TC1-01842

RAD File / Dossier de la SAR : TC1-01842 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 Ottawa, ON Appel instruit / entendu à Date of decision November 10, 2021 Date de la décision Panel Nicole Ladouceur Tribunal Counsel for the person who is the subject of the appeal Stephanie K Fung 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] The Appellant, XXXX XXXX XXXX, a citizen of Uganda is appealing a decision of the Refugee Protection Division (RPD) rejecting her refugee claim for lack of credibility. 1. In her Basis of Claim (BOC), the Appellant alleges that her life has been threatened by her half-brothers, who have connections with the military and seek to harm her, because of land she inherited from her father. She alleges having received threatening phone calls, being shot at, and kidnapped by armed men who forced her to hand over documentation and sign an order for the sale of the land that she inherited. She obtained a US visa on XXXX XXXX XXXX 2019, and left Uganda on XXXX XXXX, 2019, after her XXXX was broken into. She arrived in Canada on XXXX XXXX XXXX 2019 and claimed asylum. 2. In its decision, the RPD found no nexus with the United Nations relating to the status of Refugees (Convention) and s. 96 of Immigration and Refugee Protection Act (IRPA). The RPD assess the Appellant's claim under s. 97(1) of IRPA and found that the Appellant lacked credibility because of important omissions in her BOC. The RPD also found that the Appellant could free herself from risk of harm by relinquishing her claim to her inheritance. 3. In her Memorandum, the Appellant admits that certain information was omitted from her BOC but argues that she did so because she did not believe the information was important nor that it was necessary to write everything. She also submits that her half-brothers threatened to kill her if she returned to Uganda even if she gave up her rights to the property because she had reported them to the police for having illegally sold parcels of her land. Thus, she submits that the RPD erred in its assessment of her credibility. 4. The determinative issues for the Refugee Appeal Division (RAD) are credibility and the prospective risk should the Appellant return to Uganda. DECISION [2] The appeal is dismissed. Pursuant to ss. 111 (1) (a) of the IRPA, I confirm the RPD's decision. The Appellant is neither a Convention refugee nor a person in need of protection. ANALYSIS [3] The role of the RAD is to conduct an independent assessment of the record and review the RPD's findings using the standard of correctness.1 After conducting my own analysis of the record, including reading the transcript of the hearing which took place before the RPD on January 22, 2021, I am satisfied that the impugned findings by the RPD are supported by the evidence. My reasons follow. [4] The Appellant's refugee protection claim is based on the threat she allegedly faces from her two half-brothers who regard her as an obstacle to obtaining significant property that her late father left her. The Appellant is not a Convention refugee [5] The RPD found that a property rights claim is not a basis for a refugee claim under the Convention and section 96 of the IRPA. This finding is not disputed by the Appellant. [6] The principle that a dispute about ownership rights to a property does not fall within section 96 of the IRPA which states that a person is a refugee only when he or she is persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion is clear under the law and jurisprudence.2 The RPD's decision in denying the Appellant's claim under s. 96 of the IRPA is correct. Credibility [7] The RPD denied the Appellant's claim under s. 97 of the IRPA finding that the Appellant lacked credibility because of the following omissions in her BOC: [8] Telephone call: The Appellant testified at the hearing that during a phone call with her half-brothers, she had offered to give up her titles to the land, but they replied that they would nevertheless kill her because she had reported them to police and taken legal action for having illegally sold parcels of her land. [9] The RPD noted that there is no mention of this phone call and its contents in the Appellant's BOC and asked why. The Appellant replied that she did not know she had to write everything in her narrative. The RPD found the omission unreasonable because the phone call was central to her fear and, according to her testimony, had prompted her to seek refuge. [10] Father's death: The Appellant testified that her half-brothers were responsible for her father's death and had said during a phone call that they would "kill me. They will be (sic) the same to what they did to my dad."3 This information was again omitted from her BOC. The Appellant testified that the information had come to her by private phone calls. The RPD found it not credible for the Appellant to have also omitted this information from her BOC, which instead indicated that her father had died of natural causes. [11] As a result of both these omissions, the RPD found that the Appellant lacked credibility and that the call that said that her half-brothers would kill her even if she gave up her titles had never taken place and undermined her credibility. [12] In her Memorandum, the Appellant submits that the RPD erred in its assessment of her credibility in relationship to her refugee protection claim under section 97 of the IRPA. [13] The Appellant argues that she reasonably believed that the phone call with her half-brothers was not a crucial element to her claim given that her primary and most immediate fear was being killed because of her inheritance. She refers to question 2 of the BOC which instructs claimants to "write down everything that is important to your claim". The Appellant submits that she did not believe the phone call was important. [14] With respect, I do not agree with the Appellant's argument. The Appellant brought up the phone call on her own, early in the hearing and clearly indicated that during the conversation with her half-brothers, she had offered to give up the land, but they responded by saying that they would still kill her. The phone call is central to the threats on her life that she received, and its contents dealt with key issues of her testimony about the fear she alleged: her half-brothers' plan to kill her even if she gave up the land and their ability to carry out their plan given that they were responsible for her father's death. [15] It is thus not reasonable, in my view, for the Appellant to argue that this information was not important enough to include in her narrative. I closely read the Appellant's narrative. It contains eight single-spaced pages of information set out in 59 paragraphs. It mentions in tremendous detail the various meetings about the father's will and the internal family feuding related to the contents of the will even before he had passed away. Considering this, it is not reasonable for the Appellant to claim that the threatening phone call that triggered her to be fearful for her life was less important than the details over the years relating to her father's will. [16] As for her argument in her Memorandum that the Appellant never considered relinquishing the land, with respect, I do not agree. The statement made in her Memorandum contradicts her testimony that, during the phone call, she had offered to give up her land to her half-brothers to save her life.4 [17] Finally, the Appellant has not provided any cogent or reasonable explanation regarding her testimony that her half-brothers told her during the telephone call that they "would kill her just as they did her father" when in fact her narrative mentions that her father died of natural causes. [18] It is well established that where a refugee claimant fails to mention important facts in her BOC, and that the explanation for why is unsatisfactory, this may legitimately be considered by the RPD to be an omission that goes to lack of credibility.5 All relevant and important facts should be included in one's narrative. For my part, based on the record, I am of the view that the RPD's finding that the phone call never took place is correct and that the Appellant was not credible. Prospective Risk [19] The RPD found that by giving up title to the land she inherited from her father, the Appellant would not face persecution in Uganda. The RPD also found that by giving up any right to take future legal action against her half-brothers, which was at the basis of her allegation for persecution, the Appellant would free herself from their persecution. At the hearing, the Appellant testified that she wanted to retain the land because doing otherwise was disrespectful of her father's will. Beyond this emotional attachment to her father's estate, the Appellant did not provide evidence of why she could not sell the land to her half-brothers. The record shows that the Appellant is a businesswoman who travelled internationally and imported goods for her business. She did not depend on the land given to her by her father for her livelihood. [20] Given my findings made above regarding the Appellant's credibility, I am of the view that the RPD was correct in determining that the Appellant would not face persecution in Uganda if she abandoned her claim to the land that she inherited from her father nor would she be personally subject to a danger of torture or a risk to her life or a risk of cruel and unusual treatment or punishment. Disposition [21] Based on the findings noted above and after my independent review of the record, including the transcripts of the hearing, I am satisfied that the impugned findings by the RPD are correct and supported by the evidence. I find that there is not a serious possibility of persecution should the Appellant return to Uganda. CONCLUSION [22] The RAD confirms the decision of the RPD that XXXX XXXX XXXX is neither a Convention refugee under s. 96 nor a person in need of protection under s. 97 of the IRPA. [23] The appeal is dismissed. (signed) Nicole Ladouceur Nicole Ladouceur November 10, 2021 Date 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Minister of Citizenship and Immigration), 2018 FC 1145. 2 Ndambi v Canada (Citizenship and Immigration), 2014 FC 117. 3 Audio recording of the RPD's hearing held on January 22, 2021, at 00:26:00. 4 Ibid., at 00:28:28. 5 Grinevich v. Canada (Minister of Citizenship and Immigration), 1997 CanLII 16340 (FC). --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-01842 RAD.25.02 (August 20, 2021) 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 (August 20, 2021) Disponible en français