TB4-06847

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 : TB4-06847 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 XXXX XXXX XXXX Personne(s) en cause (a.k.a. XXXX XXXX XXXX XXXX) Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 17, 2014 Date de la décision Panel Atam Uppal 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] The Appellant, XXXX XXXX, a citizen of Jordan, is appealing a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA). [2] The Appellant was represented at the RPD hearing but is unrepresented for the appeal before the RAD. [3] The Appellant did not submit new documents for consideration pursuant to RPD Rule 110(4), and is not requesting a hearing before the Refugee Appeal Division (RAD). [4] The Appellant did not state a specific remedy, however I will consider that the Appellant wants the RAD to allow the appeal and find the Appellant to be a Convention refugee or, in the alternative, remit the matter for redetermination by a differently constituted panel. DETERMINATION OF THE APPEAL [5] Pursuant to subsection 111(1)(a) of IRPA, the RAD confirms the determination of the RPD. This appeal is dismissed. BACKGROUND [6] The Appellant alleged before the RPD that: * He is a Jordanian citizen but of Palestinian origin; * He fears the family of a woman, (XXXX XXXX), will harm him because he had an illicit affair with her without knowing that she was married. He believes that XXXX husband is connected to the Jordanian Intelligence; * He worked with XXXX for the same employer in Jordan, and the two became romantically involved and he wanted to get married to her but her father refused because the Appellant is a Palestinian. He and XXXX continued their relationship in secret at a rented apartment for several months. XXXX family became suspicious of her and banned her from working, took her cellphone and kept her at home. Dejected, he went to Saudi Arabia (SA) to work and to forget XXXX; * He returned to Jordan after two years in SA to help his father. In November of 2012, he ran into XXXX at a mall, and they restarted their relationship and began to meet in secret again at a furnished apartment. On one occasion, XXXX relative saw him and XXXX leaving the apartment. That very day XXXX sister called him to warn him that her parents and husband found out about his affair with XXXX, and that they will kill him. He was shocked to find out that XXXX was married and, fearing for his life, he fled to a friend's house in XXXX and stayed with him for several months; * On XXXX 16, 2013, a group of armed men came to his father's office looking for the Appellant, questioned his father and destroyed his father's office. His father, fearing danger, assisted him to secure travel documents. [7] He arrived in Canada on XXXX XXXX, 2013 and made a refugee claim on March 19, 2014. His claim was heard on May 15, 2014 and the RPD, in its written decision, dated July 11, 2014, found that the Appellant was not credible, and that he is neither a Convention refugee nor a person in need of protection. [8] Since there are no new documents, this appeal therefore will be considered based on the record as well as the Appellant's brief memorandum. Grounds for Appeal [9] The Appellant states that the RPD erred regarding inconsistency in the date when he met Tamara (and resumed relationship); lack of corroborative evidence and delay in claiming. [10] I will rephrase the issue - did the RPD err in its credibility assessment and finding that the Appellant is neither a Convention refugee nor a person in need of Canada's protection. Role of the RPD [11] Huruglica,1 provides guidance to the Refugee Appeal Division regarding its role, where the court stated the following: * [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. * [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error. Merits of Claim [12] Guided by Huruglica, I will recognise and respect the RPD's credibility findings where it enjoyed a particular advantage of having seen the Appellant and taking direct testimony from him. I will consider whether the RPD's finding in inconsistencies and omissions were made after giving the opportunity to the Appellant for explanation and whether the RPD provided sufficient reasons why it did not find the explanation to be satisfactory. The Federal Court in Njeukam2 seems to urge that the RAD conduct an independent assessment where credibility findings are based on inconsistencies that were based on an assessment of documents, and also stated: [19] The RPD's finding of the applicant's lack of credibility was based on her testimony. Therefore, the RAD was right to show deference to the RPD's finding. [20] Further, although an independent analysis conducted by the RAD on the issue of the applicant's credibility was required, the RAD seems to have done it at paragraph 60 of its decision. The RAD considered the allegations and found that [translation] "this was a major contradiction". [21] Since these allegations were central to the applicant's refugee claim and they were independent from the questions of credibility of the marriage contract and medical documents, the RAD was not required to conduct an independent analysis of the credibility of these other documents. [13] In rejecting the claim, the RPD found that the Appellant was not credible and the RPD Panel cited inconsistencies and omissions between the Appellant's testimony and statements included Basis of Claim form (BOC) and the port of entry notes on issues that are central to the claim. In particular, the RPD found that the Appellant states in his BOC that he reconnected with XXXX in November 2012, however he testified that he met her in November 2011. The Appellant submits in his memorandum and testified at his hearing that it was a "typo error". The RPD rejected this explanation as not reasonable because the Appellant had, by an amendment, corrected another date in his Basis of Claim form before the hearing. Moreover, the Appellant also declared at the start of the hearing that the BOC was interpreted to him and that the information provided on the BOC was complete, true and correct. I find that it was within the purview of the RPD to find that the explanation was not reasonable and the RPD used this inconsistency in its negative credibility finding. Given that the Appellant was represented at the RPD hearing, and the fact that one date was corrected and the fact that he declared all information is complete, true and correct, I would come to the same conclusion as the RPD on this issue. I note that the date he reconnected with XXXX is central and goes to the heart of the claim and therefore a major inconsistency can go towards negative credibility finding. [14] The RPD also found that a lack of corroborative evidence was material in this claim. The Appellant, in his memorandum, submits that the Appellant and XXXX made sure to get rid of any evidence that would lead to a discovery of their relationship. It may be so, however there were a number of other areas where the Appellant could have provided some corroborative evidence to support his allegations. The RPD noted that he could have provided a rental agreement of the furnished apartment or proof that XXXX husband was in Jordanian intelligence. The Appellant testified before the RPD that his father refused to provide a letter of support, however the Appellant could have received a letter from his friend where he stayed for several months in hiding; he could have obtained some pictures of his father's office destroyed by the alleged agents of XXXX husband or her family. The RPD also noted that he could have asked his mother for a letter of support and/or his father's friend with whom the Appellant has been communicating since his arrival in Canada. Based on the foregoing, I cannot find that the RPD erred in its negative credibility inference drawn from the absence of any documentary evidence in support of the claim. I would come to the same finding as the RPD did. [15] The Appellant also submits that XXXX tricked him into believing that she is not married. The RPD noted that both XXXX and the Appellant, being a Sunni Muslim, would have made some efforts to find out whether XXXX was still single after two years' separation. The RPD's statement may be based on speculation, however it is not fatal to the RPD's overall determination as the RPD's decision was based on a number of other problems with the credibility, and was not solely dependent upon this finding. [16] The Appellant also takes exception to the RPD's statement regarding the delay in claiming. The RPD stated that the Appellant registered himself for a 36-week course in Canada while he attended the school for only four weeks. Since he discontinued his studies after four weeks, he lost his status as he was not fulfilling the conditions of his student visa. The Appellant submits that his student visa was not expired on March 12, 2014 when he claimed protection. Unfortunately for the Appellant, he did not fulfil the conditions of his student visa for studies in Canada and therefore lost his status when he discontinued his studies after four weeks. The RPD is also correct in stating that, while this delay is not determinative factor, it is still a factor to be taken into consideration in overall credibility determination. [17] The Appellant did not take exception to the RPD's analysis on risk of harm, however I have considered risks pursuant to section 97 of the Act. Having considered the extensive documentary evidence on country conditions cited by the RPD in its reasons, I find that the Appellant did not establish, on a balance of probabilities, a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture should the appellant return to Jordan. [18] Having reviewed the RPD findings and the reasons for such findings, and the totality of the evidence before me, I find that the RPD did not err in its credibility findings. I therefore find that the Appellant is neither a Convention refugee nor a person in need of Canada's protection. CONCLUSION [19] Pursuant to ss. 111(a) of the Act, the RAD finds that the Appellant is neither a Convention refugee nor a person in need of Canada's protection and confirm the determination of the Refugee Protection Division. [20] This appeal is therefore dismissed. (signed) 'Atam Uppal' Atam Uppal November 17, 2014 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Njeukam v. Canada (Citizenship and Immigration), 2014 FC 859 (CanLII); Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799, paras. 54-55 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-06847