MB8-24645

RAD File / Dossier de la SAR : MB8-24645 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 Montreal, QC Appel instruit / entendu à Date of decision May 24, 2019 Date de la décision Panel Me Miriam Mcleod Tribunal Counsel for the person who is the subject of the appeal Me Melissa Singer 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, is a citizen of Egypt who fears persecution as well as torture, a risk to his life, and a risk of cruel and unusual treatment or punishment at the hands of the Egyptian government due to his Nubian ethnicity and his political opinions both real and perceived. He alleges that if he returns to Egypt he will continue to participate in protests and advocate for the Nubian people in Egypt against the Egyptian government policies and programs that deny their basic rights. [2] The Appellant alleges that he was among a group of Nubians going to visit their ancestor's homeland when they were stopped by military forces who made them provide identification and wait at the border for XXXX days to obtain a permit that usually takes 10 - 15 minutes to issue. The Appellant and his group complained to a Major when a group of wealthy people were permitted entry without a permit. The Major said he was under orders not to allow Nubians near the village, however, after approximately 45 minutes to an hour, the Major allowed them to proceed. Then, not long after, an incident took place where the Appellant's village was flooded at XXXX due to a malfunctioning pump. The problem was discovered and several people raised the issue with different branches of government but the governor only arrived at XXXX. The Appellant and others were upset with the slow response from the government, a protest broke out and they blocked the governor's entrance to the village. Still angry, the Appellant and others went to the main water building to help with the electricity problem. The building was guarded by police and when they asked to enter the building the group was refused. The police asked for ID and proceeded to detain the Appellant and several others at the police station in Aswan for several hours before releasing them without charge. The Appellant went to Saudi Arabia for work in 2008 and remained until 2014. He went to Egypt in XXXX 2014, and then on XXXX XXXX 2014, he entered the United States. On XXXX XXXX 2017, his brother XXXX was incarcerated. On XXXX XXXX 2017, the Appellant's fiancée was killed in the US, which lead him to leave that country and go to Canada where he entered on XXXX XXXX 2017 and claimed refugee protection. [3] The RPD rejected the Appellant's claim for protection in Canada on XXXX XXXX 2018, finding that his allegations were not credible regarding the reasons he left Egypt, his activism outside Egypt, his fears of returning to and his prospective risks in Egypt. The RPD found that his testimony was evasive and vague, and noted numerous contradictions, omissions and inconsistencies ranging from simple details to fundamental elements of his claim that it deemed sufficient to refuse his claim. [4] The Appellant argues on appeal that the RPD was overzealous, heavy-handed and myopic in its evaluation of his refugee claim and of his credibility. The Appellant notes that the RPD did not accord him the benefit of the doubt at any moment in the decision, that the RPD did not consider his shortcomings and capabilities in assessing his manner of testifying. He further argues that the RPD erred in failing to confront him with certain findings, that it erred in its assessment of documents, and made findings that were ultra vires to its decision-making powers. He argues that the RPD focused too much on problems with his testimony. Finally, he argues that the RPD's did not consider his explanations for the omissions, contradictions and inconsistencies it found both within his testimony and between his testimony and the documents he filed in support of his claim. [5] The RAD finds that the RPD did not err in its assessment of the Appellant's credibility nor in its resulting conclusion that Mr. XXXX did not credibly demonstrate that he would face a serious possibility of persecution due to his ethnicity and/or his political opinions if he were required to return to Egypt nor that he would face any of the risks outlined at section 97 IRPA on the balance of probabilities if he were required to return to Egypt. DECISION [6] The appeal is dismissed. ROLE OF THE RAD [7] The RAD must conduct a thorough, complete and independent review of the evidence presented. The Federal Court of Appeal in Huruglica1 indicates that the RAD must review the RPD decision on a correctness standard for questions of fact, mixed fact and law, and of law. Exceptionally, the RAD may show deference to the RPD2, however it must clearly state where deference is being accorded and explain its reasons for doing so. ANALYSIS [8] The RAD listened to the recording of the hearing before the RAD and considered the RPD record and the Appellant's record in order to perform its independent assessment of the present file in light of the Appellant's arguments on appeal. Inconsistent account of arrest and detention in Egypt [9] The RPD found that the Appellant was inconsistent with respect to his arrest by the Egyptian authorities. The inconsistencies related to the dates on which it occurred, the reasons for the arrest, as well as the length of the detention. He wrote in his US asylum claim forms that the arrest took place in XXXX 2013 and that he was detained for XXXX XXXX XXXX hours. However, in the BOC form he submitted in Canada in September 2017 at question 2(c) he indicated that his arrest occurred in 2011, was threatened for fighting with the governor, and that he was detained for 5 - 6 hours. Then, in his BOC narrative that he submitted to the RPD in XXXX 2018 he indicated that he was arrested and detained on XXXX XXXX 2011 following the flood in his village when he and a group of other Nubians had gone to the main water building and asked to be let in in order to help with the electricity situation. He also testified before the RPD that the arrest pursuant to the flood in his village had occurred on XXXX XXXX 2011 and that he had been arrested on that day because he was amongst those who had refused the governor entry to the village.3 Inability to remember dates [10] The Appellant argues on appeal that the fact that he did not remember the exact date of his arrest should not be fatal and does not detract from his need for protection.4 [11] The RAD finds that the date errors are not sufficient in themselves to impugn the Appellant's allegations on this point since aside from the US forms, the Appellant's dates were off by XXXX month. The RAD also notes that the Appellant testified specifically that regarding the date of XXXX 2013 in his US forms, he had noticed a translation problem with that part of the translation provided by the translator in the US. However, the RAD finds what does undermine the Appellants credibility is that fact that the reasons he provided for this arrest and detention in his various documents as well as during his testimony are not consistent. His only explanation aside from the aforementioned translation issue was that he swore to tell the truth5, which the RAD does not consider to be a sufficient explanation for the inconsistencies on such a central element of his claim - the reasons for his only arrest and detention by Egyptian authorities. The fact that the Appellant was also inconsistent with respect to the length of the detention only further detracts from the credibility of this allegation. The RAD further notes that while the Appellant subsequently submitted a photo of himself standing in the floodwater6, 3 other photos of flooding7, and a YouTube video of the flooding and governmental response8, none of these indicate the date of the event nor when the photos and video were taken, nor do they make any reference to nor show the arrest of Nubians or any other persons on this date by the authorities. As such, these pieces of evidence only serve to confirm that a flood took place. The RAD therefore agrees with the RPD's conclusion that the Appellant's allegations of his arrest and detention by the Egyptian authorities during the flooding incident in his village were not credible and that the RPD therefore did not err on this point. Inability or unwillingness to describe his personal involvement [12] While the Appellant also argues on appeal that the RPD's finding that he had been unwilling or unable to accurately describe what he personally did at the flooding incident which lead to his arrest was erroneous9, the RAD must agree with the RPD's findings. The RAD notes that the RPD asked the Appellant to describe how he personally had spoken out against the authorities on the day of his arrest. The RPD asked the question several times and he kept responding with information about what "we" did in the village, despite being asked repeatedly about his own personal actions that day. The RAD notes that even his testimony on the two days of hearing regarding his own actions, when he finally answered the questions about his personal involvement on that day, was inconsistent. At the first hearing, he eventually indicated that he had gone to the main water building (a) to offer to help with the electricity problem but also (b) to inform the authorities of the problem10. He testified that they were denied entry to the building and were detained thereafter. On the second day of the hearing, he testified that on the day of the flood, he had personally stopped the governor's car so that he could not enter "the place" but had not mentioned this during questioning on the first day of hearing.11 The RPD also asked him several times if he had personally spoken to the media and the Appellant repeatedly answered that everyone spoke to the media and we spoke to the media, but even where the RPD explained the difference between "I" and "We" and asked if he personally spoke to the Media, he did not answer the question.12 Given that the RPD had to ask repeatedly over the course of two hearing days about the Appellant's personal involvement before the Appellant would somewhat directly answer the question - and noting that his answers were nonetheless inconsistent once he finally answered - the RAD finds that the RPD did not err on this point. Illegal activity finding [13] The Appellant further argues that the RPD erred in failing to confront the Appellant with its finding that his activities on the day of the flood in his village at the main water building may have been illegal, a finding which the Appellant highlights was at variance with his testimony13. However, the RAD finds that the RPD presented its concerns on this issue to the Appellant during the hearing when it asked (i) whether he was an electrician and (ii) why he thought he should be allowed entry to a public works building14. Noting that he testified that he wanted to gain entry to "help out" with the electricity problem and noting that he had no specialized training or knowledge that could have helped, the RPD found that he did not otherwise seem to have any legitimate right to be admitted to the building. The RAD finds that the RPD did canvass the issue with the Appellant and came to the conclusion that it appeared from the information and context provided by him that, if they were arrested, he and the others with him may well have been arrested because they were trying to gain entry to a building to which they had no legitimate right of entrance rather than due to their political or ethnic background. The RAD finds that given the information before it, this finding was open to the RPD and that the RPD's line of questioning was a sufficient indication of its concerns regarding the context of the Appellant's alleged arrest. As such, the RPD did not err on this point. The RAD also notes that the Appellant contests the associated finding of the RPD that if the Appellant was arrested as he alleges, that his arrest does not arise to the level of persecution15. However the RAD notes that when read in context, the RPD clearly stated in its decision that the arrest did not amount to persecution because it seemed more likely that the arrest was due to the Appellant's attempt to gain entry to a building he did not have legitimate access to rather than due to his ethnicity or political opinions. The RAD finds no error with this analysis and agrees with the RPD's finding. CBSA Forms [14] The RPD also took into consideration the fact that the Appellant had not declared his arrest and detention by Egyptian authorities in the forms he submitted with his Canadian refugee claim, some of which specifically ask questions regarding previous arrests and/or detentions. The RPD noted his explanation that he did not remember being asked such a question, swore that it was the truth, and then stated that he believed it was the agent filling out the forms.16 The Appellant argues that the CBSA forms should be assigned little weight given that he did not benefit from counsel at the time they were filled out.17 However, the RAD finds that the Appellant's testimony explaining the reason for the omissions of his arrest and detention from the forms illustrates that while he did not have legal counsel at the time they were filled, he was aided in filling out the forms by an immigration agent. As such, he was not filling out the forms on his own without any help, so the RAD finds that the lack of counsel argument is not sufficient to explain the omission of his previous arrest and detention from the forms. Problem with the American Refugee Forms [15] The Appellant also argues that the RPD erred in ignoring his explanation for the discrepancies between the information in his American refugee forms and his Canadian refugee forms and testimony. The Appellant indicated that there were translation problems with the American refugee forms18. However, the RAD cannot accept this argument. The RPD confronted the Appellant with the fact that there were inconsistencies between his US asylum documents and his Canadian refugee claim documents, noting that he stated in his Canadian documents that he was detained on XXXX XXXX 2011, but in the US documents he declared that he was detained in XXXX 2013, that the length of his detention varied throughout the documentation he provided, and provided him with an opportunity to explain the discrepancies. The Appellant indicated specifically that "concerning the date of 2013, I told the lawyer there was error from the translator who was with me"19. The RAD also notes that the US forms listed the Nubian associations to which he claimed to be a member in Saudi Arabia and in Washington20, however the Canadian forms indicate that he had no membership in any associations21. The RAD finds that, according to the Appellant's testimony, the translation problems with the US forms was specifically limited to the error of the date of XXXX 2013 and not to any other element. As such, the RPD did not err in ignoring this explanation as the explanation did not extend to the entire contents of the US asylum form and the discrepancies between the forms and the Appellant's testimony were not limited to the XXXX 2013 date. [16] As such, the RAD agrees that, given all of the aforementioned issues with the Appellant's allegation that he had been previously arrested and detained in Egypt, the allegation was not credible and that the RPD did not err in drawing a negative credibility finding. Alleged Activism Since Leaving Egypt [17] The RPD also noted that the Appellant's allegations regarding his social and political activism since he left Egypt were inconsistent. At the hearing, he indicated that he was the type to speak out, so if he returned to Egypt he would be at risk. The RPD noted that he declared in his American refugee forms that he was active in Nubian organizations in Saudi Arabia and in the USA, and that in these organizations they often discussed the social and political situation in Egypt for Nubians. However, in his Canadian refugee forms, he did not mention his membership in these Nubian associations in his narrative and wrote "None" to the question about membership or association with organizations. When confronted with this omission and contradictory information, he testified that they did not speak about politics in these organizations and that they were a social society22, and mentioned that perhaps he was not asked this question when filling out the Canadian forms. The RPD found that these explanations were insufficient to explain the omission and contradictions between the refugee claim forms he filled out. As a result, the RPD drew a negative credibility finding with respect to the Appellant's allegation of being a social and political activist since he left Egypt.23 [18] The Appellant argues on appeal that his failure to mention his membership in the two Nubian associations in his Canadian refugee claim forms should not be fatal, that it is a peripheral finding based on forms for which the Appellant was not represented while filling out. The Appellant further argues that the RPD acknowledged that numerous people assisted the Appellant in filling out the forms, yet he was never accorded the benefit of the doubt on this point.24 [19] The RAD notes first that the lack of representation while filling out the forms does not mean he was not advised or aided in filling them out. As highlighted above, the Appellant's testimony indicates that a Canadian immigration agent helped him to complete the forms. Further, it is true that the RPD noted that the Canadian immigration forms appear to have been completed by more than one person in its decision, however the RPD went on to note that by signing the solemn affirmations of truthfulness and completeness at the end of each form the Appellant had assumed responsibility for the accuracy of these declarations. The RAD agrees with this reasoning. The RAD further agrees with the RPD that the omission of his membership in these associations from the Canadian refugee forms and the inconsistency with respect to their social versus social and political nature is important because the Appellant asserts that he is at risk in Egypt because of his past social and political activism and because he will continue this activism in the future. Further, the RAD notes that while the Appellant mentioned his membership in the Nubian associations specifically in both the narrative section of his US asylum forms and in the section specifically asking about membership in organizations, he omitted them from both his Canadian narrative and his Canadian refugee claim forms (IMM 5669). The Appellant declared in his US asylum forms that he was a member of each of these associations for several years - between 2008 and 2014 in Saudi Arabia and between 2014 and 2017 in the USA - and was expressing his political opinions during that time, so by omitting his years of membership from the Canadian forms and his inconsistent evidence on the social versus political nature of these associations from his Canadian refugee claim forms, he effectively undermined his allegation of being an activist since he left Egypt. RPD Conclusions Regarding Allegations of Activism [20] The RPD concluded that the Appellant's inconsistent and vague testimony coupled with the inconsistencies between his testimony and the documents on file, had a negative impact on his allegations that he was socially and politically active in the past as well as on his allegations that he is someone who speaks out for his Nubian people. The RPD noted that he had provided no evidence beyond his own testimony to support his allegation of his social or political activism and that it has been more than 5 years since the alleged incidents with Egyptian authorities had taken place. The RPD concluded that the Appellant had not established on the balance of probabilities that his social or political activism had brought him to the attention of the Egyptian authorities in the past or that in the future he would be active in such a way as to attract the attention of the Egyptian authorities.25 [21] The Appellant argues that the RPD's findings as to future risk are ultra vires to its decision-making power26. However, the RAD notes that other than asserting that the findings were ultra vires of the RPD's decision-making power, the Appellant has not explained in what way these findings are beyond the scope of the RPD's decision-making. [22] The RAD finds that it is trite law that the assessment of prospective risk is central to the determination of refugee status and that the assessment is necessarily forward-looking. Indeed, while past persecution and/or past experiences of harm and/or the experiences of similarly situated persons can be used as evidence to establish future risk, the purpose of the refugee determination system is precisely to determine whether a person claiming refugee status has established that they would face a serious possibility of persecution if required to return to their country in the future and/or whether a person claiming protected person status has established on a balance of probabilities that they would face one of the risks outlined at section 97 IRPA if they are required to return to their country in the future. The forward-looking nature of the persecution and/or risk feared is evaluated at the time that the claim is assessed. As such, the RPD was entitled and obliged to weigh and assess the evidence of forward-looking risk and the RPD therefore did not err in so doing. [23] The RAD notes that the RPD's conclusions with respect to the credibility of the Appellant's allegations of being an activist were based on the fact that it had found in the previous sections of the decision that the Appellant was not credible with respect to his allegation that he was arrested and detained in his village during the flood, let alone that his alleged arrest was due to his social or political activism, and that he had not credibly established that he had been an activist either before or after leaving Egypt. Indeed, the only other time he alleges having spoken out in Egypt was on a trip to the Nubian people's ancestral land when he and the group he was travelling with were initially refused entry and the Appellant alleges that he told a military official that they had a right to go there. The RAD notes that the Appellant did not allege having suffered any consequences after this incident and, in fact, their group ended up being given permission to enter the Nubian ancestral lands. With respect to his activism after leaving Egypt, the RAD agrees with the RPD that thereafter, the Appellant's allegations of social and political activism are limited to his discussions with fellow Nubians in the Nubian associations in which he claims he was a member in Saudi Arabia and the USA and that the omission of his membership in these organisations from his Canadian refugee forms undermined his allegation of being an activist after leaving Egypt. Added to this, during his testimony he described his involvement as being purely social in these organizations rather than political and social as declared in his US asylum forms, which also undermined his allegations. [24] The Appellant also argues that the RPD erred in expecting evidence demonstrating his social or political activism beyond his own testimony.27 [25] In light of the fact that the RPD found the Appellant's testimony to be evasive and inconsistent - concerns that were repeatedly mentioned to the Appellant over the course of the first hearing day - the RAD finds that the RPD did not err in asking the Appellant at the end of the hearing on the first day to provide post-hearing evidence beyond his own testimony to support his allegations of his political and social activities. The RAD notes that at the second day of hearing, the Appellant did not adduce any such evidence, however the RPD did not make any findings in its decision relating to this. Therefore, the RAD finds that the RPD did not err in finding that, in light of the lack of credibility of his allegations of political and social activism due to inconsistencies and omissions in his documentation and testimony, the Appellant was unable to establish that he was a social or political activist in the past or that he would be in the future if he were to return to Egypt, particularly since past activism could have been a way of assessing whether he would continue to be an activist in the future. Situation for the Nubian People [26] The RPD went on to consider the situation for Nubian people in Egypt since the Appellant alleged that his problems in Egypt were both racial/ethnic and political. The RPD considered the situation for Nubians in Egypt as described by the Appellant and then considered the objective documentary evidence describing the current treatment of Nubians in Egypt. It recognized that the Nubians face discrimination and some harassment, that they were displaced from their homeland when the Aswan High Dam was built in the 1960s, and that they may face further forced displacement due to a new government decree concerning land ownership. The RPD also noted that the documentation indicates that the Egyptian government had been making changes to advance the situation of minorities, including Nubians, but that the government had not yet followed through on certain promises affecting the Nubian minority and that they continue to be blocked from living in certain areas of their traditional territory. While the RPD noted that Nubian activists had been arrested and detained as a result of their activism to protect their people's rights, it concluded that the Appellant's assertion that he was a social and political activist for the Nubian people in the past and that he would be in the future were not credible, so he would not be at risk of being arrested and imprisoned like some Nubian activists described in the documentary evidence have been.28 [27] The Appellant does not contest the findings of the RPD with respect to the situation for the Nubian people, but does contest the RPD finding that he would not be a social and political activist in the future, arguing that the finding was ultra vires and therefore drawn in error.29 Again, the RAD notes that the analysis of the need for refugee protection is forward-looking. Here the RPD only had testimony from the Appellant to the effect that he had spoken out in the past for the Nubian people, that he was known by the Egyptian government for speaking out because of his past activism and that he would continue to be a political and social activist if he returned to Egypt. However his testimony was deemed not to be credible due to internally inconsistent and contradictory testimony as well as testimony that was inconsistent with documentation he provided. As such, the RAD finds that RPD did not err on this point. Arrest of the Brother [28] The Appellant argues that the RPD's finding that he was embellishing his claim for protection by adding the information about his brother's arrest in XXXX 2017 was "off-side". The Appellant further argues that the RPD distorted the evidence in finding that his brother had participated in storming the houses at Abu Simbel, which resulted in his arrest and detention on XXXX XXXX 2017. The Appellant asserts that he never testified that his brother had participated in the storming of the houses and that the RPD's conclusion that his brother was arrested for committing illegal acts was a finding not supported by his testimony.30 [29] With respect to the finding of the RPD that the addition to his BOC narrative of his brother's arrest and detention on the first day of the hearing was an attempt at embellishing his refugee claim, the RAD agrees with the assessment of the RPD. As pointed out by the RPD, the Appellant had filled out his refugee claim forms in August 2017, and had filled out his BOC form in September 2017 with the help of his lawyer. Since he had submitted his US asylum forms and narrative with his BOC form in September 2017 and had not provided a separate BOC narrative in support of his Canadian claim, he was invited to provide a BOC narrative before the RPD hearing, which he provided on January 2018. The Appellant did not mention his brother's arrest or detention in the September 2017 BOC form nor in his BOC narrative of 31 January 2018.31 When confronted with the timing of the addition of his brother's arrest and detention, the Appellant explained that he had presented the same story as the one he submitted in the US and the events had occurred after he had claimed asylum there.32 When confronted with the fact that his brother's arrest was not in his January 2018 BOC narrative either, he stated that he wrote about his personal experiences and intended to add the information about other people later.33 The RAD agrees that his explanations are insufficient to explain the last-minute addition of the information about his brother's arrest and detention given that it dated from April 2017 and the Appellant had counsel helping him to fill out the BOC form (which specifically asks claimants to describe any situations where they or their family members have ever been harmed, mistreated or threatened34) he submitted in September 2017 and the subsequent BOC narrative that was submitted in January 2018 - more than XXXX XXXX after the Appellant's brother's initial arrest and detention. [30] The RAD further finds that the RPD was correct in finding that the Appellant's evidence did not support his allegations regarding the reason for his brother's arrest and detention.35 The RPD noted that the letter the Appellant provided to support his allegation that his brother was one of the Nubians who was promised housing was actually a letter from his brother applying for the promised housing36. The RAD also finds that the RPD did not suggest in its decision that the Appellant's brother had participated in the storming of the houses, but rather that he was present at the protests, that he spoke out against the decision not to give the houses to Nubians from that city, and that he was arrested for damaging property that was not his. These findings are also consistent with the Appellant's testimony - he stated before the RPD that his brother was present at the protests at the housing project, that the owner of the property had called police to remove the protesters from the property, and that his brother had been charged with attacking people's property37. The RPD confronted the Appellant with the fact that the actions described in the article38 the Appellant provided explaining the incident indicated that the demonstrators were somewhere they did not have a right to be, so the owner called the police to get them out and that if the same thing happened here in Canada it would also be considered an illegal act. To this, the Appellant answered that the people who damaged the property were children and even the children felt that the houses should have been for "us", but ultimately the Appellant said, "I don't say what they did was right but even a child knows that is a miserable situation"39. As such, the RAD finds that the RPD did not draw conclusions that were not supported by the documentation - the conclusions were in fact supported by both the documentation before the RPD and the Appellant's testimony on this issue, since the events as they were presented both in the Appellant's testimony and in the article he submitted in support show that the police were called to deal with people damaging property and refusing to leave and his brother was among those people. Prospective Risk [31] The RPD concluded that the Appellant had not established that he was subjected to past persecution due to his real or perceived political opinions nor as a result of his Nubian ethnicity. It noted that the documentation confirms that political opponents in Egypt, including Nubian activists, may be subjected to arbitrary arrest and detention but that he had not experienced such treatment. It also considered that, while past mistreatment is not necessary to demonstrate a serious possibility of persecution, his past treatment had to be considered since he alleged that the Egyptian authorities perceived him to be an activist because of his past activities. The RPD considered that (a) he spent lengthy periods of time outside Egypt since 2008, (b) his forms indicated that he had returned to Egypt in XXXX 2014, after his alleged arrest and detention by the Egyptian authorities during the flood in his village, and (c) a lengthy period had elapsed since the alleged incidents took place in Egypt. Given these findings and the inconsistencies in the Appellant's testimony the RPD found that he had not established that the Egyptian authorities would have any current interest in him due to his Nubian ethnicity nor due to his prior alleged activism nor as a potential social or political activist if he returned to Egypt.40 [32] The Appellant argues that the RPD erred in finding that he would not suffer persecution because he was never subject to arbitrary arrest or detention since there is no requirement that there be actual detention by the authorities, asserts that the RPD was "clearly preoccupied with testimonial inconsistencies", and that it did not adjudicate the facts presented by him during the hearing.41 [33] The RAD finds that the RPD did not err on this point. The RPD clearly stated that it was aware that the Appellant did not have to prove he had experienced past mistreatment in order to establish a future risk of harm or a serious possibility of persecution. Nevertheless, the RAD finds that the RPD did not err in considering his allegations of past mistreatment in Egypt because he specifically alleged that because of his previous activities he would be perceived by the Egyptian authorities as an activist in the future, he would be targeted for that reason upon his return and he would continue his activism after his return. However, the RPD found that his allegations of previous mistreatment and of previous activism - both inside and outside Egypt - were not credible and the RAD finds, as explained in the sections above, that the RPD did not err on those points either. The RAD also notes that the RPD considered the situation for Nubians and the treatment of Nubian activists in Egypt before coming to its conclusions, however again, the lack of credible testimony from the Appellant led it to conclude that he was not a similarly situated person since he was unable to demonstrate that he would be perceived as an activist due to his past activities nor that he would be an activist upon his return. General Arguments on Appeal Benefit of the Doubt [34] The Appellant asserts that the RPD erred in not according the Appellant the benefit of the doubt relative to the flaws in his testimony.42 However, the RAD finds that the application of the benefit of the doubt principle has been outlined by the jurisprudence of the Federal Court as applying only where an Appellant's story has otherwise been deemed to be credible, but there is little extrinsic evidence to back up their story. In the present appeal, the RPD found the Appellant's allegations were not credible, and the RAD finds that the RPD did not err in that determination. As such, it was not required to accord the Appellant the benefit of the doubt. Characterization of Testimony as Vague and Evasive [35] The RPD found the Appellant's testimony to be vague and evasive. The Appellant argues that this characterization of his testimony by the RPD indicates that it did not take into account the Appellant's shortcomings, shows that the RPD discounted the fact that he required protection, and that it did not take into account his capabilities.43 However, the RAD finds that the Appellant has not pointed to any specific shortcomings that should have been taken into consideration. The RAD notes that the Appellant did not present an application to be designated a vulnerable person, nor did he provide any signs during the hearing that such a designation was necessary. The RAD also notes that neither the Appellant nor his counsel raised any particular shortcomings to be taken into consideration during the two hearing days before the RPD. The RAD further notes that the Appellant's testimony was, indeed, evasive and vague. The RPD asked many direct, specific questions to the Appellant several times over the course of the hearings - often even reformulating those questions in an effort to ascertain if the vague responses from the Appellant was due to a lack of understanding of the question and even indicating how many times it had already asked a question and pointedly offering one more chance to answer despite the previously evasive responses. The Appellant often did not directly answer the questions posed, and occasionally did not provide any answer to the questions posed. Finally, the RAD notes that the RPD was not required to take into account the alleged fact that the Appellant needed protection, as the RPD's role is precisely to determine who is a refugee and who is a person in need of protection through hearing testimony, assessing documentation and evaluating whether each claimant has met the criteria of sections 96 and/or 97 to qualify as refugees or persons in need of protection in light of all the evidence before it. As such, the RAD finds that the RPD did not ignore any shortcomings for which it had been made aware during the hearings (since it was not made aware of any such shortcomings) nor did it ignore any shortcomings for which it should have been aware. Appellant not given a chance to say all he wanted to say [36] The Appellant argues that the RPD erred in ignoring his complaint that he was not being given an opportunity to say all he had to say.44 The RAD cannot accept this argument because after the Appellant made this complaint, the RPD provided the Appellant with the opportunity by asking an open-ended question phrased as follows: "you have said you don't feel you have had the chance to say all that you needed to say - what do you have to say?". The Appellant then spoke for approximately five minutes, after which the RPD asked if he had anything to add and he responded that he had said all he wanted to say. 45 Further, at the end of the second hearing day, the RPD provided the Appellant with another opportunity to say anything else that he wished to have taken into consideration by the RPD that had not previously been said, and he responded, "everything is okay, thank you."46 As such, the RAD finds that the RPD did not err on this point. RPD Imposition of unwarranted expectations on Appellant's testimony [37] The Appellant argues before the RAD that the RPD imposed unwarranted expectations on the Appellant's testimony - namely the expectations that the Appellant's testimony be internally consistent and devoid of obvious contradictions.47 With respect, the RAD finds that these expectations are not unwarranted. Indeed, the RAD finds that the RPD was correct to test the Appellant's credibility by noting inconsistencies within his testimony and between his testimony and documentation and then by raising them with him in order to hear the explanation. The RAD finds that the RPD gave the Appellant the opportunity to explain the inconsistencies and other credibility issues it had noticed during the hearing. Finding that the explanations are insufficient is also not an error in and of itself, since the RPD's role is to assess whether explanations for credibility issues are sufficient to overcome those issues - it is a part and parcel of the credibility assessment. Further, the expectation that the Appellant's evidence - whether testimonial or documentary - be devoid of obvious contradictions was also a perfectly acceptable expectation to impose on the Appellant given that it is their burden to establish that they meet the criteria to be recognized as refugees or persons in need of protection and the RAD again considers that the RPD was correct to raise these issues with the Appellant and gave him an opportunity to explain the contradictions it had noted in its analysis of his claim, as required by procedural fairness considerations. When the RPD did not receive explanations that were adequate or otherwise satisfactory to address the credibility concerns, it was correct to come to the conclusion that the Appellant's allegations lacked of credibility and that, absent credible allegations, he had not met his burden of proving that he would face a serious possibility of persecution as a person of Nubian ethnicity or based on his real or perceived political opinions as a Nubian activist nor had he met his burden of proving on a balance of probabilities that he faces any of the risks outlined at section 97 IRPA if he returns to Egypt. CONCLUSION [38] 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) Miriam McLeod Me Miriam Mcleod May 24, 2019 Date MM/bq 1 Canada v. Huruglica, 2016 FCA 93, at paragraphs 37, 48, 70, 78 and 103. 2 Rozas Del Solar v. Minister of Citizenship and Immigration, 2018 FC 1145 and Canada v. Huruglica, 2016 FCA 93. 3 Appellant's Record, RPD Decision, page 11 at paragraphs 31- 34. 4 Appellant's Record, Memorandum of Argument, page 25 at paragraph 11. 5 RPD Hearing Recording at 1:04:03 (20 February 2018). 6 RPD Record, page 143. 7 RPD Record, pages 144 - 146. 8 RPD Record, page 142. 9 Appellant's Record, Memorandum of Argument, page 25 at paragraph 8. 10 RPD hearing recording at 57:00 - 1:00:00 (20 February 2018). 11 RPD hearing recording at 13:48 (28 March 2018). 12 RPD hearing recording at 9:45 - 13:45 (28 March 2018). 13 Appellant's Record, Memorandum of Argument, page 25 at paragraph 10. 14 RPD hearing recording at 56:45 - 1:01:40 (20 February 2018). 15 Appellant's Record, Memorandum of Argument, page 25 at paragraph 15. 16 Appellant's Record, RPD Decision, page 12 at paragraph 35 and RPD hearing recording at 1:55:36 (20 February 2018). 17 Appellant's Record, Memorandum of Argument, page 25 at paragraph 12. 18 Appellant's Record, Memorandum of Argument, page 25 at paragraph 12. 19 RPD hearing recording at 1:04:03 - 1:05:04 (20 February 2018). 20 RPD Record, page 35. 21 RPD Record, page 116. 22 RPD hearing recording at 1:52:50 (20 February 2018). 23 Appellant's Record, RPD Decision, page 14 at paragraphs 41 - 46. 24 Appellant's Record, Memorandum of Argument, page 26 at paragraph 16. 25 Appellant's Record, RPD Decision, page 15 at paragraphs 47 - 51. 26 Appellant's Record, Memorandum of Argument, page 26 at paragraphs 18 - 19. 27 Appellant's Record, Memorandum of Argument, page 26 at paragraph 17. 28 Appellant's Record, RPD Decision, pages 17 - 18 at paragraphs 52 - 56. 29 Appellant's Record, Memorandum of Argument, at paragraph 19. 30 Appellant's Record, Memorandum of Argument, pages 26 - 27 at paragraphs 20 - 22. 31 Appellant's Record, RPD Decision, pages 19 - 20 at paragraphs 57 - 60. 32 RPD Hearing Recording at 34:00 - 35:25 (20 February 2018). 33 RPD Hearing Recording at 35:26 - 37:15 (20 February 2018). 34 RPD file, page 23. 35 Appellant's Record, RPD Decision, page 20 at paragraphs 61 - 64. 36 RPD Record, page 161. 37 RPD Hearing Recording at 1:40:00 - 1:42:50 (20 February 2018). 38 RPD Record, pages 158 - 160. 39 RPD Hearing Recording at 28:17 - 32:15 (28 March 2018). 40 Appellant's Record, RPD Decision, pages 21 - 22 at paragraphs 65 - 67. 41 Appellant's Record, Memorandum of Argument, page 27 at paragraphs 23 - 24. 42 Appellant's Record, Memorandum of Argument, page 24 at paragraph 5. 43 Appellant's Record, Memorandum of Argument, pages 24 - 25 at paragraphs 6 and 9. 44 Appellant's Record, Memorandum of Argument, page 25 at paragraph 7. 45 RPD hearing recording at 1:31:16 - 1:36:50 (20 February 2018). 46 RPD hearing recording at 37:03 - 37:29 (28 March 2018). 47 Appellant's Record, Memorandum of Argument, page 25 at paragraph 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-24645 RAD.25.02 (April 04, 2019) Disponible en français 18 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