VB8-02625

RAD File / Dossier de la SAR : VB8-02625 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 Vancouver, BC Appel instruit / entendu à Date of decision May 15, 2019 Date de la décision Panel Richard Jackson Tribunal Counsel for the person who is the subject of the appeal Joseph W. Allen Barrister and Solicitor 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 INTRODUCTION [1] XXXX XXXX XXXX (the Appellant) is a citizen of Djibouti, appeals a decision of the Refugee Protection Division (RPD), dated May 3, 2018, rejecting his claim for refugee protection. [2] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA).1 [3] The determinative issue in this appeal is whether the RPD erred in its credibility assessment. BACKGROUND [4] The claimant fears that if he returned to Djibouti he will be imprisoned, harmed or killed by authorities because of his participation in the political opposition group "Union pour la Salut Nationale" (USN). RPD Findings [5] The RPD found that the Appellant's evidence was not credible and that he had not established that he is either a Convention refugee or person in need of protection. Appellant's Arguments [6] The Appellant argues that the RPD erred in its credibility analysis. I will deal with the specifics of the Appellant's arguments in my analysis below. New Evidence and Oral Hearing [7] The Appellant submits new evidence he wishes me to consider pursuant to section 110(4) of the Act. Specifically, he submits an "attestation" letter regarding his detention in Djibouti and Facebook materials confirming how this document was communicated to the Appellant from his brother in Djibouti after the RPD decision. The Appellant has also submitted objective country documentation that was already available to the RPD panel or reasonably available to the Appellant prior to the RPD decision. I will consider the objective documentary evidence along with information contained in the most recent National Documentation Package of the IRB in my independent analysis of the record. [8] The Appellant maintains that he was unaware of the existence of the "attestation" letter until after the rejection of his refugee claim. However, I note the letter is dated December 23, 2016 which is long before the Appellant's refugee hearing. The Appellant has not explained why he had made no effort to secure documentation confirming his detention in Djibouti prior to the RPD decision in May 2018 even though the concerns of the Minister in regard to the Appellant's allegation had been disclosed to him prior to the RPD hearing.2 Consequently I find that this evidence was reasonably available to the Appellant prior to the rejection of his refugee claim. [9] I also do not find the letter to be relevant pursuant to the extended Raza3 factors. First, the letter is not addressed to the Appellant's previous employer nor is it linked to his employer in any other way such as in the form of a stamp or other form of receipt. Second, in the letter there is no reference to the Appellant's identification (such as his address or ID information) other than his name and no link to either his political affiliation with his party or the umbrella organization which are key elements of the RPD's credibility finding and the appeal. Third, while there is evidence about how the Appellant's brother transmitted the document to the Appellant via Facebook, there is no corroborating evidence from the Appellant's brother about how he obtained the document, which brings into question its credibility. I do not accept the argument contained in the Appellant's appeal statement that his brother feared reprisals from the government in Djibouti if he provided an affidavit in this regard. The proceedings and materials concerning a refugee claim before the RPD and the RAD are confidential pursuant to section 166 of the Act. I find no reason for a risk that such an affidavit or written confirmation would fall into the hands of authorities in Djibouti. Given the source and circumstances of the "attestation letter" submitted as new evidence I find this evidence on its face, is not reasonably capable of belief and I reject it as being not credible. Given I do not accept the "attestation" letter I also do not accept the accompanying Facebook materials submitted to establish how it was communicated to the Appellant. [10] For the reasons above, I do not find the documents submitted by the Appellant to be new or relevant evidence pursuant to section 110(4) of the Act and the extended Raza factors. [11] In this case, there is no new evidence that could have resolved the claim either way and there is no reason for me to consider whether to conduct an oral hearing pursuant to section 110(6) of the Act. ANALYSIS [12] With respect to questions of fact and mixed fact and law, I have applied the standard of correctness as per Huruglica.4 When reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. I may defer to the RPD's credibility assessment of oral testimony if I find that the RPD had a meaningful advantage in the circumstances. Reasons will be provided in my analysis if I find that the RPD had a meaningful advantage. [13] It is the persons claiming refugee protection and not the RPD or the RAD that bears the onus of establishing the need for refugee protection. It is the responsibility of the RPD or the RAD to consider the applicable case law and weigh the documentary and testimonial evidence and to draw conclusions as to whether the evidence is sufficient to establish the Appellants' allegations. [14] In this case, there are two central credibility findings that the RPD found were fatal to the Appellant's refugee claim. First, that the Appellant had not established that he was a political activist and member of the MRD in Djibouti; and secondly, that he had not established his allegation that he was incarcerated for a month and tortured by Djibouti authorities because of his political activities. Was the Appellant a Member of the MRD in Djibouti? [15] The Appellant argues that the RPD erred by not believing that the Appellant was a member of the MRD in Djibouti. His counsel argues that the Appellant had demonstrated "intrinsic knowledge" of the MRD in his testimony.5 However, the RPD found that the Appellant's knowledge was "rehearsed" and available publically and did not satisfy his onus to establish his membership in the MRD. As noted in my analysis below, the Appellant also omitted mentioning his MRD membership in his initial applications for refugee protection which undermined the presumption of truth. I agree with the RPD that the Appellant could have gained access to the knowledge he has of the MRD through publically available documents and that his testimony does not, on its own, establish his party membership. [16] The Appellant's counsel also argues that the Appellant was consistent in his evidence in regard to the umbrella organization (USN) and his opinion that in Canada it would only be the USN and not the MRD that was recognized as a political party in Djibouti during the elections.6 The RPD also did not find this explanation to be satisfactory when it was made by the Appellant at his hearing. [17] In my independent analysis of the Appellant's testimony, I defer to the RPD's finding that the Appellant's testimony as "rehearsed" in regard the issue of his association with the MRD and its activities. [18] At the hearing, the Appellant did not mention that the MRD took a position to boycott the election as did some other parties in the election. I find no error in the RPD's finding that the Appellant's testimony in regard to the MRD was inconsistent with the objective documentation contained in the National Documentation Package (NDP).7 As noted by the RPD, the Appellant stated at his hearing that the MRD was excluded or banned from participating in elections by running candidates etc. which is supported by information is set out in the NDP.8 However, the same document notes that despite this, the MRD continues to operate in Djibouti and is an important part of the USN coalition. I find that there is a significant difference between a political organization being formally excluded from participating in an election by the state and boycotting an election and that this distinction should have been known by the Appellant if he were an activist. I agree with the RPD that if the Appellant were a political activist in the MRD it is reasonable that he would have known the MRD's position to boycott the elections by encouraging its members not to vote along with other measures and would have stated this fact to the RPD. [19] I adopt the RPD's reasoning in regard to giving little weight to the evidence provided by the Appellant about his membership in MRD.9 I note that in his appeal the Appellant has not provided further argument about the RPD's finding that the documents from the two "federations" were inconsistent with one another. [20] I also have no reason to disturb the RPD's finding that the failure of the Appellant to name the MRD as his political affiliation in his original Basis of Claim form (BOC) undermines the credibility of his allegation that he was a MRD political activist. Like the RPD, I do not find it plausible or reasonable that someone who actively participated in a political organization for four years, was beaten by authorities and later jailed, mistreated and allegedly tortured for a month because of those political activities, would not name the organization that he was affiliated with at the first opportunity when making a claim for refugee protection. Yet, the Appellant did not mention the MRD either in the forms he provided to the CBSA upon entry to Canada, during his CBSA eligibility interview or when initially completing his BOC. While I accept that a CBSA interview is not meant to be as detailed as an RPD hearing and not intended to tell the whole story, in this case I find that the omission of the political party to which the Appellant is affiliated is a critical detail that was not stated to the CBSA officer nor was it stated in the Appellant's original BOC. This omission undermines the Appellant's credibility. [21] The RPD also found that the Appellant, who is a highly educated professional and had demonstrated to the CBSA that he speaks reasonable English and did not need an interpreter, was unable to accurately explain the meaning of the acronym "USN" at the CBSA interview. The RPD did not accept the Appellant's explanations at the hearing of a lack of English language proficiency as the reason for this discrepancy. I find that the Appellant's inability to explain his political affiliation both with the MRD and the umbrella group in which it is situated at his CBSA interview to be inconsistent with his allegations and that this inconsistency undermines his claim. The Appellant portrays himself as having been a youth mobilizer and political activist for four years in Djibouti and someone who would be arrested and killed by the government if he returned to the country.10 Given this allegation it was open to the RPD panel to expect that the Appellant would be able to describe his political affiliations without difficulty and his failure to do so further undermines his claim. I find no error in the RPD's finding in this regard. [22] The RPD weighed the Appellants statements before the CBSA, the documentary evidence he provided including his amended BOC and his testimony at the hearing and found that the Appellant had not credibly established that he was a member of the MRD in Djibouti. I concur with the RPD finding.11 Did the RPD err in finding the Appellant was not jailed in Djibouti? [23] The RPD found that the Appellant had not established that he was detained in Djibouti. It also found that there was no corroborating evidence that the Appellant was dismissed from his employment because of his having been detained for a month by authorities for his political activism.12 As per the documents submitted by the Minister prior to the RPD hearing, the RPD also did not believe it to be credible that if the Appellant was detained for a month that he would have been able to access Facebook.13 [24] The RPD did not accept the Appellant's testimony that his wife had his Facebook password and that it was her rather than him that was on Facebook during the time of his detention.14 I agree with the conclusion of the RPD that it is unreasonable that the postings were made by his wife, (who also had her own Facebook page), given that the postings were so light-hearted in content given his incarceration. The RPD also did not accept that the Appellant would only have discovered these postings on his own Facebook page after the CBSA had intervened with its disclosure. As the RPD noted, the Appellant had made further postings on his page after the period of the alleged detention and would reasonably be expected to have noticed entries on his page that were not his own. [25] The Appellant did not allege that he made Facebook entries when he was in detention and does not deny that the entries were legitimately found on his Facebook page. He was unable to provide persuasive testimonial evidence before the RPD about his allegation that the Facebook entries occurring during his alleged incarceration were from his wife. I find he has also failed to do so before the RAD. I find that the Facebook entries are material facts that undermine the Appellant's allegation that he was incarcerated during the time the entries were made. [26] In my independent analysis I find that the Appellant has failed to establish, through credible or reliable evidence, that he is either a Convention refugee or a person in need of protection. The RPD decision stands. CONCLUSION [27] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "Richard Jackson" Richard Jackson May 15, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). 2 RPD Record (RPDR), p. 141. 3 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 5 Appellant's Record (AR), p. 139. 6 AR, pp. 95-96. 7 RPDR, Reasons for decision, para 27. 8 AR, p. 97. 9 RPDR, Reasons for decision, para 28. 10 RPDR, Basic of Claim Form, p. 22. 11 RPDR, Reasons for decision, para 38. 12 RPDR, Reasons for decision, para 40. 13 RPDR, p. 141. 14 RPDR, Reasons for decision, para 17. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB8-02625 RAD.25.02 (April 04, 2019) Disponible en français 3 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 (April 04, 2019) Disponible en français