TB6-16034

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 : TB6-16034 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) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 16, 2017 Date de la décision Panel Anthony da Silva Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A 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 XXXX (a.k.a. XXXX XXXX XXXX), the Appellant, is a citizen of Eritrea. He appeals the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. He asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and substitute a decision that he is a Convention refugee. The Appellant has presented new evidence pursuant to Section 110(4) of the Immigration and Refugee Protection Act (IRPA) and requests an oral hearing pursuant to 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 as follows: [4] He was previously arrested and detained for having assisted his children in fleeing the country. During a visit to his son in Canada, he learned that the police had come to his home in Eritrea and left two summonses ordering him to report to the police station. He fears that if he returns to Eritrea he will be arrested and detained. [5] The Appellant's claim for protection was heard on October 5, 2016. In a decision of October 21, 2016, the RPD rejected the claim, finding that the Appellant was not a credible witness, that he is not wanted by the authorities in Eritrea, and that there is not more than a mere possibility that he will face persecution were he to be returned to Eritrea. [6] The Appellant submits the following issues as a basis for the appeal: i. Did the RPD commit reviewable errors of law finding that the Appellant's evidence was not credible? ii. Did the RPD err in concluding that the Appellant would not be at risk in Eritrea? ROLE OF THE RAD [7] The recent Federal Court of Appeal 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 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 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 their claim or that was not reasonably available, or that they 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 his 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 new evidence: * An article, Request of Suspension of Removals to Eritrea, dated December 2016 2 * An article, JUST DESERTERS: Why Indefinite National Service in Eritrea has created a Generation of Refugees3 * Report on findings of the Commission of Inquiry on Human Rights in Eritrea, dated 5 June 20154 * Response to Information Request ERTI104179.E on Military Service, dated September 4, 20125 [11] The RAD has considered the Appellant's new evidence and finds only the article on suspension of removals to Eritrea to be admissible under Section 110(4). The other documents, submitted by the Appellant as new evidence, pre-dated the hearing or are in the RPD record and are not admissible. ANALYSIS OF THE MERITS OF THE APPEAL Credibility The Appellant's passports [12] The RPD found that the Appellant's testimony in regard to the number of passports he had been issued, to be internally inconsistent and lacking in credibility. The RPD noted that the Appellant had testified that he had never had a passport issued before his current one that was issued on February 28, 2014. When asked what passport he had used to apply for a Canadian visa in 2007, he eventually admitted that he had previously been issued a passport but that it had been taken away by immigration authorities. When the inconsistency was pointed out to him, the RPD noted that he changed his testimony and stated that the Eritrean immigration authorities had told him that it was not possible at that time to have a passport issued. The RPD drew a negative inference from the Appellant's conflicting testimony. [13] The RPD also had credibility concerns over the Appellant's testimony that his current passport issued in 2014 was issued to him without having provided any primary identity document - only his contractor's licence6 and proof of finances. The RPD noted that the Appellant had testified that his contractor's licence shows his national identity, but found that the licence does not, in fact, show or reference his national identity document or Eritrean citizenship as the Appellant alleged. The RPD found it not credible that the Appellant, having had his national ID card confiscated by Eritrean authorities, was nonetheless able to obtain a passport in 2014 without any problems by simply presenting an expired contractor's licence and proof of finances. [14] The Appellant submits that he never travelled to any other country on his old 2007 passport and that he had simply forgotten to mention his old passport when questioned by the RPD. [15] The RAD has considered the Appellant's submissions and reviewed his testimony during the RPD hearing. The Appellant was asked about documents he had provided to obtain his passport issued in 2014 and replied: "If you have medical reasons, you don't need to provide documents; you need documents only for your National ID." He added that he had no problems getting a passport. He was then asked about how he had applied for an exit visa and replied: "I said I needed to go to Sudan for medical treatment. For Sudan it's OK. For elsewhere it's an issue." When asked if had any comments regarding country documentation which indicates that those who have had problems with the government have little chance of obtaining an exit visa, the Appellant replied that in 2013-2015, they were granting visas to Sudan and that he had used the opportunity to obtain one. [16] The RAD notes that country documentation states that men over 54 are able to obtain exit visas as they no longer have National Service obligations,7 but also indicates that: "...close family members of people who have left the country illegally may have trouble getting a passport/exit visa - even if that person otherwise meets the criteria."8 If one is to accept the Appellant's allegations that he was arrested in 2005 and again in 2009 because his children had left the country illegally, then, based on country documentation, it would be reasonable to expect that he would have experienced problems obtaining a passport and exit visa, despite his age of 70 years. [17] The Appellant testified that during the period of 2013-2015, the authorities were issuing visas to Sudan and were not very strict. There was no evidence, however, to corroborate this alleged period of leniency. The Appellant stated that he didn't have to provide any documents during this time because he told authorities that he was going to the Sudan for medical treatment. Country documentation indicates that individuals who are approved for medical treatment abroad are generally granted exit visas, but must provide documentation, including a recommendation from the government medical panel.9 The Appellant neither referenced nor provided evidence of such documentation or explained how he was able to obtain a passport/exit visa for medical treatment. [18] The RAD also finds his initial testimony implausible that you don't have to provide any documents if you're travelling for medical treatment, and that documents are only required in order to obtain a National ID. The Appellant, when asked about his National ID card, testified that it had been taken by the authorities after his son XXXX fled from military service. According to the Appellant's narrative10 his son fled Eritrea in 2009. Later, when asked if he had had to show his National ID or any other document to be issued a passport, he replied: "Of course I showed them something; my contractor's licence and proof of finances." The RAD finds that his statement of having had to show his contractor's licence and proof of finances, contradicted his earlier assertion that he hadn't needed any documents and only needed to inform them that he was travelling to Sudan for medical treatment - even though he stated that he was, in fact, not ill. When asked again if he had provided any ID documents in order to obtain his passport, he replied: "Yes, my contractor's licence which shows my National ID and that I was Eritrean." The RPD noted, however, that his contractor's licence11 had expired and does not show or reference his national identity document or his Eritrean citizenship as he had testified. The RAD concurs with the RPD and finds that his assertion that he was able to obtain a passport without primary identity documents not credible. Appellant's arrests and detentions [19] The RPD had concerns with the credibility of the Appellant's allegations that he is being sought by Eritrean authorities for having assisted his sons in leaving Eritrea to evade the national service requirement. He testified that he was detained on XXXX XXXX, 2015 for having helped his sons flee the country. He stated he was able to remember the exact date because had written it down and because many others had also been detained at that time. He further stated: "When they were taking me in XXXX 2015, I decided to write it on paper and I was there [in detention] until XXXX XXXX, 2016." The RPD noted, however, that in his BoC he stated that he left Eritrea on XXXX XXXX, 2015 and testified that he never returned to Eritrea after that date. He therefore could not have been in detention during the period he alleged. The RPD finds that his testimony is not internally consistent with the information in his BoC, and notes that there is no mention in his BoC or immigration documents that he was ever detained from XXXX 2015 to XXXX 2016. The RPD therefore concluded that he was never detained for having assisted his sons in fleeing the country and that he is now not wanted by Eritrean authorities on that basis, as he alleges. [20] The Appellant submits that the RPD erred in its finding that he was never detained for helping his sons flee Eritrea. He submits that the documentary evidence12 indicates that family members of deserters and individuals who leave the country illegally are often arrested and detained as a form of reprisal for the conduct of family members. [21] The RAD concurs with the Appellant in that family members are often detained when members of their family flee - especially in order to escape military and national service. The RAD finds, however, that the inconsistencies in the Appellant's testimony and evidence with respect to the periods he alleges that he was detained undermine his credibility. [22] The RAD notes that, in addition to the problems with dates identified by the RPD in its written decision, the Appellant provided conflicting testimony as to the times he was detained. At the hearing, the RPD pointed out that the Appellant had provided two dates in his BoC narrative as to when he had been detained, 2003 and 2009,13 and that those didn't matchup with his testimony that he had been detained in 2005. He replied: "In 2003 I was questioned, but not detained, but in 2005 I was detained for two months." The RAD notes, however, that on page 17 of his BoC, he has written: "At the first imprisonment, in 2003..."14 The RAD also notes that in the copy of the BoC provided in his Appellant's Record the date in the narrative has been altered to now read: "At the first imprisonment, in 2005 ..."15 [highlighted for emphasis]. The RAD draws a negative inference, not only because of the inconsistency in dates, but because of the Appellant's altering of the date in his original BoC to reflect his testimony at the RPD hearing. Appellant's Mental Condition [23] The RPD noted that the Appellant had difficulty recalling dates in relation to his claim and indicated that it took a number of measures to accommodate the Appellant's confusion.16 The RPD found that the Appellant was able to participate meaningfully in the hearing. The RPD further indicated that despite overlooking the Appellant's persistent confusion around significant dates, it nonetheless had serious concerns with the credibility of his testimony regarding material elements of the claim. [24] The RPD noted that there was no medical evidence to indicate that the Appellant had any mental or memory impairment. The RPD also noted that it was not only until after the morning break in the hearing that the Appellant asserted that he had memory problems stemming from the death of his wife and the departure of his children from the country. The RPD further stated that it was also only after the break that the Appellant's counsel applied to call the Appellant's son as a witness to testify, confirming his father's memory problems. The RPD found that the testimony of the Appellant and that of his son were self-serving, and given only after the Appellant demonstrated difficulty with various dates. The RPD found that despite giving the Appellant the benefit of the doubt with respect to his confusion over dates, it cannot excuse the material contradictions and inconsistencies in his testimony. [25] The Appellant submits that it was unreasonable for the RPD to ignore his son's testimony regarding his impairment and memory loss, and that it erred in not considering the harsh country conditions, the stress he has suffered as a result of his wife's death and his children's departure from the country, as well as his age. [26] The RAD, first of all, finds that the RPD must be afforded a good deal of deference with respect to its finding regarding the Appellant's state of mind. The RPD enjoyed a significant advantage in being able to observe the Appellant's responses and demeanour throughout the hearing. Nonetheless, the RAD has carefully reviewed the recording of the hearing and considered the Appellant's submissions in this regard. [27] The RAD finds that the RPD acknowledged and made allowances and accommodations for the Appellant's confusion regarding certain dates. It was clear that the Appellant confused certain dates especially 2005/2006 with 2015/2016, but was given the opportunity to correct any discrepancies. The RPD has pointed out that there was no independent medical or psychological evidence before it, to allow the RPD to make a determination regarding the Appellant's mental state - especially when, for the most part, the Appellant testified with clarity and lucidity. The RAD finds it reasonable that the RPD considered the 11th hour testimony by the Appellant's son regarding the Appellant's memory problems, in the absence of any independent expert evidence, to be self-serving. The Appellant has indicated in his submissions that he is looking for a doctor specializing in "senior health care"17 and that the RPD should not have drawn a negative inference from the absence of "corroborating medical documents."18 The RAD does not find that the RPD drew a negative inference from the absence of a medical report. Rather, the RPD found the Appellant's testimony and that of his son, following a break in the proceeding, was orchestrated by their counsel to address deficiencies in the Appellant's testimony. The Police Summonses [28] The Appellant submitted two police summonses,19 in copy and original format, from the XXXX Police Department directing him to come to the police station. The RPD questioned the authenticity of the police summonses. It noted that the originals were of poor and inconsistent quality: they were of different sizes on small pieces of paper, handwritten and bearing a smudged stamp, and containing no security features to distinguish them from a fraudulent copy. The RPD also found that that the summonses appear to be undated. Further, it notes that first summons directs the Appellant to appear at the police station on XXXX XXXX, 2016 at 8:00 AM, but that in his BoC he has stated that he received call from XXXX, Eritrea on XXXX XXXX, 2016 informing him that police officers had come to his residence looking for him and had left a summons to appear the next day on XXXX XXXX, 2016. Given the poor quality of the documents and the discrepancy between one of the summons and the Appellant's BoC, the RPD drew a negative inference with respect to the genuineness of the police summonses. [29] The Appellant submits that the RPD erred in drawing a negative inference from the police summonses and that they indicate that he is wanted by "security officials."20 [30] The RAD finds that the Appellant has provided no evidence to support his submission that the RPD erred in its assessment of the police documents. The RAD notes that only one of the summonses is dated, which further supports the RPD's finding with respect to genuineness of the documents, given the inconsistency in appearance. The RAD finds that it would be reasonable to expect that police summonses issued within a couple of months of each other from the same police station would be consistent in appearance and format. The RAD also finds the inconsistency in dates between the summons and the BoC to be problematic and undermines the authenticity of the documents. Letters from Neighbours and Son [31] The Appellant has also provided several letters21 corroborating a number of allegations made by the Appellant in his claim - especially in regards to the recent visits by police at his home. He submits that the RPD erred by ignoring the corroborating evidence provided by his son and neighbours. [32] The RAD notes that the RPD did not address the letters provided by the Appellant. At the hearing he was asked by the RPD how it is that his neighbours are looking for him. He replied: "They are my neighbours. They saw when they were serving the paper to my son." It is unclear as to how the neighbours knew that the police were searching for the Appellant simply by observing them come to the house. It is clear, however, that the individuals who provided the letter of support are close friends of the Appellant and, in one case, consider him to be like a father and feel indebted to him. The RAD also noted that the letter from the Appellant's son states that police "...have left him summons in our residence on XXXX XXXX XXXX XXXX2016 and XXXX XXXX XXXX XXXX2016. As pointed earlier by the RPD, the first summons is especially problematic. The summons is undated, except for the statement ordering the Appellant to appear at the police station on XXXX XXXX, 2016 at 8:00 AM. According, to the son's letter, the police came to their residence, the first time, on XXXX XXXX, 2016. It would be reasonable to assume therefore that they would not require him to appear at the police station at 8:00 AM, the same morning as they delivered the summons. [33] The RAD recognizes that letters from family and friends are often the only corroborative evidence available to a claimant. Nonetheless, there is also a very real chance for bias. The RAD finds documentary evidence emanating from family members and friends, such as those tendered by the Appellant, to be less reliable and gives the letters provided by the Appellant little weight. As Justice Annis ruled in El Bouni: However, I find that confirmatory evidence of family members and friends, which is not subject to cross-examination, is not highly probative or credible evidence. Highly probative evidence is intrinsically well-presented evidence from independent sources confirming a material fact in the matter.22 Well-foundedness [34] The RAD has considered whether the Appellant's profile, despite credibility concerns, would suggest a well-founded fear of persecution. The RAD notes that failed refugee claimants sometimes attract negative attention from Eritrean authorities. It notes, as pointed out by the RPD, that the Appellant exited the country on a valid passport and exit visa and that his passport shows that he travelled to Canada on a genuine temporary visa which remains valid until XXXX XXXX, 2019. The RAD concurs with the RPD's finding that there would be no reason to know or suspect that the Appellant is a failed refugee claimant. CONCLUSION [35] On the basis of the findings noted above and after its own assessment of all the evidence in the record, including the recording of the hearing, the RAD finds that the RPD's findings regarding the Appellant's credibility are correct and sustainable. [36] 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 August 16, 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. 11. 3 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for Eritrea (30 June 2016), item 8.2. 4 Exhibit P-2, Appellant's Record. 5 Ibid. 6 Exhibit RPD-1, Exhibit 4, at p. 1. 7 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for Eritrea (30 June 2016), item 14.4 at p. 4. 8 Ibid., at p. 5. 9 Ibid., at p. 2. 10 Exhibit RPD-1, Basis of Claim (BoC), at Exhibit 2. 11 Exhibit RPD-1, Exhibit 4, at p. 1. 12 Exhibit P-2, Appellant's Record, at pp. 9-15, para. 29. 13 Exhibit RPD-1, RPD's Record, BoC at p.17. 14 Ibid. 15 Exhibit P-2, Appellant's Record, BoC, [continuation of response to Q. 2(a)]. 16 Exhibit P-2, Appellant's Record, Reasons and Decision at para. 4. 17 Exhibit P-2, Appellant's Record, Memorandum at para. 13. 18 Ibid., at para. 14. 19 Exhibit RPD-1, RPD's Record, at pp. 247-250. 20 Exhibit P-2, Appellant's Record, Memorandum at para. 23 21 Exhibit RPD-1, RPD Record, at pp. 237-246. 22 El Bouni, Haidar v. M.C.I. (F.C., no. IMM-7627-14), Annis, June 2, 2015, 2015 FC 700. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-16034