TB7-16183

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 / Dossier de la SAR : TB7-16183 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) Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 10, 2018 Date de la décision Panel Laura Brittain Tribunal Counsel for the person(s) who is(are) the subject of the appeal Imtenan Abd-El-Razik Solicitor for the Appellant Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (the "Appellant"), a Jordanian national, appeals the Refugee Protection Division's (RPD) rejection of his refugee claim. The Appellant's wife was tragically murdered in 2014, and in his desire to see justice, he refuses to drop the charges against her killer. In Jordan, where such charges are dropped by next-of-kin, an accused may face a greatly reduced sentence or other more lenient treatment. The Appellant fears return to Jordan, as he alleges he will face reprisals from the killer's family for pursuing the case. [2] The RPD rejected the Appellant's claim, accepting that his wife was killed but finding that he had not credibly established the motivation for her killing and therefore the risk he now faces. The Appellant argues that this finding was to misapprehend the nature of the alleged risk, which does not arise from whether or not it is established that the killer was romantically interested in the Appellant's wife (an allegation the RPD rejected), but from the fact that the Appellant holds the right to continue prosecution. The Appellant also argues that the RPD's credibility analysis was flawed and that it failed to assess the claim under section 97 of the IRPA. He asks that the Refugee Appeal Division (RAD) accept one new piece of evidence, and that the RAD hold an oral hearing. [3] As addressed below, I agree with the Appellant that the RPD did not properly characterize the basis of the risk as alleged. Having assessed this risk, however, I find that it has no nexus to a Convention ground, and this claim falls under section 97 of the Act. While I have accepted the Appellant's allegations, I do not find that they are sufficient to establish that his claim is objectively well-founded: there is insufficient evidence to establish that the Appellant faces a future risk to his life or a risk of cruel and unusual treatment or punishment, on a balance of probabilities. DETERMINATION [4] I confirm the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and dismiss the appeal. ADMISSIBILITY OF NEW EVIDENCE [5] The Appellant tenders a letter from his lawyer in Jordan, who represents him in the case against his wife's killer.1 [6] Evidence from the person who is the subject of the appeal is only admissible on appeal if it meets one of the statutory conditions set out in subsection 110(4) of the IRPA, namely, that it arose after, was not reasonably available, or could not reasonably have been expected to have been presented at the time the claim was rejected. If one of these conditions is met, the RAD will also consider if the evidence is credible, relevant and new, as per Singh.2 [7] I accept the letter as new. It post-dates the rejection of the claim, and the Appellant could not reasonably have foreseen that (as explained below) the RPD would misapprehend the nature of the risk alleged. [8] I also note that portions of the Appellant's affidavit on appeal constitute new and additional facts, regarding the making of his claim in Canada, the Jordanian criminal system, and recasting some of his testimony at the RPD (paragraphs 18-30, and 35). I have not found these paragraphs to constitute new evidence, as this was reasonably available prior to the rejection of the claim. This evidence was also not relevant on appeal, as I have agreed with the Appellant that the RPD erred in its credibility assessment. NO ORAL HEARING HELD [9] As explained below, I have accepted the Appellant's allegations. There is therefore no serious, determinative issue raised by the new evidence tendered. The requirements of subsection 110(6) of the IRPA are not met, and no oral hearing was held. ISSUES ON APPEAL [10] The Appellant argues that the RPD committed three interrelated errors. First, the RPD erred in characterizing the risk the Appellant faced, and thus never properly assessed it. The Appellant also argues that the RPD's credibility findings were unreasonable, and that the RPD erred in not conducting a section 97 risk assessment. ROLE OF THE RAD [11] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. 3 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases, attracts a standard of review of reasonableness.4 Unless specifically stated below, I have applied a correctness standard. ANALYSIS [12] For the following reasons, I agree that the RPD's analysis is unsustainable. I accept the facts outlined below. Having done so, I have not found this case to have a nexus to the Convention, and thus my analysis is confined to section 97 of the IRPA, which requires risk to be assessed, on a balance of probabilities. While the Appellant's circumstances are very sympathetic, I do not find he has met his evidentiary burden: he has not established it to be more likely than not that he will face a risk to his life, or a risk of cruel and unusual punishment if he is to return to Jordan. The RPD mischaracterized the risk as alleged and erred in its credibility assessment [13] The RPD found that the Appellant was not credible for two main reasons: his supporting documents did not corroborate all of the facts that he alleged, and his medical records from Toronto were inconsistent with his allegations with respect to one fact. [14] The Appellant alleged in his Basis of Claim (BOC) that his wife XXXXs killer, XXXX, was romantically interested in her and had harassed and assaulted the two previously.5 The Appellant also indicated that XXXX family and XXXX family were at odds, and that this was the dispute that led to an armed conflict between the two families. During this conflict, XXXX shot and killed XXXX.6 [15] In support of his claim, the Appellant presented a newspaper article and a copy of the indictment at the Grand Criminal Court as well as other court documents.7 The RPD found these documents to make no mention of XXXX romantic interest in XXXX, or the history between the three of them. As a result, the RPD found that the credibility of the Appellant's allegations was called into question. I disagree. Corroborating documents are not lacking in probative value because they do not establish each and every fact of a claim. I find that these documents support the Appellant's allegations and establish, as he alleged, that XXXX killed XXXX during a larger conflict between their two families. [16] I also agree with the Appellant that the RPD was microscopic in drawing an adverse inference on the basis of his medical records from the XXXX XXXX XXXX XXXX XXXX XXXX.8 The records indicate that the Appellant saw his wife being shot - the RPD found this was inconsistent with his allegation that he was not there at the time of the shooting. I accept as reasonable the Appellant's explanation that this was a translation error - he was not present at the time his wife was killed, but he did see her body and therefore her gunshot wounds afterwards. [17] In addition to court documents and media reports, the Appellant also submitted letters from municipal authorities chronicling the conflict, a letter XXXX wrote him, pictures of the two of them, a marriage contract, and a death certificate, among other things. The Appellant has met his burden to establish the following facts, on a balance of probabilities: (a) The Appellant was married to a woman named XXXX; (b) XXXX had some interest in XXXX XXXX and he behaved in a threatening manner towards her and the Appellant; (c) His family had a conflict with XXXX family; (d) XXXX killed XXXX; (e) XXXX is now in jail, and he is being prosecuted for XXXX murder; and (f) The Appellant fears return to Jordan because he believes he will face reprisal from XXXX and his family because he will not give up his legal right to press charges. [18] I find that the RPD erred in not assessing the risk the Appellant faces by continuing the case against XXXX. There is no Nexus to the Convention [19] Having found that the RPD did not properly assess the risk that was alleged, I have done so. The Appellant fears reprisals from XXXX or his family for refusing to abandon criminal charges against him. The reason for this risk was XXXX criminal act, and the Appellant fears subsequent criminal acts. The Appellant is therefore not at risk by reason of one of the Convention grounds. In particular, the Federal Court has held that families engaged in blood feuds, which I find analogous to the facts before me, do not form particular social groups for the purpose of the Convention.9 [20] Therefore, this claim fails under section 96 of the IRPA. I have assessed the claim under section 97. The facts as established do not meet the legal threshold under section 97 [21] To grant the Appellant protection under section 97 of the IRPA, there must exist a forward-facing, or future, risk to his life or of cruel and unusual treatment or punishment, on a balance of probabilities. [22] XXXX was killed in September 2014 - nearly four years ago at the time of this decision. After her death, and afraid of XXXX family, the Appellant sought to leave Jordan. The Appellant was afraid once XXXX brothers were released, since they vowed to kill him if he would not drop the charges - as of October 2014, he had moved from his native Kufr Khal to Irbid,10 some 30 kilometers away.11 He has not alleged that he experienced problems in this location, where he stayed until he went to the United States in XXXX 2015. [23] The Appellant stayed only two weeks in the US. Afraid and distressed after being detained by authorities, he withdrew his asylum claim and returned to Jordan. He moved to Aqaba, 400 km from Kufr Khal and worked in a restaurant. The Appellant had no problems in Aqaba for nearly a full year, until he saw one of XXXX brothers come into the restaurant. He fled before he was seen. The Appellant asserted in his testimony before the RPD that XXXX family had located him. In support of this contention, however, he made only vague allegations that they had "connections" and appeared to speculate that they had found him through people in his village and that they "would have [his] photo" and "would" give it to police.12 Despite what may be a credible belief on the Appellant's part, I do not find he has established it to be more likely than not that he was located in Aqaba after any kind of search for him. The Appellant has presented no evidence that they asked about him by name at the restaurant, or even that they knew he worked there. He testified that friends told him that XXXX family is in Aqaba, but the facts before me are too sparse to establish that the incident is indicative of an ongoing or forward-facing risk such as envisioned by section 97. [24] After the incident, the Appellant moved to Petra. He indicates in his Schedule A form a particular street name of his residence there,13 though he testified that he lived in a cave. For a further four months, the Appellant worked in the tourism industry without incident from XXXX family, before he came to Canada in XXXX 2016. [25] Since he left Jordan, the Appellant testified that XXXX family has harassed or threatened his own. His one brother has stopped going to school because his mother is afraid. His family has been pressured to get a power of attorney from the Appellant and to drop the charges. The Appellant testified that the family moved from Kufr Khal, though only 30 kilometers to Irbid. This is not such a distance that would establish that the family either is or, alternatively needs to hide. Beyond what appears to be verbal harassment, he does not allege any harm or violence to his family. [26] It appears that, whether or not the Appellant subjectively fears harm in Jordan, a likelihood of harm as described in section 97 is not borne out by his or his family's past experiences. I am therefore unable to find it to be more likely than not in future. [27] I have considered Jordan's tribal nature, as counsel argues. I accept that the objective documentation indicates that there is societal pressure to handle matters, even murder, between tribes and outside of the formal judicial system. I understand that Jordan's specific context is the basis upon which the Appellant fears return there. The Appellant's fear of specific retaliation against him alone, however, is also not described in the evidence. The system is described as one of transactional justice - where a member of one tribe is concerned, the victim's tribe has the right to kill someone in retaliation, but this second victim need not have any connection to the first murder.14 A tribe is considered a collective, and retaliation may be carried out against any part of the whole; a smaller dispute can escalate into a tribal feud. XXXX family, despite being the family that had some historic conflict with XXXX family, has not faced threats. The Appellant testified that they were not as "concerned" with the legal matter as he was, as her husband.15 On the whole, however, the matter does not seem to have escalated within the tribal system, despite the passage of four years since the original murder and the Appellant's allegation that XXXX family remain committed to retaliation. [28] I have considered the Appellant's allegation that XXXX tribe is connected - he stated that he even knows one of them is in the army. I note that the nature or extent of these alleged connections is quite vague in the Appellant's testimony,16 and indeed court documents indicate that a member of XXXX family was also in the army.17 I do not find this alters my analysis, as this has not borne out a likelihood of harm based upon the Appellant's own lived experience and that of his family. [29] Finally, I have considered the supporting documents filed. The letter from XXXX XXXX XXXX Municipality confirmed that, as of October 2016, XXXX murder was still the subject of ongoing court proceedings, but it does not state any ongoing risk to the Appellant beyond the "hope he will live peacefully in Canada and protect his life."18 [30] A September 2016 letter from the Ministry of the Interior, Jerash Governorate, states that, in the opinion of two members there, the Appellant's life is in danger. It also states that the Appellant was given the letter "upon our knowledge acquaintance," which suggests that a mutual acquaintance facilitated the letter and not necessarily any specific knowledge on the part of its authors. Regardless, I have weighed this opinion with the rest of the evidence before me. I do not find that the danger to the Appellant's life has been borne out to be more likely than not, based upon the Appellant and his family's experiences. [31] On appeal, the Appellant also provided a letter from his lawyer, who confirms that prosecution of XXXX murder is ongoing.19 I note that there is some confusion as to the stage of the proceedings - the Appellant testified that only sentencing remained, while his lawyer indicates that the court is still hearing witness testimony.20 Whatever stage, I have accepted the existence of the court proceedings, and this letter does not affect my analysis of the likelihood of harm to the Appellant. [32] The evidence before me, sympathetic though I am for the Appellant's great loss, does not establish that it is more likely than not that he will face future harm. I acknowledge that his family has faced verbal harassment and pressure, but this does not amount to a harm that qualifies under section 97: a risk to life or of cruel and unusual punishment. The RAD has no humanitarian and compassionate jurisdiction. CONCLUSION [33] I therefore find that the Appellant's circumstances do not meet the law that I am required to apply; this claim is rejected under both section 96 and section 97. Though I have offered different reasons, having responded to the Appellant's arguments and found that the RPD did err, I confirm the RPD's determination that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Laura Brittain" Laura Brittain July 10, 2018 Date 1 Exhibit P-2, Appellant's Record, at p. 25. 2 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 3 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 4 Ibid., at paras 69-74, and X (Re), 2017 CanLII 33034 (CA IRB). 5 Exhibit RPD-1, RPD Record, BOC narrative, at p. 12. 6 Ibid., at pp. 12-13. 7 Exhibit RPD-1, RPD Record, at pp. 229-241 and 246-254. 8 Exhibit RPD-1, RPD Record, at pp. 357-380. 9 Zefi, Sheko v. M.C.I. (F.C.T.D., no. IMM-1089-02), Lemieux, May 21, 2003, 2003 FCT 636, at para. 41. 10 Exhibit RPD-1, RPD Record, at p. 45, Schedule A. 11 The RAD takes judicial notice of geographic distances, as obtained from publically available sources: https://www.google.ca/maps/dir/Irbid,+Jordan/Kufr+Khall,+Jordan/@32.4578502,35.7796733,11z/data=!3m1!4b1!4m14!4m13!1m5!1m1!1s0x151c76916dac0453:0x5416e113d81f7d82!2m2!1d35.8479094!2d32.5569557!1m5!1m1!1s0x151c7f07d64ae6f5:0x3c02bfbbf6eb63ec!2m2!1d35.8850804!2d32.3583979!3e0?dcr=0 12 Exhibit RPD-1, Audio Recording of RPD hearing, at 1:00 - 1:10. 13 Exhibit RPD-1, RPD Record, at p. 45, Schedule A. 14 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Jordan (March 31, 2017), item 5.10, WANA Institute, "Tribal Dispute Resolution and Women's Access to Justice in Jordan", June 22, 2015, at pp. 8-13. 15 Exhibit RPD-1, Audio Recording of RPD hearing, at 1:10-1:15. 16 Exhibit RPD-1, Audio Recording of RPD hearing, at 1:00-1:10. 17 Exhibit RPD-1, RPD Record, at p. 230. 18 Exhibit RPD-1, RPD Record, at p. 227 19 Exhibit P-2, Appellant's Record, at p. 25. 20 Ibid., and Exhibit RPD-1, RPD Record, Audio Recording of the RPD Hearing, at 1:30 - 1:37. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-16183 11 RAD.25.02 (April 24, 2018) Disponible en français