TB7-20191

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 : TB7-20191 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, ON Appel instruit / entendu à Date of decision December 19, 2018 Date de la décision Panel Sasha Kiran Cragg-Gore Tribunal Counsel for the person(s) who is(are) the subject of the appeal Atul Subedi Barrister and Solicitor 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 OVERVIEW [1] XXXX XXXX XXXX (the "Appellant") is a citizen of Nepal. He alleges that he was pressured to join the Young Communist League (YCL) by a childhood friend named XXXX and his friends as well as by XXXX, a Maoist trade unionist at his job. He left Nepal to work in Saudi Arabia in 2009 and then Dubai in 2011, returning each time to Nepal. XXXX has forced the Appellant and his family to donate money to the YCL. [2] In December 2013, the Appellant was kidnapped by XXXX and other members of the YCL, held overnight and forced to participate in a political rally. He escaped during the protest, fled to Kathmandu and then to Dubai. He returned to Nepal in the summer of 2016 but remained in hiding in Kathmandu until he was able to travel to Canada on a temporary work permit. He applied for refugee status in June 2017. [3] The Refugee Protection Division (RPD) member rejected his refugee claim for the following reasons: a. The testimony about his escape from the protest was vague; b. The member found his escape during the protest implausible as well as the inability of his father, a retired police officer, to obtain a police report; c. His credibility was affected by the fact that he returned to Nepal four times after his issues began; d. According to the country documentation, the YCL does not target individuals like the Appellant and does not engage in forced recruitment or extortion anymore; and, e. Years have passed since the kidnapping and it is not clear why the Appellant would be targeted if he returned to Nepal today. [4] The Appellant argues the following on appeal: a. The testimony about his escape was neither vague nor implausible; b. It is not implausible that his father would be unable to file a police report; c. His returns to Nepal were not voluntary and he remained in hiding while he was there, so they do not indicate that he lacked subjective fear; d. The member's implausibility findings are evidence of bias; and, e. The member failed to look at the country documentation in considering whether or not the Appellant is still at risk if he were to return today. [5] The Appellant also provides a number of recent articles discussing the current political situation in Nepal that he wishes to submit as new evidence. DETERMINATION [6] The appeal is allowed. I set aside the determination of the RPD and substitute my own determination that the Appellant is a Convention refugee. The Appellant's testimony about his escape was neither vague nor implausible. I also accept that his father was unable to file a police report despite being a former police officer. While the Appellant did return to Nepal on multiple occasions, he took various steps to ensure his safety which do not undermine his credibility or subjective fear. [7] While I agree with the RPD that it is strange that the YCL would force the Appellant to engage in a protest since they are no longer operating outside of the government, recent incidents of extortion have occurred and opposition members have been targeted. Considering his detailed and coherent testimony, which is consistent with the documentary evidence, I find that his allegations are established on a balance of probabilities. As someone who has been targeted by a political group that does engage in intimidation and violence until today, I find that there is a serious possibility of persecution if he were to return to Nepal. NEW EVIDENCE [8] I can only admit new evidence that satisfies one of the following criteria: a. It arose after the claim was rejected; b. It was not reasonably available at the time of rejection; or c. The Appellant could not reasonably have been expected in the circumstances to present it at the time of the rejection.1 [9] If one of the above conditions are met, the new evidence must also be credible, relevant and "new".2 [10] The Appellant seeks to admit seven articles about the recent political situation in Nepal. Except for the May 10, 2017 article entitled "Biplav's party 'major obstacle to polls", all of the other six articles were written after the claim was rejected. They are also relevant to the issues at hand. I therefore accept the request to admit the six articles written in November 2017 as new evidence. The article written in May 2017 is not admitted as new evidence as it arose before the claim was rejected. ANALYSIS Standard of review [11] The recent Federal Court of Appeal decision in Huruglica,3 provides the Refugee Appeal Division (RAD) with guidance in relation to the appropriate standard that must be applied by the RAD to decisions made by the first-level administrative tribunal. The RAD will conduct its own analysis of the record to determine whether the RPD erred. The RAD is to review the RPD's decisions applying the correctness standard. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment of the credibility and weighing of oral testimony heard, which, in particular cases may require that I defer to the RPD's finding.4 The Appellant's testimony about his escape was neither vague nor implausible [12] The Appellant testified that he was forced to participate in a rally and was able to escape between two houses because his leader was ahead of him and it was crowded. The RPD found his testimony about this escape vague and further found it implausible that the YCL would go through so much work to kidnap him, detain him and force him to participate in a protest and then carelessly let him escape. The Appellant argues that his testimony was not vague and the events as alleged are not implausible. I agree with the Appellant. [13] Both the Appellant's Basis of Claim (BOC) form and his testimony about escaping the protest were clear, detailed and coherent. For example, he described the square where he was able to escape from and the main intersections that were before and after this location. He also described walking through the fields back home rather than on the roads so he would not be noticed. As pointed out by the Appellant, the RPD did not explain why exactly it found the Appellant's testimony on this point vague, and I come to the opposite conclusion. Rather than vague, I find his testimony and BOC to be clear, detailed and coherent. [14] The RPD found it implausible that the YCL would invest so much time and energy to kidnap, detain and force the Appellant to march in a protest only to carelessly let him escape. The Appellant points to his reasonable explanations that it was crowded and that the YCL member might have been supervising multiple captives at once. While it is indeed strange that escaping was so easy after the YCL invested so much in keeping the Appellant captive, I agree with the Appellant that there is not enough here to make an implausibility finding. While the YCL members might have been careless, it does not defy common sense that the Appellant was able to escape in the chaotic environment of a protest. I find that the RPD erred and that his allegations of being kidnapped and forced to participate in a protest and his escape are established. Inability to obtain a police report is not implausible [15] The RPD found it implausible that the Appellant's father was unable to file a police report about the kidnapping since he was a retired police officer. The Appellant argues that his father had retired more than twenty years earlier, that he had worked in a different district and that procedures and policies have changed greatly over the years. I agree with the Appellant and find that the RPD erred. [16] It is reasonable to think that a retired police officer would have an advantage over a regular citizen in ensuring that a police report is filed, but considering that the Appellant's father retired more than twenty years earlier and worked in a different district, it is not implausible that he might no longer know the relevant procedures to ensure a police report is made. Against the backdrop of a police force that is highly politicized and regularly influenced by political parties,5 it is even more problematic to maintain that failing to file a police report is implausible. I find that the RPD erred and I do not make a negative credibility inference against the Appellant for failing to provide a police report. Returns to Nepal do not affect the Appellant's credibility or subjective fear [17] The RPD found that the Appellant lacked subjective fear because he returned to Nepal four times after his issues with the YCL began. In certain circumstances, returning to a country that an individual supposedly fears can cast doubt on the existence of that fear, but the reasons for returning and the actions taken to remain safe must be analyzed. [18] The Appellant argues that his returns were brief, not voluntary and that he remained in hiding every time. I agree with the Appellant that his returns do not indicate a lack of subjective fear and I find that the RPD erred. [19] While the Appellant did return to Nepal four times after being pushed to join the YCL in March 2009, every time he remained in hiding, his visits were brief and he avoided going to his home town. I also note that three out of four times that he returned were before he was kidnapped and beaten, and as he indicated at the hearing, it was the kidnapping and beating that really solidified his fear. I find that only the last time he returned after the kidnapping is relevant in analyzing his subjective fear as it is not clear that it was his intention to leave Nepal permanently before then. [20] The Appellant remained in hiding at a friend's house in Kathmandu during his last return and it was brief, lasting less than two months. He indicates both in his BOC and his testimony that he did not go out much so as not to draw attention to himself. He did not return to his home town. [21] The Appellant had applied for a temporary work permit to Canada and according to his BOC; he understood from his agent that he needed to return to Nepal in person to obtain a Foreign Employment Permit before he could travel to Canada. He also attempted to remain as long as possible in Saudi Arabia before returning but was forced to return because he no longer had a job there. [22] I find his testimony credible and that his actions are consistent with someone who is fearing for his life. He minimized his time in Nepal, only going because he thought he needed to, and he remained in hiding while he was there. I find that the RPD erred and I do not make a negative credibility inference due to the Appellant's return to Nepal in the summer of 2016. Objective basis [23] The RPD also found that the Appellant's allegations are not consistent with the country documentation because the YCL no longer engages in forced recruitment or forced collection of donations and because there is no evidence that people are kidnapped just to participate in protests. The Appellant argues that he would be targeted because he is now seen as an opposition member for refusing to join the YCL and has submitted multiple articles showing how opposition members are targeted. [24] For the reasons that follow, I find that there is not a sufficient divergence with country documentation to doubt the Appellant's allegations. To begin with, certain allegations do align with the country documentation. There is still evidence of the YCL extorting money from private citizens in the form of forced donations,6 as has been alleged by the Appellant. While instances of extortion have decreased over time as Maoist have become increasingly integrated into the democratic process, there are multiple specific and recent incidents referenced both in the articles submitted by the Appellant on appeal and the National Documentation Package of Nepal.7 It is therefore not implausible that the Appellant, even as a private citizen, would be a target of extortion. [25] The RPD refers to a Response to Information Request that quotes a representative of a Nepal NGO saying that forced recruitment of young people no longer takes place.8 However, the idea of forced recruitment usually involves forcing an individual to use arms and commit acts of violence with a particular group, something that was common before the YCL and Maoists were integrated into the democratic process. I am not certain that being forced only to participate in a protest would necessarily qualify as forced recruitment. The Appellant said at the hearing that he does not know what would have happened to him if he had not escaped. I agree with the RPD's reading of the country documentation that forced recruitment no longer takes place with the YCL, but I do not agree that the Appellant's allegations are necessarily an example of forced recruitment. I do not find the Appellant's allegations to be implausible or necessarily inconsistent with the country documentation. [26] The RPD also pointed out that there is no mention of people being kidnapped solely to attend protests. I have also not found any reference to this type of incident occurring. I am entitled to make a negative inference as to the Appellant's credibility due to the silence of the documentary evidence,9 but I find that this case is not an appropriate one to make such an inference. This is not a high-profile case that one would necessarily expect to have been reported. Additionally, considering the lingering fear of violent backlash from Maoists if one goes public with incidents such as extortion attempts,10 it is also possible that these incidents are not reported. [27] I am also persuaded by the articles submitted by the Appellant on appeal that political opponents are targeted by the YCL and other Maoist groups. The articles submitted to both the RAD and the RPD speak of kidnappings, car bombs, murders and attacks against people involved with opposition groups. I agree with the Appellants that it is possible that refusing to join the YCL and running away can lead to the perception that the Appellant is a member of an opposition group. While most of the documentary evidence speaks of high-profile political actors or symbols of the state being targets, I do not find it implausible that the Appellant was also targeted to a lesser degree as alleged. As discussed above, his testimony was coherent, clear and detailed, and I give the Appellant the benefit of the doubt and do not find that his allegations are inconsistent with the country documentation. Supporting documents corroborate the Appellant's allegations [28] I have already discussed the Appellant's clear, detailed and coherent testimony above. He has also provided a number of affidavits and documents that corroborate his allegations. The affidavit from his father and the letter from his municipality discuss the events in question and what the Appellant was facing before he left Nepal. RPP Nepal, the political party to which the Appellant's father belongs, has also provided a support letter for the Appellant and corroborates his allegations. Forward-facing serious possibility of persecution is established [29] The RPD found that the Appellant would not face a forward-facing risk of persecution if he were to return to Nepal today. The Appellant contests this finding and asks me to consider the country documentation which confirms that members of the opposition continue to be targeted until today. I agree with the Appellant. [30] While the activity of the YCL and Maoists has decreased over time, there are still many recent incidents of violence, extortion and other forms of targeting that impact members of the opposition and NGOs. I have found the Appellant's allegations credible and they are sufficient to establish that he is, at least to some degree, perceived to be a member of the opposition. He also indicated at the hearing that Jagat continues until today to ask about him at his family's house. I find that the Appellant has established that he would face a serious possibility of persecution if he were to return to Nepal today. Internal flight alternative [31] The Appellant remained for short periods in different parts of Nepal including Kathmandu. He stated at the hearing that if he remained for a long time, the YCL would find out he was there. Considering that information about him refusing to join the YCL travelled to people at his work in another town, I find that the Appellant would not be able to remain anywhere in Nepal without the YCL finding him at some point. State protection [32] The police force is highly politicized, incapable of protecting victims of extortion and not independent.11 Considering that Maoists are currently integrated in the government, it is possible that they would exert pressure not to look into incidents that may take place against the Appellant if he were to return to Nepal. I find that the Appellant has rebutted the presumption of state protection in these circumstances. CONCLUSION [33] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) "Sasha Kiran Cragg-Gore" Sasha Kiran Cragg-Gore December 19, 2018 Date 1 Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). 2 By new, I mean that it must relate to an event that occurred after the RPD hearing, prove a fact that was unknown to the claimant at the time of the hearing or contradict an RPD finding. See 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. 4 Rozas del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 5 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Nepal, March 31, 2017, at item 4.7. 6 Ibid., at item 4.6. 7 Ibid. and Exhibit RPD-1, RPD's Record, at pp. 212-213, 226-229, 245. 8 Exhibit RPD-1, RPD's Record, NDP, at item 4.8. 9 Adu v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 114 (C.A.). 10 Exhibit RPD-1, RPD's Record, NDP, at item 4.7. 11 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-20191 RAD.25.02 (September 18, 2018) Disponible en français 11 RAD.25.02 (September 18, 2018) Disponible en français