TB4-09179

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 No. / N° de dossier de la SAR : TB4-09179 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, Ontario Appel instruit à Date of decision December 29, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Lisa Winter-Card Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, a citizen of Egypt, is appealing the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted new evidence in support of her appeal and is requesting that the Refugee Appeal Division (RAD) allow her appeal and find her to be a Convention refugee. She is also requesting an oral hearing pursuant to subsection 110(6) of IRPA. DETERMINATION [2] This appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD (Refugee Appeal Division) confirms the decision of the RPD. Background: [3] The Appellant joined XXXX XXXX in 1984 as an XXXX XXXX, and became a XXXX XXXX, the position that she held when she made her refugee claim. [4] In 2000, the Appellant married, mainly to bear children, as her husband was much older and became verbally aggressive, particularly when under the influence of alcohol. She bore a son in 2005. [5] The Appellant's problems began with the Arab Spring Protests in 2011. Her husband supported the military government, whereas the Appellant supported a democratic government. This caused friction between the couple. The Appellant participated in eight or nine protests between 2011 and 2013, mostly in XXXX XXXX, next to her home. She prepared XXXX and, after Morsi won the election, the Appellant and her husband agreed that he was going to fail, due to lack of experience and his religious beliefs. Since the Appellant's home was beside XXXX XXXX, she witnessed chaos. [6] At work, the Appellant alleges she was discriminated against due to her opposition of the military government; nevertheless, she attempted to provide her son with a normal life. However in XXXX 2013, her car was burned as a result of demonstrators throwing Molotov cocktails on the street. The Appellant had also placed a sticker on her car denouncing military rule. The Appellant went to the police, without success, and she alleges that the insurance company due to the riots, would not pay out compensation. [7] The Appellant had difficulty in procuring a visa to Canada, as she needed proof from her employer that she was coming on vacation. Meanwhile, the Appellant's marriage was deteriorating and her husband was encouraging their son to abuse alcohol. She decided to leave the marriage even though her husband demanded in return that she relinquish everything, including the apartment for which she had paid fifty percent, deferred dowry payment, and any rights to spousal or child support. [8] In 2014, the Appellant was able to obtain a Canadian visa due to her vacation entitlement. She arrived in Canada on XXXX 12, 2014. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL EXPRESS STATUTORY CONDITIONS [9] Section 110(4) of IRPA 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. [10] If the statutory requirements have been met, the panel must then consider the factors in Raza,1in which the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA, Section 110(4), it is based on the very similar wording of Section 113(a) for the PRRA (Pre-Removal Risk Assessment). The Court held that new evidence should be considered for its newness, credibility, relevance, and materiality, in addition to any express statutory provisions. NEWNESS [11] Is the evidence new in the sense that it is capable of: * Proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or, * Proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or, * Contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. CREDIBILITY [12] Evidence that passes the test in Section 110(4) must be assessed for credibility. The RAD must determine whether the evidence is credible, considering its source and the circumstances in which it came into existence. RELEVANCE [13] The RAD must consider whether the evidence is relevant to the appeal. Is it capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. MATERIALITY [14] Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been available to the RPD? If not, the evidence need not be considered. [15] The following evidence was submitted by the Appellant to the RAD and must meet the test described above in order to be admissible: * E-mails from the Appellant's friends indicating that the videos and posts on her Facebook have been deleted; * New documentary evidence on the treatment of protesters of the military regime in Egypt; * An article from XXXX XXXX (page 30 of the appeal record), which pre-dates the rejection of this claim; [16] The RAD finds that the information the Appellant's friends were seeking occurred in XXXX 2011 and XXXX 2013. However, the timing of deletion of this information may not have been known by the Appellant. Nevertheless, the RAD finds that this evidence is not admitted on the basis of materiality. [17] The documentary evidence post-dates the rejection of the Appellant's claim. However, it refers to an incident which occurred prior to the hearing, but was not printed until after the hearing. However, given the credibility findings by the RPD, this evidence is not a material aspect of the claim. The Appellant submits that, as a divorced female with no male protector, the Appellant will be at increased risk of persecution. This ground was not raised at the RPD hearing nor expanded upon in her submissions to the RAD. The Appellant has provided no explanation for the lateness of this information. Accordingly, the RAD denies the admittance of this evidence. [18] The article from XXXX XXXX, pre-dating the rejection of the claim, is being relied on as expert evidence, even though not listed as "new" evidence, and therefore, could reasonably have been available prior to the rejection of the claim. Moreover, the assessment of this evidence is the very task assigned to the RPD and RAD with respect to its credibility. In this respect, it is, therefore, not material. [19] The RAD finds that no new evidence has been admitted on appeal that raises a serious issue with respect to the Appellant's credibility. Since there is no new evidence admitted in this appeal, no oral hearing may be held at the RAD. ROLE OF THE RAD [20] A recent Federal Court decision in Huruglica2 has provided the RAD with guidance, which the RAD will follow. Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [21] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau in Alyafi3 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply one of two approaches, including the "hybrid appeal" approach described by Justice Phelan in Huruglica as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. SUBMISSIONS BY COUNSEL: [22] Did the RPD err in its credibility findings? [23] Counsel submits that the RPD relied on credibility findings centering around omissions from the "eligibility" assessment and that the Appellant at the hearing was merely adding details to what was already in the written statement. [24] Counsel further submits that the RPD applied North American logic and reasoning to the Appellant's behaviour and that "a claimant's first story is usually the most genuine and, therefore, the one to be most believed."4 Membership in or Support for a Political Party: [25] The RPD found that the Appellant's testimony in this regard contradicted the information she had provided at her "eligibility" interview, wherein she had stated that she had not supported or been a member in, or associated with, any political association. Yet, in testimony, she stated that she joined the XXXX XXXX XXXX XXXX in XXXX 2011, and then, in XXXX2011, she switched to the XXXX XXXX XXXX XXXX, where she remained until the military coup on June 30, 2013. In the absence of what the RPD deemed to be a reasonable explanation, it concluded that this contradiction damaged the Appellant's credibility with respect to the central aspect of her claim, namely, her political activism. The RPD based its conclusions on a number of facts; namely, that the Appellant is an affluent, 53-year old woman who holds a Bachelor of XXXX degree, she had been married to a prominent Egyptian XXXX, she is well-travelled, she held a high profile position, and, therefore, on a balance of probabilities, the RPD did not accept her assertion that she was told that her eligibility interview was merely a formality. [26] The Appellant submits that the RPD did not accept the Appellant's explanation that she did not mention her political involvement or her arrests at the eligibility interview as she was "petrified" that they would tell the Egyptian Embassy. [27] The RAD concurs with the RPD's finding that the discrepancy between the "eligibility" interview and the Appellant's testimony damages the Appellant's credibility with respect to a central aspect of the claim. After listening to the audio recording of the proceedings, the RAD further finds that, in response to counsel, the Appellant acknowledged that she was not a member of a political party, but rather a supporter of those who were opposed to the military regime. Nevertheless, the Appellant's claim is based on her political views and, therefore, her response to question 9 of the "eligibility" interview is, in the RAD's opinion, a central issue of the claim. The RAD concurs with the RPD that the Appellant's excuse is not justifiable, given her level of education and sophistication. Moreover, she testified that when she told her sister about the substance of the interview, her sister had allegedly telephoned Immigration. The RAD does not accept that the Appellant did not understand the importance of this interview nor does the RAD accept the Appellant's explanation, in spite of testifying that she was a political activist, and that she had joined the XXXX XXXX XXXX XXXX XXXX, followed by the XXXX or "XXXX" XXXX that she answered in the negative to question 9 wherein it states: "Have you supported or been a member of or been associated with, any political, youth or student organization, trade unions and professional associations?" [28] The Appellant's response that she was told "we do not want too many stories," "this is just an Immigration process; no more, no less," is not accepted by the RAD. Moreover, the Appellant testified that when she met with Immigration Consultant, XXXX XXXX, she was told that she did not need to put anything down about her political memberships.5 The RAD further concludes that the Appellant signed a declaration to the effect that "the information I have provided in the foregoing application is truthful, complete and correct, and I make this solemn declaration conscientiously believing it to be true and knowing that it is of the same force and effect as if made under oath." Although the RPD finds that the foregoing damages the Appellant's credibility, the RAD finds that it, in fact, calls into question her political activity, upon which her claim is based. Detention: [29] The RPD noted that, when interviewed for eligibility purposes, the Appellant had indicated that she had never been detained, incarcerated or put in jail. However, in the third version of her Basis of Claim form (BoC) dated August 14, 2013, the Appellant alleged for the first time that she had been arrested after participating in a demonstration in December 2011. The Appellant was confronted with his inconsistency given the fact that this detention was allegedly the most serious incident that occurred prior to her departure from Egypt. In the absence of a reasonable explanation, this lead the RPD to conclude that the Appellant was not being truthful with respect to this important element of her claim as to whether she was ever, in fact, arrested. [30] The RAD finds that this arrest was only indicated in the third BOC, which was submitted to the RPD a few days prior to the hearing. The RAD does not accept the Appellant's reasoning that she was afraid and hence the delay in divulging this information at the fourth opportunity. The RAD does not accept the Appellant's response that had she known this information was important, she would have divulged it earlier, particularly when answering this question at the "eligibility" interview. The RAD concurs with the RPD finding that this omission lead the RPD to conclude that the Appellant was not being truthful with respect to this important element of her claim. Moreover, the RAD finds, on a balance of probabilities, that the Appellant was not detained as alleged. Timing of the Burning of the Appellant's Car: [31] The Appellant provided conflicting dates of this incident. In both of her narratives, she stated "XXXX 2013." In oral testimony, however, she responded "XXXX 28, 2013". Her explanation for the contradiction was that she was not concentrating on exact dates and that she had been under stress the past year. [32] Given the fact that the Appellant had the opportunity to provide the correct date in two narratives, coupled with the importance of an incident that allegedly lead to her departure from Egypt, the RPD drew a negative inference. [33] The RAD concurs that given the number of Basis of Claim forms submitted, the lateness of this information is called into question. This is particularly significant, given the fact that this incident allegedly lead to the Appellant's departure from Egypt. The RPD does not make a clear finding in this regard, however the RAD finds that, given the importance of this date, i.e. "the anniversary of the Friday of Anger", it would be expected that this date would have been mentioned specifically in the narratives. Given this contradiction, the RAD finds, on a balance of probabilities, that the burning of the Appellant's car did not occur. What the Appellant was told by the Egyptian Police: [34] The Appellant testified that when she went to the police to complain about her burnt car, she was accused of having supported the revolution, which brought Morsi to power and that the police had indicated that they would not be in a position to protect either the Appellant or her son in future incidents of civil unrest. The RPD found this statement to be significant in that it situates the Appellant in the Morsi/Muslim Brotherhood camp, which now arguably faces persecution at the hands of President Abdel El-Sisi and his government and it suggests that protection would not be available in the event of future unrest. This late admission caused the RPD to conclude that it detracted from the Appellant's credibility in respect to matters that are important to the determination of the claim. [35] The Appellant made no submissions in this regard. [36] The RAD finds that the Appellant's explanation for the late timing of this disclosure, i.e. that her stress level has improved, calls into question the testimony surrounding any police accusations and finds, on a balance of probabilities, that this statement is lacking in credibility. Detention of Colleagues: [37] The Appellant, in her final narrative, alleges that her former colleagues, who had expressed anti-government opinions, were being arrested when they returned to Egypt from Australia, the US and Canada. She had learned of these detentions, yet failed to mention these arrests in her earlier narratives. When asked why she had not disclosed this evidence prior to the hearing, the Appellant could only say that she could not recall the reason. [38] The Appellant made no submissions in this regard. [39] However, after listening to the audio recording of the proceedings, the Appellant had allegedly been aware of these arrests, although she testified that she had not learned of these detentions until after her arrival in Canada. Yet the Appellant had not indicated these incidents in any of her BOC narratives. The RPD drew a negative inference in light of these contradictions. The RAD finds that, on a balance of probabilities, these incidents did not occur. OTHER CREDIBILITY FINDINGS: [40] The RPD mentions in its Reasons the demotion suffered by the Appellant in terms of her employment, but also noted that this was a late disclosure. Moreover, in light of the fact that the Appellant was never formally terminated and that she retained company ID, which was valid until 2016, the RPD found that this mistreatment by her employer would not be characterized as persecutory, torture, or as posing a risk to life or of other cruel and unusual treatment or punishment. The RAD concurs with this finding. Re-availment: [41] The Appellant and her son went to Turkey in XXXX 2013. The purpose of the trip was vacation, but also to examine the possibility of re-location in Turkey. She alleged that she was being questioned on her return to Egypt, as Turkey is perceived to be hostile to the military regime in Egypt, but she was released on the intervention of her husband. When questioned as to why she would return to Egypt, she testified that her son did not like Turkey and she had no visa to any other country. However, this lead the RPD to conclude that the Appellant lacked subjective fear when she returned to Egypt. The RAD finds that re-availment, while not determinative, undermines the Appellant's credibility. RAD FINDINGS: [42] The Appellant was interviewed for "eligibility" and filled out a questionnaire.6 [43] She submitted three BOC forms, one on July 3, another on July 4, and a third a few days before the hearing on August 19, 2014. [44] The RAD finds that, given the omission of the Appellant's political affiliation when initially asked this direct question and her unreasonable explanation for responding in the negative, leads the RAD to question her political involvement, upon which her claim is based. [45] The RAD further finds that her detention, the burning of her car, detention of her former colleagues, and what she was allegedly told by the police, are all called into question. [46] The RPD drew negative inferences in most of the foregoing. However, the RAD finds that the alleged incidents, as stated in the foregoing, did not occur or were found to be lacking in credibility. [47] The RAD finds little in the way of persuasive reason why it should not afford deference to the credibility findings of the RPD. [48] The RAD has conducted an independent assessment of the entire record, including the RPD reasons, and finds that there is insufficient credible evidence to find that the Appellant faces a well-founded fear of persecution or a risk to her life or a risk of cruel and unusual treatment or punishment or a danger of torture by any authority in Egypt. [49] Accordingly, pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [50] This appeal is therefore dismissed. (signed) 'Roslyn Ahara' Roslyn Ahara December 29, 2014 Date 1Raza, Syed Masood v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R.; Raza, Syed Masood v. M.C.I. (F.C., no. IMM-7269-05), Mosley, November 16, 2006, 2006 FC 1385; Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385 2Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 3 Alyafi, Aghiad v. M.C.I (F.C. No. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952 4 Mohacsi v. Canada (MCI), (2003) F.C.T. 429 at paragraphs 20-22 5 Exhibit 2, original Basis of Claim form 6 Exhibit 1 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-09179