TB5-00055

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 : TB5-00055 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 26, 2015 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Maureen Silcoff Barrister and Solicitor 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 and Decision [1] XXXX XXXX XXXX, a citizen of Kenya, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his appeal but requests a hearing, pursuant to section 110(6) IRPA. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and refer the matter back to the RPD for redetermination by a differently constituted panel. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant alleged before the RPD that he fears turning to Kenya because he has been targeted by the Mungiki criminal sect in Kenya. He alleges that he has been assaulted and repeatedly threatened by them over several years in Kenya. The Appellant left Kenya several times on work permits to Dubai and Afghanistan, but he returned to Kenya each time despite the repeated threats. [4] The Appellant traveled to Canada in XXXX 2013 on a work/study permit. In XXXX 2013, he learned that his brother had been murdered by the Mungiki and that they had threatened to kill him. The Appellant made his refugee claim in September, 2014. [5] The Appellant's application for refugee protection was heard on December 11, 2014. In a decision of December 12, 2014, the RPD rejected the claim, finding the Appellant was not credible. [6] The Appellant submits that the RPD erred in making its credibility findings and its treatment of the documentary evidence tendered by the Appellant. Role of the RAD [7] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court 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. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [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 an "overriding and palpable error". [8] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau in Alyafi2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [9] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. Application for an Oral Hearing [10] The Appellant has requested an oral hearing, pursuant to Section 110(6), be held in the event the RAD finds that the record is insufficient to grant refugee status. Section 110(6) states that the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [11] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [12] As no new evidence was tendered in this appeal, the RAD must proceed without a hearing in the Appellant's appeal, and, as such, her application for an oral hearing is denied. ANALYSIS OF THE MERITS OF THE APPEAL [13] The RPD found that the determinative issue in this claim was credibility. The RPD found that the Appellant was not credible with regard to the central allegations of persecution by the Mungiki and found that he failed to establish his allegations regarding the Mungiki with credible or trustworthy evidence. [14] The Appellant submits the RPD's credibility findings are flawed and that its treatment of the corroborative evidence is flawed. Credibility [15] The Appellant submits that the RPD erred in finding a lack of subjective fear. The Appellant argues that the RPD's finding that his delay in claiming is determinative as to credibility is in error. The Appellant relies on the Federal Court cases in Junusim3 and Shanmugarajah4 to support his argument. [16] However, the Appellant fails to state how his argument is supported by these cases. The RAD has reviewed the cases relied upon, and it remains unclear how these cases demonstrate that the RPD is in error. Accordingly, the Appellant's argument in this regard must fail. [17] The Appellant further argues that "the RPD failed to consider in its analysis [of delay in claim] that [he] had legal status in Canada when he claimed refugee status and so was not at risk of removal to Kenya5". The Appellant argues that such was the case for him in Canada and in the United Arab Emirates (UAE), and, as such, he was protected from refoulement. [18] The RAD is not persuaded by the Appellant's argument in this regard. While it is true that where a claimant is safe from being forced to return to the country of persecution, not making a refugee claim at the first opportunity should not generally be held against the claimant, the RAD finds that those circumstances did not apply to the Appellant. [19] The RAD notes that with regard to the UAE and Afghanistan, the RPD drew an adverse credibility finding based on the Appellant's failure to make any enquiries while in those countries about finding a permanent solution to his risk of persecution in Kenya. Though it is true that the Appellant was not at risk of being forcibly returned to Kenya from these countries, the RPD did note that the Appellant voluntarily returned to Kenya despite having been threatened upon each return. The RAD agrees with the RPD's finding in this regard and also finds that it is reasonable to expect that, given the Appellant's allegations that he was at risk of harm in Kenya, he ought to have made some enquires to find a permanent solution to his risk of persecution in Kenya. [20] Furthermore, the RAD finds that the Appellant's argument that he did have status in Canada and was not at risk of being forced to return to Kenya is without merit. The RAD notes that the Appellant was in Canada on the strength of a study/work permit. The Appellant has testified that he did not pursue his studies in Canada in accordance with the provisions of his visa. As such, the Appellant's status in Canada was in jeopardy, and he was at risk of removal to Kenya. In addition, as noted by the RPD, the Appellant received information in XXXX 2013 that his brother was killed by the same agents of persecution who threatened his life. The RAD agrees with the RPD that, given the circumstances of the heightened risk that the Appellant was now facing in Kenya and his risk of return to Kenya, he ought not to have delayed making enquires about seeking the protection of Canada. [21] Accordingly, the RAD finds that the Appellant's argument in this regard fails. [22] The Appellant further argues that, given that the RPD found the Mungiki is a criminal organization, his claim falls under section 97 of the IRPA, and, as such, "subjective fear or delay is not a requirement".6 The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds, after its review of the record and assessment of the evidence, that the RPD has not made findings with regard to the Appellant's subjective fear, but rather, the RPD makes findings with regard to the Appellant's credibility. While it is true that the RPD's credibility findings are based on its findings regarding the Appellant's reavailment and delay in claiming, the RAD notes that those issues cannot only undermine a claimant's subjective fear, they can also undermine the credibility of a claimant's allegations. [23] Regardless of the aforementioned analysis, the RAD finds that there is no merit to the Appellant's argument that the criminal characteristics of the agent of persecution suggests that there is no nexus and that, as such, section 96 does not apply. The Appellant's nexus to a Convention ground is based upon his allegations that he is being persecuted due to his religious and community activism in Kenya. The fact that the agent of persecution is a criminal sect does not diminish the fact that he alleges he is being persecuted because of his religious activism. [24] The RAD finds the Appellant's argument in this regard fails. [25] The Appellant further argues that the RPD's credibility findings, based on his reavailment to Kenya, are in error. The Appellant argues that his return visits to Kenya do not constitute reavailment because he did not voluntarily return to Kenya. The Appellant argues that he returned to Kenya to attend his father's funeral and also to renew his UAE visa. [26] The RAD is not persuaded by the Appellant's argument in this regard. The Appellant has not made out its argument that he did not voluntarily return to Kenya to attend his father's funeral and to renew his UAE visa. The RAD notes that at the time he returned to Kenya, the Appellant alleged his life was in jeopardy in Kenya. The Appellant had the choice of whether he would return to the country of persecution or to seek protection elsewhere. The Appellant chose to return. As such, the RAD finds the Appellant voluntarily returned to the country of persecution. [27] The RAD agrees with the RPD's findings, based on the Appellant's reavailment to Kenya. Accordingly, the Appellant's argument fails. [28] Given the forgoing, the RAD agrees with the RPD and finds that the Appellant is not credible with regard to his allegations of persecution by the Mungiki. Treatment of the Corroborating Documents [29] The Appellant submits that the RPD improperly afforded little weight to the documents he tendered in support of his claim. In particular, the Appellant argues that the RPD rejected the documents because they were from family members and because of what they did not state rather than what they did state. [30] In particular, the Appellant submits that the RPD improperly gave little weight to the death certificate of his brother and the accompanying funeral programme. The Appellant argues that the RPD based its decision to afford little weight to these documents upon its previously made credibility findings and the fact that his family produced the funeral programme. The Appellant further argues that the RPD's assessment of the remaining documents is similarly flawed. [31] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that the RPD considered the totality of the evidence when assessing these documents. The RAD also notes that the RPD did not reject these letters solely because of its previously made credibility findings and the fact that his family produced the funeral programme, but took into consideration other factors. [32] Of particular note, the RPD found that the provenance of the documents tendered by the Appellant was undermined by the fact that the Appellant's documents were tendered to the Board the day before he alleges they actually arrived in Canada. The RPD noted that the Appellant initially testified that he did not have any copies of the documents prior to their arrival in Canada, but after being confronted with the contradiction in the date, the Appellant altered his testimony and stated that he had previously received scanned copies. The RPD rejected the Appellant's explanation and drew an adverse finding with regard to the provenance of the documents tendered by the Appellant. [33] The RAD finds that, given the RPD's identified concerns of the Appellant's credibility and his evolving testimony concerning when he obtained copies of the documents, it was open to the RPD to reject the Appellant's explanation. [34] Furthermore, as noted by the RPD, the two documents did not provide direct corroboration of the Appellant's allegation that the Mungiki was the agent of persecution. The best that the two documents could help in establishing was that the Appellant's brother in Kenya was murdered. [35] The RPD also noted that neither the police abstract nor the photocopy of the medical examination contain any security features to help establish their reliability and that they only peripherally corroborate that the Appellant was a victim of crime. The RPD also noted that, while the affidavits from the Appellant's family and friends do provide some brief corroboration of the allegations made by the Appellant, none of the affiants was called upon to testify. The RAD finds that, while it may be unreasonable to expect the affiants who reside in Kenya to appear as witnesses, it cannot be denied that their evidence remains untested. The RAD finds that it was open to the RPD to find that the untested evidence of the affiants ought to be afforded less weight than the tested evidence of a witness. [36] Given the totality of the RPD's observations with regard to the corroborating documents, the RAD finds that it was appropriate for the RPD to afford these documents little weight in establishing that the Appellant's life is at risk at the hands of the Mungiki. CONCLUSION [37] 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 the Appellant's allegations that he is at risk of harm at the hands of the Mungiki is not credible. [38] The RAD further agrees with the RPD's finding that the Appellant has not provided sufficient trustworthy and credible evidence to establish his claim. The RAD finds that the Appellant is neither a Convention refugee nor a person in need of protection. [39] Pursuant to ss. 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "L. Favreau" L. Favreau March 26, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Junusmin, David Young Sop v. M.C.I. (F.C., no. IMM-4884-08), Shore, June 26, 2009; 2009 FC 673, para 44. 4 Shanmugarajah, Appiah v. M.E.I. (F.C.A., no. A-609-91), Stone, MacGuigan, Henry, June 22, 1992, 3rd para. 5 Appellant's Record, Memorandum of Argument, p. 69, para. 6. 6 Appellant's Record, Memorandum of Argument, p. 70, para. 7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-00055