TB5-01541

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 : TB5-01541 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 April 29, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Clarence Fenton 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, a citizen of the Ukraine, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted any new evidence in support of his appeal;1 nevertheless, he is requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. He is asking the RAD to substitute a positive determination, or in the alternative, refer the matter back to the RPD for re-determination with a newly-constituted panel. [2] The RAD denies the Appellant's request for an oral hearing, as he has not submitted new evidence pursuant to ss 110(4) of IRPA. DETERMINATION [3] Pursuant to ss. 111(1)(a) of IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. Background: [4] The Appellant fears the government and the separatists/rebels who want to conscript him in the current war in the Ukraine. He also fears being labeled as a deserter, and, as such, he believes that he will be jailed or harmed. ROLE OF THE RAD [5] The RAD has taken guidance from the Federal Court in Huruglica,2 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." [6] 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 Alyafi3 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.4 MINISTER'S INTERVENTION AT THE RPD [7] The Minister intervened at the RPD hearing pursuant to paragraph 170(e) of the IRPA and pursuant to Section 29 of the Refugee Protection Division Rules. [8] The Minister submitted that the Ukraine enlists men between the ages of 18 and 26, which would disqualify the Appellant, who was born in 1970. [9] The Minister submitted that the Appellant's family resides in XXXX, Ukraine, whereas the current conflict is in Crimea, approximately XXXX kilometres away. [10] The Minister submitted that the Appellant failed to disclose that, in XXXX 2013, he presented a fraudulent job offer from Saskatchewan when applying for a work permit through the provincial nominee program. Moreover, it is submitted that he failed to respond to a procedural fairness letter in this regard. As a result, the Minister argued that the Appellant was refused and is inadmissible for a period of two years. [11] According to the visa application dated XXXX XXXX 2012 in Buffalo, the Appellant served in the Soviet Army from XXXX 1988 until XXXX 1990; a fact that he neglected to disclose on Schedule A of his refugee application. [12] In light of the foregoing, the Minister submitted to the RPD that there are serious credibility concerns. RPD'S DECISION [13] In its oral decision, the RPD found the Appellant not to be credible based on inconsistencies, which led to a conclusion by the RPD that he was not being sought by the government or government officials in Ukraine. The RPD further considered the issue of conscription and found that, since the Appellant is 45 years of age, he would not be conscripted. SUBMISSIONS BY COUNSEL: [14] Did the RPD err in its credibility findings? [15] Did the RPD impose a higher standard of proof on the Appellant by requiring proof that he would be persecuted as opposed to the proper test which requires only a "reasonable chance or more than a mere possibility" of protection?5 Date when members from the government village office came to the Appellant's home [16] The Appellant testified that members from the government village office had come to his home in XXXX 2014, however the RPD confronted the Appellant with this date in light of the fact that this event was included in the Appellant's Basis of Claim form (BOC), which was signed in August 2014. The Appellant provided a response that the Maiden Revolution started last year, however, when counsel asked him the same question, he responded that it was XXXX 2014 and not XXXX 2014. The RPD rejected the Appellant's response in light of the fact that this alleged incident, according to his initial testimony, occurred after he made his refugee claim. The RPD also noted that the Appellant had testified that the separatists were in pursuit, and when asked about the timing of this occurrence, he responded that it occurred about two to three weeks ago. The RPD noted again that this allegedly occurred well after the Appellant had signed his BOC, which included a reference to the separatists' pursuit, in August 2014. The Appellant was confronted with this inconsistency, however his response did not address the contradiction. In light of the foregoing, the RPD found that the Appellant was not, in fact, being sought by separatists or the government or government officials. [17] The Appellant submits that the RPD imposed a higher standard of proof than is required. Specifically, the Appellant submits that he made an error initially when he stated XXXX instead of XXXX 2014, the date on which the government and the rebels came to his home to inquire about his whereabouts. The Appellant further argues that the RPD erred when it did not accept his answer that the separatists came to his home two weeks ago. In totality, the Appellant submits that the RPD confused him by asking the same questions in a different manner. [18] After a review of the transcript of the proceedings, the RAD concurs with the RPD's findings. The RAD finds that the RPD did not err in rejecting the Appellant's explanation that he made a simple mistake in giving the XXXX 2014 date. Moreover, it found the Appellant to be evasive when responding to the foregoing questions. The RAD further finds that the Appellant's line of questioning was not confusing; it merely afforded the Appellant the opportunity for clarification. Furthermore, the RAD finds that the Appellant failed to provide any detail whatsoever of the alleged pursuit, i.e. dates, etc. In totality, the RAD finds that the Appellant failed to provide sufficient credible and trustworthy evidence, that he was being pursued by either the government or the separatists. The RAD finds that the RPD did not apply the wrong test and that, under Adjei,6 the Appellant's credibility problems mean that he has failed to establish that there is a reasonable chance he would face the persecution alleged. Fear of Conscription by the Government: [19] The Appellant fears conscription by the government, and in this regard he testified that the government had come to his home on two occasions and they call his wife two to three times per week. According to the Appellant, these individuals believe that he is participating in military action on the side of the separatists and they want to conscript the Appellant to fight in the war, as he has previous experience in the Russian military. [20] The Appellant further fears that he will be arrested if he returns for failing to respond to the government. However, he did acknowledge that there was no documentation left at his home in this regard. The RPD noted the article in Exhibit M-1, in which it states that the renewal of the military conscription affects only men 18 to 25 years of age. However, when confronted with this, the Appellant alleged that the President has issued an order to start a fourth stage of conscription for people under the age of 45. When asked the source of this information, the Appellant could only say that he heard it in the news. The Appellant was asked if he had attempted to obtain evidence to substantiate this assertion, and his reply was "how can I"? He alleged that this information would be available only through the military office. The RPD rejected this explanation in the absence of evidence to the contrary, given the information contained in the Minister's documentation.7 [21] On the basis of the Appellant's testimony versus the objective evidence, the RPD concluded, on a balance of probabilities, that there was insufficient persuasive evidence to consider that the Appellant fears conscription and persecution for being labelled a deserter and, therefore, he would not be jailed or harmed. However, the RAD finds that the RPD did not make this finding in isolation. It came to this conclusion in conjunction with the findings that the Appellant was not wanted by the government or the separatists. [22] The RPD, before reaching its conclusion, also considered the corroborative evidence, i.e. the letter from the Appellant's wife attesting to the situation in the Ukraine, and accorded it little weight for two reasons. Firstly, the information, with respect to the Appellant's allegations, was brief and lacking in detail, and, secondly, in light of the credibility findings, it found that this letter would not overcome the findings by the RPD with respect to the Appellant's credibility. [23] The Appellant submits that the RPD ought not to have expected documentation to prove that he was being sought by the government for the "crime of abandonment". Moreover, he submits that the RPD erred when not considering the fact that having served in the military from 1988 until 1990, the age factor was not a consideration in future conscription. In general, the Appellant submits that one cannot believe anything that the Ukrainian government or the separatist rebels do as they are blaming each other. [24] With respect to the lack of documentation to support a conscription, by the Appellant's own acknowledgment, no officials had left a conscription notice upon which they were demanding action on the part of the Appellant. The RAD finds the Appellant's assertion that, at the age of 44, he is required to serve in the military has no evidentiary basis. The only evidence that the Appellant could provide was that he heard "in the news" that there was a fourth stage of conscription, an edict handed down by the President. If such were the case, the RAD concurs with the RPD that this information would have been available to submit to the RPD. Furthermore, a review of the proceedings reveals that the Appellant espouses that he is a peaceful man, opposed to war, and yet served in the military from 1988 until 1990 without any apparent hesitation. The onus is on the Appellant to provide corroborative evidence and, since this is the basis of the Appellant's claim, the RAD finds that this evidence is significant. [25] Corroborating evidence is not always necessary to establish the applicant's subjective fear. The RPD, however, determined that, in the particular circumstances of this case, corroborating evidence of persecution was necessary, in light of the credibility concerns. [26] Rule 11 indicates that claimants must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them. The BOC form also indicates that the refugee claimant is "responsible for obtaining and providing to the IRB any documents that may support your claim." [27] The RAD finds that there was no evidence of any attempt on the part of the Appellant to obtain any documentation, nor any reasonable explanation for this lack of corroborative evidence. [28] In the particular circumstances of this claim, given the credibility findings, the RAD finds that it was incumbent upon the Appellant to provide some corroborative evidence. The RAD finds that this is particularly noteworthy, given that the Appellant's testimony, with respect to the issue of "conscription", contradicted the objective evidence before the RPD. [29] After conducting an independent assessment of the entire record, the RAD finds that the Appellant has failed to provide sufficient credible or trustworthy evidence to support his assertion that he is wanted by the government authorities either for conscription or for having failed to obey an order, which has not been mandated in writing. [30] Accordingly, the RAD finds that the Appellant is not a Convention refugee or a person in need of protection. 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 April 29, 2015 Date 1 Appellant has said he is submitting new evidence; however, he has, in fact, not done so 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 3 Alyafi, Aghiad v. M.C.I. (F.C. No. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952 4 Supra, footnote 1 5 Adjei v. Canada (Minister of Employment and Immigration) 1989) 2 FC 680; 1989 57 D.L.G. (4th)153 (CA). 6 Supra, footnote 5 7 Exhibit M-1 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-01541