VB9-08343

RAD File / Dossier de la SAR : VB9-08343 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 18 December 2020 Date de la décision Panel S. Thompson Tribunal Counsel for the person who is|are the subject of the appeal Russell Weninger Conseil de la|des 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, is appealing a decision of the Refugee Protection Division (RPD) dated October 8, 2019, refusing his claim for refugee protection. [2] For the following reasons, I dismiss this appeal. The RPD properly determined the Appellant was excluded from refugee protection under article 1F(b). BACKGROUND OF APPEAL The Appellant's alleged risk, the RPD's decision, and the Appellant's arguments before the Refugee Appeal Division (RAD) [3] The Appellant alleged he faced a serious forward-looking risk of persecution in Somalia on account of his membership in the minority Migdan clan. He alleged he was forced to join a militia and was assaulted when he tried to escape. In 1991, he fled first to Kenya and then to the United States of America (US), where he claimed asylum, obtained permanent residency, and lived for 17 years. After he pled guilty to criminal offences in the US in XXXX, the Appellant was sentenced to prison and order to forfeit XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Thereafter the Appellant was told by US authorities that he would be deported to Somalia. In XXXX 2017 the Appellant fled to Canada, where the Canada Border Services Agency (CBSA) detained him, and he claimed refugee status. Before the RPD, he alleged he feared being targeted by various groups in Somalia and detention in the US. [4] The RPD refused the Appellant's claim. The RPD applied the framework of analysis from the Federal Court of Appeal's decision in Jayasekara1 in determining whether the Appellant's crimes in the US were "serious" within the meaning of article 1F(b).2 The RPD found "[t]here were some credibility issues in the claim"3 and that there were "serious reasons for considering that the [Appellant] committed a serious non-political crime in the U.S."4 and found he was excluded for serious criminality under article 1F(b) of the 1951 UN Convention relating to the Status of Refugees. [5] Before the RAD, the Appellant submits the RPD made the following errors in its determination: - It erred by (i) dismissing the appellant's testimony about mitigating factors when his credibility was not in issue without (ii) requesting corroborating evidence before drawing a negative inference from the lack thereof 5; - It breached the appellant's right to procedural fairness in rejecting his testimony regarding his trauma 6; - It erred in rejecting testimony regarding the Appellant's stressful financial situation7; and - It erred in finding the aggravating factors outweighed the mitigating factors in assessing the seriousness of his crime.8 NEW EVIDENCE APPLICATION The evidence presented by the Appellant is rejected [6] The Appellant has not asked that I convene an oral hearing of this appeal in accordance with subsection 110(6) of the Immigration and Refugee Protection Act (IRPA). He has, however, asked me to admit three academic articles9 as new evidence in accordance with subsection 110(4).10 By law11 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [7] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.12 [8] In this case, all three articles submitted pre-date the RPD's determination of the Appellant's claim on XXXX XXXX XXXX 2019: the first dates from 201413; the second, from 201614; and the third, from 1995.15 As well, all three appear to have been reasonably available at the time of the decision, as they were accessible via the internet. [9] The Appellant's bare submission "he could not have reasonably expected ... the Member would request scientific evidence in order to corroborate testimony regarding his trauma"16 is not supported with reference to any evidence. The Appellant has not explained why he could not have been expected to obtain and disclose evidence about his XXXXand XXXX state to the RPD before the hearing, as this kind of evidence is often disclosed in RPD proceedings. [10] In light of the foregoing, I find the documents do not meet the statutory requirements stated in subsection 110(4). I therefore have no discretion to admit them into evidence. ANALYSIS [11] My role is to look at all the evidence and decide if the RPD made the correct decision.17 I will apply the correctness standard of review after independently assessing the record in order to determine whether the RPD erred. I will only show deference to the RPD's credibility assessment and/or to its weighing of the oral evidence in situations where the RPD enjoys a particular advantage. If I find the RPD had a particular advantage, my reasons will explain why. [12] My determination is based on my independent assessment of the evidence before me. This includes: the records prepared by the RPD and the Appellant; a transcript and audio recording of the Appellant's RPD hearing on June 19, 2019; and documents contained in the current compilation of the National Documentation Package (NDP) for Somalia. The RPD's application of the Jayasekara framework to the facts of the Appellant's claim [13] The Appellant submits the RPD "was unreasonable in failing to request corroborating evidence" about factors mitigating a finding that his crimes in the US were serious "prior to drawing a negative inference from the lack thereof".18 He submits none of the "limited exceptions" that "allow sworn testimony, if unsupported by corroborating evidence, to be rejected"19 arose in his claim: as the mere absence "of corroborating evidence does not diminish a claimant's credibility"20; there were no inconsistencies or contradictions in his evidence; and his testimony was not wholly implausible.21 [14] Based on my review of the record, I reject this submission. According to the Appellant, in his RPD hearing "credibility was not raised as an issue, except in the [RPD's] finding regarding the duration of the Appellant's involvement in the operation."22 Specifically, the Appellant's testimony that "he was only involved with the group from XXXX 2012 to XXXX 2013"23 contradicted "his earlier testimony that everything in the news release" from the US Attorney's Office for the Southern District of Ohio was true. According to that report "between XXXX 2009 and XXXX 2012, XXXX was involved in the transportation, sale, and distribution of marijuana in the Southern District of Ohio."24 [15] When asked about this during the hearing, the Appellant stated that he agreed to plead guilty to two charges. When asked specifically to reply to the RPD's concern that "the news release indicates that [he] was involved earlier than XXXX 2012," the Appellant stated that the US authorities "got [him] three times" and that while he could have "[gotten] the dates wrong ... [he knew] there was ... three transactions", the last of which took place in XXXX 2012.25 [16] In my independent assessment, the Appellant's testimony failed to address the RPD's question and was therefore not responsive to the panel's concern. It was therefore open to the RPD to draw an adverse inference about his credibility from his inadequate response to its question, and to find that his "testimony on this point was not straightforward or credible."26 [17] Nor is there merit to the Appellant's submission27 that it was wrong for the RPD to have asked him to support his submissions about mitigating factors with some evidence, given his submission - made in writing after the hearing - that "horrific atrocities" the Appellant "experienced ... while living in Somalia" mitigated the seriousness of his crimes in the US in that "his experiences there likely had lasting negative effects on his ability to cope with the normal stressors of daily life" and thus explain his resort to criminal activity.28 [18] It was open to the RPD to expect the Appellant would support this assertion with evidence, not only because XXXXandXXXX XXXX assessment reports of this kind are often disclosed as evidence in RPD proceedings to speak to the XXXX state of claimants, but also because the Appellant's credibility as a witness had already been called into question by his contradictory testimony about the length of his involvement in the criminal trafficking conspiracy. [19] In so doing the RPD did not, as the Appellant submits, "doubt the testimony of the Appellant, regarding his traumatic life events", nor did it "effectively dismiss [his] testimony".29 It appears the RPD rejected the Appellant's submission "that the trauma he allegedly suffered in Somalia explains his criminal actions in the U.S." because despite his testimony about his experiences in that country30 and his then counsel's oral submissions31, there was no evidence before the RPD drawing a link between the Appellant's experiences and his turn to criminal activity in the US. In my independent assessment, in the circumstances it was open to the RPD's to reject the Appellant's assertion on this point. [20] Nor do I accept the Appellant's submission that the RPD erred in rejecting his testimony that his challenging financial circumstances in the US mitigated the seriousness of his crimes in that country, or that the RPD "required [him] to provide corroborating evidence proving" as much.32 [21] Rather, the RPD considered the Appellant's testimony that he "owed money on his truck" and was supporting his former and current family members in the U.S., while providing charitable donations to families in Somalia"33 and noted that he did not provide "any supporting evidence of his financial situation, commitments or payments in the U.S." to show "he had no realistic choice but to engage in criminal activity on this scale in order to provide for his family members or others."34 [22] In considering whether the Appellant's financial circumstances in the US were a mitigating factor, the RPD was entitled to weigh the Appellant's testimony about those circumstances against the other evidence about the crimes he committed in the US. The Appellant's right to procedural fairness was not violated by the RPD. Its finding regarding the Appellant's financial circumstances was not a finding that his testimony about experiencing financial hardship was not credible. [23] Ultimately, it was for the RPD to assess whether the factors the Appellant described as mitigating outweighed the factors he contended mitigated the seriousness of his crimes. Having read paragraphs 59 through 62 of the RPD's reasons,35 I reject the Appellant's submission that the RPD dismissed his evidence. [24] The reasons show the RPD considered the Appellant's submissions about mitigating factors and found that they did not outweigh the aggravating factors in his case. In my independent assessment, having considered all the evidence, it was open to the RPD to find the Appellant's submissions on mitigating factors were not persuasive enough to outweigh its findings concerning the seriousness of the aggravating factors. The Appellant's submissions are made without reference to any evidence on the record that contradicts the RPD's finding. [25] To conclude, the Appellant's submissions have not persuaded me that the RPD erred in its application of the factors in Jayasekara to the facts of the Appellant's claim. Nor, in my independent assessment, has the RPD erred in any other part of its determination that the Appellant is excluded from protection under article 1F(b), in accordance with section 98 of the IRPA. [26] I therefore dismiss the appeal. CONCLUSION [27] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection, as he is excluded under article 1F(b). (signed) S. Thompson S. Thompson 18 December 2020 Date 1 Jayasekara v Canada (Citizenship and Immigration), 2008 FCA 404, [2009] 4 FCR 164. 2 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 8 at para. 33. 3 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 5 at para. 11. 4 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 17 at para. 65. 5 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 185-188 at paras. 20-32. 6 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 188-190 at paras. 33-41. 7 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 190-191 at paras. 42-46. 8 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 191-192 at paras. 47-49. 9 Exhibit P-2, Appellant's Record, pp. 17-91. 10 Exhibit P-2, Appellant's Record, p. 16. 11 Subsection 110(4) of the IRPA. 12 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 13 Exhibit P-2, Appellant's Record, pp. 17-48. 14 Exhibit P-2, Appellant's Record, pp. 49-75. 15 Exhibit P-2, Appellant's Record, pp. 76-91. 16 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 192 at para. 52. 17 Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93; Rozas del Solar v Canada (Citizenship and Immigration), 2018 FC 1145. 18 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 186 at para. 24. 19 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 187 at para. 26. 20 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 186 at para. 23. 21 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 187-188 at paras. 27-32. 22 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 187 at para. 28. 23 RPD Record, RPD Reasons for Decision, p. 12 at para. 49. See also transcript of hearing in RPD file no. VB8-00655 on June 19, 2019 at p. 42 (lines 10-34). 24 Exhibit RPD-1, RPD Record, Exhibit 4, p. 190. 25 Transcript of hearing in RPD file no. VB8-00655 on June 19, 2019 at pp. 54 (lines 30-40) to 56 (lines 1-9) inclusive. 26 RPD Record, RPD Reasons for Decision, p. 12 at para. 49. 27 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 186 at para. 24. 28 Exhibit RPD-1, RPD Record, Exhibit 6, p. 343. 29 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 188 at para. 33. 30 Transcript of hearing in RPD file no. VB8-00655 on June 19, 2019 at pp. 33 (lines 5-40) to 34 (1-29), 35 (lines 13-40) to 37 (lines 1-17) inclusive. 31 Transcript of hearing in RPD file no. VB8-00655 on June 19, 2019 at pp. 59 (lines 28-40) to 60 (line 1). 32 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 190 at para. 42. 33 RPD Record, RPD Reasons for Decision, p. 14 at para. 60. See also transcript of hearing in RPD file no. VB8-00655 on June 19, 2019 at pp. 45 (lines 20-40) to 46 (lines 1-4, 19-24), 61 (lines 37-39). 34 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 14 at para. 60. 35 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, pp. 14-15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-08343 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