TB6-18176

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 : TB6-18176 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (A.K.A. XXXX XXXX XXXX) (A.K.A. XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 29, 2017 Date de la décision Panel Anthony da Silva Tribunal Counsel for the person(s) who is(are)the subject of the appeal Lina Anani 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 Daniel Morse Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (A.K.A. XXXX XXXX XXXX), (A.K.A. XXXX XXXX XXXX XXXX), (the Appellant), a citizen of Sudan, appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and substitute the decision with a positive determination of her refugee claim. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD for re-determination. The Appellant is relying on new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and is also requesting a hearing under Section 110(6) of the IRPA. DETERMINATION [2] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. BACKGROUND [3] The Appellant alleged that her research in Sudan on several diseases, done on behalf of a friend, revealed that the Ministry of Health was selling free medication to Sudanese companies while having hospitals supress and manipulate information to show that patients were benefiting from the drugs. In this way, the Ministry was able to continue to receive free drugs and maintain their profitable business. [4] After the Ministry became aware of her work through an informant, her family home was invaded by government security agents, her brother was killed trying to protect her, and she was arrested and detained. While in detention, she was beaten and sexually assaulted. She also witnessed the rape and murder of a friend for whom she conducted the research. After being taken to her home to retrieve her research, she managed to escape, and with the help of an agent fled to Norway. There she filed a refugee claim which was ultimately rejected. On the advice of friends, who warned of her of Sudanese spies in Norway, she came to Canada where she has applied for protection. [5] Her claim for protection was heard over three sittings: on August 14, 2015, October 7, 2015, and August 17, 2016. In a decision of November 7, 2016, the RPD rejected the claim, finding that the Appellant was not credible. [6] The Appellant submits the following issues as a basis for her appeal: a. Standard of Review b. New Evidence c. Did the RPD ignore or misapprehend the evidence? d. Did the RPD err in its sur place findings? e. Did the RPD err in rejecting the post-hearing evidence? ROLE OF THE RAD [7] The recent Federal Court of Appeal (FCA) decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD, to decisions of a first-level administrative tribunal. With respect to findings of fact, and mixed fact and law, which raise no issue of credibility of oral evidence, the RAD is to review the RPD's decisions applying the correctness standard. In accordance with the decision of the Federal Court of Appeal, the RAD will conduct its own analysis of the evidence to determine if the RPD erred and, if possible, come to its own determination as to whether the Appellant is a Convention refugee or a person in need of protection. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [8] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [9] It is for the Appellant to make full and detailed submissions in her Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant. [10] The Appellant has submitted the following as new evidence: a. Internet article on the arrest of a Sudanese women's rights activist (July 25, 2012).2 b. Report on Female Genital Mutilation and Cutting in Sudan (October 2015).3 c. Internet article on Sudan's anti-FGM campaign (August 19, 2013).4 d. Internet article on sexual abuse and intimidation by Sudanese security forces (March 23, 2016).5 e. Post-RPD hearing Submissions (October 3, 2016).6 [11] The decision of the Federal Court of Appeal in Singh clearly indicates that if new evidence does not meet any one of the explicit legislative factors set out in section 110(4) it will be found to be inadmissible. As the FCA has stated: "The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected."7 [12] The RAD has considered the Appellant's submissions8 on her new evidence and finds the new evidence not admissible under Section 110(4). The RAD finds, contrary to the appellant's submissions, that the evidence was reasonably available prior to the RPD hearing. The issues addressed in the "new evidence" are issues that the Appellant herself has raised in her initial Basis of Claim (BoC) narrative9 and subsequent amended narratives.10 The RAD finds that it is reasonable to expect that evidence that was available prior to the hearing, and was relevant to the issues raised in her narrative, should have been presented prior to the rejection of her claim. The RAD notes that the post-RPD hearing evidence submitted by the Appellant's counsel was not allowed by the RPD, as there was no application by the counsel to include the evidence as part of his written submissions. The RAD, too, finds that the evidence submitted by the Appellant's previous counsel was reasonably available prior to the RPD hearing. Accordingly, the RAD also rejects the Appellant's request11 for a hearing under Section 110(6) of the IRPA. ANALYSIS OF THE MERITS OF THE APPEAL Identity Appellant's nationality [13] The RPD found that it could not conclude that the Appellant is a Sudanese national as she refused to allow the Board to conduct a background check on her status in Norway. It also found that the Appellant's lack of credibility as to how she travelled to Canada, raised question as to her true nationality. [14] The Appellant submits that her refusal to allow a status check in Norway is grounded in her fear that Sudanese spies there will discover her whereabouts, and her fear for her family's safety in Sudan. Further, she submits that the RPD has erred by ignoring her Sudanese citizenship card - a key piece of evidence in determining her identity. Finally, she submits that the RPD ignored the decision in her detention review which accepted her as a national of Sudan, and also ignored the letters from the Appellant's lawyer in Norway, which attested that she has no status there. [15] The RAD has reviewed the Appellant's submissions and supporting documentation, and finds that there is sufficient evidence to conclude that she is a national of Sudan. CREDIBILITY [16] The RPD found the determinative issue in the claim to be credibility. It found that: the Appellant was not a credible witness; she had misrepresented the facts of her claim several times; and had not provided reasonable explanations for her multiple deceptions. Failure to Disclose Residence and Claim in Norway [17] The RPD noted that when the Appellant presented herself at an inland Canadian Border Services Agency (CBSA) office, she was not honest and forthright with the officer. Since the Appellant had no identity documents, the officer initiated an internet search and found a likeness of her with her name, indicating a residence in Norway. When confronted with the information, the Appellant denied having ever lived in Norway. She was subsequently detained by the CBSA because of concerns regarding her identity. She later explained that she had failed to reveal that she had resided in Norway because she had heard that spies in Norway were watching Sudanese nationals. [18] The RPD also noted that in the Minister's disclosure, the Appellant had maintained both to the panel and to her counsel at the detention hearings, that she had never lived in Norway, and had fabricated a story about being drugged during her exit from Sudan. The RPD further noted that the Appellant had the opportunity on at least two occasions to disclose to Canadian authorities that she had resided in Norway, and to be truthful as to her actual circumstances. The RPD acknowledged that while a claimant may lie and use false documentation to flee to Canada, it expected that the Appellant would have been honest and forthcoming, once safe on Canadian soil. [19] The Appellant submits that while in detention she was approached by a woman who informed her that she would attend the detention review with her. She submits that she was unaware that the person was from the Refugee Law Office and that she was representing her. Consequently, she did not disclose that she had made a claim in Norway, fearing that she would be returned there, and then to Sudan. Once she retained a counsel, she disclosed the information to her counsel. The Appellant further submits that she did not have the opportunity to read her Basis of Claim (BoC) narrative before it was delivered with the port of entry documents to a CBSA official who interviewed her and had her sign the documents. She submits that she subsequently provided corrections and clarifications in her amended narrative. [20] The Appellant submits that she did not disclose her claim in Norway because she was afraid that she would be returned to Norway and from there sent back to Sudan. She submits that she feared spies in Norway and even in Canada. She has provided several articles that corroborate her fear of spies in Norway and submits that the RPD misapprehended the evidence in this regard and rejected her explanation for having made a false claim Norway. She submits that she was advised to make a non-political claim because spies could hurt her family in Sudan if she made a political-based claim. [21] The RAD, too, has concerns with the Appellant's credibility, especially in light of her ongoing failure to disclose information to immigration officials and be forthright with respect to the "true" circumstances of her claim. She made a claim in Norway based on false information that she was fleeing forced marriage because she alleges that she feared spies. Facing deportation in Norway, the Appellant then travelled to Canada where she gave false information to the CBSA and subsequently to the Board as well as the representative from the Refugee Law Office who appeared with her at the detention hearing. In each case, her excuse for providing false information to authorities was her fear of being returned to Sudan. In Norway, she also feared that Sudanese spies there would harm her parents in Sudan. Her submissions in her Appeal Record also indicate that she feared spies in Canada.12 The RAD finds, however, that given her ongoing misrepresentation to authorities while under oath, the Maldonado principle cannot be applied to the Appellant. Both Norway and Canada are countries that are not only signatories to the Refugee Convention, but are recognized as treating refugee claimants fairly. [22] The Appellant has indicated that she feared spies in Norway and even in Canada. She provided several internet articles which have identified some instances of monitoring of the Sudanese diaspora in Norway. The RAD also notes that United Kingdom's Home Office Report of August 2015 indicates that there is evidence of surveillance of Sudanese nationals in both the United Kingdom and in Norway. The evidence suggests, however, that the monitoring is not sophisticated such as wiretapping and that it targets mainly those who are active and outspoken opponents of the Sudanese government13 - a profile which does not fit the Appellant. [23] The RAD concurs with the Minister's submissions that if she truly feared spies in Norway, she would have not posted personal information on the internet including her name, address, and telephone number. The RAD does not accept her explanation that because of limited internet access in Sudan, she was not conversant with the characteristics of the internet. The Appellant was in Norway for two years and is a well-educated woman, who was not living in a vacuum while in Norway. [24] The RAD also notes that the Appellant is not only a well-educated woman who presented herself at the hearing as confident and articulate, but also was able to testify in English without the assistance of an interpreter. Her assertion that she misunderstood that the woman from the Refugee Law Office was working for immigration and not there to represent her, seems at odds with her apparent level of English comprehension and with the image she has projected both at the detention hearings and at her refugee hearing. Further, her fear of spies in Canada is without any evidentiary basis. The Appellant's Work with Global Fund [25] The RPD found that the names of the organization for which the Appellant conducted research in the Sudan are inconsistent. On her "Certificate of Participation," the name of the organization appears as "XXXX XXXX XXXX XXXX XXXX" while in the affidavit from Ms. XXXX, it identifies the affiant as a supervisor with XXXX XXXX XXXX. The RPD found that the name of the organization should have been consistent and given the differences in the name, it concluded that the affidavit was unreliable and, therefore, insufficient to establish the activities alleged by the Appellant. [26] The Appellant submits that the names were different because they were representing different departments. She submits that the certificate was issued by the National Global Fund followed by the name of the department (Managerial Department) and that the affidavit from Ms. XXXX, the Appellant's supervisor, states she worked for the Global Fund Organization, and that there is no inconsistency. The Appellant further submits that the RPD's exclusive focus on her initial non-disclosure of the Norway claim has blinded it to the central issues of the claim. [27] The RAD notes that there is a difference in the names, but finds that the Appellant has provided a reasonable explanation. [28] The RPD did not give any weight to the Appellant's testimony that medical staff at the hospital provided her with information with respect to the corrupt practices by the Ministry of Health. The RPD found that the Appellant's actions in advancing a false claim refugee claim undermined the presumption of truth normally afforded a claimant. [29] The RAD finds that it is plausible that medical staff would provide the Appellant with information as to the corruption at the Ministry Health. It finds, however, that the Appellant has provided insufficient evidence to support the level of trust in the Appellant by hospital staff that she alleges to have, and to conclude that hospital staff would face serious repercussions from authorities by disclosing to her the level of corruption at the Ministry Health. [30] The Minister, in his submissions of August 19, 2016,14 has raised a number of concerns with respect to the Appellant's work at Global Fund. The Minister notes that the Appellant alleged that she took a job doing research in Sudan in August 2012, but that in her Schedule 1215 (completed with the assistance of counsel) she indicated that she left Sudan for Ethiopia on XXXX XXXX, 2012. The Minister further notes that the Appellant also alleged that she made a refugee claim in Norway in XXXX 2012. The Minister concludes that if the Appellant was in Ethiopia in August 2012, she could not have been in Sudan doing research as she alleged. [31] The Minister also notes that in Schedule A16 there is no mention of her research work or of having worked for Global Fund and that her first BoC narrative made no mention of XXXX XXXX. It was only after she received the affidavit from Ms. XXXX,17 which mentions XXXX XXXX XXXX, that she amended her narrative to include the name "XXXX XXXX XXXX." The Minister further notes that the Appellant's exhibit 918 states that the Appellant participated in a survey as a XXXX XXXX from XXXX XXXX, 2012 to XXXX XXXX, 2012. The Minister submits that it is highly unlikely that the Appellant would have been able to uncover a multi-million dollar fraud in only three days of data-collecting. Further, the Minister submits that exhibit 9 contradicts the Appellant's Schedule 12 form which indicates that she had already left Sudan by the time she was supposed to have been conducting a survey as alleged in exhibit 9. [32] The RAD finds that the Appellant has not satisfactorily addressed the concerns raised in the Minister's submissions with respect to the contradictory information as to when she actually allegedly engaged in medical research in Sudan. The RAD therefore concludes the Appellant was not involved in medical research as she alleged, and more likely than not, ever uncovered a massive fraud scheme at the Ministry of Health. Psychological Reports [33] The RPD noted that the psychological assessments19 were based solely on the testimony of the Appellant and since it found the Appellant neither a credible nor reliable witness, it gave the assessments minimal weight. [34] The Appellant submits that the RPD erred in giving the psychological assessments minimal weight because it found that the Appellant had lied previously. She submits that the Federal Court has found it an error for the RPD to discredit all testimony based on one lie. [35] The RAD notes that the Appellant did not lie simply once but several times in dealing with authorities. The RAD finds that there is a sufficient basis for the RPD to question the Appellant's overall testimony and notes the decision in Gebetas which indicates: "As stated by this Court numerous times, general findings of lack of credibility can affect all relevant evidence submitted by an applicant, including documentary evidence and ultimately cause the rejection of a claim."20 [36] The RAD notes the reports have diagnosed the Appellant with Post-Traumatic Stress Disorder (PTSD), severe anxiety and depressive disorder. It finds, however, that the reports do not establish satisfactorily or persuasively that the Appellant's symptoms are a result of what she is alleging in respect of her refugee claim. As stated in Rokni, a psychiatric report submitted as evidence "cannot possibly serve as a cure-all for any and all deficiencies in a claimant's testimony."21 The court reiterated its position in Danailov with respect to the assessment of a physician's evidence, and the question of the assessment of credibility when it was stated that "opinion evidence in only as valid as the truth of the facts on which it is based."22 The RAD finds that, although the claimant may be experiencing symptoms of anxiety and depression, this may or may not be related to the causes described by the Appellant in her evidence. Accordingly, and in light of the credibility concerns, the RAD gives the psychological report no weight. Refugee Sur Place [37] In addition to her initial reasons for having fled Sudan, the Appellant also maintains that her activities in Canada have established the basis for a sur place claim. [38] In considering whether there are grounds for a sur place claim, the RAD has reviewed the United Nations Handbook on Procedures and Criteria for Determining Refugee Status (United Nations Handbook),23 which outlines the criteria to be considered in the determination of a sur place claim. Specifically, Article 96 is particularly relevant to this claim: A person may become a refugee "sur place" as a result of his own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities. [39] The RPD considered the Appellant's activities at the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (XXXX XXXX), a liberal mosque that does not separate men and women during services, and accepts members of the LGBTQ+ community. It noted that the mosque keeps its location private for the safety of the congregants, and that the Appellant had not adduced any evidence to establish that, on a balance of probabilities, Sudanese authorities had become aware of her attendance and activities at the mosque. [40] The RPD also found that her inability to perform the nikka ceremony between two women24 is in itself not persecutory, as many churches in Canada do not allow same-sex marriage despite its legal standing in the country. [41] The Appellant submits that the RPD erred in failing to consider whether her liberal views of Islam would be elicited during potential interrogation upon her return to Sudan. Further, she submits that were she to return to Sudan, she would not be allowed to practice her progressive and inclusive form of Islam. [42] The RAD concurs with the RPD and finds that there is insufficient evidence to conclude that authorities in Sudan have become aware of her activities in Canada. The letter of support from Mr. XXXX XXXX, President and Co-founder of the XXXX XXXX, indicates that information regarding the mosque is not posted publicly to ensure the safety and security of its members.25 [43] The RAD notes that the Appellant, prior to her contact with Mr. El-Farouk Khaki, her counsel at her RPD hearing and also XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX,26 has demonstrated no particular interest or been involved in any activities related to the LGBTQ+ community and anti-FGM issues, or activities involving a more inclusive and progressive form of Islam. Given the Appellant's history of misinformation, the RAD views her recent alleged conversion to these liberal issues with a large degree of skepticism. While recognizing that one cannot simply dismiss an Appellant's entire evidence because some aspect of her claim is not credible, the RAD finds that the Appellant has displayed a history of misleading authorities, both in Norway and Canada, which strongly indicates that her recent activities in Canada have been initiated in an effort to bolster her claim. The RAD therefore finds that the Appellant has not established sufficient grounds for her claim as a refugee sur place. CONCLUSION [44] The RAD finds that the Appellant has not provided sufficient trustworthy, credible evidence to demonstrate that her stated fear of persecution is well-founded. [45] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and dismisses the appeal. (signed) "Anthony da Silva" Anthony da Silva June 29, 2017 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-2, Appellant's Record, at p. 26. 3 Ibid., at pp. 27-31. 4 Ibid., at pp. 32-34. 5 Ibid., at pp. 35-40. 6 Ibid., at pp. 41-49. 7 Canada (Citizenship & Immigration) v. Singh, 2016 FCA 96, at para 54. 8 Exhibit P-2, Appellant's Record, at pp. 35-36. 9 Exhibit RPD-1, RPD's Record, Basis of Claim (BOC), at pp. 31-36. 10 Ibid., at pp. 39-48. 11 Exhibit P-2, Appellant's Record, at p. 50. 12 Exhibit P-2, Appellant's Record at p. 67. 13 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Sudan, 13 May 2016, item 1.4 at sec. 7.1, 7.2. 14 Exhibit RPD-1, RPD's Record at pp. 558-559. 15 Exhibit RPD-1, RPD's Record at p. 61. 16 Exhibit RPD-1, RPD's Record at p. 56. 17 Exhibit RPD-1, RPD's Record at pp. 313-314. 18 Exhibit RPD-1, RPD's Record at p. 297. 19 Exhibit RPD-1, RPD's Record at pp. 302-306 and 511-516. 20 Gebetas v. Canada (Citizenship and Immigration), 2013 FC 1241, at para 29. 21 X (Re), 2014 CanLII 97262 (CA IRB), at para 11. 22 Singh v. Canada (Minister of Citizenship and Immigration), 2005 FC 368 at para 5. 23 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Geneva, re-issued December 2011, Article 96. 24 Exhibit RPD-1, RPD's Record, at pp.391-393. 25 Exhibit RPD-1, RPD's Record, at pp.299-300. 26 Exhibit RPD-1, RPD's Record, at pp.386-389 and 575-583. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-18176