TB9-35398

RAD File / Dossier de la SAR : TB9-35398 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 5, 2021 Date de la décision Panel M. Oh Tribunal Counsel for the person who is the subject of the appeal Lisa Winter-Card Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX ("the Appellant") is a citizen of the Republic of the Sudan, who fears persecution due to his political opinions. The Refugee Protection Division ("RPD") rejected his claim. It found that his evidence was not credible. The Appellant disputes the decision. He argues that the RPD erred in its credibility findings and that the RPD failed to correctly assess the risks arising from his political activity in North America. [2] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act ("IRPA"),1 the appeal is allowed. Though I agree with some of the RPD's credibility findings, I am unable to agree with the RPD's factual determination on the key question of the genuineness of the Appellant's profile as a political activist who has attended protests against the Sudanese government in the United States and Canada. The Refugee Appeal Division ("RAD") therefore sets aside the RPD's negative decision and refers this matter to the RPD for redetermination before a differently constituted panel. BACKGROUND [3] The Appellant was born in Sudan in 1958. He claims that he became politically active in high school. He took an interest in the Republican Brotherhood Party, which he joined in 1974. In Sudan, the Appellant was twice detained while attending protests. After the leader of the Republican Brotherhood was executed, the Appellant ceased his activities in Sudan. He left Sudan in 1988, and relocated to the United States, where he lived as an undocumented migrant. [4] In 1989, the military coup led by Omar al-Bashir took place in Sudan. The Appellant was at first indifferent to these events and for many years he did not participate in any political activities nor did he follow politics in Sudan. Around 1994, the Appellant became concerned about his lack of immigration status in the United States. He applied for asylum. However, after meeting his wife, who is an American citizen, the Appellant withdrew his claim, in anticipation that his wife would sponsor him. The relationship soon fell apart, and the Appellant was again left without status. Finally, in 2003, the Appellant applied for Temporary Protected Status ("TPS"), which was granted. [5] In or around 2013, the Appellant allegedly began to attend political protests in the United States, after learning about the atrocities occurring in the Darfur region. The protests took place in Washington and New York. The Appellant also claims he became active in criticizing the Sudanese government over social media. However, in 2017, the Appellant learned that TPS would be ending for Sudanese nationals as of November 2018. The Appellant therefore crossed the border into Canada on XXXX XXXX, 2018 and initiated a claim for refugee protection. [6] The RPD heard the Appellant's claim on July 25, 2019. On November 20, 2019, the panel issued its decision, denying the claim on the basis of credibility and subjective fear. The RPD found that the Appellant did not have a subjective fear of persecution at the time he left Sudan in 1988 or during his initial years in the United States. He came to the United States only for a visit, contemplating a possible return to Sudan, and he did not seek asylum until years later, in 1994. [7] As for the Appellant's profile as a political activist, the RPD rejected the Appellant's testimony as vague and unsupported. His claims about being an activist on social media were uncorroborated despite the relative ease by which his online posts might have been accessed. His explanations for his lack of evidence were evolving and unconvincing. A support letter from an activist in the United States was also rejected, as the RPD found it was not credible that the Appellant would be completely unaware of the friend's role in a Sudanese human rights organization that was allegedly founded by this friend. Though the RPD believed the Appellant was generally lacking in credibility, the panel did not doubt that the Appellant had attended a protest in Canada. However, there was insufficient evidence to indicate that this attendance alone would result in a serious possibility of persecution for the Appellant in Sudan. Role of the Refugee Appeal Division [8] The jurisprudence establishes that the Refugee Appeal Division ("RAD") is required to undertake an independent assessment of the evidence and reach its own determination. Deference is owed to the RPD only where the RPD held a meaningful advantage in assessing evidence.2 I see no reason, in the present case, to show deference to the RPD's findings. I have therefore applied a correctness standard throughout this decision. ANALYSIS [9] The determinative issue in this appeal is whether the RPD erred in its credibility findings. [10] The Appellant has not challenged the RPD's subjective fear analysis. I have reviewed the evidence and agree entirely with the RPD's assessment. The Appellant had no subjective fear of persecution at the time he arrived in the United States in 1988, nor did he have such a fear in the first few years of his residence in the country. The Appellant's arguments relate to his sur place claim, based on the Appellant's alleged political activities since 2013. [11] I agree with much of the RPD's analysis. The RPD correctly determined that the Appellant was not actively or publicly posting politically-sensitive content over social media. I also agree with the RPD's residual analysis about the likelihood of persecution in Sudan on the basis of his attendance at a protest in Canada. However, I cannot agree with the RPD's determination about the genuineness of the Appellant's profile as a political activist, including whether he engaged in various political activities during his time in the United States. This is a key factual question that must be determined, and I allow the appeal on this basis. The Appellant's activism over social media [12] In his Basis of Claim form, the Appellant alleged he became active on social media during his time in the United States. He states he was publicly critical of the Sudanese government online. The RPD found that the Appellant's evidence lacked credibility, and I agree with this aspect of the assessment. [13] Despite alleging that he actively posted critical content on Facebook, Whatsapp, and Imo, the Appellant was unable to provide corroboration of his activities. The RPD correctly rejected his explanation for this. I have reviewed the record and find that the Appellant provided inconsistent and evolving testimony on this matter. The Appellant at first claimed that he did not have access to his Facebook posts because he had changed his phone. This made little sense to the RPD, since access to his Facebook account would not have been limited to a single phone, but likely also linked to an email address. When this was pointed out to the Appellant, he then added that he had forgotten his email address. This soon changed to another explanation, about how he believed that he had to make a new email because he had obtained a new phone number. He later also alleged that he had forgotten his Facebook password. [14] The Appellant argues that he is not technologically savvy, but that this does not mean it was impossible for him to post statements on social media that were critical of the Sudanese government. While I agree with this, the argument does not address the inconsistent and evolving nature of the Appellant's testimony on this issue. In addition, none of these explanations account for why the Appellant was unable to corroborate his Facebook posts. The Appellant testified that he posted on a particular Facebook group, and that a person could simply join the group and view his posts. If that were the case, the Appellant need only have asked someone to join the Facebook group on his behalf, and print the relevant material that was posted by him. The Appellant retained counsel and completed his Basis of Claim form in XXXX 2018. He had about ten months between that time and his RPD hearing to gather evidence about his social media activities. That he could not do this, while represented by counsel, is not reasonable. [15] The only evidence about the Appellant's online activities was a print-out of several Whatsapp messages, where the Appellant shared some news stories to a private Whatsapp group,3 which the Appellant testified was used by a Sudanese group in Albany. At most, this establishes that the Appellant was following the news in Sudan, and privately sharing some stories, such as one about Omar al-Bashir's referral for a criminal trial. Notably, when questioned about why there was no other corroboration of his Whatsapp activities, the Appellant claimed that he used to immediately delete all his comments after sending them on Whatsapp. He explained that he used to delete copies of his comments in order to save space on his phone. I find this explanation to be equally nonsensical, and it, again, does not explain why others in the private group could not have provided the Appellant with a history of their chats. [16] I am in complete agreement with the RPD on the question of the Appellant's social media activity. His explanations were inconsistent, evolving, and incoherent. Based on the evidence before me, I determine that the Appellant was not active in posting content critical of the Sudanese government over social media. These facts have not been established. The Appellant's history as a political activist [17] While the above issue is troubling, it is not sufficient to sustain a general finding of a lack of credibility. This is significant in this case, as I cannot agree with the RPD's other credibility findings. [18] The RPD found it unbelievable that the Appellant would have been unaware of the situation in Darfur at the time it was happening. Although the conflict began in 2003, the Appellant did not learn about it until 2012. It is at that point that he allegedly took a renewed interest in political activism and began to attend protests in 2013 and 2014. The RPD found that the Appellant's lack of knowledge about the situation in Darfur was inconsistent with his claim of being a political activist with an anti-government political opinion. [19] I too find it exceedingly unlikely that the Appellant would have been unaware of the situation as it was happening. The conflict in Darfur received widespread international media attention for a prolonged period of time. The Appellant was living in the United States, where he kept in contact with the local Sudanese community. Whether a political activist or not, this news would have been difficult to avoid. However, the important question is what inference can be drawn from this. The Appellant's evidence was that he was disconnected from politics at the time. Even if he was merely a passive recipient of the news of what was occurring in Darfur, I do not think one can validly infer that his inaction precludes the possibility of his renewed political activism in 2013 and onward. [20] Much of the RPD's credibility assessment regarding the Appellant's profile centres around the vagueness of his testimony about his political activism. The RPD stated that the Appellant was vague about the extent of his participation in a political opposition party in Sudan. The panel found that his testimony about his attendance at protests in 2013 and 2014 was also vague. I have reviewed the hearing record and respectfully cannot agree with the RPD's characterization of the evidence. The Appellant's answers were responsive to the RPD's questions. If the RPD required further detail, it should have prompted him for more information. A greater level of detail might have been provided had the RPD requested it. [21] With that said, I do share some of the RPD's concern about the support letter provided by the Appellant's friend in the United States. That letter, supposedly from a founder of a Sudanese human rights organization, states that the Appellant actively participated in many protests and rallies in Washington, D.C. and New York.4 The letter is unsigned. It does not appear on any kind of letterhead, despite supposedly being issued from a human rights group. There are, in fact, two different spellings of the group's name in the letter-"XXXX XXXX XXXX" and "XXXX XXXX XXXX". There is no physical address listed for the group, rather only a post office box number in Virginia. The author states that he is the founder of this group, and yet the Appellant was completely unaware of this fact. He stated that he did not know much about his friend's role, but merely that he was a member of this organization. The Appellant argues that this bears no connection to the credibility of the letter. I disagree. According to the Appellant, it was in response to this group's invitations that the Appellant attended various protests in the United States. He claimed to have a longstanding friendship with the author. In my view, the Appellant's lack of familiarity with his friend's role in this organization calls into question the relationship, and the reliability and credibility of this evidence. [22] In short, though the RPD had some valid reasons to question the Appellant's evidence, the RPD's findings about the Appellant's attendance at protests in the United States and the genuineness of his profile as a political activist cannot be sustained. CONCLUSION [23] For the above reasons, I cannot agree with the RPD's decision. If the Appellant is a genuine political activist, who regularly attended political protests in the United States, it is possible that he will continue this activism in Sudan. It is also possible that his previous activism may come to the attention of authorities in Sudan. These are key questions that must be determined, and I decline to substitute a positive decision based on the evidence before me, without an opportunity to examine the Appellant in the context of an oral hearing. I must therefore set aside the RPD's negative decision and refer this matter back to the RPD for redetermination before a differently constituted panel. [24] The appeal is allowed, pursuant to paragraph 111(1)(c) of the IRPA. (signed) M. Oh M. Oh February 5, 2021 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 3 Exhibit RPD-1, RPD Record, Exhibit 9, at pp. 101-109. 4 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 82. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-35398 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français