TB5-02605

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 : TB5-02605 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 June 3, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal David P. Yerzy 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 (the Appellant), a citizen of Russia, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted a video in support of his appeal, however he is not requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellant is asking the RAD to make a determination that he is a Convention refugee or a person in need of protection, or in the alternative, that the matter be referred back to a newly-constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to ss. 111(1)(a) of IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant is a devout Muslim, who comes from Nalchik, the capital of the Republic of Kabardino-Balkaria, Russia. He alleges that as a devout Muslim, particularly in the area in which he lived, that the FSB and police perceive him as a fundamental Islamic extremist. As a result, he alleges that he has been harassed, intimidated, threatened and assaulted and detained by Russian security. [4] He further alleges that he has been questioned by the police in Samara, Penza, Novosibirsk, Moscow and Saratov. He has never been involved in politics or social activism in Russia. He owned a XXXX in Nalchik, and maintains that his clientele are mainly religious. His XXXX is located near a prison and many family members visiting inmates at this prison stop at his XXXX. [5] The husband of the XXXX employed at the Appellant's XXXX has been imprisoned at this jail due to riots which occurred in 2005, and he alleges that he and customers at his XXXX have been under surveillance and videos have been taken by the FSB and police. [6] In XXXX 2012, the FSB conducted a special operation near his XXXX. The FSB blocked a car with three passengers, and the car was blown up killing all passengers. When this incident occurred, the Appellant was in the mosque located near where this incident took place. A friend telephoned him to warn him not to come in because he could get shot wearing religious clothes. A few days later, the Appellant was approached by a young man who told him that the passengers in the car were delivering money to the families of prisoners who had been arrested because of their involvement in the 2005 riots. [7] The Appellant's father was a XXXX XXXX police officer (retired XXXX XXXX) and he had friends and contacts in the FSB. According to the Appellant, his father was told that he was under surveillance, he should leave and if he did not obey this order, then the FSB will, for example, throw him out of the window and will say that he tried to run away. Eventually, the Appellant's father received an ultimatum from his contacts in the FSB telling him that the Appellant had "two days to leave or they would arrest him". [8] The Appellant left Russia on XXXX XXXX, 2012 and went to Denmark on XXXX XXXX, 2012, where he made a refugee claim. However, the claim was denied and the subsequent appeal was also denied. The Appellant then went to Sweden, however, given his claim in Denmark, he was denied the opportunity to request asylum in Sweden. He remained in Sweden illegally until he came to Canada on XXXX XXXX, 2014, using a false Israeli passport. [9] According to the Appellant, the FSB have summoned some of his friends asking his whereabouts and threatening "if he came back to Russia, he would not be able to leave the second time, and he would disappear". He claimed refugee protection on or about October 10, 2014. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL Express statutory conditions [10] Section 110(4) of IRPA provides that the Appellant may present only the evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [11] The following "new" evidence was submitted in support of the Appellant's appeal: A video depicting a Muslim person arguing with the police and protesting his innocence. According to the Appellant, the Muslim man complains that the police should leave him alone and arrest the Muslim terrorists, however the Muslim man is arrested. It is acknowledged that the video is undated and the source of the video is unknown, however the Appellant submits that it conveys a raw and immediate sense of the way the police treat devout Muslims in Kabardino Balkaraya. The Appellant did not become aware of the video until after the RPD hearing. It is acknowledged that the video does not address the credibility issues, however it does support the claim that the Appellant fears persecution due to his membership in a particular social group. [12] The RAD has accepted the video as "new" evidence. However, after viewing it, the RAD cannot accord any weight to it as it has not been translated into English, and as acknowledged by the Appellant, it is undated and the source of the video is unknown. Role of the RAD [13] The RAD has been provided guidance from the Federal Court in Huruglica,1 wherein 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." [14] 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. The RAD has applied the reasoning as set out in Huruglica.3 SUBMISSIONS BY COUNSEL * Did the RPD err in rejecting the Appellant's explanations as to why he embellished his claim in Denmark in an arbitrary manner? * Did the RPD err in failing to consider whether the actions of the Appellant were perceived as political in the eyes of the agent of persecution, as opposed to whether they were considered political by the RPD? * Did the RPD err in failing to consider whether the treatment of observant Muslims in Kasbardino Balkaray as a social group amounted to persecution? * Did the RPD act unfairly by asking the Appellant to obtain a copy of the father's police ID without specifying that such a copy had to be notarized and then rejecting that police ID as evidence at the hearing because it was not notarized? * Did the RPD act unfairly by making an adverse finding of credibility because the Appellant failed to produce evidence that he owned a XXXX despite the fact that the Appellant testified that it was an undocumented business and that no documents ever existed that he could have submitted? Danish claim [15] When the RPD noted inconsistencies between the Danish claim and his Canadian claim, the Appellant was asked to explain. The Appellant acknowledged that portions of the Danish claim had been fabricated, however, he testified that the facts with respect to the Canadian claim were correct. [16] The RPD acknowledged that it had to carefully consider the Appellant's testimony and the documents filed at the hearing, despite the lies of the past. The RPD found that the Appellant's excuse for not being candid was that he was nervous and scared. He had told some of his fellow Russian refugees and they "laughed at his story" and told him that his claim as told, would be denied. These refugees advised him, according to the Appellant, that he must demonstrate that the agents of persecution had had direct contact with him, as opposed to approaching his father and telling him that if the Appellant remained in Russia he would be arrested or possibly murdered. He further testified that lying was one of the worst mistakes he ever made in his life and he wished he could take it back. [17] In his Canadian claim, the Appellant stated that he feared the FSB as a devout Muslim, because they perceived him to be a fundamental Islamic extremist. However, the major difference in this claim, according to the Appellant, is that the FSB warned his father that he was in danger. Moreover, his father was a XXXX police officer, a XXXX XXXX, who had friends/contacts in the FSB. These friends/contacts had told the Appellant's father that the Appellant was being pursued and that videos had been taken during their surveillance of him. Furthermore, according to the Appellant, the FSB officers had told his father if he did not leave the country in two days, he would be arrested. [18] The RPD also noted that in the Danish claim, it appeared that the FSB had forced the Appellant into their car after the incident involving the three passengers who were blown up in XXXX 2013, the FSB demanded a list of the patrons that visited his XXXX, and these demands led to the Appellant's fears that the rebels would eventually perceive him to be spy. Moreover, in his Danish claim, the Appellant stated that his father was "trained as a XXXX but worked as a XXXX". This information was not contained in the narrative of the Appellant's Canadian claim. [19] The RPD understood that the Appellant may have been frightened when he left Russia and went to Denmark, a new country, and that he was anxious about the outcome of his claim. However, the RPD noted that the purpose of going to a respected western democracy like Denmark, which respects fundamental human rights, was to make a refugee claim. The RPD questioned why an educated individual listened to his fellow Russian refugees at the Danish camp, and wilfully followed their instructions, putting down false information regarding what had occurred in Russia. The RPD noted that the Appellant was 30 years of age at the time and was well educated (supposedly having obtained a XXXXdegree in Russia). Given the major differences between the allegations in the two claims, the RPD drew an adverse inference in the Appellant's overall credibility and the truthfulness of the allegations in his Canadian claim. [20] The Appellant submits that he acknowledged the inaccuracies in his Danish claim, and therefore, those facts can hardly be said to contradict the facts he is alleging in Canada. The Appellant admits that he exercised poor judgment and even terms his own behaviour as stupid. His explanation of fear, lack of confidence and peer pressure as factors were not accepted by the RPD, which in the Appellant's opinion are basic human emotions. Moreover, it is submitted that he exercised good judgment in Canada, when he volunteered the information with respect to his refused application in Denmark and disclosed the materials which contained the inconsistencies. The Appellant is not asking the RAD to postulate unlimited credibility. However, he is asking it to consider that even though he exercised poor judgment in the past, that the oral and documentary evidence should be considered with an open mind. Further, the Appellant argues that it was not open to the Board to make a negative finding of credibility based on his failure to produce his former Canadian boyfriend as a witness. [21] Firstly, the RAD wishes to address the latter submission by the Appellant. After carefully reviewing the entire record, there is no mention of a credibility finding with respect to a witness, let alone a former Canadian boyfriend. It would appear that this submission does not relate to the case at hand. [22] The RAD finds that, while not determinative in and of itself, it is difficult to accept the Appellant's explanations that he was nervous and accepted the advice of fellow refugee claimants when making his Danish claim. After listening to the audio recording of the proceedings, the RAD finds that this is an individual with an advanced education (XXXX) 30 years old, and it simply does not make sense that because he was nervous, he took the advice of these individuals, whose backgrounds and knowledge were unknown. The RAD accepts that had this been the only credibility concern, then perhaps the outcome would have been different. However, this negative inference was drawn in conjunction with the overall credibility of the evidence, which was lengthy and occurred over a period of two sittings. [23] The RAD further finds after listening to the audio recording of the proceedings that the Appellant was only forthright and apologetic for his "stupid" behaviour, when confronted with the discrepancies which were before the RPD, i.e. the Appellant's Basis of Claim form (BOC) with respect to his claim in Canada, and a copy of the Refugee Board's decision from Denmark. The RAD questions why the Appellant did not "come clean" when he wrote his BOC, or at the outset of the hearing. Rather, he only came clean when confronted with the inconsistencies between the two claims by the RPD. On this record, it was open to the RPD to use the inconsistencies to draw a negative credibility finding, and the RAD agrees with that finding. [24] Finally, the RAD finds that the RPD was careful in its consideration of the foregoing and, in fact, cited the reasoning in Tahmoursati4. In the RAD's opinion, the RPD justifiably drew a negative inference as it did not accept the explanations provided by the Appellant for his lack of candor. However, the RAD finds that this conclusion was not reached in isolation, but only after considering all the evidence, which included the lack of corroborative evidence which would have allayed some of the concerns raised by the RPD. Credibility: BOC Omissions and Corroborative evidence [25] The RPD had concerns about the Appellant's father's occupation as there were discrepancies between the claims in Denmark and in Canada. In the Danish claim, it is indicated that his father was a XXXX and a trained XXXX, to which the Appellant explained that this was his last profession after being a police officer. However, the RPD also noted that the Appellant's father was not defined as a XXXX XXXX police officer in the BOC narrative (Canadian claim), simply that he "worked for government", not a police officer, let alone a XXXX XXXX XXXX XXXX XXXX. In the RPD's opinion, by indicating that his father held this rank in the police, this would have explained in clearer terms why his father had friends and contacts in the FSB. At the second sitting, upon learning of these concerns expressed by the RPD in light of lack of documentation in this regard, the Appellant filed a certificate/card which states "Ministry of Internal Affair Russian Federal - Pension Certificate - Central Border Security Division Ministry of Internal Affairs of Kabardino Balkariya Republic with a photo of a male with the name XXXX XXXX XXXX, title XXXX XXXX. The Appellant submits that this proves the business profile of the Appellant's father. The RPD had concerns about the authenticity of this document given the fact that it was not verified or notarized, together with the discrepancies described above. It therefore found that that there was insufficient credible or trustworthy evidence to establish the Appellant's father as a police officer, and that his father had friends/contacts in the FSB and that he was ever warned by these individuals. [26] The Appellant takes issue with the finding by the RPD that the omission in the BOC that his father was a former XXXX XXXX in the police was significant. It is argued that there was sufficient information in the BOC indicating that his father worked for the government and had contacts with the FSB and that his father's exact position is a mere detail. When this detail was brought to the attention of the Appellant at the first sitting, the Appellant provided proof, which although not notarized, is argued should satisfy the RPD and overcome the deficiencies in his testimony. It is submitted that the RPD did not alert the Appellant to the necessity of having notarized or verified documents. Moreover, it is argued, that his father is only mentioned in passing as this was the advice he was given, and secondly, although his father had been serving in the police, he later served in the XXXX XXXX, which are both under the Ministry of Internal Affairs. It is argued that the RPD was obsessed with the position of the Appellant's father as a XXXX XXXX but never explains why the detail of his specific rank is important. [27] The RAD does not concur with the RPD that the lack of notarization on the Appellant's father's certificate detracts from the Appellant's credibility. The RAD does find that this certificate indicates that the Appellant's father is a pensioner from a position in the government in the Ministry of Internal Affairs, which is indicated as a XXXX XXXX. [28] While the RAD acknowledges that the Appellant indicated that parts of his story were fabricated when he made his Danish claim, it does not understand why his father's occupation would be different. The RAD finds that the Appellant has not satisfactorily explained why this occupation would be different on the two claims. The RAD accepts the certificate as an indication that the Appellant's father had a position within the Ministry of Internal Affairs of Kabardino, Balkariya Republic between XXXX and XXXX. Although the certificate is not notarized, the RAD accords it some weight. However, even if we accept that a position was held in this department some 15 years ago, the RAD concurs with the RPD that there is insufficient credible evidence to persuade the RAD that his friends/contacts have issued a warning to the Appellant's father with respect to his son. This document was submitted to the RPD between the first and second sittings of this claim. Knowing the RPD's concerns with respect to this important aspect, the RAD finds that these inconsistencies must be considered in conjunction with the lack of additional corroborative evidence to support these allegations. For example, why did the Appellant not provide an Affidavit from his father, since allegedly it is his word that the FSB are in pursuit of him? The RAD finds this particularly significant given the credibility concerns. The RAD finds that this is, in fact, a material aspect of the claim as the alleged threats and pursuit by the FSB have come from friends/contacts of his father. Since his father has been the "messenger", the RAD cannot understand why the Appellant would not have requested an Affidavit or Sworn Declaration attesting to the conversations between him and the FSB, along with a brief description of his professional history. This is particularly noteworthy, given the alleged fraudulent Danish claim, and therefore, the necessity to overcome the credibility deficiencies. Perceived political opinion and ignoring documentary evidence [29] The RPD noted that the features described by the Appellant, namely the fact that he prayed five times day, wore a beard and sometimes dressed in what he called religious clothes, led to the Appellant's belief that the FSB and other authorities perceived him as an Islamic fundamentalist extremist. The RPD also noted that the Appellant's BOC indicates that the population in Kabardino Balkarskayaa Republic is 95% Muslim. Moreover, the RPD found the Appellant's testimony with respect to why the authorities were interested in the XXXX in his XXXX, other than the fact that her husband had been incarcerated since 2005, to be vague. The RPD found insufficient evidence to link the XXXX presence in the XXXX to a perception on the part of the FSB and other officials in Russia that the Appellant was an Islamic extremist. The RPD also noted that the Appellant no longer has any responsibility for the XXXX or the XXXX. In addition, the RPD noted the absence of any documentation with respect to the XXXX, around which this testimony is related. The RPD found that the XXXX appeared to have played a pivotal role in understanding why the FSB was supposedly targeting the Appellant and why they might perceive him as an Islamic extremist. The RPD as a consequence, found that there was insufficient credible trustworthy or credible evidence to establish the existence of this XXXX and the Appellant's ownership in this regard. [30] The Appellant testified that he was targeted in his home region because of his perceived political opinion, namely, because he wore a beard, prayed 5 times a day and was known as a devout Muslim that he was perceived by the authorities to be a supporter of Islamic rebels. He further testified that this suspicion was reinforced by the fact that he employed a woman whose husband was jailed for his involvement with Islamic extremists. The Appellant submits that the RPD ignored documentary evidence regarding the targeting of devout Muslims and cites the documentation (exhibit D and E (Amnesty International)) which indicates that the risk of arrest of anyone who wore a beard. Amnesty report describes individuals jailed for years and tortured due to false allegations that they are religious extremists. It is further submitted that the RPD "assumes" that if 95% of the People in the Republic are Muslim that others must also dress and behave as the Appellant did and that this is pure speculation. [31] With respect to the Appellant's XXXX, the Appellant explained that he had no documents to prove ownership because he rented the space for cash and the XXXX was unlicensed. The Appellant submits that the RPD ought to have accepted this explanation, which is unreasonable. [32] The RAD finds that given the requirement of a second sitting, this provided an opportunity for the Appellant to provide some proof of his business. The RAD, after reviewing the recording of the proceedings, did not understand the XXXX to be unregistered or dealing only in cash. The Appellant simply stated that he had no documents as proof. However, even it this were the case, a photograph would have at least provided something to demonstrate the existence of this business. The RAD finds that this is particularly significant since the Appellant's testimony was often times revolving around the XXXX, its XXXX, and its patrons. [33] The RAD further concurs with the RPD that the Appellant failed to provide credible evidence as to why in an area so heavily populated with Muslims, that he was being singled out. The RAD finds that the evidence surrounding the XXXX lacked detail and did not provide a link to the perception that the Appellant was perceived to be a religious extremist. [34] The RAD finds after reviewing the entire record, that there was insufficient credible evidence that the Appellant was perceived to be politically involved. Religious beliefs [35] The Appellant submitted letters from mosques to prove he was a devout Muslim, and the RPD did not make an adverse finding of credibility in this regard. The fact that the Appellant is a devout Muslim cannot establish he is at risk in light of the findings above. DEFERENCE [36] In Akuffo,5 the Federal Court observed that when no hearing is held before the RAD, it owes deference to the RPD's credibility findings. The opinions differ on the level of deference that is owed and the questions of fact and questions of mixed fact and law for which deference is owed.6 [37] The Courts have noted that the RAD has similar or greater expertise to the RPD in matters of refugee law. However, where the RPD was in an advantageous position to reach credibility findings, the RAD will show deference. This does not mean that all findings warrant deference. Unfortunately in Huruglica,7 the level of deference was not defined, nor has it been in subsequent jurisprudence. It is, however, important that the RAD engage in its own review of the evidence in the RPD record, to determine whether the RPD's findings are supported by the evidence. [38] The RAD finds that in the particular circumstances of this claim, there is no reason that deference should not be owed to the RPD, save and except for comments made in the RAD's analysis. On the whole, however, the RAD finds after a review of the entire record, that the RPD's credibility findings are sustainable. Accordingly, the RAD finds that the Appellant is not a Convention refugee or a person in need of protection. [39] Therefore, pursuant to ss. 111(1)(a) of IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. (signed) "Roslyn Ahara" Roslyn Ahara June 3, 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 Supra, footnote 1. 4 Tahmoursati v. Canada (Minister of Citizenship and Immigration), 2005 FC 1278. 5 Akuffo, Edwin Yaw Sarfo v. M.C.I. (F.C., no. IMM-6640-13), Gagné, November 12, 2014, 2014 FC 1063. 6 Akuffo, supra, footnote 5, paras. 34-35, see also Meilina v. Canada (Citizenship and immigration), F.C., no. IMM-642-14, Gagne, December 18, 2014, 2014 FC 1233 at para. 11. 7 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-02605