TB9-08141

RAD File / Dossier de la SAR : TB9-08141 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 September 24, 2020. Date de la décision Panel J. Lourenço Tribunal Counsel for the person who is the subject of the appeal Paul Dineen 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 (The Appellant), citizen of Sudan appeals a decision of the Refugee Protection Division (RPD), dated March 6, 2019, rejecting his claim for refugee protection. The Appellant alleges that he faces a serious possibility of persecution and a risk to life because he is part of the XXXX Tribe from Darfur, which has caused him and his family to be accused of being against the government. The RPD found that the Appellant had not established his identity and rejected his claim [2] For the reasons that follow, the appeal is allowed, and I find that the Appellant is a Convention refugee. BACKGROUND [3] The Appellant alleges that his family home in Darfur was attacked by Janjaweed militia in XXXX 2006 who accused the claimant's father of being against them. The Appellant alleges that he eventually made his way to Foro Burunga, near the border of Sudan and Chad. He alleges that he was arrested by Sudanese Security Forces and held for two months, during which he was abused and tortured, because he was perceived to be a rebel. The Appellant alleges that he escaped with the help of a sympathetic guard, and then arrangements were made for him to leave Sudan. [4] The Appellant alleges that he was smuggled out through Kenya then through Central America and he arrived in the United States (U.S.) on XXXX XXXX XXXX 2008. The Appellant alleges that he made an asylum claim that was refused, however, on appeal he was granted a withholding of removal under the U.N. Convention Against Torture in XXXX of 2010. The Appellant alleges that due to the changes in the United States, including the Trump administration's implementation of a travel ban and the lifting of temporary protection status, he feared he would be deported to Sudan. As a result, the Appellant entered Canada and initiated a refugee claim. ROLE OF THE REFUGEE APPEAL DIVISION [5] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which in particular cases, attracts deference. Unless specifically stated below, I have applied a correctness standard.1 APPELLANT'S ARGUMENTS [6] The Appellant argues that the RPD erred in finding that he had not established his identity. The Appellant argues that the RPD was microscopic in its analysis of his documents and failed to consider his knowledge of Darfur. The Appellant also argues that the RPD failed to consider the circumstances in which he left his country and his young age at the time of his departure. Further, the Appellant argues that the RPD was unreasonable in the way it weighed his supporting evidence, including his identity witness. Finally, the Appellant submits new evidence with his appeal and argues that this evidence, along with the other evidence in the record, credibly establish his identity. NEW EVIDENCE [7] Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA)2 sets out that an Appellant may only present evidence that arose after the rejection of their claim, or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented at the time of the rejection. Where evidence meets the requirements of subsection 110(4), the RAD will then go on to consider the factors affirmed by the Federal Court of Appeal in Raza and Singh.3 [8] The Appellant submits a letter from XXXX XXXX XXXX XXXX who claims to have brought the Appellant his birth registration and education certificate from Sudan. The Appellant also provides an affidavit from XXXX XXXX XXXX, who indicates that he first met the Appellant in Sudan and then re-established a connection with him in New York. [9] I also note that the Appellant submitted a letter from a doctor who has been treating his medical conditions in Canada.4 This letter was submitted after his appeal was perfected. While this letter provides insight into the Appellant's current health situation, it does not provide any evidence related to his claim. For the reasons that follow, there is sufficient evidence in the record to accept the Appellant's identity and grant his claim. Therefore, I will not assess the admissibility of this letter. [10] In considering the letter from XXXX XXXX XXXX, I find this document does not meet the requirements of subsection 110(4) of the IRPA and therefore it will not be considered in the appeal. The information in this letter is not new as it simply corroborates the Appellant's testimony about the way in which he received his birth certificate and school document. In considering whether this was reasonably available to the Appellant, I note that the author of the letter indicates that he travelled to the Middle East and that the Appellant was unable to get in touch with him. Even accepting that the author of this letter was in the Middle East at the time of the Appellant's refugee hearing, I find that neither the letter, nor the Appellant's statement set out how long he was in the Middle East or why the Appellant was unable to reach him at that time. There is also no indication as to how the Appellant was able to reach XXXX XXXX XXXX after his claim was rejected. Therefore, I find that the Appellant has not established that this information was not reasonably available to him at the time that his claim was rejected. I also find that given that the Appellant presented these documents to establish his identity, I find that it would have been reasonable to expect him to provide any corroboration regarding the way in which they were obtained. [11] In considering the affidavit from XXXX XXXX XXXX, I find that this affidavit meets the requirements of subsection 110 (4) of the IRPA. The content of the letter is new as it provides an additional witness attesting to the Appellant's identity. In considering the factors set out in Singh, I also find that this document is relevant as it deals with the determinative issue in the appeal, namely the Appellant's personal, ethic and national identity. There is nothing on the face of the affidavit which causes me to doubt its credibility and therefore I find that this document meets the requirements of new evidence and will be admitted and considered for the appeal. ANALYSIS The Appellant was credible in his testimony about how he obtained his birth registration and education certificate. [12] The RPD found that the Appellant was not credible in his testimony regarding how he obtained his birth registration and education certificate. The RPD noted that when it asked the Appellant if he had to provide anything in order to obtain his education certificate he initially testified he did not; however, when he was confronted about the photograph on the certificate he then testified that this photograph was taken in 2010 and given to his father's friend for the purposes of obtaining the education certificate. The RPD also found that the Appellant was inconsistent in his evidence regarding whether he remained in contact with his father. The RPD found that the Appellant testified that his father was detained by the authorities in Sudan, however he failed to mention this in his Basis Of Claim (BOC). The RPD determined that this omission impugned the credibility of the Appellant's explanation that he obtained the certificates through the assistance of his father and his father's friend. The RPD also noted that the Appellant provided no evidence from the individual who allegedly assisted him in obtaining these documents. [13] The Appellant argues that his evidence regarding how he obtained these documents was consistent. [14] Having independently reviewed the record, I find that the Appellant's evidence regarding how he obtained the certificates was generally consistent. I find that the RPD was microscopic when it found that the Appellant's testimony was contradictory regarding whether he had to provide anything in order to obtain the education certificate. At the first sitting of his hearing the RPD asked the Appellant "Did you have to give them many information, sign any documents, anything like that?" To which he responded "No, I don't know anything."5 The RPD then asked him about the photograph that was affixed to the certificate and the Appellant testified that he did in fact provide that photograph to his father's friend to affix to the certificate. [15] I find the way in which this question was asked suggested that the RPD was initially asking the Appellant about documents or applications that might have been submitted to obtain the education certificate, rather than providing the photograph. I find that the question was not particularly clear and that the Appellant's clarification regarding how the photograph was affixed to the document was in fact not contradictory. Therefore, I find that the Appellant's testimony regarding the manner in which he obtained the certificate was consistent and credible. [16] While I agree with the RPD that the Appellant failed to provide any evidence from the individual who provided him with the certificates, I find that this is not fatal to the credibility of the Appellant's explanation about how they were obtained. While it would be preferable to have this additional information, I find that the Appellant's evidence regarding the way that these documents were obtained remained consistent. [17] I also find that the Appellant's failure to mention that his father was detained in Sudan was reasonably explained. While I understand the RPD's position that this could have been relevant to the Appellant's claim, I find that the Appellant provided a reasonable explanation when he testified that he was focusing on his own detention and mistreatment when he prepared his BOC. I also find that the omission of the Appellant's father's detention is not directly relevant to the determinative issue of establishing the Appellant's identity. Some of the Appellant's identity documents are afforded weight in establishing his identity. [18] The RPD found that the Appellant's birth registration form did not contain a photograph or anything that would tie this document to the Appellant and therefore gave it little weight. The RPD also concluded that the Appellant's education certificate was not genuine. The RPD noted the typographical error in the stamp which overlapped the Appellant's photograph. The RPD also noted that there were other stamps towards the bottom of the certificate which were pixilated in a manner that was consistent with other printed portions of the documents and therefore were not genuine stamps. The RPD found that the use of a printed imitation security feature was not reasonably explained and that these abnormalities detracted from the authenticity of the document. The RPD found, on the balance of probabilities, that the certificate was not genuine and gave it no weight. [19] The RPD also found that the Appellant's support letters contain several errors which detracted from their credibility. The RPD noted that the letter from the Darfur People's organization in New York contained a typographical error in the letterhead in that a comma was used rather than an apostrophe in the word "People,s." The RPD found that this was significant given that the error was in the letterhead which would have likely formed part of a template for such letters, and therefore gave the document no weight. [20] In considering the letter from the Sudanese community Association of Ontario, the RPD found that the letterhead was formatted incorrectly and that there were inconsistencies regarding the web address in the document. The RPD also noted that the author of the letter did not come as a witness to testify about the Appellant's identity which also detracted from the credibility and reliability of the letter. As a result, the RPD gave the letter no weight. [21] The Appellant argues that the RPD misapplied the jurisprudence regarding irregularities in documents and how they affect their authenticity. The Appellant argues that minor typographical errors on their own could not reasonably ground a finding that a document is fraudulent. [22] Having independently reviewed the record, I find that the Appellant's supporting documents will be afforded some weight in establishing his identity. [23] I find that the RPD erred when it discounted the Appellant's birth registration because it did not contain a photograph of the Appellant. As noted previously, I find that the Appellant's testimony regarding how this document was obtained was consistent. There is nothing on the face of this document that causes me to question its authenticity. The RPD does not point to anything in the objective evidence suggesting that the birth registration form is deficient or inconsistent with what would be expected. I also note that while it is true that the birth registration form does not contain a photograph, there is nothing in the objective evidence to suggest that birth registration forms from Sudan generally contain photographs. The RPD also does not point to anything in the objective evidence that would suggest that photographs are ever attached to these documents and that the absence of a photograph would therefore impact the reliability of the document. For these reasons, I find that the RPD erred in its assessment of the birth registration and I find that there is no reason to doubt its credibility. As such I find that it will be given some weight in establishing the Appellant's identity. [24] In considering the Appellant's education certificate, while I share some of the concerns of the RPD I find that in the context of the Appellant's history and testimony the certificate will be afforded some weight. I agree with the RPD that there is a typographical error in the stamp which overlaps the Appellant's photograph. However, I disagree that this typographical error is sufficient to ground a finding that the certificate is not genuine. I also find that the stamps at the bottom of the certificate appeared to be a printed part of the certificate rather than a stamp. However, I note that upon examination of the original documents it is clear to me that the stamps or watermarks contain original signatures. I find that it is plausible that these watermarks or stamps could in fact to be part of a printed document. There is nothing in the objective evidence to establish that this is incompatible with what would be expected in an education certificate. I also note that the Appellant's testimony regarding when he went to school and his age when he completed his studies was consistent throughout his hearing. The Appellant recalled his time in school frequently and with ease throughout his hearing, and this testimony is consistent with the document. Therefore, in light of the Appellant's testimony, this document will be given some weight in establishing the Appellant's identity. [25] In considering the letters from the Sudanese associations in New York and Toronto, I agree with the RPD that there are a number of inconsistencies in the letterhead of the documents. I also note that the authors of these letters did not know the Appellant in Sudan. The authors did not have a significant relationship with the Appellant. As such, I agree with the RPD that these letters will not be afforded any weight in establishing the Appellant's identity. The Appellant's U.S documents will be given some weight in establishing his identity. [26] The RPD found that the Appellant's U.S documents did not establish his identity. The RPD noted that the Appellant's testimony was that he only obtained his birth certificate after his asylum claim was denied. The RPD also noted that it was not provided with any of the Appellant's asylum documents aside from the decision in his appeal, and therefore, the RPD was unable to conclude what was considered by American authorities in regard to the Appellant's identity. The RPD noted that the Appellant provided U.S identity documents, including employment authorization cards, state identity documents, school documents and a driver's license. However, the RPD also noted that the Appellant's testimony was that these documents were obtained on the basis of the information he had provided to immigration authorities in the U.S when he arrived. Therefore, the RPD found that these documents did not credibly establish his identity. [27] The Appellant argues that the appeal decision from the United States demonstrates that the Judge believed the Appellant was a non-Arab citizen of Sudan, from Darfur, who fled and continues to fear the Janjaweed militia. The Appellant argues that this decision ought to be afforded some weight in assessing whether the Appellant is in fact a non-Arab citizen of Sudan from Darfur. [28] While I agree with the RPD that the decision from the U.S has limited weight in establishing the Appellant's identity, I also agree with the Appellant that it cannot be completely disregarded. American immigration authorities clearly accepted that the Appellant was XXXX XXXX XXXX, a non-Arab citizen of Sudan from Darfur. While it is true that I am unable to ascertain the documents that were considered by American authorities in coming to this conclusion, I find that the American asylum decision indicates that authorities in that jurisdiction were persuaded of the Appellant's national and ethnic identity. Furthermore, the Appellant's American identity documents establish consistency regarding his stated identity. If nothing else, they suggest that the Appellant has not used any other identities which would detract from his credibility. Therefore, I find that these documents will be given some limited weight in establishing the Appellant's identity. The testimony of the Appellant's identity witness will be afforded weight in establishing his identity. [29] The RPD found that the testimony of the Appellant's identity witness was insufficient to credibly establish his identity. The RPD noted that the witness and the Appellant initially met in 2007; however, they did not know each other for a very long period of time or see each other frequently in Sudan. The RPD noted that the witness and the Appellant reconnected when the Appellant moved to New York and that they lived together for a number of years. The RPD found that while the testimony of the witness was consistent, and it had no reason to doubt the credibility of the information provided by the witness, all of the information that the witness had about the Appellant's identity was provided by the Appellant himself. The RPD found that since it had concerns with the Appellant's credibility, the testimony of the witness was insufficient to overcome these concerns and to establish the Appellant's identity. [30] The Appellant argues that the RPD was unreasonable in discounting the testimony of the witness in establishing his identity. The Appellant argues that his witness is an individual from the same background who would be able to easily confirm that the Appellant was from a similar background. The Appellant argues that while it is true that the details of his history were provided to the witness by him in the time that they were friends, the Appellant highlights that he lived with this witness for six years in New York and that in this time the witness would have been able to assess the veracity of these claims. [31] I agree with the Appellant that the RPD was unreasonable in discounting the testimony of his identity witness. While I understand the RPD's reservations about the relationship between the Appellant and the witness in Sudan, I agree with the Appellant that given the significant relationship following their reconnection in New York City the witness would be able to reasonably assess the Appellant's statements regarding his history. Put simply, while it is true that the identity witness is unable to independently verify the Appellant's name or familial composition, I find that given that they lived together for six years and were friends for all of these years, surely the witness would have been in a position to have meaningful conversations with the Appellant regarding his history and family. I agree that given that the witness is from a similar background, if the Appellant was lying about his background or ethnic identity this would have likely come to light during the years they lived together. I find that even though the friendship between the Appellant and the witness only became more significant in the United States, nevertheless the fact remains that this is a close personal friend of the Appellant who lived with him for six years. This witness had consistent and credible knowledge of the Appellant's personal, ethnic, and national identity. Therefore, I find that the testimony of the Appellant's identity witness will be afforded significant weight in establishing his identity. The Appellant's knowledge of Darfur is not determinative. [32] The Appellant also argues that the RPD erred by failing to consider his testimony about North Sudan and Darfur and his knowledge of the region in assessing his identity. [33] While I agree with the Appellant that the RPD should have considered the Appellant's knowledge of the region in assessing his identity, I find that the Appellant's knowledge alone would be insufficient to establish his personal identity. At best, very detailed knowledge of the region might suggest that the Appellant spent a significant period of time in that area, however, I find that this would not establish his personal, ethnic or national identity. However, for the reasons I have set out, I find that there is other sufficient credible evidence on the record to establish this identity. The Appellant's new evidence further establishes his identity. [34] The Appellant submits an affidavit from another friend, XXXX XXXX XXXX, who had knowledge of him and his family both in Sudan and in New York.6 The affidavit sets out that the Appellant and the affiant's brother were good friends in Darfur. The Affiant also sets out that he reconnected with the Appellant in New York City and is "100% certain"7 that he is the same individual who was friends with his brother in Darfur. He confirms the Appellant's personal and national identity. I find that there is nothing to call into question the veracity of the claims in this affidavit. I also note that the affidavit is accompanied by a photograph of the affiant with the Appellant in New York. I find that this is a credible affidavit that further establishes the Appellant's personal and national identity. [35] Therefore, in considering the totality of the evidence I find that the Appellant has established his identity as XXXX XXXX XXXX, a non-Arab Sudanese citizen, XXXX tribe, from the Darfur region. The Appellant has established that he faces a serious possibility of persecution. [36] I have reviewed the record before me, as well as the most recent National Documentation Package (NDP) for Sudan, and I find that the Appellant's profile would cause a serious possibility of persecution. [37] In considering the Appellant's ethnic profile, I find that the objective evidence indicates that those who are seen as non-Arab or African in Sudan face a level of general discrimination.8 The objective evidence establishes that Sudanese Arabs have historically been seen as aligned with the government, and northern Muslims have traditionally dominated the government in Sudan.9 In contrast, the objective evidence sets out that, since the beginning of the war in 2003, non-Arabs have often been viewed with suspicion because of a view of their probable support for opposition forces.10 [38] The objective evidence also establishes that individuals from the areas of significant conflict in Sudan, namely, Darfur and the Two Areas are also generally viewed with a level of suspicion by the National Intelligence Security Service (NISS). This is particularly true for those of African ethnicity. The objective evidence indicates that "several sources noted that the Darfuri and the Two Area communities were perceived by the NISS to be 'rebel sympathizers' and consequently these communities would be more closely monitored."11 [39] Furthermore, the objective evidence sets out that individuals returning to Sudan can be subject to questioning in an investigation by authorities. I acknowledge that the objective evidence is mixed on the treatment of returnees and that not all individuals who are returned to Sudan face interrogation or abuse. However, I find that individuals seen as ethnically African from Darfur, such as the Appellant, are at a greater risk of mistreatment. A senior researcher from Human Rights Watch has indicated that the "Possible discrimination of a Darfuri returnee at Khartoum Airport would depend on the profile of the person, ... depending on his ethnic background and political allegiance, he could be presumed to sympathise with rebels in which case he might be targeted for arrest/interrogation." Other researchers describe a risk for African Darfuri re-returnees to be subjected to a higher level of scrutiny and interrogation by security forces.12 [40] I recognize that the objective evidence is somewhat mixed in its description of the treatment faced by returning African Darfuris. While it acknowledges that belonging to an African tribe and being Darfuri is linked to a heightened suspicion that an individual could be pro-rebel, there are varying accounts as to the degree of scrutiny faced by these individuals upon their return. However, in considering the varying accounts, I find that the guidance presented from Amnesty International is particularly persuasive given its source. In a report published in 2016, Amnesty International indicated the following concerning the return of African Darfuris to Sudan: Individuals coming from conflict-affected areas of Sudan such as Darfur and South Kordofan are at serious risk of persecution upon repatriation, in particular at the hands of the National Security Intelligence Service (NISS), who have often been accused of serious human rights violations, including arbitrary detention and torture. In some cases, the NISS appear to have beaten people upon arrival in Khartoum, particularly people coming from conflict areas, under the suspicion that they may be supporters of armed groups.13 [41] Therefore, in considering the objective evidence, I find that the Appellant would likely be viewed as suspicious by security forces upon his return to the Sudan on the basis of his ethnic origin as an African Darfuri. I find that this would likely lead to investigation and interrogation upon his return, which the objective evidence sets out can lead to human rights violations and persecution. [42] Furthermore, I find that the Appellant testified credibly that he and his family had been detained by security forces and accused of being against the government. I find that the personal circumstances of the Appellant and his previous escape from detention put him at an especially elevated risk of persecution. [43] In considering the objective evidence, I find that the mistreatment of individuals viewed as opponents to the government is clearly documented. A report from the UK Home office sets out that: Persons who oppose the government are reported to be subject to reprisals and various abuses, including harassment, forced disappearance, arbitrary arrest and detention... The government's reaction to a perceived threat varies and may depend, in part, on the prevailing political climate as well as the person's profile and activities. Periods of high tension, such as the buildup to national elections, are likely to lead to an increase in harassment, arrest and detention of opposition activists.14 [44] I note that general elections are scheduled to be held this year in Sudan and that, historically, in the lead up to and after these elections, security forces have increased their targeting of perceived political opponents. As such, I find that, given the current political situation in Sudan, the Appellant's risk is increased. [45] I find that the intersection of the Appellant's ethnicity as an African Darfuri, along with the scrutiny he would face upon return to Sudan and the previous suspicions of the government that he and his family were opponents, would cause the Appellant to face significant scrutiny upon his return. I find that the objective evidence clearly establishes that political opponents face a serious possibility of persecution in Sudan. Therefore, in considering the most recent objective evidence and the Appellant's profile, I find that the Appellant faces a serious possibility of persecution. [46] Given that the state is the agent of persecution, the Appellant would not have a viable Internal Flight Alternative (IFA) or access to state protection. CONCLUSION [47] The appeal is allowed. For the reasons given, I am setting aside the RPD's decision and substituting a decision that the Appellant is a Convention refugee. I make this decision, pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA). (signed) J. Lourenço J. Lourenço September 24, 2020. Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157, at para 103. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, subsection 110(4). 3 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385; Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230. 4 Exhibit P-3 Rule 29 submission August 2019 p. 5. 5 Transcript, January 28, 2019 at pp. 18 and 19. 6 Exhibit P-2, Appellant's record, at pp. 20-21. 7 Ibid., at p. 21 para 9. 8 National Documentation Package (NDP) for Sudan (March 31, 2020), item 2.8, Austrian Red Cross, Austrian Centre for Country of Origin and Asylum Research and Documentation, "Darfur COI Compilation," September 2017, at p. 68. 9 NDP for Sudan (March 31, 2020), item 13.3, United Kingdom Home Office, "Country Policy and Information Note, Sudan: Non-Arab Darfuri, Version 4.0," November 2019. 10 NDP for Sudan (March 31, 2020), item 2.8, Austrian Red Cross, Austrian Centre for Country of Origin and Asylum Research and Documentation, "Darfur COI Compilation," September 2017, at p. 46. 11 NDP for Sudan (March 31, 2020), item 2.8 (ibid.), at p. 91. 12 NDP for Sudan (March 31, 2020), item 2.8 (ibid.), at p. 125. 13 NDP for Sudan (March 31, 2020), item 2.8 (ibid.), at p. 128. 14 NDP for Sudan (March 31, 2020), item 4.18 Country Policy and Information Note. Sudan: Opposition to the government, including sur place activity. Version 2.0. United Kingdom. Home Office. November 2018. at p. 7, at para 2.4.2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-08141 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