TB6-02395

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 : TB6-02395 TB6-02396 TB6-02397 TB6-02398 TB6-02399 TB6-02400 TB6-02401 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (a.k.a.XXXX XXXX) XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered Toronto, Ontario Appel instruit à Date of decision May 3, 2016 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Hart A. Kaminker Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the principal Appellant), XXXX XXXX(his wife, or the female Appellant), and the minor Appellants XXXX XXXX, XXXX XXXX , XXXX XXXX, XXXX XXXX and XXXX XXXX are citizens of Libya. They appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have tendered new evidence in their appeal. The Appellants ask that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find that they are Convention refugees or, in the alternative, refer their claims back to the RPD for redetermination. DETERMINATION [2] Pursuant to section 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 principal Appellant alleged before the RPD that he fears the Al Farouk Brigade in Libya. He has a XXXX XXXX XXXX XXXX XXXX XXXX and has XXXX XXXX on a full-time basis at XXXX XXXX XXXX XXXX and part-time at XXXX XXXX XXXX XXXX. After the uprising of February 2011, he has been trying to convince young people to give up their weapons, to stay away from militias and to either return to their studies or lend a hand in rebuilding the country. The Al Farouk Brigade detained him in XXXX 2012 and told him to stop participating in XXXX XXXX and XXXX XXXX XXXX XXXX XXXX XXXX. He was detained again in XXXX and released after intercession by family and friends. [4] The principal appellant has also alleged that he fears the Misrata militia after they became aware that he had assisted another family in hiding from them. He alleges the Misrata militia raided the family farm and seized the female Appellant's brother. The brother was later released on payment of ransom. [5] The Appellants' claims for refugee protection were heard over three sittings on June 23, 2015, August 10, 2015 and September 4, 2015. In a decision of December 21, 2015, the RPD rejected their claims finding that the principal Appellant was not credible and that there is an Internal Flight Alternative (IFA) for the Appellants in Tobruk. [6] The Appellants submit that the RPD erred in its credibility findings and its assessment of the IFA. ROLE OF THE RAD [7] The RAD finds that 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. In accordance with the decision of the Federal Court, the RAD will conduct its own analysis of the evidence to determine if the RPD erred and come to its own determination whether the Appellants are Convention refugees or persons in need of protection. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [8] The Appellants have submitted a statement2 that they were providing new evidence in their appeal. In the statement, the Appellants identified three documents as new evidence which corroborates the existence of the Al Farouk brigade in Libya: * An article about the killing of a colonel in Libya;3 * An article about the kidnapping of a citizen from his home by the Farouq battalion;4 and, * A copy of a picture of a car bearing a Faruq insignia.5 [9] The Appellants also tendered as new evidence the October 2015 UNHCR Report on Returns to Libya.6 [10] As provided for in s. 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [11] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4). The RAD also finds that further analysis of the evidence is required before the RAD can accept the proposed new evidence. In this regard the RAD is guided by the analysis as set out in Raza.7 The RAD recognizes however that this analysis is not entirely appropriate for the purpose of assessing evidence submitted to the RAD. In this regard, the RAD is further guided by the Federal Court of Appeal decision in Singh.8 [12] Accordingly, the RAD has adapted the analysis in Raza to the assessment of evidence submitted to the RAD. [13] In assessing whether the proposed new evidence meets the statutory provisions of s. 110(4), the RAD considered the following: (a) First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred, or a circumstance that arose after the rejection of the refugee claims.9 i. The RAD will consider not only the date on which the document came into existence, but the timing of the event or circumstance which the document seeks to prove.10 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. ii. It is important to note here that s. 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. iii. If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and the materiality of the document. 11 (b) Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in s. 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim,12 or that it proves a fact that was unknown to the Appellant at the time of the hearing? 13If so, the RAD will proceed to assess the newness, credibility and relevance of the evidence. (c) Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection, it must consider the final part of the s. 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered.14 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the newness, credibility and relevance of the evidence. [14] If the proposed new evidence meets the tests set out in the statutory requirements and in Raza, the evidence will be admitted as evidence in the appeal. The materiality of the evidence will be considered in the context of the assessment made under section 110(6) of the IRPA. [15] The Appellants have tendered three documents which they claim are in reference to the Al Farouq brigade. They argue that the documents ought to be considered by the RAD because they are from new sources, are relevant and contradict the RPD's finding that there was a lack of evidence of the existence of the Al Farouq brigade. They also argue that the documents are material because the existence of the Al Farouq brigade was a primary concern of the RPD. [16] The RAD is not persuaded by the Appellants' argument in this regard. The RAD notes that all of these documents appear to have been available to the Appellants prior to the rejection of their claims. Two of the documents are dated in January and February 2015 and the third document, the photograph is undated. The Appellants have not provided any explanation of why these documents were not previously available to them or why they could not reasonably have been expected to have tendered these documents prior to the rejection of their claims. [17] The RAD also notes that the issue of the lack of evidence of the existence of the Al Farouq militia was raised at the first sitting of the RPD hearing. Counsel and the Appellants were put on notice about the lack of evidence in this regard. Despite this, no evidence with regard to the existence of the Al Farouq was tendered at any of the three sittings of the hearing or as post-hearing documents. The Appellants had nearly six months to tender this evidence before the rejection of the claims, however, the Appellants have not explained why it was unreasonable to expect them to do so. [18] Similarly, the Appellants have tendered the UNHCR report dated October 2015 as proposed new evidence in this appeal. The Appellants acknowledge that the document could have been obtained and tendered as post-hearing evidence prior to the rejection of their claims but they do not offer an explanation for why it is not reasonable to expect them to have done so. Furthermore, the RAD notes that there is no indication in the record that the Appellants made any request to tender this document as post-hearing evidence. The RAD again notes that the issue of IFA was raised at the RPD hearing. [19] The RAD finds there is a requirement on the Appellants to provide an explanation about why the proposed new evidence meets the statutory requirement. The Court has held that if an applicant believes that the evidence meets the requirements of paragraph 113(a), it is up to the applicant to provide explanations as to why it conforms to the statutory requirement.15 For example, if the evidence pre-dates the RPD's decision, it is the duty of the person submitting the new evidence to provide why it had not been placed in front of the RPD under the express statutory requirements under paragraph 113(a).16 [20] Under a Pre-Removal Risk Assessment (PRRA), the Federal Court has held that it is the applicant's obligation to provide an explanation as to why the evidence could not have been presented to the RPD. Evidence can be rejected for this reason and this is in conformity with the requirements set out in the IRPA and found in Raza.17 [21] Similarly, the Refugee Appeal Division Rules18 (RAD Rules) provide that the Appellant's record must contain: (i) a written statement indicating whether the Appellant is relying on any evidence referred to in subsection 110(4) of the IRPA, and (ii) a memorandum that includes full and detailed submissions regarding how any documentary evidence that the Appellant wants to rely on in the appeal meets the requirements of subsection 110(4) of the IRPA and how that evidence relates to the Appellant. [22] The RAD has considered the recent Federal Court decision in Singh19 and finds that there is nothing in the decision which takes away the burden of the Appellant to provide an explanation of how the proposed new evidence meets the test set out in s. 110(4) of the IRPA. [23] The Appellants have not provided any explanation about why they were not able to tender this evidence prior to the rejection of their claims. They rely solely on the relevance and materiality of the documents. The RAD finds that the Appellants' explanation is insufficient and that further explanation is required to demonstrate how the proposed new evidence meets all of the statutory requirements. In order for the RAD to determine if the Appellants could not have reasonably been expected to present the evidence to the RPD, the RAD finds it is incumbent on the Appellants to present sufficient persuasive argument. [24] The RAD finds that this evidence was reasonably available to the Appellants prior to the rejection of their claims and that the Appellants have failed to provide persuasive explanation of why they could not tender the evidence prior to the rejection of their claims. Accordingly, this proposed new evidence is not admitted as evidence in this appeal. Oral Hearing [25] Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. According to subsection 110(6), 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 decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. When read together, subsections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence (i.e., evidence admitted under section 110(4), section 110(5) or Minister's 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. [26] The RAD has not admitted new evidence in this appeal and as such, the RAD finds that it cannot hold a hearing. Notwithstanding the foregoing, even if the RAD had accepted the proposed new evidence in this appeal, the RAD finds that the evidence would not justify allowing or rejecting the refugee protection claim. The RAD has found that the RPD's decision stands on its own merits. As such, as the proposed evidence does not justify either allowing or rejecting the refugee protection claim, then it does not meet the requirements of 110(6). Each of the requirements in 110(6)(a) through (c) have to be met, and in this case the requirement in 110(6)(c) is not met. As such, the RAD has no discretion to hold a hearing. ANALYSIS OF THE MERITS OF THE APPEAL [27] The RAD finds, after its own review and assessment of the evidence, that although there are two determinative issues in this appeal, IFA and credibility, these reasons are focused on the determinative issue of IFA. [28] The RPD found that the Appellants have a reasonable IFA in Tobruk. The Appellants submit that because of the grave humanitarian situation in Libya, the IFA in not reasonable. In assessing an IFA, the RAD must apply a two pronged test cited in Rasaratnam:20 1) the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or the claimant would not be personally subject to a risk to life or a risk of cruel and unusual treatment or punishment or a danger, believed on substantial grounds to exist, of torture in the IFA. 2) moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claim, for the claimant to seek refuge there. [29] Both prongs must be satisfied to find that the Appellants have an IFA. The burden of proof rests with the [Appellants] to show that they do not have an IFA. The finding of an IFA must be based on a distinct evaluation of a region for that purpose taking into account the [Appellants'] identities. An IFA must be a realistic and attainable option. The [Appellants] cannot be required to encounter great physical danger or to undergo undue hardship in traveling there or staying there.21 First Prong [30] The RAD notes that the Appellants have not contested the RPD's assessment of the first prong of the IFA test. The RAD has reviewed the RPD's analysis and the evidence which supports its findings and agrees with the findings made. [31] The RAD finds, on the basis of the evidence before it, that the Appellants have not established, on a balance of probabilities, that they would be tracked down or targeted in Tobruk Given the lack of evidence presented related to the influence and reach of the agent of persecution, the RAD finds that the Appellants have not adduced sufficient evidence to establish, on a balance of probabilities, that there is a serious possibility of being persecuted in the IFA city or that they would be personally subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger, believed on substantial grounds to exist, of torture in Tobruk. Second Prong [32] The RAD notes that the only argument raised by the Appellants concerning the reasonableness of the IFA in Tobruk relates to the second prong of the test. They submit that the documentary evidence in the record, in particular from the UNHCR, states that vital infrastructure has been destroyed and that hundreds of thousands of people have been forcibly displaced. They argue that there is a shortage of basic commodities and housing in Libya and that it is not reasonable for them to relocate to an area where they have never lived and have no connection. They also argue that it is unreasonable for the RPD to find that the principal Appellant would be able to find work in Tobruk given the dire humanitarian situation there. [33] The RAD finds, after its own review and assessment of the evidence in the record, that it is reasonable in all of the particular circumstances of the Appellants' situation that they could return to Libya and relocate to Tobruk. Although the Appellants argue that the UNHCR documents in the record establish that it would not be reasonable for them to re-locate in Tobruk, they have failed to cite specific evidence in the documents which relate to the situation in Tobruk. [34] The RAD notes that the principal Appellant is highly educated and has worked as an XXXX, a XXXX and XXXX XXXX XXXX previously. There is no evidence in the record that indicates that he limited in any way by age or health. He has been able to successfully provide for his family without any apparent difficultly despite the situation in Libya and did not allege in his BoC or testimony that he or his family were adversely impacted by commodity shortages or damage to infrastructure in the country. He speaks some English which the RAD finds may be an additional asset to him in finding employment in Tobruk. The RAD notes that the Appellants' testified that family members in Libya assisted them in leaving Libya to study in Canada. The RAD finds there is no reason to believe that they would not continue to provide assistance to them if they return to Libya to re-settle in Tobruk. [35] The RAD notes that although the principal Appellant testified at the RPD hearing that even though he does not fear the Al Farouk militia in Tobruk, he still fears that he and his family might be kidnapped should they settle there. The RAD finds, however, that the Appellants failed to provide credible evidence that they would be personally targeted if they were to return to Libya and live in Tobruk. The RAD acknowledged that armed militia and various Islamist groups are fighting each other and the government, to gain control of Libya; however, the Appellants have not established that they would be personally targeted. [36] Having considered the conditions in Tobruk and all the circumstances of this case, including those particular to the Appellants, the RAD finds that it is not unreasonable for the Appellants to relocate to Tobruk. The RAD finds that given their status afforded to them by their education, ability to speak English and ability to communicate in the national language, they face limited cultural or linguistic barriers in relocating to Tobruk. The RAD notes that the Appellants can travel to Tobruk directly without having to return to Tripoli. The people of Cyrenaica in general and Tobruk in particular speak the same regional dialect as the people of Tripolitania and Tripoli. [37] The RAD notes that although the Appellants argue that it would be an undue hardship to relocate in Tobruk because they have no connection to Tobruk and do not know anyone there. They also suggest that they may have difficulty finding a place to live. The RAD does not find this rationale as sufficient to justify the Appellants' failure to attempt relocation within their home country. [38] The test for reasonableness is whether it would be unduly harsh to expect the Appellants to move to another, less hostile part of the country before seeking status abroad as per Thirunavukkarasu.22 This requires an evaluation of the conditions in the IFA as well as the Appellant or similarly situated persons. Thirunavukkarasu sets a very high threshold for what makes an IFA unreasonable in all the circumstances. The hardship associated with dislocation and relocation is not the kind of undue hardship that renders an IFA unreasonable.23 However, it is not enough for the Appellant to say that he or she does not like the weather there, or that he or she has no friends or relatives there, or that he or she may not be able to find suitable work. [39] The RAD finds, on a balance of probabilities, that there are no serious social, economic or other barriers to the Appellants relocating to Islamabad. The RAD therefore agrees with the findings of the RPD and finds that it would not be unreasonable, in all the circumstances, including those particular to the Appellants, for them to seek refuge there. [40] For all of the reasons above, the RAD finds, on a balance of probabilities, that the Appellants have an accessible and viable IFA in Libya. [41] Once the issue of an IFA is raised, the onus is on the Appellants to show that the option does not exist, by establishing that either of the two tests cited in Rasaratnam criteria is not met. The Federal Court of Appeal in Thirunavukkarasu stated that an applicant need only show that there is a serious possibility of being persecuted in the new location or that their removal to Tobruk would subject them personally to a risk to his life, or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture. The RAD finds that the Appellants have failed to show that the IFA option is not available to them. [42] Given the finding above that the Appellants have an IFA in Libya, the RAD finds that the Appellants do not face a serious possibility of persecution there and also finds that their removal to Libya would not subject them personally to a risk to their lives, or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture. DISPOSITION [43] The RAD finds that there is an IFA for the Appellants, and since IFA is a determinative issue, the RAD finds there is no need to assess the credibility issue. The Appellants are neither Convention refugees nor persons in need of protection. CONCLUSION [44] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD. (signed) "L. Favreau" L. Favreau May 3, 2016 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, Appellants' Record, pp. 19a-19b, Section 110 Statement. 3 Ibid., p. 90. 4 Ibid., p. 91. 5 Exhibit P-2, Appellants' Record, p. 92. 6 Ibid., pp. 93-116. 7 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 8 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 9 Raza, para. 13.3(a). 10 Raza, para. 16. 11 Raza, para. 13.5(b). 12 Raza, para. 13.5(a). 13 Raza, para. 13.3(b). 14 Raza, para. 13.5(a). 15 Bengabo, Serge Cedrick v. M.C.I. (F.C., no. IMM-2750-08), Shore, February 23, 2009, 2009 FC 186, at para. 23. 16 Jessamy, Gracel Bernadet v. M.C.I. (F.C., nos. IMM-2302-09, IMM-2639-09), Phelan, May 4, 2010, 2010 FC 489; see also: Aleziri, Abdullah Mohammed v. M.C.I. (F.C., no. IMM-360-08), Lagacé, January 15, 2009, 2009 FC 38 and Haque v. M.C.I. and M.P.S.E.P. (F.C., no. IMM-5356-08), O'Keefe, June 28, 2010, 2010 FC 703. 17 Tran, Hoa Van v. M.P.S.E.P. and M.C.I. (F.C., no. IMM-3222-09), Beaudry, February 19, 2010, 2010 FC 175; see also Founding, Allen Robin v. M.C.I. (F.C., no. IMM-2182-09), Shore, May 14, 2009, 2009 FC 500. (This is a motion for a stay of removal. Leave to be heard was denied on July 7, 2009 by Justice Harrington.) 18 Refugee Appeal Division Rules, SOR/2012-257 http://laws-lois.justice.gc.ca/eng/regulations/SOR-2012-257/index. html. See RAD Rules 3(3)(d)(i) and (g)(iii), 5(2)(d)(ii), and 29(3). 19 Singh. supra, footnote 4. 20 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minster of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), p. 710. 21Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.), pp. 596-599. 22 Thirunavukkarasu, pp. 596-599. 23 M.C.I. v. Ranganathan, Rohini (F.C.A., no. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. Reported: Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.) . --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-02395 TB6-02396 TB6-02397 TB6-02398 TB6-02399 TB6-02400 TB6-02401