TB8-06841

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 : TB8-06841 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 18, 2018 Date de la décision Panel D. Goff Tribunal Counsel for the person(s) who is(are) the subject of the appeal Michael F Loebach 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 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 or, to refer the matter back to the RPD to a differently constituted panel. He has submitted new evidence in support of his appeal and has asked for an oral hearing. DETERMINATION [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 (the Act). BACKGROUND [3] The appellant is a Sudanese citizen, born and raised in Saudi Arabia. He does not have citizenship nor any permanent residence status in Saudi Arabia. [4] On XXXX XXXX, 2016, the appellant went to Sudan for a holiday. He was allegedly arrested and detained by Sudanese security forces. He faced beatings, harassment and sleep deprivation. The security forces accused him of helping the rebels and working with foreign entities. He was released after two days with conditions to report daily to the security office. That same month, he obtained a new Sudanese passport (issued on XXXX XXXX, 2016) and exit visa (stamped XXXX XXXX, 2016). He left the country and returned to Saudi Arabia via the airport on XXXX XXXX, 2016. [5] In XXXX, 2017, the appellant entered Canada from the United States (USA) at an unmarked border crossing in Quebec, thereby eluding the official port of entry. Upon questioning by officials, he made a claim for refugee protection alleging a fear of persecution in Sudan on political grounds. The appellant did not make an asylum claim in the USA. [6] The appellant's claim was heard by the RPD on November 14, 2017. By a decision dated February 19, 2018, the RPD rejected the claim. The determinative issue was credibility. [7] The appellant argues the RPD misconstrued the evidence and erred in its findings. [8] The RAD is not persuaded the RPD erred. The RPD correctly concluded the appellant failed to credibly establish his claim. ANALYSIS [9] 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.1 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"2 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 demeanour and is alive to all the factual nuances and contradictions in the evidence".3 [10] The Court has also been clear that the 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.4 As such, the onus is on the appellant to provide full and complete submissions on how the RPD erred. Admissibility of new evidence presented on appeal [11] The admissibility of new evidence before the RAD is subject to strict criteria and the RAD has no discretion to disregard the statutory requirements.5 Further, the burden of proof for admitting new evidence lies with the appellant. 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. [12] The appellant has submitted numerous documents, including unsworn letters from his family and friends in Sudan, as well as letters and photographs related to his participation in activities in Canada.6 The appellant submits he could not reasonably have been expected in the circumstances to provide these documents to the RPD because his counsel did not tell him to.7 [13] The RAD notes the appellant was represented by Mr. XXXX XXXX before the RPD. Mr. XXXX is an experienced counsel, who regularly appears before the Board. He disputes the appellant's allegation against him and has provided the following written response: [t]he undersigned counsel confirms that the allegations [against him] are not true as our office has advised the claimant of all the documents he has to submit and in fact he submitted some of those documents. Counsel also confirms that it is our office practice to advise claimants of the required documents when we first receive the narrative. Furthermore, counsel submits that the issue of inadequate representation based on failure to advise claimants of the documents to produce was settled by the RAD decisions that it is the responsibility of the claimant to produce supporting documents and that failing to do so would not be attributed to counsel's inadequate representation.8 Indeed, the RAD notes the appellant submitted voluminous personal and country documents to the RPD.9 [14] Further, the appellant's hearing was held on November 14, 2017. The RPD's decision and ultimately rejection of the appellant's claim was a full three months after the hearing on February 19, 2018. At the hearing, the RPD specifically raised various credibility concerns with the appellant, including problems with his evidence and the lack of corroborating documentation. The appellant was thus fully aware of the RPD's credibility concerns, as they were specifically and repeatedly raised by the RPD at the hearing. The appellant has accordingly failed to reasonably explain why the proposed "new" documents were not provided to the RPD before the rejection of his claim. In other words, the RAD does not find persuasive or credible the appellant's argument that he could not have been reasonably expected to have provided these documents to the RPD because of bad or inadequate counsel. Furthermore, the RAD finds the information in the "new" documents is a reiteration of information and submissions already provided to the RPD, including evidence about his activities in Canada. The RAD accordingly finds the proposed documents do not meet the statutory requirements. The RAD does not have discretion to admit evidence that does not meet the statutory requirements. They are therefore not admitted as evidence. In this regard, the Court has been very clear that the role of the RAD is not to provide the opportunity to complete a deficient record. Request for Oral Hearing [15] No new evidence in support of this claim has been accepted. Accordingly, the request for an oral hearing is dismissed. 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, including his alleged political profile and persecution by authorities. Political Profile [17] The appellant alleged that he has a long family history of active involvement in Sudanese opposition politics. Specifically, he alleged his father was an active member of the opposition Broad National Movement party (BNM and also known as the Broad National Front or BNF), as well as the Democratic Unionist Party (DUP). His father had been arrested and tortured by authorities in Sudan. After moving to Saudi Arabia, he hosted political opposition meetings at his house for several years. [18] The RPD took a negative inference as to the credibility of the appellant's alleged political background due to the lack of any corroborating documents to establish his family history in opposition politics. The appellant testified he did not think corroborating documents were important and/or he did not get them because Saudi Arabia does not allow political engagement. In response to the RPD's further questions, the appellant testified his father had stopped attending any meetings. [19] The appellant argues his family history in opposition politics was only peripheral to his claim and that it was an error for the RPD to make a credibility finding based on the absence of corroborative evidence. [20] Having carefully reviewed the record, the RAD does not agree with the appellant's argument. The appellant alleged a very lengthy and active family history in opposition politics that spanned several years in both Sudan and Saudi Arabia. He further alleged that both he and his father engaged in opposition politics together while in Saudi Arabia. Accordingly, it is reasonable to expect the appellant to have provided some supporting documents to evidence this lengthy and active political history, including his father's alleged formal and active membership in two political parties and hosting meetings for several years at his own house. The RAD does not find the appellant's response that he did not think that supporting documents were important to be reasonable. The RAD accordingly finds the RPD was correct to draw a negative credibility finding due to the lack of any corroborating documents to establish the appellant's alleged longstanding and active family history in opposition politics and his corresponding reason for not providing such documents. Alleged Delivery of Funds to BNM in Sudan [21] The RPD also had credibility concerns with the appellant's allegation that he transported money to the BNM in Sudan in XXXX, 2016 and was arrested while doing so. The RPD noted the appellant had no corroborating evidence of this transaction nor any evidence from or about the purported individual he delivered the money to. Indeed, the appellant vaguely testified that he did not know the BNM person's current whereabouts nor much about him because he did not know him well. The RPD also considered the objective documentary evidence about the BNM's presence and activities in Sudan, as well as the treatment of BNM members by authorities. The RPD ultimately drew an adverse inference concerning the credibility of the allegation that the appellant delivered funds to the BNM in Sudan. [22] The appellant argues the RPD was selective in its review of the country documents and the RPD's failure to refer to specific documentary evidence is a reviewable error. [23] The RAD does not agree with the appellant's argument. The RPD is presumed to have considered the evidence before it. There is no evidence to indicate otherwise. Moreover, the appellant's testimony was clearly very vague about his allegation that he delivered money to the BNM and was arrested by authorities while doing so. For example, the appellant was unable to provide any specific details about the transaction nor any details about the individual he allegedly delivered the money to. In this regard, the RPD frequently had to repeat simple questions asking the appellant for details about the allegation, as well as having to prompt him for answers during the hearing. The appellant's testimony about the BNM in Sudan was similarly very vague. For example, he testified the BNM was a large but not large organization in Sudan. He was unable to specify or estimate how many BNM members are in Sudan. He was similarly unable to name any BNM leaders other than the head of the organization. Furthermore, the appellant had no corroborating documents to support his allegation that he delivered funds to the BNM in Sudan. Upon its own review of the record, the RAD accordingly finds the appellant failed to provide sufficient trustworthy and credible evidence to establish his allegation. In this regard, the RAD similarly finds the objective documentary evidence is insufficient to establish his allegation that he delivered money to the BNM in Sudan. New Passport, Certificate of Civil Registration, Exit from Country [24] The RPD also had credibility concerns with the appellant's ability to obtain a new passport and exit from the country with no apparent issues despite his alleged detention days before. In this regard, the appellant testified that he did not receive any documents from the authorities when he was released from detention. He provided vague and conflicting evidence about when and how he obtained a Certificate of Civil Registration issued by the Police. Further, he testified that no one checked his passport at the airport when he left the country. The RPD found the appellant's testimony to be internally inconsistent. The RPD accordingly drew a negative credibility inference concerning the appellant's testimony about how he was able to leave Sudan. [25] The RPD also considered the objective country documentation, which indicated under section 12 of Sudan's The Passport and Immigration Act 1994, all persons who depart from Sudan must have an exit visa, and that such visas will not be granted to "a Sudanese accused of an offence" or "a Sudanese, against whom there is reasonable suspicion that he practices an activity hostile to the Sudan, or defamatory thereof, by any of by any of the acts".10 The RPD thus drew a negative inference concerning the credibility of the appellant's allegation that he was detained by the Sudanese security forces from XXXX XXXX to XXXX, 2016 and was required to report to them daily until he was able to leave Sudan for Saudi Arabia on XXXX XXXX, 2016. [26] The appellant argues the RPD erred, as it failed to appreciate the documents and the explanations he gave that his friend obtained the documents and also bribed an airport official. [27] The RAD does not agree with the appellant's argument. The appellant acquired a new, genuine Sudanese passport11 mere days after allegedly being detained and put on strict reporting conditions by authorities. He successfully used that genuine Sudanese passport to travel back to Saudi Arabia. He later used the passport again to travel to Turkey. He then used the passport to obtain a US visa and successfully travelled on the passport to the US in 2017. The appellant's ability to obtain a genuine passport issued on XXXX XXXX, 2016, as well as to obtain a genuine Certificate of Civil Registration issued on XXXX XXXX, 2016 by the Police Forces Headquarters of the Ministry of the Interior of the Republic of Sudan, mere days after his alleged detention by authorities, added to the RAD's own credibility concerns with the allegations of persecution. In this regard, the RAD did not find credible the appellant's vague testimony that his friend obtained all of the genuine documents for him. The RAD similarly did not find persuasive the appellant's explanation that no one asked to see his passport at the airport despite an exit stamp appearing in his passport with the date of his departure from the airport (XXXX XXXX, 2016). Political Activities in Canada [28] Refugee claimants who assert a sur place risk must provide some evidence to show that their activities in Canada have made them a target.12 The RPD determined the appellant failed to do so. In arriving at this conclusion, the RPD gave greater weight to the objective country documents as compared to the appellant's speculative allegation. For example, the RPD cited sources contained in the August 2016 UK Home Office report concluding that taking part in a demonstration and being in a photograph in a newspaper "will probably be of little importance, whereas playing a leading role as a spokesperson or organiser would be more problematic, because it shows that the person has charisma, influence and can mobilize people".13 [29] The appellant has not challenged the RPD's finding. Having reviewed the record, the RAD sees no reason to interfere with the RPD's uncontested analysis and finding. [30] 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 perceived 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. He successfully obtained a new, genuine passport in Sudan and left the country with no difficulty. His vague and inconsistent testimony about how he was able to do so despite his alleged arrest, detention, torture and strict reporting conditions by authorities, was simply not credible. CONCLUSION [31] 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. [32] 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 [33] 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. [34] 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. [35] The appeal is dismissed. (signed) "D. Goff" D. Goff December 18, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Rahal v. Canada (Minister of Citizenship and Immigration), 2012 FC 319, at para 22. 3 Ibid, at para 42, as highly cited, including in Hadi v. Canada (Minister of Citizenship and Immigration), 2018 FC 590 at para 12. 4 Ilias v. M.C.I, (F.C., no. IMM-5152-17) Bell, June 27, 2018, 2018 FC 661, at para 39. 5 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, FCA 96. 6 Exhibit P-2, Appellant's Record, at pp. 481-508. 7 Exhibit P-2, Appellant's Record, Memorandum, at pp. 585A-C. 8 Exhibit P-3, Correspondence received from XXXX XXXX XXXX, dated XXXX XXXX, 2018. 9 Exhibit RPD-1, RPD's Record, Exhibits 4, 5, and 9. 10 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for Sudan (31 March 2017), Response to Information Request (RIR), Immigration and Refugee Board of Canada, item 14.1, SDN105589.E. 11 As was confirmed to be genuine by the Canada Border Services Agency. Exhibit RPD-1, RPD's Record, Exhibit 7, at p. 437. 12 Teklewariat, Sahlemarian Kei v. M.C.I. (F.C., no. IMM-532-16), Tremblay-Lamer, September 12, 2016, 2016 FC 1026, at para 15. 13 Exhibit RPD-1, RPD's Record, Reasons, at p. 17, para. 57. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-06841 RAD.25.02 (September 18, 2018) Disponible en français 3 RAD.25.02 (September 18, 2018) Disponible en français