-09258 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision November 16, 2018 Date de la décision Panel Veena Verma Tribunal Counsel for the person(s) who is(are) the subject of the appeal John Rokakis Barrister & 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 OVERVIEW [1] XXXX XXXX (the Appellant), a citizen of Lebanon, appeals a decision of the Refugee Protection Division (RPD), dated March 21, 2018, denying his refugee claim. He asks that the Refugee Appeal Division (RAD) admit new evidence and hold a hearing. [2] I have denied the Appellant's requests to admit new evidence and to hold a hearing. Having found that the RPD did not err in assessing the Appellant's credibility, 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 under the Immigration and Refugee Protection Act (the Act). BACKGROUND Factual summary [3] The Appellant is 73-years old, a Shia-Muslim, and a film and television director. In 1984, he claims that he fled Lebanon for Saudi Arabia because Shia militants wanted him to make a documentary film. In 1988, he moved to Egypt. According to his Basis of Claim (BOC), he married an Egyptian, Sunni-Muslim actress in 2008, and had a son with her in 2009. Both his wife and son were co-claimants with the Appellant before the RPD. I have nothing before me to suggest that his wife or son have appealed the RPD decision. [4] The Appellant allegedly fears persecution by his wife's family in Egypt because they disapproved of her marrying a Shiite-Muslim. He also fears being persecuted as a Shia-Muslim by Egyptian authorities and society. [5] The Appellant allegedly fears persecution by Hezbollah because of his political opinion if he returns to Lebanon. RPD decision [6] The RPD found the Appellant and his wife were not credible based on several inconsistencies and omissions in the evidence. As well, the RPD found several documents submitted to corroborate their claim were not authentic. Furthermore, the RPD found late amendments to their claims, suggesting they may be perceived in Egypt as having participated in a homosexual relationship, were manufactured in order to bolster their claim. The RPD also impugned their credibility because of their delay in leaving Egypt and re-availment to Egypt after several trips outside the country. Appellant's grounds of appeal [7] On appeal, the Appellant submits that the RPD erred by overzealously finding inconsistencies regarding the threats he faces from Hezbollah; ignoring objective evidence that confirms a serious possibility of persecution in Egypt because of his profile as a Shia Muslim; and ignoring evidence about a robbery and assault that triggered his flight from Egypt. [8] The Appellant submits an article as new evidence to show that he made public statements against Hezbollah and to corroborate events that allegedly transpired with Hezbollah. ADMISSIBILITY OF NEW EVIDENCE [9] Pursuant to subsection 110(4) of Act, new evidence will only be admitted where that evidence: 1) arose after the rejection of the claim by the RPD; 2) was not reasonably available; or 3) the appellant could not reasonably have been expected in the circumstances to have presented the evidence, at the time of the rejection. The RAD has no discretion to admit new evidence unless it falls under one of these three statutory categories.1 [10] If the new evidence meets the above statutory requirements, I must then assess whether the new evidence is credible, relevant, and new.2 [11] On appeal, the Appellant submits an article from XXXX magazine, dated XXXX 2015, reproducing an interview he gave in Egypt about his troubles with militia groups in Lebanon. [12] I find this article is inadmissible as new evidence because it arose before the RPD rejection and it was reasonably available. The RPD questioned him at length about any public statements he may have made against Hezbollah, and at no time did he tell the RPD, as he is now telling the RAD, that he tried to search for this article without success. In fact, as reflected in the RPD decision, he said the opposite.3 I do not accept the Appellant's submission that he was unable to present this document to the RPD because he could not remember the newspaper or website where it was published, and he did not think it was necessary. It is apparent that with some effort, the Appellant was able to find this article in just a span of 10 days. He fails to satisfactorily explain why he reached out to individuals to find this article only after the RPD rejection. [13] Refugee claimants must put their "best foot forward" in applications before the RPD.4 The role of the RAD is not to provide an opportunity to complete a deficient record submitted before the RPD.5 In other words, the Appellant should have exhausted all efforts to track down this document prior to the rejection of his claim, instead of waiting until the appeal to do so. As the new evidence does not meet the strict requirements of ss. 110(4) of the Act, it is unnecessary to assess the relevance or credibility of the article. REQUEST FOR AN ORAL HEARING [14] As no new evidence is admitted on appeal, I have no jurisdiction under ss. 110(6) the Act to hold a hearing. Therefore, the request for an oral hearing is denied. SCOPE OF RAD REVIEW [15] The determinative issue on appeal is whether the RPD erred in finding that the Appellant did not establish a well-founded fear of persecution in Lebanon. As this issue is determinative of the claim, it is unnecessary to consider his risk in Egypt. [16] When reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact, or mixed fact and law. I may defer to the RPD's credibility assessment of oral testimony, if I find that the RPD had a meaningful advantage in the circumstances.6 Having listened to the audio recording of the RPD hearing, I am able to fully assess the RPD's findings of inconsistencies that are disputed by the Appellant. Therefore, I will not give any deference to the RPD's findings. ANALYSIS [17] At the outset, I note that the Appellant only disputes paragraphs 31-41 of the RPD decision.7 The remaining findings are unchallenged. [18] Paragraphs 31-37 of the RPD decision relate to the credibility of the Appellant's risk of persecution in Lebanon, whereas the remaining paragraphs relate to the risk in Egypt. As I find the RPD correctly concluded that the Appellant does not face a serious possibility of persecution or harm in Lebanon, it is unnecessary to address the Appellant's submissions on paragraphs 38-41 of the RPD decision. RPD did not err in finding inconsistent testimony re: Hezbollah's threats in Lebanon [19] The RPD found the Appellant failed to credibly establish that Hezbollah threatened him, as alleged, in June 2015. The RPD found the Appellant gave testimony describing conversations with Hezbollah that was inconsistent with his BOC.8 Notably, while describing Hezbollah's request that he produce a documentary for them, he omitted the alleged threat as described in his BOC that "you should think very carefully because this is how you can serve your Shia religion and this is for your own good".9 [20] The Appellant submits that when the RPD first questioned him about his interactions with Hezbollah in June 2015, he testified that he was staying with his brother when he was contacted by Hezbollah on his brother's cellphone, who told him that since he is Shia, he should work with them. The Appellant highlights that he then told the RPD in the next sentence that his "upbringing is to believe in God and not necessarily Islam". He submits that when answering the RPD's questions, he was referencing the threat mentioned in his BOC.10 [21] I do not accept the Appellant's submissions that the RPD was over-zealous in attacking his credibility. I have reviewed the Appellant's BOC and listened to his oral testimony. The Appellant's submissions only make reference to the first exchange when the RPD asked him if anything had happened more recently to him with Hezbollah.11 He does not address the numerous opportunities the RPD gave him to describe the alleged threats by Hezbollah, and yet failed to do so. [22] The RPD asked again if anything happened between Hezbollah and the Appellant when he travelled back to Lebanon in June 2015. The Appellant described a meeting where Hezbollah "requested" that he work for them because he is a well-known director and Shia. He says that he asked Hezbollah for some time to think it over since he had some work going on in Egypt.12 [23] The RPD followed up several times with open-ended questions asking if Hezbollah said anything else to him, other than asking him to make a documentary and to promise to come back to Lebanon. At no time did the Appellant say he was threatened, nor describe menacing statements made to him as set out in his BOC.13 It was only when the RPD brought his attention to the statements in the BOC, that he then said there was a threat. While the Appellant states that he did not raise this earlier because he understood the RPD was asking if Hezbollah requested something else from him, I agree with the RPD that this does not satisfactorily explain the omission. Having listened to the RPD hearing, there was ample opportunity for the Appellant to spontaneously provide this information, and he failed to do so. The RPD was correct to find that this impacted his credibility. [24] Furthermore, the RPD found the Appellant did not fit the profile of someone who would be targeted by Hezbollah.14 This finding was unchallenged by the Appellant. Based on my independent review of the documentary evidence, I agree with the RPD's conclusion.15 The RPD did not err in finding inconsistent testimony re: speaking out against Hezbollah [25] The Appellant's BOC states: "...while in Egypt I had been interviewed by a Lebanese TV channel where I criticized Hezbollah and my life will be in danger if I return to Lebanon for doing so". The Appellant provided testimony that contradicted his BOC, namely that he never spoke out against Hezbollah. As a result, the RPD found that the Appellant failed to establish on a balance of probabilities that he spoke against Hezbollah and that he would be in danger in Lebanon.16 [26] Having listened to the Appellant's testimony, I agree with the RPD that his evidence is not credible and it evolved as the RPD pointed out the inconsistencies to him. The RPD's findings were correct. CONCLUSION [27] The Appellant has failed to establish that the RPD erred in rejecting his claim. Based on my independent review of the record, I find the RPD decision is correct. [28] Pursuant to ss. 111(1)(a) of the Act, I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection as defined by the Act. [29] The appeal is dismissed. (signed) Veena Verma Veena Verma 16 November 2018 Date 1 M.C.I. v. Singh, 2016 FCA 96, paras 34-35, 63, 74. 2 Ibid., paras 38-49, 74. 3 RPD Decision, para 36. 4 Marin v. M.C.I., 2016 FC 847, paras 27-28. 5 Singh, supra note 1, para 54; Khan v. M.C.I., 2016 FC 855, para 44. 6 M.C.I. v. Huruglica, 2016 FCA 93, paras 70, 103. 7 Ex. P-2, Appellant's Record, p. 19. 8 RPD Decision, paras 31-34. 9 Ex. RPD-1, RPD Record, Ex. 2, Appellant's BOC, p. 19, para 12. 10 Ex. P-2, Appellant's Record, p. 18. 11 Ex. RPD-1, RPD Record, Recording of RPD Hearing (7 March 2018), p. 702, at 1:31:52 - 1:33:36. 12 Ibid., at 1:45:31 - 1:46:37. 13 Ibid., at 1:54:30 - 1:58:53. 14 RPD Decision, para 34. 15 Ex. RPD-1, RPD Record, Ex. 5, National Documentation Package for Lebanon (30 Nov. 2017), Items 7.8 to 7.10, 11.1 to 11.3, and 13.7 at pp. 67-71. 16 RPD Decision, paras 35-37. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-09258 8 RAD.25.02 (July 05, 2018) Disponible en français