TB8-18474

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 : TB8-18474 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a XXXX XXXX XXXX XXXX XXXX XXXX (a.k.a XXXX XXXX XXXX XXXX (a.k.a XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 11, 2018 Date de la décision Panel D. Goff Tribunal Counsel for the person(s) who is(are) the subject of the appeal Victoria A Bruyn 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 INTRODUCTION [1] The appellant, XXXX XXXX XXXX, a citizen of Sudan, appeals a decision of the Refugee Protection Division (RPD), rejecting his claim for refugee protection. The appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and substitute a positive determination. He has submitted new evidence in support of his appeal. He has not asked for an oral hearing. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA),1 the RAD confirms the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. BACKGROUND [3] In August, 2017, the appellant entered Canada from the United States (US) at an unmarked border crossing in Lacolle, Quebec thereby eluding the official port of entry. Upon questioning by immigration officials, he initiated a claim for refugee protection alleging a fear of persecution in Sudan due to his political and imputed political opinion by agents of the Government of Sudan. [4] The appellant is a long-time resident of the US. His asylum claim was denied in March, 1998. He was granted Temporary Protection Status renewable periodically. [5] The appellant's claim was heard by the RPD on June 4, 2018. By a decision dated July 9, 2018, the RPD rejected the claim. The determinative issue was credibility and lack of a well-founded fear. [6] The appellant argues the RPD misconstrued and failed to properly consider the evidence and therefore made unreasonable findings. [7] The RAD is not persuaded the RPD erred. The RPD correctly concluded the appellant failed to credibly establish his claim. ANALYSIS The Role of the RAD [8] The RAD is to review the RPD's findings of law, fact (and mixed fact and law), which raised no issue of credibility of oral evidence, applying the correctness standard.2 [9] In assessing the credibility of oral evidence, the RPD may have a meaningful advantage, as the RPD directly sees, observes, and selects questions to ask of the witnesses etc. In this regard, the Court has reiterated that "significant deference is due to the findings of a tribunal"3 recognizing that "the role of this Court is a very limited one because the tribunal had the advantage of hearing the witnesses testify, observed their demeanor and is alive to all the factual nuances and contradictions in the evidence".4 [10] Finally, it is not the role of the RAD to undertake a microscopic search for errors. The Court has also been clear: [t]he responsibility rests with the appellant to raise any potential grounds of appeal that arise from the RPD decision. The RAD has no responsibility to consider other grounds.5 Admissibility of new evidence presented on appeal [11] The appellant has submitted a copy of a purported summons issued by the National Intelligence and Security Service (NISS) dated January 23, 1998.6 He alleges that he received the summons from his brother in Sudan after his refugee claim was refused.7 He argues this new evidence shows that he "was a person of interest by the NISS at the time that he left Sudan in 1998...and it is reasonable to believe that he has been declared wanted by the NISS..." [12] Subsection 110(4) of the Act provides that the appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection of the claim. [13] The burden of proof for admitting new evidence lies with the appellant. The RAD Rules further require that the appellant "must" explain how any new documentary evidence meet the requirements of subsection 110(4) of the Act and how that evidence relates to him.8 [14] The RAD does not have discretion to admit evidence that does not meet the statutory requirements. [15] The appellant has failed to explain how the proposed evidence meets the requirements of subsection 110(4) of the Act and how that evidence relates to him. The RAD further notes there is no indication whatsoever the appellant or his counsel attempted to and/or requested additional time to present this document (dated in 1998) to the RPD before the rejection of his claim. Indeed, the appellant has not previously alleged (neither in his Basis of Claim form9 or testimony) that there was a summons issued against him by the NISS. The appellant has not provided a corroborating letter from his brother, nor any other tracing of the summons to evidence how and when it was sent to him from Sudan. Moreover, a previous letter10 from one of the appellant's brothers in Sudan that was presented to the RPD makes no mention of a summons, much less his (or his other family members) having the actual document and/or, their efforts to obtain it for the appellant. The RAD further notes the NISS summons does not have a contact phone number or street address. Finally, given also that there is no explanation from the appellant as to why the document was not reasonably available prior to the rejection of his claim and should be accepted as new evidence, the RAD finds the proposed document does not meet the statutory requirements and is, therefore, not admitted as new evidence. The RPD Findings [16] The RPD determined the appellant had not met his burden to establish his claim. The RPD had a number of credibility concerns with the appellant and his allegations of persecution. [17] The appellant argues the RPD erred in its findings, as indicated below. [18] The RPD took a negative inference as to the credibility of the appellant's allegations against Sudan due to his very limited sole attempt to secure permanent residence, or permanent protection in the US. [19] The appellant argues there is no evidence the appellant would have qualified for immigration in the US so "it is not clear why a reasonable person would continue to make fruitless attempts and spend their resources consulting with legal and immigration officials".11 [20] Having reviewed the record, the RAD does not agree with the appellant's argument. The appellant resided in the US for a very considerable period of time dating back to 1998 with only temporary status and thereby risking return to Sudan. The RAD finds it is reasonable to expect an appellant under these circumstances to seek to regularize their status, particularly for someone alleging a risk to their life or of cruel and unusual treatment or punishment for political reasons. In this regard, the RAD notes the appellant is not unsophisticated, having been a professional soccer player for several years and then residing and working in the US for several more years. Accordingly, while not determinative on its own, the appellant's failure to actively pursue a more stable and regular status in the US during his approximately nineteen years there added to the RAD's own concerns with the credibility of the appellant's allegations of persecution and that he has been targeted by authorities for political reasons. [21] The appellant alleged he was actively involved in Sudanese politics while he was in the US. He provided a letter from the Nuba Mountains International Association12 to corroborate his political activities. The RPD gave this letter little weight noting its very vague contents etc. [22] The appellant argues the RPD erred by giving the document little weight. He argues the RPD erred by placing emphasis on what was lacking from the letter and it is unreasonable to expect the author of the letter to provide identification. [23] Having reviewed the letter, the RAD does not agree with the appellant's argument. The RAD notes the purported letter from the Nuba Mountains International Association is typewritten on plain white paper. As such it is not on any letterhead, nor is there any address or even a city identified. The letter is signed by "XXXX XXXX" and includes his phone number. XXXX does not indicate his title nor affiliation with the Nuba Mountains International Association. Further, XXXX does not include any details about his own experiences with the appellant, including to personally corroborate the appellant's political activities. The letter is also silent as to whether the appellant is a member of the Nuba Mountains International Association and if so, the relevant membership dates. The RAD thus finds the RPD was correct to give little weight to this vague letter in terms of establishing the appellant's alleged political profile. [24] The RPD similarly had credibility concerns with a letter from the Nuba Mountains International Association Canada.13 The appellant has not challenged these findings. The RAD sees no reason to interfere with the RPD's uncontested findings. [25] The RPD also made other credibility findings, including related to the appellant's alleged political activities in Canada and his residual profile. The appellant has not challenged these findings. The RAD sees no reason to interfere with the RPD's uncontested findings. [26] The appellant argues the RPD erred by not considering the National Documentation Package (NDP) 14 on Sudan to understand the current context in which the Government of Sudan operates. The RAD is not persuaded by the appellant's argument. The RPD is presumed to have considered the evidence before it, including the appellant's own voluminous country documents15 and related submissions. There is no evidence before the RAD to indicate otherwise. [27] Accordingly, based upon its own review of the evidence in its entirety, the RAD does not find on a balance of probabilities, that the appellant provided sufficient credible and trustworthy evidence to establish his allegations of persecution due to his imputed or actual political profile. The appellant did not credibly establish that he is known and/or wanted by the authorities for political reasons or otherwise. CONCLUSION [28] The RPD found the appellant and his allegations to be generally lacking in credibility; having independently reviewed the evidence, the RAD has reached the same conclusion. [29] The RAD, therefore, finds that there is not a serious possibility the appellant would be persecuted if returned to Sudan pursuant to section 96 of the Act. The panel similarly finds that, on a balance of probabilities, the appellant would not be personally subjected to a danger of torture, or face a risk to life, or a risk of cruel and unusual treatment or punishment in Sudan pursuant to section 97 of the Act. DISPOSITION [30] On the basis of the findings noted above and after its own assessment of all the evidence in the record, the RAD finds that the RPD's refugee determination is correct. [31] Pursuant to paragraph 111(1)(a) of the Act, the RAD confirms the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. [32] The appeal is dismissed. (signed) "D. Goff" D. Goff December 11, 2018 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Rahal v. Canada (Minister of Citizenship and Immigration), 2012 FC 319, at para 22. 4 Ibid, at para 42, as highly cited, including in Hadi v. Canada (Minister of Citizenship and Immigration), 2018 FC 590 at para 12. 5 Ilias v. M.C.I, (F.C., no. IMM-5152-17) Bell, June 27, 2018, 2018 FC 661, at para 39. 6 Exhibit P-2, Appellant's Record, at pp. 98-99. 7 Ibid, at pp. 12-13. 8 Rule 3(3)(g)(iii), Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257. 9 Exhibit RPD-1, RPD's Record, Exhibit 2, at pp. 13-25. 10 Ibid, Exhibit 6, at pp. 536-537. 11 Exhibit P-2, Appellant's Record, Memorandum, at p. 105, para. 21. 12 Exhibit RPD-1, RPD's Record, Exhibit 6, at pp. 533-534. 13 Ibid, at p. 535. 14 Exhibit RPD-1, Exhibit 3, National Documentation Package (NDP) for Sudan (version 30 April 2018). 15 Ibid, Exhibits 4-8, inclusive. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-18474 RAD.25.02 (September 18, 2018) Disponible en français 8 RAD.25.02 (September 18, 2018) Disponible en français