MB6-00813

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. / No de dossier de la SAR : MB6-00813 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX Appelant(e)(s) Appeal Considered/Heard at Montréal, Quebec Appel instruit à Date of Decision October 17, 2016 Date de la décision Panel Roxanne Cyr Tribunal Counsel for the Appellant(s) Dorin Cosescu Conseil(s) du (de la / des) appelant(e)(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX, a citizen of Lebanon, is filing an appeal against the decision of the Refugee Protection Division (RPD), which rejected his refugee protection claim. [2] He is not submitting new evidence, nor is he requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. BACKGROUND [4] The appellant, a Sunni Muslim, was allegedly married to an internationally renowned XXXX XXXX, XXXX, from 2004 to 2009. The marriage ended in a divorce-the appellant allegedly found out that XXXX had had a secret affair with a Lebanese politician named XXXX XXXX. The appellant, however, allegedly returned to XXXX afterward but they never remarried. They have a daughter. [5] The appellant fears being killed by XXXX XXXX should he return to Lebanon. The latter allegedly called XXXX in 2011, while the couple was in Canada. He allegedly threatened her, along with the appellant, their daughter and another daughter of XXXX (who remained in Lebanon). In fact, XXXX allegedly found out that some compromising photographs of their affair were soon going to be published in the media. He blamed XXXX for this indiscretion. During that call, XXXX also allegedly threatened XXXX that he would reveal that she had converted to Christianity. She, who had been married three times, had converted at the time of her second marriage, as her second husband was Christian. [6] Following that call, the appellant allegedly broke up with XXXX again. He allegedly continued to live in Canada with a visitor's visa that was still valid. In XXXX 2011, he allegedly met a woman whom he married in XXXX of that same year. She allegedly took steps to sponsor the appellant. However, the relationship apparently ended and the sponsorship was abandoned in 2012. The appellant allegedly continued to live in Canada without legal status. [7] In XXXX 2015, the appellant apparently resumed his relationship with XXXX. She had obtained permanent resident status in Canada-she and their daughter had been admitted as refugees. Her daughter who remained in Lebanon was allegedly attacked by XXXX. [8] The appellant also fears for his life in Lebanon at the hands of the Islamic State of Iraq and the Levant (ISIS) group because he is Sunni, he was married to a Christian and his wife is a XXXX XXXX. [9] The appellant claimed refugee protection in Canada in August 2015 following his arrest by the Toronto police. RPD DECISION [10] The RPD rendered an unfavourable decision, finding that the appellant was not credible for the following reasons: - The appellant waited four years before claiming refugee protection in Canada, whereas he has had no legal status since 2012. - The appellant did not write in his Basis of Claim Form (BOC Form) that his driver had recently been threatened in relation to him and that his friends had been attacked, about which he testified at the RPD hearing. The appellant did not present any corroborative evidence about his friends who were allegedly beaten, attacked or threatened. The RPD drew a negative inference and did not believe that his friends had been threatened or beaten since the appellant left for Canada. - The RPD also did not believe that the appellant's driver had been threatened and kidnapped in relation to the appellant, four years after he left the country. He submitted corroborative evidence from the driver that consists of an email. The RPD did not grant probative value to the email because nothing is known about the author (no identity document submitted for the author) and the email address does not identify who he is. In addition, no corroborative evidence of a complaint to the police was submitted by the appellant regarding attacks on the driver or his friends in relation to him. The documentary evidence indicates, however, that complaints may be made under the Lebanese criminal code. For these reasons, the RPD did not believe that the driver had been threatened or attacked or that this had also happened to friends. - No evidence on the record indicates that photographs were sent to the media concerning an affair between XXXX and XXXX or that he was impacted in any way by this possibility of a scandal. The appellant also did not submit corroborative evidence of threats allegedly uttered against him by XXXX. In light of the above, the RPD found that the appellant had not established the allegations in support of his refugee protection claim, neither under section 96 nor subsection 97(1) of the IRPA. - The RPD also found, in light of the documentation and the fact that the appellant had not credibly established that threats had been uttered against him, be it directly or indirectly, that the appellant had not established that he faced more than a mere possibility of persecution by reason of his wife's conversion to Christianity or the fact that she is a XXXX XXXX. - The RPD found that, in light of the documentary evidence, should the appellant return to Lebanon, he would face a generalized risk because crime exists in the country and the Syrian conflict is also negatively impacting Lebanon. The RPD concluded that the appellant does not face a personalized risk. APPELLANT'S MEMORANDUM [11] The appellant submits that the RPD erred in its credibility assessment. He states that his wife and daughter were admitted as refugees by the RPD. The RPD does not doubt the allegations of threats toward the appellant and his wife, but it finds that the appellant's reasons for claiming refugee protection are not credible. The RPD erred in this regard. [12] The documentary evidence corroborates some of the appellant's allegations, and the RPD failed to consider this. [13] In addition, the appellant submits that the RPD erred and did not apply the correct criteria-according to him, he is a "refugee sur place" and the RPD failed to analyze his refugee protection claim from this perspective. The RPD therefore erred because the criteria and review are different for the refugee protection claim of a refugee sur place: the appellant submits that he [translation] "became a refugee because of the situation that has existed in his country since he left," and the concept of "refugee sur place" requires an assessment of the situation that has existed in the claimant's country of origin since he left the country.... [Translation] "The Board's failure to consider the argument that he is a 'refugee sur place' constitutes an error in law." In the appellant's opinion, although the RPD finds him not credible, the fact that his ex-wife was admitted as a refugee based on common threats should result in his being admitted as well. It is unreasonable for the RPD to have concluded otherwise. [14] The RPD wrongly assessed the evidence with respect to the risk faced by the appellant as a result of his marriage to a Christian XXXX XXXX. [15] The RPD erred by concluding that, should the appellant return to his country, he would face a generalized risk. According to the evidence, this risk is personalized. THE RAD'S ROLE [16] The RAD is a tribunal that hears appeals against RPD decisions. [17] Federal Court decisions have established that the RAD is "a specialized (if not overspecialized) tribunal" see Alvarez,1 a hybrid appeal, according to recent case law. The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have." [18] The Federal Court of Appeal recently ruled in Huruglica (2016 FCA 93) (paragraph 70) that the RPD may, on issues of credibility, enjoy an advantage, having heard the testimony. [70] This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [19] In its analysis, the RAD must conclude whether the RPD enjoyed an advantage given that it heard the testimony and, if so, what degree of deference should be owed to it on this issue. [20] Paragraph 103 of Huruglica (2016 FCA 93) states the standard of review to be applied by the RAD: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [21] Thus, the RAD should apply the correctness standard of review except when the finding examined concerns an issue of the credibility of testimony, to which the RAD is of the opinion that it must show deference. [22] The RAD will consider all the evidence in its analysis, including the testimony, and make its own analysis of the evidence. It will determine whether the RPD decision contains errors in fact, in law or in mixed fact and law, and whether they are determinative to the outcome of this case and are such that the decision may not stand. [23] The RAD will intervene in compliance with subsections 111(1) and 111(2) of the IRPA, as needed. ANALYSIS [24] The RAD considered all the evidence in its analysis, including the appellant's testimony. [25] The RAD is of the opinion that, in terms of credibility based on testimony, it owes deference to the RPD because the RPD saw and heard the appellant. Fear of XXXX XXXX [26] The appellant fears being killed by XXXX XXXX XXXX former lover. He fears him because, in 2011, XXXX allegedly called XXXX in Canada and threatened her, her children and the appellant, all because XXXX allegedly had learned that their relationship was going to be made public, and he held XXXX responsible for this media leak. [27] With good reason, the RPD pointed out that nothing in the evidence establishes that the media had actually revealed this affair. No document was presented to this effect. This undermines the appellant's allegations and his fear. The RPD did not err by finding that the appellant had not established, on a balance of probabilities, that he was at risk from XXXX. In other words, there is no support for these allegations of a fear of being killed by him because everything is based on the fact that there was allegedly a media leak, and there is no corroborative evidence to this effect. The RPD did not err on this issue. No documents were submitted by the appellant concerning XXXX record, be it the positive decision or evidence that was allegedly submitted in her record. [28] In addition, the RPD drew a negative inference from the fact that the appellant waited from 2011 to when the threats were allegedly uttered in XXXX 2015 before claiming refugee protection, when he was in Canada the entire time and his status had expired as of 2012. The RAD is of the opinion that this undermines the appellant's credibility significantly and that he did not provide a satisfactory explanation about this. In fact, the appellant stated that it was because he had taken steps to be sponsored, thanks to his new wife, that he had not claimed refugee protection. This is not satisfactory, since the steps ended in 2012, after the couple separated. The RPD drew a negative inference from this delay in claiming refugee protection. The RAD is of the same opinion. If the appellant had really feared for his life since 2011, at the hands of XXXX, he would not have waited until 2015, when he was arrested, to claim refugee protection. His credibility is seriously undermined. The RPD did not err. [29] The RPD also drew a negative inference from the appellant's allegation of events that occurred after 2011. The RPD did not believe them. [30] It did not believe that the driver was threatened, because it was the appellant who was wanted. The appellant did not write it in his BOC Form and did not give any explanation about this omission. In addition, the appellant provided, as corroborative evidence, an email allegedly from the driver. With good reason, the RPD found that this document was not probative. This document contains an email address that is not the driver's name, and there is no identity document accompanying this email to establish that this person exists. The RPD did not err by declining to grant any probative value to this document and by drawing a negative inference from this incident. [31] The same may be said regarding the appellant's friends. He stated in the hearing room that they had been approached and threatened since the appellant's departure, until just recently, because he was wanted in Lebanon. The RPD drew a negative inference regarding this incident because the appellant never mentioned it in his BOC Form, and he submitted no corroborative evidence such as a complaint to the police. [32] The RAD agrees with this analysis. If the appellant had really known that friends were threatened, because he was wanted in Lebanon, the RAD is of the opinion that this would have been indicated in his BOC Form, in addition to the fact that they are recent events, not events that occurred a long time ago, and it would have been logical and consistent that the incidents be indicated in the appellant's BOC Form. The fact that the appellant did not submit any corroborative evidence in support of these incidents further undermines his credibility. The RPD did not err and made the correct analysis. [33] The appellant submits that, since the RPD had previously admitted XXXX (around 2013) and their daughter, on the basis of the same facts, the RPD erred by failing to admit the appellant. In addition, the appellant submits that although the RPD did not find the appellant credible, it should have admitted him because XXXX and their daughter had been admitted. [34] The RAD disagrees with this reasoning. Each case is unique. Each case must be assessed based on credibility and the individual's profile. In this file, as a result of numerous factors that were highlighted, the appellant was found not to be credible with respect to the factors that he alleges in support of his refugee protection claim, in particular, his more than four-year delay in claiming refugee protection. The appellant's profile is not the same as XXXX. In his case, he failed to establish the allegations in support of his refugee protection claim. The RPD did not err. Therefore, given that no evidence was submitted aside from XXXX BOC Form, the RAD must decide based on the evidence before it. The RPD did not err. Refugee sur place [35] The appellant argues that the RPD made an error in law because it failed to analyze his refugee protection claim as a "refugee sur place". [36] In short, a "refugee sur place" is a person who is claiming refugee protection, has left the country and is in the host country, and is seeking protection by reason of incidents that put them at risk and have occurred since they left. The RAD is of the opinion that these incidents were analyzed by the RPD, and the appellant was not found to be credible. The RPD did not err. Fear because XXXX is Christian and a XXXX XXXX [37] According to his allegations, the appellant fears ISIS because he was allegedly married to XXXX, who converted to Christianity and is a XXXX XXXX. They got divorced and did not remarry, according to the evidence, although they did get back together. They have a daughter. The appellant alleges a fear of ISIS, although there is no evidence on the record that this group wants to attack him personally, should he return to Lebanon. [38] The evidence on the country conditions, in light of the fear alleged, was analyzed exhaustively by the RPD. The RAD notes that the documentation (see Tab 7 of the National Documentation Package on Lebanon) establishes the particular political conditions in Lebanon and the fact that it is enshrined in the Constitution that Christians and Muslims must, alternately, share the power. It is a constitutional protection unique in the world. The documentation indicates that the various religious groups are generally respected. Isolated incidents have been reported in certain regions of tension between Muslims and Christians. However, in general, there is no persecution or ill-treatment toward Muslims, extremists or Christians. [39] In this context, the RAD is of the opinion that the appellant failed to establish that there are serious reasons for considering that he would be at risk under section 96 or within the meaning of paragraph 97(1)(b), on a balance of probabilities. Generalized risk [40] According to the appellant, the RPD incorrectly concluded that he would face a generalized risk, because he established that his risk was personalized. The RAD is of the opinion that the appellant failed to establish the allegations in support of his refugee protection claim. The RAD is of the opinion that paragraph 25 of the RPD decision is superfluous and irrelevant. The appellant did not allege on his BOC Form that he feared criminality and the RPD did not have to conclude that his risk was generalized. However, this conclusion has no impact on the previous paragraphs and the RPD analysis. [41] The RPD rendered the correct decision. REMEDY [42] For these reasons, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [43] His appeal is dismissed. Roxane Cyr Roxane Cyr October 17, 2016 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; para. 28. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR :MB6-00813 9 RAD.25.02 (April 9, 2013) Disponible en français