TB7-09715

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 : TB7-09715 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 January 8, 2018 Date de la décision Panel Pasquale Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Benjamin J Liston 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] The Appellant, XXXX XXXX XXXX, is a stateless Palestinian, and appeals a decision of the Refugee Protection Division (RPD) dated March 14, 2017, rejecting his claim for refugee protection. The Appellant is requesting a new hearing and is submitting new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find that the Appellant is either Convention refugee or a person in need of protection, or that the RAD refer the matter back to the RPD for reconsideration. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant alleges that extremists groups are threatening him in Lebanon because he witnessed a murder. He also alleges that, as a stateless Palestinian, he would face persecution if he returned to Lebanon. ROLE OF THE RAD [4] For questions of fact, mixed fact and law, and law, the RAD has applied the standard of correctness as per Huruglica.1 In assessing issues involving credibility of oral testimony, the RAD may apply the RAD's modified standard of reasonableness in those situations where the RPD enjoys a meaningful advantage in making credibility findings as per the decision in X (Re).2 [5] Accordingly, the RAD will conduct its own analysis of the Record to determine if the RPD erred. NEW EVIDENCE [6] The Appellant submitted new evidence pursuant to section 110(4) of the Act, and pursuant to rule 29. Section 110 [7] In support of his appeal, the Appellant has filed new evidence in the form of:3 a) A copy of a letter from the Palestinian Popular Committee4 b) Previous decisions of the RPD c) An affidavit by Ms. XXXX XXXX, sworn on June 1, 2017 Admissibility of Evidence Submitted on Appeal [8] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that she could not reasonably have been expected5 in the circumstances to have presented, at the time of the rejection. [9] It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellant.6 Application of Section 110(4) [10] Section 110(4) establishes a disjunctive test.7 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claim. If it was not reasonably available at that time, it meets the requirements of section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellant could reasonably have been expected, in his circumstances, to have presented the evidence to the RPD prior to the rejection of his claim. If he could not have been expected to do so, the evidence meets the requirements of the section. [11] If the evidence did not arise after the rejection of the claim, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claims, the evidence does not meet the test in section 110(4). The RAD does not have discretion to admit such evidence.8 [12] As the RAD understands it, section 110(4) provides the Appellant with an opportunity to present evidence that could not have been submitted to the RPD - either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellant could not have been expected to present it to the RPD. [13] Section 110(4) does not provide an opportunity for the Appellant to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.9 [14] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.10 Old evidence remains old evidence, even if it is placed in a new document with a recent date. Assessment of Evidence that Meets the Requirements of Section 110(4) [15] Where a document meets the test in section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, it would make little sense to admit such a document even if it meets the test in section 110(4). [16] In Singh,11 the Federal Court of Appeal held that there is no valid reason the RAD cannot apply the criteria set out in Raza12 to the assessment of new evidence. While Raza predates the introduction of section 110(4) of the IRPA, it is based on the nearly identical wording of section 113(a). In that case, the Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.13 In Singh, the Court found that the criteria from Raza are necessarily implied in the wording of section 110(4).14 [17] Where evidence meets the test in section 110(4), the RAD will go on to assess it for credibility. While this is a factor set out in Raza, there are also other reasons to apply it. Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances." This provision makes it clear that, in addition to the factors in section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [18] Relevance is a basic condition for the admissibility of any piece of evidence.15 RAD Rule 3(3)(g)(iii) requires the Appellant's Memorandum to include full and detailed submissions about how any proposed new evidence "relates to the Appellant." It would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to section 162(2) of the IRPA, which requires all divisions of the IRB to "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [19] In addition to credibility and relevance, the factors in Raza include "newness" and "materiality." Newness is implicitly incorporated into section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in section 110(6) of the IRPA, which describes when the RAD may hold an oral hearing.16 [20] For these reasons, the RAD will apply the following factors to considering the Appellant's proposed new evidence. It will first consider whether the evidence passes the test in section 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of section 110(4), the RAD will assess its credibility and relevance in order to determine whether it is admissible. Affidavit of Ms. XXXX [21] The Affidavit was sworn after the RPD rendered its decision. Ms. XXXX was the interpreter at the RPD hearing. She admits that she made an interpretation error and should have interpreted the name of the organization who had mailed him the letter as the "Palestinian Popular Committee" as opposed to the "Palestinian Popular Community". The RAD accepts that explanation. However, the issue for the RAD is not the exact name of the Committee, but whether the Appellant is being sought by the agents of persecution. The Affidavit does not provide any new evidence with respect to the core allegation and therefore the RAD will not accept it as new evidence. The Letter from the Palestinian Popular Committee [22] The letter from the Palestinian Popular Committee is dated May 29, 2017, which is after the RPD rendered its decision. However, for the reasons which are outlined in the credibility section, the RAD gives the letter no evidentiary weight and will therefore not accept is as new evidence. RPD Decisions [23] The cases submitted by the Appellant are not new evidence. However, the RAD will consider them as part of the Appellant's submissions. Rule 29 [24] After perfecting his RAD appeal, the Appellant submitted, pursuant to rule 29, the original letter referred to in his new evidence pursuant to section 110, and a copy of the Aramex courier envelope.17 [25] The RAD agrees that these documents were not readily available to the Appellant prior to perfecting his Appeal, and therefore the documents will be accepted pursuant to rule 29. However, these documents do not form any new evidence, as they only confirm the existence and delivery to the Appellant of the document submitted pursuant to section 110. REQUEST FOR AN ORAL HEARING [26] The Appellant is requesting that the RAD hold an oral hearing with respect to the new evidence. The requirement for a new hearing is outlined in section 110(6) of the Act. (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [27] The RAD has the discretion whether to hold a hearing or not. In this particular Appeal, since the RAD has determined that that the documents have no evidentiary weight and has not admitted the documents as new evidence, the request for an oral hearing is denied. The RAD is satisfied that it can determine the relevant issues without a hearing.18 ANALYSIS ON THE MERITS OF THE APPEAL [28] The Appellant provided a copy of the transcript of the RPD hearing.19 [29] The RPD concluded that the Appellant was not a credible witness, and that he would not face persecution in Lebanon due his status as a stateless Palestinian. The Appellant submits that the RPD erred in its credibility analysis, and that, in fact, he would be persecuted if he returned to Lebanon. [30] The RPD concluded that the Appellant was not credible with respect to whether he had actually witnessed the murder, and whether he was notified by his family after his arrival in Canada that he was being sought by a terrorist group. [31] The Appellant obtained a Canadian student visa on August XXXX, 2016. He alleges that, prior to his departure for Canada, on September XXXX, 2016, he witnessed a murder which took place around 11:00 pm to 12:00 am. He stated that he did not know the victim personally but, after the shooting, he read about the incident in newspaper reports. He identified the victim through the media reports. He provided copies of newspaper articles which indicate that a XXXX XXXX, a taxi driver, and a believed collaborator with the Lebanese government, was shot on the night in question. There were three individuals involved in the murder, but only one shot the victim. [32] The Appellant alleges that he had seen the individual who shot the victim on previous occasions and that he belonged to the Bilal Badr group. The RPD concluded that the Appellant was not being sought by any group in Lebanon. [33] At paragraph #12 of the RPD decision, the member concludes: "Given the circumstances as described by the claimant, the panel does not find it credible that the shooter, a dangerous and armed militant, would make eye contact with the claimant, and was in such close proximity to him, yet would leave the claimant unharmed on the day of the incident - only to then seek him out later to kill him." The Appellant argues that the conclusion of the RPD is based on an implausibility finding and should not be upheld.20 The Appellant provided the appropriate case law with respect to implausibility findings of the RPD and submits that the RPD should have provided clear reasons for its implausibility finding. [34] The question for the RAD is whether the Appellant is being sought by the agents of persecution. Even if the Appellant did witness the murder, the question still remains of whether the Bilal Badr group is looking for him. [35] The testimony of the Appellant is that the shooter made eye contact with him at the scene of the crime. Although the shooter had a gun in his hand, the Appellant was able to run away from the scene of the crime unharmed. He states that, after the incident he went into hiding at his sister's home, which is located in the same town as the refugee camp but is outside of the camp. During this time, he alleges that his father was notified by the Palestinian Popular Committee that the Appellant was being sought by Muslim extremists for being a witness to the murder. The Committee also advised the Appellant's family that the committee could not protect him. As he writes in his Basis of Claim form (BOC): "The Palestinian Popular Community advised my family in writing of my dire circumstances and we decided that I should flee Lebanon immediately, which, but for the purchase of my airline ticket, was not that difficult to do, as I had already been issued my Canadian student visa, on XXXX XXXX, 2016."21 [36] The Appellant alleges that the shooter was a member of a militant group and that this group wanted to kill him because he had witnessed the murder. Yet the Appellant was able to remain in Lebanon for more than a month and a half without receiving any written or verbal threats from the alleged militant group. The only information that he received while in Lebanon of the group wanting to kill him was from a letter addressed to his father from the Palestinian Popular Community. Yet in his oral testimony the Appellant provided evidence as to the far reaching activities of this militant group. The RPD questioned the Appellant as to whether he could move to other cities in Lebanon and be safe. RPD: So I am wondering whether you would be safe in either Tripoli or Beirut if you returned to Lebanon. Appellant: Impossible. RPD: Why?... Appellant: The person who killed was one, but there were three of them there and I am afraid of the entire group, not only one or two people. RPD: So entire Bilal Badr group? Appellant: Yes certainly and Al-Ansar faction that are affiliated with them, the same ideology. RPD: How would they know that you have in fact moved to Beirut or Tripoli? Appellant: They would know; they would be able to know. The camp is like a small village. All the news spreads very quickly. They know that I am in Canada.22 [37] If the militant group Bilal Badr, and their associates, have the ability, as the Appellant alleges in his oral testimony, to locate him in Beirut or Tripoli, they also would have the ability to locate him while he was allegedly hiding in his sister's home, located in the same town as the camp. After all, as the Appellant testified, the camp is like a small village and all the news spreads quickly. It is reasonable to expect that, if news in the camp would have spread that he had moved to Tripoli or Beirut, news would also have spread that he had moved to his sister's house. Yet, the Appellant was never directly threatened during his stay in Lebanon immediately after the murder. The only communication from the assailants was indirectly from the Palestinian Popular Community. Based on these credibility findings, the RAD concludes that the Appellant is not being sought by militant militia groups in Lebanon. [38] Furthermore, the Appellant stated in his oral testimony, that a month after his arrival in Canada, his father had informed him that he had received a telephone call from an individual saying that the Appellant was lucky that he was in Canada and that if the Appellant discussed the murder with anyone, he would be finished. The RPD pointed out to the Appellant that he had submitted his BOC in January of 2017 and that this information had not been included in his written narrative. The Appellant acknowledged that the information was not in his BOC and that this is just one of the details of his main allegation. [39] His counsel pointed out to the Appellant that he had written in his BOC that his family was still in danger and asked him if that statement referred to the telephone call. The RAD has had an opportunity to read the portion of the transcript where counsel questioned the Appellant on this point.23 The RAD notes that counsel had to ask the Appellant on more than one occasion to clarify what he meant that his family was still in danger. It was only after repeated leading questions by counsel that the Appellant stated that the statement in his BOC had included the fact that he had received the telephone call after his arrival in Canada. [40] The fact that the Appellant received a telephone call from his family advising him that his life was in danger if he were to return to Lebanon is a major and important element of the Appellant's allegations. As the Federal Court has stated: "... the contradictions in the applicant's evidence were not peripheral, but were directed to important aspects of the applicant's narrative. It is common and completely proper for the Board to compare a claimant's evidence from the Port of Entry, PIF, and oral testimony."24 The new information in the Appellant's oral testimony amounts to omissions regarding significant aspects that go directly to the heart of the Appellant's claim.25 It is reasonable to expect the Appellant to have remembered this fact when writing his narrative in the BOC. The Appellant provided no reasonable explanation for this omission. The RAD concludes that the Appellant did not receive a telephone call from his family after his arrival in Canada advising him that his life is in danger in Lebanon. [41] Given these credibility findings, the RAD agrees with the conclusion of the RPD that the Appellant is not a credible witness and that he is not being sought in Lebanon by militant militia groups. DOCUMENTARY EVIDENCE [42] The Appellant submitted to the RPD, and as new evidence to the RAD, documentary evidence from the Palestinian Popular Committee which state that the Appellant's life is in danger if he were to return to Lebanon. The RPD gave no weight to the letter which had been submitted to it because the letter head of the letter gave the name of the organization as the Palestinian Popular Community, as opposed to its proper title of Palestinian Popular Committee. In his new evidence, the Appellant submitted a letter from the organization which states that the mistake in the title name was computer generated. [43] However, given the fact that the RAD has concluded that the Appellant is not a credible witness, the RAD gives these documents, including the new evidence, no evidentiary weight and concludes that they were submitted in order to bolster the refugee claim of the Appellant. [44] As the Federal Court has stated on a number of occasions, a negative credibility finding by the Board may have a negative finding on documentary evidence. In the Granada decision the court stated: Moreover, an applicant's lack of credibility may affect the weight given to documentary evidence and in appropriate circumstances may allow the Refugee Division to discount that evidence. Refugee status does not exist at large, and the applicants must credibly establish that the agents of persecution are targeting them personally (Songue v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1020 (F.C.T.D.) (QL); Hossain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 160 (F.C.T.D.) (QL); Nasim v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1199, [2003] F.C.J. No. 1624 (F.C.T.D.) (QL); Waheed v. Canada (Minister of Citizenship and Immigration), 2003 FCT 329, [2003] F.C.J. No. 466 (F.C.T.D.) (QL)). 26 [45] In the Huang decision, the court concurred with the conclusion in Grenada and stated: This Court has held that an applicant's overall credibility may affect the weight given to the documentary evidence (Granada v Canada (Minister of Citizenship and Immigration), 2004 FC 1766, 136 ACWS (3d) 123 at para 13). Furthermore, this Court has gone so far as to hold that where the Board has concluded that the Applicant's claim, including facts to which personal documents refer, is not credible on the whole, it is not an error to fail to explain why the documents which purport to substantiate allegations found not to be credible are not given any weight (Ahmad v Canada (Minister of Citizenship and Immigration), 2003 FCT 471, 122 ACWS (3d) 533 at para 26; Hamid vCanada (Minister of Employment and Immigration) (1995), 58 ACWS (3d) 469 (FCTD) at para 21).27 STATELESS PALESTINIAN [46] The UNHCR handbook states: It will be noted that not all stateless persons are refugees. They must be outside the country of their former habitual residence for the reasons indicated in the definition. Where these reasons do not exist, the stateless person is not a refugee.28 [47] The law with respect to stateless refugee claimant was established by the Federal Court of Appeal in Thabet.29 The Appellant Court stated: In order to be found to be a Convention refugee, a stateless person must show that, on a balance of probabilities he or she would suffer persecution in any country of former habitual residence, and that he or she cannot return to any of his or her other countries of former habitual residence.30 [48] The RPD found that the Appellant had failed to demonstrate that he has an objective fear of persecution in Lebanon. After canvassing the documentary evidence, the RPD concluded that Palestinians are being discriminated against in Lebanon. The RAD does acknowledge that the documentary evidence indicates that the lives of Palestinians in Lebanon are not without difficulties, and at times, they even face discrimination. However, the RPD concluded that the Appellant has failed to provide any evidence that he has been persecuted or will face persecution if he returns to Lebanon on account of his Palestinian nationality. The RAD agrees with this conclusion. The RAD notes that the Appellant did not challenge this finding of fact and law of the RPD. The RAD notes that the Appellant was born in Lebanon and lived all of his life in the refugee camp without suffering any form of persecution and that his family members did not in the past, nor those living in Lebanon presently, have suffered any persecution. [49] The RAD agrees with the conclusion of the RPD that the Appellant would not face a serious possibility of persecution nor a risk to his life due to his Palestinian nationality. RPD Decisions [50] The Appellant submitted a number of decisions which were favourable to stateless Palestinians. Each refugee claim must be determined on its own merits and specific facts. The RAD is not bound by any previous decisions of the RPD. CONCLUSION [51] The RAD concludes that the Appellant is not a credible witness with respect to his allegation concerning the extremist group, and that he would not face persecution nor a risk to his life due to his Palestinian nationality if he were to return to Lebanon. DECISION [52] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. [53] The Appeal is dismissed. (signed) "Pasquale Fiorino" Pasquale Fiorino January 8, 2018 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 X (Re), 2017 CanLII 33034 (CA IRB). 3 Exhibit P-2, Appellant's Record, pp. 66-102. 4 Exhibit P-2, Appellant's Record, p. 70. 5 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para 51. 6 Refugee Appeal Division Rules, section 3(3)(g)(iii). 7 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, July 22, 2015, 2015 FC 895, para. 19. 8 Deri, Samuel v. M.C.I. (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 55; Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 63. 9 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 54 10 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, para. 16. 11 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 64. 12 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 13 Ibid., Raza, paras. 13-15. 14 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 64. 15 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 45. Also: "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence:" Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, loose-leaf ed. (Toronto: Carswell, 2004) at17-6.12; Re Bortolloti and Ministery of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33 at para. 64. 16 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 48. 17 Exhibit P-3, Rule 29 Submissions. 18 Sow, Djeneba v. M.C.I. (F.C., no. IMM-3557-15), Heneghan, May 26, 2016, 2016 FC 584, at para. 34. 19 Exhibit P-2, Appellant's Record, pp. 16-64. 20 Exhibit P-2, Appellant's Record, pp. 114-118. 21 Exhibit RPD-1, RPD's Record, p. 28. 22 Exhibit P-2, Appellant's Record, pp. 40-41. 23 Exhibit P-2, Appellant's Record, pp. 60-61. 24 Napoleon, Christiana Abiodun v. M.C.I. (F.C., no. IMM-6502-10), Zinn, July 5, 2011, 2011 FC 822, at para. 30. 25 Kroka, Miroslav v. M.C.I. (F.C., no. IMM-6199-11), Boivin, June 11, 2012, 2012 FC 728, at para.17. 26 Granada, Armando Ramirez v. M.C.I. (F.C., no. IMM-83-04), Martineau, December 21, 2004, 2004 FC 1766, at para. 13. 27 Huang, Suishan v. M.C.I. (F.C., no. IMM-1972-10), Near, March 10, 2011, 2011 FC 288, at para. 22. 28 UNHCR Handbook, para. 101. 29 Thabet, Marwan Youssef v. M.C.I. (F.C.A., no. A-20-96), Linden, McDonald, Henry, May 11, 1998. Reported: Thabet v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 21 (C.A.); (1998), 48 Imm. L.R. (2d) 195 (F.C.A.) 30 Ibid., at para. 30. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-09715