TB4-05728

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 : TB4-05728 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 XXXX XXXX) (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 18, 2014 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dilani Mohan Conseil(s) du (de la/des) personne(s) en cause 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 XXXX (Appellant) claims to be a citizen of Tunisia. She has not submitted new evidence in support of her appeal but requests an oral hearing under the provision of 110(6) IRPA. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the Refugee Protection Division (RPD) and substitute a decision with its own determination that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD with a differently constituted panel. . DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [3] The Appellant alleged before the RPD that in 2001 when she was 16 years of age she became politically active in Tunisia with the then governing Constitutional Democratic Rally (Rassemeblement constitutionel democratique - RCD). It was well known that she and her family were supporters of the RCD. Her uncle held a XXXX XXXX with the RCD serving as XXXX XXXX XXXX. She alleges that after the fall of the ruling RCD party in January 2011 she and her family were exposed to persecution at the hands of the revolutionaries and new ruling party. She fears if she returns to Tunisia she will face imprisonment due to her previous activities with the RCD and will be forbidden from working and being politically active. [4] The Appellant's refugee claim was heard over two sittings on February 25, 2014 and March 27, 2014. In a decision of June 2, 2014 the Appellant's claim was rejected by the RPD. The RPD found the Appellant was not credible and that she did not have a profile that placed her at risk in Tunisia. The RPD also found that the Appellant did not have a well-found fear of persecution on a Convention ground in Tunisia and that she would not be personally subjected to a danger of torture or a risk to her life or of cruel and unusual treatment or punishment. [5] The Appellant argues that the RPD's adverse credibility findings were flawed in that the RPD relied on irrelevant considerations or inconsistencies that were not central to the claim. Furthermore, the Appellant submits that the RPD erred in its application of the test to assess the well-foundedness of her fear and that the RPD ignored pertinent evidence in its assessment of the well-foundedness of her fear. ROLE OF THE RAD [6] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. 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.2 [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".3 [7] 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 Alyafi (Alyafi, Aghiad v. M.C.I. (F.C. No. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952) has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach 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. [8] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. Application for an Oral Hearing [9] The Appellant requests an oral hearing pursuant to Section 110(6) of the IRPA. Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present "only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." [10] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [11] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [12] The Appellant has not submitted new evidence in support of her appeal. As such, the RAD must proceed without a hearing in her appeal, and her application for an oral hearing is denied. ANALYSIS OF THE MERITS OF THE APPEAL Credibility Findings Evasive Testimony [13] The RPD drew an adverse credibility finding based on the Appellant's failure to directly respond to questions posed of her. The RPD found that although the Appellant was intelligent and well-spoken she had to be frequently reminded to answer the questions put to her by the panel. [14] The Appellant submits that the RPD's adverse credibility finding is erroneous. The Appellant argues that the RPD only provided one example and that one example is insufficient to sustain a negative credibility finding. [15] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that while the example provided in the RPD's reasons was not compelling, it is not necessary for the RPD to provide every example of the Appellant's testimony which led to the RPD's finding. The RAD finds that the record reflects that there were indeed several occasions during the Appellant's testimony that she failed to directly respond to the questions put to her and had to be reminded to respond to the question asked of her. [16] The Appellant further argues that the example provided could be interpreted that she simply did not understand the question. The Appellant argues that there were a number of factors which affected her concentration and capacity to fully participate in the hearing. She argues that the hearing interpreter spoke Moroccan Arabic while she speaks Tunisian Arabic which made it difficult at times to understand precisely what was being asked. She further argues that her concentration was affected by thoughts of her son who was ill at the time and by the sounds of a crying child in the hallway outside of the hearing room. [17] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that there is no indication in the record that the Appellant identified during the hearing that she was having difficulty understanding and responding to the panel's questions due to these distractions. Furthermore, the RAD has reviewed the written submissions of the Appellant's counsel and finds that although counsel provided submissions on credibility, counsel did not raise the issue of the interpreter or other factors which the Appellant now alleges affected her testimony. The RAD finds that it is reasonable to expect that if the Appellant was having difficulty understanding the questions put to her by the panel member this issue would have been raised in the hearing or in counsel's written submission. Furthermore, the RAD notes that the record reflects that the Appellant did not seem to have any difficulty understanding questions put to her by her counsel. [18] The Appellant argues that the no deference ought to be given to the RPD on this finding. However, the RAD finds that the RPD's finding in this regard was based on the Appellant's behaviour in the hearing room. The RAD finds that such behaviour is indicative of an evasive witness. In this regard, the RPD enjoys an advantage over the RAD and as such, the RAD owes deference to the RPD's finding on this issue. The RAD finds that the RPD's finding is absent of error and is supported by the evidence in the record. Accordingly, the Appellant's argument fails. Inconsistencies [19] RPD drew an adverse credibility finding from the inconsistency provided in her 2010 student application and her Basis of Claim (BoC) forms concerning her marital status. The RPD noted that the Appellant indicated in her 2010 student visa application that she was single whereas in her BoC forms she noted that she has been married since 2004. When confronted with the inconsistency the Appellant denied being asked about her marital status by the visa processing officer. She stated she believed she had been asked if she was traveling with others and indicated that she would be traveling alone which accounted for the "single" reference in her application. The Appellant was confronted with the visa application form which specifically requires the applicant to indicate their marital status and their spouse's biographical information. The Appellant then testified that her father had completed the form and had made the error due to his lack of facility in English. The RPD rejected the Appellant's explanation and drew a further adverse credibility finding based on the Appellant's evolving testimony concerning whether she or her father had prepared the visa application. [20] The Appellant submits the record does not reflect an inconsistency in her testimony concerning who completed the visa application forms. She further argues that she should not be held accountable for an error made by her father. [21] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that the record does reflect inconsistency in the Appellant's testimony concerning the role she played in the completion and submission of her 2010 visa application. The RAD notes the Appellant's testimony concerning what she was asked and was not asked by the visa processing officer evolved. She initially testified that she made an error when she indicated in her visa application she believed that she was asked if she was traveling alone however in the second sitting alleged that all she could remember was being asked her name, date of birth, and whether she had certificates that she wanted to submit with her passport. [22] The RAD also notes that the RPD did not accept the Appellant's explanation that her father's lack of facility with English was the reason for the failure to include her marital status. The RPD noted that there were no other apparent errors or omissions in the application form that were indicative of her father's alleged difficulty with English. [23] The RAD finds that given the evidence before the RPD and its credibility findings, it was open to the RPD to find on a balance of probabilities that the Appellant deliberately misrepresented her marital status in the 2010 visa application. [24] The Appellant further submits that regardless of whether her marital status was misrepresented in her 2010 visa application it is irrelevant to an assessment of her credibility in relation to her claim for refugee protection. [25] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that in deliberately misrepresenting her marital status on her 2010 visa application, the Appellant demonstrated a willingness to mislead Canadian immigration officials. Her effort at her refugee protection hearing to explain away this deliberate act as a simple error is a continuation of her initial misrepresentation. The RAD finds the Appellant's actions in this regard impugn her general credibility and as such undermine the credibility of her allegations giving rise to her claim for refugee protection. Appellant's Opinion of the RCD [26] The RPD drew an adverse credibility finding from the Appellant's characterization of the RCD regime as benevolent. The RPD found that the Appellant's view of the regime is inconsistent with the objective evidence which describes the regime as a repressive dictatorship and that she should not be believed. [27] The Appellant argues that the RPD's finding in this regard was improper and irrelevant. The Appellant argues that RPD based its adverse credibility finding on the objective reasonableness of her belief and did not consider the possibility of cognitive dissonance. [28] The RAD finds that the Appellant's argument has some merit. It is not appropriate for the RPD to have drawn a negative inference from the merits of the Appellant's opinion about the RCD. The RPD reasons do not reflect an assessment of the genuineness of the Appellant's belief about the nature of the RCD but rather whether she ought to hold that belief. In this regard, the RPD's finding cannot be sustained. [29] Notwithstanding the foregoing, the RAD finds that despite the error of the RPD, the Appellant's testimony concerning the benevolence of the RCD is indicative of her lack of knowledge of the regime and its actions. As such, her testimony in this regard undermines the allegations of her role with the party. Well-Foundedness of Fear [30] The RPD found that the Appellant was a low-level office holder of the RCD party but that she does not hold a profile that places her at risk if she were to return to Tunisia. While the RAD agrees with the RPD that the Appellant does not hold a profile that places her at risk upon return to Tunisia, the RAD finds that the RPD's finding that the Appellant held office in the RCD party cannot be sustained. A review of the complete record establishes that there is no persuasive evidence which supports the Appellant's allegations and the RPD's findings that she held a position of leadership within the party. [31] The RPD noted in the hearing that the Appellant tendered a RCD membership card issued in 2005 however that membership card only provides evidence of membership in 2005 and does not provide any corroboration that the Appellant ever held a leadership role. The Appellant also tendered a letter purportedly written by a friend who had also been a member of the RCD. The friend's letter stated that the Appellant held a prominent position in the party. As noted by the RPD, the letter was not provided by an individual who holds or held an official capacity with the RCD, was not on official letterhead and did not contain any security features. Furthermore the RPD noted that letter states that the Appellant held the position of XXXX XXXX of the Constitutional Democratic Rally which is inconsistent with the Appellant's allegation that she held the position of XXXX XXXX XXXX. Although the RPD did not make any findings with regard to the letter, the RAD finds that given the concerns with the document, the RAD can give little weight to the letter. [32] The RAD further notes that the Appellant's testimony concerning the status of her and her father's RCD documents evolved. The Appellant initially testified that her and her father's RCD documents were destroyed by rebels. She later testified that not all of the documents were destroyed as some were kept in her home. She later testified the documents were misplaced by her mother. The RAD finds the Appellant provided inconsistent testimony concerning whether rebels attended her home and whether or not all the documents were destroyed by the rebels. Although the RPD did not draw any findings from the Appellant's testimony in this regard, the RAD notes the Appellant was questioned about the inconsistency in her testimony. The RAD draws an adverse inference from the Appellant's evolving testimony in this regard. The RAD further finds that this finding undermines the Appellant's allegations of her involvement in the RCD. [33] The Appellant submits that her particular profile is enhanced by her family connections to leadership within the party. She argues that her uncle XXXX XXXX, was a XXXX within the party which XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [34] The RAD is not persuaded by the Appellant's argument in this regard. Again, although the RPD did not make any findings in this regard, the RAD notes that the Appellant has not provided any persuasive evidence of her family connection to the person she describes as her uncle. Although she describes their relationship as close she had not provided any evidence that there is a familial or other type of relationship between them. The Appellant has not tendered any affidavit or photograph or other documents to establish the existence of the relationship. [35] In light of the lack of persuasive evidence to the contrary and in light of the RAD findings regarding the Appellant's general credibility, the RAD finds, on a balance of probabilities, that the Appellant's allegations that she is the niece of a XXXX XXXX XXXX XXXX in the RCD is not credible. [36] The RAD finds that on the basis of its independent analysis of the evidence there is no persuasive evidence that the Appellant ever held a leadership role or was active in the RCD. The RAD further finds on a balance of probabilities, on the basis of its analysis of the evidence and its adverse credibility findings, that the Appellant's allegation that she held a position of leadership in the RCD is not credible. The RAD further finds, on a balance of probabilities, that the Appellant's allegations of her involvement with the RCD and connection to its leadership were fraudulently made in an effort to bolster her claim for refugee protection [37] The RAD has considered the documentary evidence about conditions in Tunisia and the Appellant's personal circumstances and finds, on a balance of probabilities, that the Appellant would be able to return to Tunisia and that there is not a serious possibility that she would be persecuted. [38] The RAD notes that the Appellant has never been arrested or detained in Tunisia. She alleges the only negative consequence she has suffered due to her membership in the RCD is a diminished social life which the RAD finds does not amount to persecution. While she alleges her father has faced ongoing harassment due to his role in the RCD he has never been charged or detained. Again, the RAD finds the Appellant has not provided persuasive evidence that her father's alleged harassment rises to the level of persecution. Country conditions documents fails to establish that ordinary members of RCD are persecuted due to their membership in the party. The RAD notes that country condition documents indicate that at the present time there are no political prisoners or detainees in Tunisia.4 [39] The RAD also finds that the available documentary evidence suggests that although the RCD was dissolved, many former RCD members are able to form a variety of new political parties. The Constitutional Democratic Rally (Rassemblement Constitutionnel Démocratique, RCD) party was founded in 1988 by the former president of Tunisia, Zine El Abidine Ben Ali (AFP 9 Mar. 2011; Le Figaro 21 Jan. 2011). According to sources, at the start of 2011, the RCD had between one and over two million members (Libération 21 Jan. 2011; Courrier international 1 Feb. 2011; AFP 9 March 2011) for about 10 million inhabitants (ibid.; Libération 21 Jan. 2011). On 9 March 2011, the Tunisian judicial authorities decided to dissolve the RCD (International Crisis Group 9 May 2012, 18; AFP 9 March 2011). The International Crisis Group added the following: [traduction] Adopted at the start of May 2011 by the Higher Authority for Realisation of the Objectives of the Revolution, Political Reform and Democratic Transition (Instance supérieur pour la réalisation des objectifs de la révolution, la réforme politique et la transition démocratique), Article 15 of the electoral legislation prohibits the following from running in the National Constituent Assembly elections: former members of President Ben Ali's governments (except those members who did not belong to the party in power), former members of the national and regional branches of the RCD, and national public figures who, in August 2009, called for the re-election of Ben Ali. The list of the ineligible individuals was to be made on a case-by-case basis (9 May 2012, 18). Similarly, according to the Interparliamentary Union (Union interparlementaire, UIP), [English version] "High-ranking RCD officials and persons who had signed petitions for Mr. Ben Ali's presidential bid for 2014 were barred from running in the NCA elections" (23 Oct. 2011). Nevertheless, according to the La Tunisie vote Internet site, despite the dissolution of the RCD, its former members continue to be involved in politics, and some have adhered to new political parties (17 Oct. 2011). La Tunisie vote is a project that was launched in July 2011 and that is managed jointly by the German institute Media in Cooperation and Transition (MICT) and the Tunis Centre for Freedom of the Press (Centre de Tunis pour la liberté de la presse, La Tunisie vote 14 July 2011). In addition, the UIP stated that former members of the RCD who are still eligible have founded several political parties, including the Initiative Party (parti Initiative (Al-Moubedra [or Al-Moubadara]) and the Afek Tounes Party (23 Oct. 2011). The International Crisis Group states that in 2011 former ministers of the Ben Ali regime founded the Initiative Party and the Al-Watan Party (La Patrie) (9 May 2012, 18).5 [40] The same documentation also states that since the fall of the RCD regime the ill treatment of former members of RCD has been isolated and limited to certain members of its group. According to some testimonies, in the two or three months after 14 January 2011, there were a few isolated acts of vandalism that targeted the property of certain active or corrupt regular members of the RCD.... It was localized in certain cities like Bizerte. Subsequently, calm returned when the Minister of the Interior resumed control. According to the information received, there have been no more accidents of this kind for at least nine months. In general, the regular members of the RCD, who had only a membership card but who were not active, were not concerned, intimidated or threatened. They are still at their jobs and lead a normal life. Some have even joined new parties (in power or of the opposition). The regular RCD members who might have been subjected to prejudices, dismissals or discrimination are those: * who were active in the public or private administrations, in the town halls, the RCD structures, etc; * who obtained privileges (duties in the administration, scholarships for their children, cars, etc.) because of their affiliation and activities in the party; * who acted as informants to the police and the former regime; * who were involved in corruption, abuse of power, nepotism, etc. (17 July 2012). In general, the regular members of the RCD, who had only a membership card but who were not active, were not concerned, intimidated or threatened. They are still at their jobs and lead a normal life. Some have even joined new parties (in power or of the opposition). The regular RCD members who might have been subjected to prejudices, dismissals or discrimination are those: * who were active in the public or private administrations, in the town halls, the RCD structures, etc; * who obtained privileges (duties in the administration, scholarships for their children, cars, etc.) because of their affiliation and activities in the party; * who acted as informants to the police and the former regime; * who were involved in corruption, abuse of power, nepotism, etc. (17 July 2012). The vice-president of the Tunisian Collective in Canada added that the former RCD members were not necessarily discriminated against but rather were subject to biases. The term "RCDist" was given to any person who was an RCD member and who cooperated with the former regime, drew personal benefits from membership in the party or closed their eyes to the mafia-like practices of the former regime. Some executives (DG, CEO, etc.) of some public administrations were ousted from their jobs by their employees during the first six months after January 14, probably because of their membership in the RCD but especially because of their involvement in corruption, nepotism and abuse of power. It all occurred without violence but outside of the judicial process, right after the fall of the former regime. This wave of [translation] "Out" ("Dégage") stopped during the last nine months" (17 July 2012). 6 [41] The RAD finds that the Appellant does not hold the profile of an individual that would be targeted by any authority in Tunisia or that would place her at risk in Tunisia. The Appellant submits that although she currently has no desire to run for public office in Tunisia, she may at some point change her mind which would put her at risk. The RAD is not persuaded by the Appellant's argument in this regard. The Appellant's argument is speculative at best. There is no persuasive evidence that she ever has or ever will hold public office or otherwise hold a profile that would put her at risk in Tunisia. [42] Based on the totality of the evidence and the cumulative findings, the RAD finds that the Appellant has not satisfied her burden of establishing a serious possibility that she would be persecuted or that she would be personally subjected to a risk to her life or a risk of cruel and unusual treatment or punishment or a danger of torture by any authority in Tunisia. CONCLUSION [43] The Appellant is neither a Convention refugee nor a person in need of protection. The Refugee Appeal Division dismisses her appeal. (signed) "L. Favreau" L. Favreau November 18, 2014 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Ibid., para 54. 3 Ibid., para 55. 4 RPD-1- National documentation Package Tunisia (March 14, 2014) item 2.1 Country Reports on Juman Risghts Practices for 2013 p.9 5 RPD-1 national documentation package Tunisia (march 14, 2014) Item 4.4 6 ibid --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05728