TB7-15810

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 No. / N° de dossier de la SAR : TB7-15810 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 Toronto, Ontario Appel instruit à Date of decision July 3, 2018 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person(s) who is(are)the subject of the appeal Tyler Goettl Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of Nepal, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute a decision with its own determination that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD with a differently constituted panel. The Appellant has submitted new evidence with the appeal as referred to in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA)1 and requests an oral hearing be held pursuant to subsection 110(6) of the IRPA. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [3] The Appellant alleged before the RPD that he fears persecution at the hands of Maoists due to his political opinion as a member of the youth wing of the Nepali Congress Party. He left Nepal in 2014 and travelled to the United States of America (US) where he remained until he crossed into Canada in XXXX 2017. If returned to Nepal, the Appellant alleges that Maoists will harm him. [4] The Appellant's hearing for refugee protection was held on June 22, 2017. In a decision on July 24, 2017, the RPD rejected the Appellant's claim finding that the Appellant was not credible. The Appellant submits that the RPD erred in drawing its credibility findings and in its treatment of the documentary evidence. ROLE OF THE RAD [5] For questions of fact, mixed fact and law, and law, the RAD has applied the standard of correctness as per Huruglica. In assessing issues involving credibility of oral testimony, the RAD may apply the RAD modified standard of reasonableness in those situations where the RPD enjoys a meaningful advantage as per the decision in X (Re), 2017 CanLII 33034 (CA IRB). ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [6] In support of this appeal, the Appellant submitted a letter from the principal of the school where he gave a speech in 20132 as proposed new evidence. [7] Subsection 110(4) of the IRPA provides that Appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected3 in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of subsection 110(4) and how that evidence relates to the Appellant.4 [8] In addition, if the new evidence meets one of the explicit legislative factors in subsection 110(4), then the second step of the analysis is for the RAD to apply the adapted Raza factors endorsed in Singh.5 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. The RAD is not to consider the fourth Raza factor of materiality to the admission of new evidence, which is a consideration for subsection 110(6) and the request for an oral hearing.6 [9] Although the letter submitted as proposed new evidence was issued on September 4, 2017, following the rejection of the Appellant's claim, the RAD notes the evidence provided is not new as it addresses issues that took place in 2013 and were discussed at the hearing. The Appellant submits that he attempted to contact the author of the letter prior to the hearing, but he was unable to get a response. The RAD notes the Appellant's statement is an acknowledgment that he recognized that supporting his claim with information such as this was essential to his claim. The RAD in its review of the audio recording of the hearing notes that it was clear from the questioning of the RPD and Counsel for the Appellant that there were specific credibility concerns surrounding the political speech that allegedly took place in Dadhing District. The RAD has reviewed the record and notes that neither the Appellant nor his Counsel indicated that there was the potential of obtaining additional evidence to support the Appellant's claim. In addition, the RAD further notes that there is no documentation on the record or accompanying the new evidence to support the Appellant's assertion that he had previously attempted to contact this individual. As well, the RAD has reviewed the letter submitted as new evidence and notes it does not provide any acknowledgement of previous contact and/or the author's delay in responding. [10] The RAD finds that it was reasonable to expect that if the Appellant was aware of the concerns of the RPD, the Appellant would have sought to obtain the letter and submit it as post-hearing evidence. The RAD further notes that Counsel for the Appellant provided his submissions on the claim in the form of a post-hearing document and it would be open to the Appellant at that time to indicate that he was seeking additional evidence to support his claim. [11] The RAD finds the Appellant has not reasonably explained why he was unable to attempt to submit the document as post-hearing evidence. The RAD finds the new evidence does not meet the statutory requirements of subsection 110(4) and it will not be admitted as new evidence in this appeal. Application to Submit Documents Not Previously Provided [12] In this application, the Appellant submits a November 2013 newspaper article7 accompanied by a personal affidavit,8 which he argues undermines the RPD's central negative credibility finding in his claim. Rule 29(4) of the RAD Rules states that: (4) In deciding whether to allow an application, the Division must consider any relevant factors, including (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. [13] The RAD finds that the document is relevant, probative and new, thereby meeting the requirements of Rule 29(4) of the RAD Rules. [14] The RAD's further analysis of the admissibility of the proposed new evidence must begin first with the test set out in subsection 110(4). Subsection 110(4) of the IRPA provides that Appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected9 in the circumstances to have presented, at the time of the rejection. [15] If the new evidence meets one of the explicit legislative factors in subsection 110(4), then the second step of the analysis is for the RAD to apply the adapted Raza factors endorsed in Singh.10 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. The RAD is not to consider the fourth Raza factor of materiality to the admission of new evidence, which is a consideration for subsection 110(6) and the request for an oral hearing.11 [16] The RAD has reviewed the document submitted by the Appellant and notes that as much as it was published in November 2013, the Appellant submits that he only became aware of the article in December 2017 and that it took him until February 2018 to obtain the article. The Appellant also states in his affidavit that his lawyer had advised him to continue to be on the lookout for additional evidence. The RAD finds that the article meets the basic requirements of subsection 110(4). However the RAD must also apply the adapted Raza factors endorsed in Singh12 to assess the document for credibility, relevance and newness. [17] The RAD notes that the Appellant states in his affidavit accompanying the article that he recalls giving the interview following the events in November 2013 and that he had heard it was published in the news. The RAD finds that the Appellant's statements confirm he was well aware that the article existed. The RAD finds it unusual that the Appellant, having this knowledge and recognizing that this was a central issue in his claim before the RPD, did not address it in his testimony. Certainly at the time of his submission of his RAD appeal, the Appellant was cognizant of the problem of supporting this component of his claim and submitted new evidence in support of the November 2013 event. The RAD finds it reasonable to expect that the Appellant, being aware that he had provided an interview to a newspaper and that it had been published, would in the very least address the issue in his "Written Statement" accompanying his RAD Appellant Record.13 [18] The RAD finds the Appellant's statements detract from the credibility of his allegation that he only became aware of the document in December 2017. The RAD further notes that as much as the Appellant submits that his brother obtained an original five year old newspaper from Nepal, there is no additional information or affidavit from the Appellant's brother explaining how he obtained the document. The RAD finds this further detracts from the credibility of the article submitted in evidence. [19] The RAD additionally notes that the newspaper article states, "As reported by Mr. XXXX," and it carries on to describe the incident. The RAD finds there is no indication in the article that the author was at the event or took any steps to verify the information he was printing. The RAD finds the article is based on self-reporting by the Appellant and it cannot be relied upon as a credible source of information. [20] When the RAD considers the multiple credibility concerns with this document, it finds it is unable to rely on the article as new evidence in this appeal because it is not capable of overcoming the credibility issue it seeks to address. The RAD finds the document does not meet the statutory requirements of the adapted Raza factors endorsed in Singh.14 And it will not be admitted as new evidence in this Appeal. REQUEST FOR AN ORAL HEARING [21] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) of the IRPA that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.15 [22] As no new evidence has been accepted by the RAD, the requirements of subsection 110(6) of the IRPA have not been met, and the RAD has no discretion to hold a hearing. ANALYSIS OF THE MERITS OF THE APPEAL [23] The Appellant submits the RPD erred in its findings in respect to: * The Basis of Claim (BOC) narrative omission about being detained overnight by the Maoists. * Finding the letter from the Appellant's friend and colleague was not credible. * The March 2014 encounter with the Maoists. The BOC Narrative Omission [24] The RPD found the Appellant's omission about being detained overnight by the Maoists following the political speeches in Dadhing District was more than a mere detail or elaboration, and that it undermined the Appellant's trustworthiness. The Appellant submits that he had already disclosed to Canadian officials at the port of entry (POE) that he had been detained for one day.16 In oral testimony before the RPD, he reiterated that the one-day detention described at the POE was in reference to his detention by Maoists following his speech at the rally in Dadhing in November 2013. The RAD is not persuaded by the argument of the Appellant. [25] The RAD has reviewed the record as well as the audio recording of the hearing in this issue. The RAD finds the Appellant has provided conflicting statements in respect to what transpired at the event and immediately following. The Appellant argues that his statements to the immigration official at the POE interview clarify that he was detained for one day by the Maoists following their attack which broke up the event. The POE notes state, "The police came and the male leader of the village was for the MLA Party and then our group was arrested for one day. Me and four other people were arrested, not in custody but in a room for a few hours and then let us go." [emphasis added] The RAD notes that the RPD addressed this aspect of the Appellant's submissions at the hearing. The RAD finds this statement clearly indicates the police came and detained (arrested) the Appellant and his colleagues for what he first states was a day, but that the Appellant then modified his statement to "a few hours." The RAD finds this statement is not capable of offsetting the RPD finding. [26] The Appellant further submits that his BOC narrative did not contradict his oral testimony. The BOC states that the Maoists apprehended him and eventually let him go, but does not specify the length of his detention at the hands of the Maoists. In the Appellant's oral testimony before the RPD, he elaborated and specified that he was detained for the remainder of the day and released the following morning. The RAD notes the Appellant's testimony at the hearing differs completely from the version offered in his POE interview, which does not mention any apprehension by the Maoists, let alone being held overnight. [27] The RAD notes the Appellant's testimony about the actions of the Maoists became the focal point. His testimony in respect to the police involvement at the event was minimized and had to be clarified by the RPD as to whether there was any police involvement. In reviewing the BOC narrative, the RAD finds the Appellant describes the actions of the police in detaining and questioning the Appellant and his colleagues and simply notes that after the police left, the Maoist officer in charge of the area came and started threatening them and then "eventually let us go." [28] The RAD notes that the Appellant's testimony about being abducted by the Maoists from the stage where the speeches were being given and being held hostage overnight in their camp, was consistent during questioning by both the RPD and his Counsel. The RAD further notes the Appellant during questioning by his Counsel failed to indicate that the police had any role. [29] The RAD finds the Appellant's testimony is inconsistent with both the statements in the POE interview and his BOC narrative. The RAD further finds that the Appellant's explanation about why he omitted being taken by Maoists to their camp and being held overnight, that he believed he was going to be able to tell the RPD at the hearing, makes little sense in light of the fact that he had two previous opportunities to address the action. The RAD finds the Appellant's testimony that he and his colleagues were abducted and held captive overnight by the Maoists is a significant action by the alleged agent of persecution and it amounts to more than a simple elaboration of fact. [30] The RAD notes, as did the RPD, that the instructions as to what to include in the BOC narrative are explicit; the Appellant affirmed the completeness of his BOC document at the outset of the hearing and the Appellant was assisted by experienced Counsel throughout his claim. The RAD agrees with the RPD in finding that the Appellant omitted information from the BOC narrative which should have been included in the document. The RAD finds the Appellant's argument must fail. The RAD additionally finds after its review of the evidence that the Appellant's testimony was designed to embellish the role of the agent of persecution in his claim and that this testimony is lacking in credibility. The Letter from his Friend [31] The RPD found the letter from the Appellant's friend and colleague17 was inconsistent with the Appellant's testimony about when the Maoist's attacked them during the speeches. The Appellant submits that the Appellant's testimony was consistent with his BOC narrative and that the inconsistency is not material in this appeal. The RAD is not persuaded by the argument of the Appellant. [32] The RAD notes the Appellant stated in both his BOC and oral testimony that his best friend was present at the time of the attack in Dadhing District. The Appellant confirmed that he had read the letter from his best friend, and that but for an inconsistency in a date on the letter, it was an accurate recounting of the incident. The RAD has reviewed the letter and notes that the author states: As he hold mike and started delivering speech, crowd gone crazy for him. They were clapping for him. Meanwhile, a group entered to the program. They condemned program showing black flag and tried to stop program and became successful too.18 [33] The RAD finds the letter is quite specific in stating that the Maoist group began their disruptive behaviour at the beginning of the Appellant's presentation. The RPD asked the Appellant to explain the inconsistency between his testimony and the contents of his friend's letter. The Appellant did not address the question put to him, but rather he confirmed that the attack by Maoists started when he concluded his speech. During questioning by his Counsel, the Appellant was prompted about the inconsistency and he repeated his previous testimony. His Counsel asked him to explain the inconsistency and he testified that the contradiction may have arisen because of a language or grammar barrier. The RAD finds this explanation makes little sense in light of the Appellant's prior testimony that he had reviewed the letter and confirmed its accuracy. [34] The RAD finds that the unexplained inconsistency between the letter and the Appellant's statements may not be material on its own. Yet when viewed in concert with the other credibility concerns in this issue, this inconsistency further undermines the credibility of the Appellant's version of events in Dadhing District. The RAD agrees with the finding of the RPD and the Appellant's argument must fail. [35] The RAD further finds, as noted by the RPD, that the Appellant's friend's letter introduces another version of events as it relates to the alleged incident at Dadhing District. The RAD finds that when it reviews all of the findings in this issue, there is sufficient evidence to find, on a balance of probabilities, that the Appellant and his colleagues were not attacked by Maoists in Gorkha, Dadhing District, nor were they kidnapped and detained overnight by the Maoists. The March 2014 Encounter with the Maoists [36] The RPD found the Appellant's testimony about the incident where he was stopped by four Maoist men from Gorkha and Dadhing District in March 2014 was inconsistent with statements in his BOC narrative. The Appellant submits that any inconsistency between his testimony and his written narrative in this regard is not of material or "core" significance to his claim. The RAD is not persuaded by the argument of the Appellant. [37] The RAD has reviewed the record as well as the audio recording of the hearing. The RAD notes the Appellant in his BOC narrative states: When I asked them why they were following me, they said that they wanted me to join their party and return to Gorkha, as there was a question about how my father had died. [38] The Appellant testified before the RPD that he was stopped on that day because he actively worked for the Nepali Congress Student Union (youth wing of the Nepali Congress). When given an opportunity to add to his testimony, he stated that he could not think of any other reason for being stopped that day. The Appellant was subsequently asked if the men told him anything else and he replied in the negative. The RPD noted for the Appellant that his statements in the BOC narrative were inconsistent with his testimony and asked him to explain why he did not mention in his testimony that the Maoists told him that he had to return to Gorkha because there was a question about how his father died. The Appellant explained that he was not aware that he had to tell the panel about his father's death. [39] The RAD finds the Appellant did not address the question put to him and that the explanation he provided makes little sense. The RAD notes that the Appellant's BOC narrative indicates that the primary reason the Maoists were following him was to convince him to join their party and accompany them to Gorkha to provide him with information about his father's death. The RAD further notes that the death of the Appellant's father forms a significant component of his narrative and it is a central element in his own persecution. In that the Appellant's father's death is a central element of his claim, the RAD finds it is reasonable to believe that the Appellant's testimony would address this information and be consistent with the statements in his narrative. [40] The RAD supports the finding of the RPD in this issue and the Appellant's argument that the death of his father is not material or of "core" significance to his claim must fail. [41] The RAD finds the Appellant's inconsistent testimony further undermines the Appellant's allegations that he is being sought by the Maoists in Nepal. The Supporting Documentation [42] The RPD assessed the Appellant's documentary evidence that was provided in support of his persecution by the Maoists. The RPD found the evidence was deserving of little evidentiary weight. The Appellant submits that rather than assess the corroborative documentation for how they support the Appellant's allegations, the RPD assessed the documents against the backdrop of an unassailable conclusion. The RAD is not persuaded by the argument of the Appellant. [43] The RAD has reviewed the supporting documents submitted by the Appellant as well as the findings of the RPD in this issue. The RAD notes the Appellant provided supporting letters from the Shree Ghairunga Village Development Committee Office (SGVD), the Nepal Maoist Victim Association (NMVA), and Nepal National Human Rights Commission (NNHRC).19 [44] The RAD notes: * The Appellant confirmed the information contained in the SGVD, NMVA and NNHRC letters was provided "second hand" to the authors by an individual other than the Appellant. * The RAD notes that the author of the letters do not indicate that they took steps to verify any of the information provided to them. * The content of the letters is general in nature and they do not provide specific details that assist in supporting the Appellant's allegations of harm from the Maoists. [45] The RAD further notes that the Appellant provided a letter of support from the Nepali Student Union.20 The RAD notes as stated above that the author of the letter notes that he has information about the problems experienced by the Appellant. His letter does not indicate that the organization took steps to verify any of the information provided to them. [46] The RAD finds, as did the RPD, that these letters do not provide persuasive supporting evidence to overcome the credibility concerns in this appeal. The RAD further finds in its review of the record, that the RPD did independently assess the Appellant's supporting documents and then weighed their evidentiary value against the credibility concerns in the claim. The RAD agrees with the RPD in this issue and the Appellant's argument must fail. In Summary [47] Accordingly, the RAD finds that the Appellant has not satisfied his burden of establishing that there is a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, he would be personally subjected to a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture. CONCLUSION [48] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "Robert Bebbington" Robert Bebbington July 3, 2018 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27. 2 Exhibit P-2, Appellant's Record, p. 17. 3 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, Paragraph 51. 4 Rule 3(3)(g)(iii), Immigration and Refugee Board of Canada, Refugee Appeal Division Rules, SOR/2012-257. 5 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 6 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 7 Exhibit P-3, Rule 29 Application, Received February 13, 2018, pp. 6-7. 8 Ibid, pp. 1-3. 9 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, Paragraph 51. 10 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 11 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 12 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 13 Exhibit P-2, Appellant's Record, pp. 13-15. 14 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 15 Subsection 110(6), Immigration and Refugee Protection Act, S.C. 2001, c.27. [IRPA] 16 Exhibit RPD-1, RPD's Record, Exhibit 1, Minister's Disclosure, p. 50. 17 Exhibit RPD-1, RPD's Record, Exhibit 5, pp. 219-225. 18 Ibid, p. 220. 19 Ibid, pp. 202-207, 213. 20 Ibid, pp. 210-211. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-15810