TC1-11196

RAD File / Dossier de la SAR : TC1-11196 TC1-11197 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Date of decision February 7, 2022 Date de la décision Panel Ron Liberman Tribunal Counsel for the persons who are the subject of the appeal Mary Jane Campigotto Conseil des personnes 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 XXXX (a.k.a. XXXX XXXX XXXX XXXX) (Principal Appellant) and his brother, XXXX XXXX XXXX XXXX (Associate Appellant), (collectively the "Appellants"), appeal a decision of the Refugee Protection Division (RPD) dated December 24, 2020, denying their claims for refugee protection on the grounds of credibility. I have conducted an independent analysis of all the evidence concerned, including the entire record and the oral testimony. I find the RPD was correct that the Appellants are not credible, and I deny the appeal. BACKGROUND [2] The Appellants are citizens of Jordan. The Principal Appellant is 23 years old, and the Associate Appellant is 21 years old. Their claims were joined by the RPD as is allowed under RPD Rule 55.1 They allege as follows. They fear persecution from the authorities in Jordan because of their political opinion. The Appellants took part in a protest in Irbid, Jordan in XXXX 2018 in which they demonstrated against the King of Jordan, cursed him, and opposed his new tax laws. After the protest, security forces raided their family home and arrested them. They were initially detained for 18 days and were tortured. After that they were detained many times, and they were subjected to beatings and torture on each occasion. The Principal Appellant fled Jordan for Canada on a student permit in XXXX 2019, and the Associate Appellant fled on the same basis in XXXX 2019. RPD FINDINGS [3] The RPD found material aspects of the refugee claim are not credible because of discrepancies between the evidence and the Basis of Claim (BOC) forms, and because of various inconsistencies, omissions and implausibilities. The RPD gave no weight to the corroborative evidence supplied by the Appellants. APPELLANTS' ARGUMENTS [4] The Appellants allege inadequate representation by their former Counsel. They submit his legal assistance was so poor that it raises multiple issues of procedural fairness. They state that their former Counsel has been suspended by the Law Society of Ontario for professional misconduct. They also allege errors on the part of the RPD, including ignoring some of the documentary evidence provided, and ignoring portions of the country condition's evidence. NEW EVIDENCE The new evidence supplied by the Appellants is partly admissible [5] The Appellants have supplied new evidence, in the form of affidavits. According to section 110(4) of the Immigration and Refugee Protection Act (IRPA),2 I can only accept evidence that: (i) arose after the RPD decision; or (ii) was not reasonably available at the time of the decision; or (iii) that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [6] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.3 [7] The affidavits of both Appellants appear to make the same statements, with a slight variation in paragraphs 17 to 19 in respect of which of the Appellants suffered what injuries. [8] I find paragraphs 1 to 7 of both affidavits contain information that was already before the RPD, and as such they do not amount to new evidence which would meet the requirements of section 110(4) of the IRPA. [9] I find paragraphs 26 to 38 of the affidavits attempt to restate the facts upon which the Appellants' claims are based. As such, the facts in the affidavit were already provided, or could reasonably have been provided, prior to the RPD Decision, if not in their BOCs or associated narratives then in the Appellants' oral testimony, and they do not amount to new evidence which would meet the requirements of section 110(4). An appeal before the Refugee Appeal Division (RAD) is also not a de novo hearing. I do not admit these parts of the affidavit. [10] The remaining portions of these affidavits, being paragraphs 8 to 25, relate to the Appellants' allegations of inadequate representation by their former Counsel, and in fairness to the Appellants, I will admit them, except for paragraphs 17 to 19 which I find do not meet the requirements of section 110(4) because they attempt to re-state facts that were before the RPD. I find the remaining portions of paragraphs 8 to 25 of the affidavits meet the Raza criterion of credibility, as on their face they appear to emanate from the Appellants and to be sworn statements of fact based on their first-hand knowledge. They meet the Raza criterion of newness because they could be capable of proving facts that were unknown to the Appellants at the time of their hearing as they relate to the competence of their former Counsel. They meet the Raza criterion of relevance because they could be capable of proving facts that are relevant to the claim for protection, again in connection with the competence of their former Counsel. I therefore admit these portions of the affidavits. THE RAD WILL NOT HOLD AN ORAL HEARING [11] As per the requirements of section 110(6)4 of the IRPA, the RAD will not hold an oral hearing in this case, because the new evidence in this case it is not dispositive of the claim. ROLE OF THE RAD [12] In accordance with the decision in Huruglica,5 when reviewing the Decision of the RPD, I have applied a standard for my review of correctness while conducting an independent assessment of the entirety of the evidence before me. ANALYSIS The Appellants have followed an appropriate procedure when complaining about their former Counsel's conduct and competence [13] As explained below, I find the Appellants have complied with the substantive requirements of the Immigration and Refugee Board (IRB) Practice Directions contained in the Practice Notice entitled, "Allegations Against Former Counsel." [14] As a part of the record before me, which includes the Immigration and Refugee Board's (IRB's) electronic file records, I have a copy of a letter dated October 2, 2021 in which the Appellants' present Counsel wrote to their former Counsel advising him of the allegations the Appellants are making and giving him 10 days to respond. I do not have evidence that this former Counsel has responded, either to the IRB, or to the Appellants' Counsel. [15] In these circumstances, I find that on a balance of probabilities on the evidence available to me, the Appellants' former Counsel has not replied to the allegations and that the Appellants' complaint is appropriately made, substantially in accordance with the IRB Practice Notice. [16] I note also that the Appellants, in their Application to the IRB for an extension of time made on August 25, 2021, have provided evidence that their former Counsel, a paralegal in Ontario, is under suspension by the Law Society of Ontario (LSO). The evidence shows this suspension occurred after the RPD Hearing. This evidence does not show that the paralegal was suspended because of his conduct relating to the Appellants' RPD Hearing. It is not necessary for me to determine whether the Appellants' former Counsel was incompetent [17] Irrespective of whether the Appellants are correct in their allegations that their Counsel at the RPD failed to prepare them properly for the Hearing, I find as explained below that their complaint and their affidavits provided on appeal are not determinative of the claim because there are remaining credibility issues on which I agree with the RPD, and which I find are sufficient to dispose of their claim. [18] The Courts have established requirements to find incompetence on the part of Counsel which include a requirement that a miscarriage of justice resulted (prejudice component).6 In the present case, as explained further in my reasons, I have not relied on issues in which ineffective assistance on the part of Counsel could have had a meaningful impact on the outcome, such as in the preparation of the Appellants' BOCs. I have relied in the credibility findings that follow only on the oral testimony the Appellants gave, and on the documents they have themselves provided. Even if their former Counsel did not prepare the Appellants well for their hearing, the Appellants had an opportunity at the Hearing, where they are testifying directly and not through Counsel, to put their case and to respond to the credibility concerns with which the RPD confronted them. [19] Despite the fact that the Appellants have had the assistance of a different legal Counsel on appeal, I find there are numerous remaining credibility issues with the Appellants' claims, not dependent on their former Counsel, which have not been reasonably explained, and which are enough in themselves to determine that the Appellants' appeals are bound to fail. I find for instance, as explained further below, that the Appellants have not reasonably explained why they cannot recall the dates of their detentions, cannot describe the rooms in which they were held or reasonably explain their inability to do so, and have not reasonably explained how their father was allegedly able to assist them to evade exit controls, while being unable to prevent his younger son from being repeatedly tortured while, as per the evidence he gave and the address history he supplied7 he remained in Jordan for seven months after his alleged initial detention in XXXX 2018, until XXXX 2019. Accordingly, I find that in this instance a miscarriage of justice at the RPD has not been demonstrated. In these circumstances, an issue of natural justice does not arise. The RAD will not assess the conduct of the Appellants' former Counsel further in this case. The Appellants are not credible as to who they allege arrested them [20] The question of who arrested the Appellants is clearly related in this instance to a central aspect of their claim, namely their initial detention. [21] The RPD found that XXXX XXXX XXXX XXXX, the Principal Appellant, gave inconsistent testimony when asked whether he and his brother were arrested by Jordanian intelligence or by Jordanian security forces. He initially stated that he was arrested by Jordanian intelligence. When questioned further, he testified that these are separate entities, but subsequently he stated that intelligence is part of the security forces. When the RPD questioned the Principal Appellant further on this point by asking why his BOC states he was arrested by security, he confirmed that when he was asked what happened when completing his BOC, he stated the people who arrested him were from security, and he was not asked whether they were from security or intelligence. He further explained that intelligence is part of the security services. He subsequently stated that he was arrested by "the forces of the intelligence." [22] The Appellants submit in paragraph 8c of the Appellants' Memorandum that "the Appellants were taken by official forces who were dressed in police uniforms." [23] This submission is however inconsistent with the testimony of the Principal Appellant that he and his brother were arrested by intelligence services, who, as noted above, he testified wore normal clothing. [24] I find the inconsistency in who it was that allegedly arrested the Appellant has not been reasonably explained. This finding is not dependent on the advice or assistance of the Appellants' former Counsel or on the completion of their BOCs, as the Principal Appellant himself testified that his BOC correctly reflects the statement he made while completing it that he was arrested by security. This statement in his BOC clearly contradicts his initial testimony to the RPD that he was arrested by Jordanian intelligence, which he repeated in subsequent testimony. [25] The Principal Appellant testified that the Jordanian security forces are different from the intelligence forces/services, and they are obviously so based on their uniforms or lack thereof. The objective evidence also lends support to the contention that Jordanian security forces and Jordanian intelligence services are different. It states that the Public Security Directorate (PSD), the gendarmerie, and the Civil Defense Directorate report to the Ministry of the Interior, while the General Intelligence Directorate report directly to the King. [26] In other words, the evidence before me clearly does not establish that Jordanian intelligence and security are the same bodies, and the Appellants have not reasonably explained the discrepancy in the testimony as to who arrested them and the clothing those persons wore. I find this relates to a central aspect of their claim, namely their initial arrest, and I count this inconsistency in the question of who allegedly arrested the Appellants against their credibility. The Appellants have not adequately explained why they cannot recall details of the rooms in which they allege they were detained [27] The RPD found that the Principal Appellant could not recall details of the room in which he was allegedly held for 18 days, other than that it was dark. The RPD found that his brother, XXXX XXXX XXXX XXXX, the Associate Appellant, described the room where he was held as extremely dark and said he could not remember anything. The RPD noted the Appellants did not testify they were blindfolded the whole time they were held in their rooms, and that the Associate Appellant testified he could see people from his room. [28] On appeal, Counsel has not made any submissions that relate specifically to this issue. The only submission of Counsel which could, in my view, have an impact on this question is her submission that the Appellants were tortured, and that the RPD "failed to evaluate the plausibility of an altered state of consciousness" as a result of the Principal Appellant's leg having been broken in two places. [29] I find the RPD asked questions several times about the rooms in which the Appellants were held. The Appellants have not provided any evidence to show that their memories have been affected by torture, and it was open to them to introduce such new evidence on appeal. Moreover, while the Principal Appellant testified that his leg had been broken, the Associate Appellant testified he was tortured but had "no injuries" when he first emerged from detention, just bruises. After subsequent detentions and beatings, allegedly sustained while he continued to attend high school, according to the Associate Appellant he had only bruises and no injuries. [30] I find, considering the totality of the explanations that have been given, that the Appellants have not reasonably explained why they cannot recall any details of the rooms where they were held. Even if the rooms were dark, the Associate Appellant stated that he was taken from one room to the other and saw "different people." I agree with the RPD that if the Appellants were held for 18 days and the Associate Appellant was able to see and identify different persons, that he, at a minimum, would be able to discern some details of a room or rooms where he was held, even if they were relatively dark. As the RPD noted, the Appellants were not blindfolded the entire time, and I find they could reasonably be expected to provide some details, e.g. the size and overall shape of the room, whether the rooms had any windows or other openings to provide ventilation, whether the room had a keyhole through which an outside corridor was visible, whether there was a slot through which they received food, and if not, what they were able to see after the door was opened to bring food into the room. [31] In the absence of any further explanation as to why the Appellants are unable to recall these details, I find, in common with the RPD, that it is not credible that the Appellants cannot remember any details of the rooms in which they claim to have been detained. I find this too is related to a central aspect of the claim, namely whether they were initially detained as they claim, and I count this matter against their credibility. It is not credible that the Appellants cannot recall any of the dates of their other detentions [32] The RPD noted that both Appellants could not say on what date they were detained subsequently, although the Principal Appellant, XXXX XXXX XXXX XXXX, testified he had been detained for between 20 to 23 days, and the Associate Appellant, XXXX XXXX XXXX XXXX, testified he had been detained about 20 times. [33] The Associate Appellant explained that the detentions would occur on his way back home, and that he does not pay attention to dates. Counsel has not made further submissions on appeal regarding this finding of the RPD. [34] I agree with the RPD that the Appellants have not reasonably explained why they cannot provide any dates when their detentions occurred, and I find again that this is a matter that is central to the claim, namely whether the Appellants were detained following their initial alleged detention, and I count this against the credibility of the Appellants. The absence of a letter from their father counts against the Appellants' credibility [35] The RPD notes in paragraph 37 of its Decision the oral testimony of the Appellants that their father had sent a letter in support of their claim. In the Appellants' Memorandum, Counsel blames prior Counsel for this. [36] Irrespective of whether this allegation against Counsel is correct, it was open to the Appellants on appeal to introduce a copy of their father's letter, but, significantly in my view, this has not been done. Since the Appellants were effectively put on notice by the RPD of the desirability of proving this letter, but no letter has been provided and this weighs against their credibility. Additionally, if it was not feasible to obtain a copy of the father's letter, it was open to Appellants' Counsel to explain why a copy of this letter is not available for presentation to the RAD. In these circumstances, I count this failure to provide a copy of the father's letter against the credibility of the Appellants. The Appellants have not reasonably explained how their father could help them evade exit controls [37] The RPD found that the Principal Appellant testified that nobody can interfere with affairs of Jordanian intelligence while at the same time testifying that his father talked to someone who helped him through security at the airport when he left. He agreed that Jordan has exit controls which would reasonably prevent someone like him from leaving the country but indicated that his father helped him evade them. [38] Counsel for the Appellants has offered no reasonable rebuttal to this finding. As per the Appellants submissions on appeal, their father explained this in his letter. This letter is allegedly lost, but as previously noted no copy of this letter has been provided on appeal, and even assuming it is correct that prior Counsel lost the letter, no explanation has been provided as to why the father has not supplied another copy of the letter. [39] In my independent assessment, I agree with the RPD that, on a balance of probabilities, this oral testimony of the Principal Appellant that his father was able to help him evade exit controls but was unable to prevent him from continuing to be tortured repeatedly after the initial detention is contradictory. I draw a negative inference from this contradiction, and from the failure of the Appellants to reasonably explain, including on appeal, how their father was able to enable their passage through Jordanian exit controls. The Associate Appellant has not reasonably explained why he delayed leaving Jordan [40] The RPD noted the testimony of the Associate Appellant that he remained in high school in Jordan although he continued to be detained and tortured on many occasions. When the RPD asked the Associate Appellant why he could not have finished high school in Canada, he did not reply. On appeal, Counsel submits that the RPD has misapprehended the evidence, and that the Associate Appellant needed to finish high school in Jordan. Counsel states that it is easier to obtain a student permit to study in a college in Canada than it is to obtain a student permit to study in high school. [41] I do not accept this last statement by Counsel, which I find is speculative. No objective or other evidence has been offered that it is easier to obtain a student permit if the applicant has an acceptance letter from a college in Canada rather than an acceptance letter from high school. Moreover, it is clear from the evidence that the Associate Appellant made no attempt to obtain a student permit until after he finished high school. I agree with the RPD that if the Associate Appellant was tortured 20 or 30 times while was still in high school, it is reasonable to expect that he would investigate the possibility of fleeing to Canada as soon as possible, whether through a student permit or by other means, yet his only explanation for waiting is his need to finish high school. [42] This delay in leaving also undermines the credibility of the Appellants' contention that they were detained and tortured on between 20 to 30 occasions after they were initially held, and I draw a further negative inference against their credibility. The medical reports on the Appellants are not probative of their allegations of torture [43] The RPD records in its decision that the Principal Appellant first testified that he brought a medical report with him to Canada. Subsequently, he testified that his father sent this form to him in Canada. [44] He alleges this form refers to the injuries he sustained when he was initially detained and tortured. [45] Counsel argues on appeal that the patient could have been in an "altered state of consciousness" because of two leg fractures. I find this is speculation and is not supported by any other evidence. [46] Nevertheless, I do accept the explanation of the Principal Appellant for this discrepancy. When questioned by the RPD about the discrepancy in how the medical report was received, the Principal Appellant explained that he did not understand the question when it was first asked. Following that, the question was asked again, and the Principal Appellant answered it in a manner that was consistent with his earlier testimony. [47] I therefore do not hold this discrepancy against the credibility of the Appellants. [48] I leave aside in my analysis those findings of the RPD that are interconnected with discrepancies it identified between the medical reports and the BOCs of the Appellants. Despite this, in my assessment, neither of the medical reports establish that either of the Appellants were tortured. I note that the medical report on the Associate Appellant, XXXX XXXX, is that he "suffers from bruises and bruises in different areas of the body with general weakness. He has been given the appropriate treatments," while the medical report on the Principal Appellant, XXXX XXXX, states he "suffers from a fracture of the right leg with bruising in different areas of the body with general weakness".8 There is no evidence, including in these medical reports, that the injuries were caused by torture. [49] I accept that, on a balance of probabilities, the Appellants sustained injuries. However, the medical reports do not enable me to conclude that the injuries were a result of torture. I therefore agree with the RPD that the reports have little probative value in establishing that the Appellants were tortured. The warrant for arrest is not genuine [50] I agree with the RPD that the document that was provided to it by the Appellants purporting to be an arrest warrant for the Principal Appellant, XXXX XXXX, issued by the XXXX XXXX Police Directorate,9 is not genuine. Appellants' Counsel has not made any submissions about this finding of the RPD. [51] There is no sample in the country condition documents to indicate what the format of an arrest warrant in Jordan is. Nevertheless, in my independent assessment, I agree with the RPD that this document, which the Appellants stated is an original, is likely a copy rather than an original, because of the blurred logo at the top of the document and the fact that the stamp on the document is not legible. Furthermore, I agree with the RPD that, on a balance of probabilities, this document is not genuine because of the following issues with it: (a) XXXX XXXX XXXX XXXX full date of birth is not listed (only the year of his birth); (b) the first name of XXXX XXXX XXXX XXXX mother is given to explain whom the police should arrest (but not her full names); and, (c) his father's name is not mentioned in the document, whereas it would be customary in Jordan to refer to him as "XXXX XXXX XXXX XXXX son of ...." [52] In my view, the RPD was correct to find that it would be reasonable to expect that an arrest warrant would clearly indicate details of the person who is to be arrested, to distinguish them from other persons with the same name, but this document does not do that. [53] The Appellants have also not disputed that it is usual in Jordan to refer to an individual using his father's name, i.e., "XXXX XXXX XXXX XXXX son of ...." [54] I therefore concur with the RPD in giving this document no weight, and I too draw a negative inference against their credibility for having presented a non-genuine document. CONCLUSION [55] The Appellant submits in paragraph 32 of the Appellants' Memorandum that the RPD ignored the totality of the documentary evidence, "including relevant identity documentation and NDP documentation."10 With respect, identity was not an issue in this case, and the documentary evidence does not, in my assessment, establish their claim is true. [56] Although there are minor aspects of the RPD's findings with which I do not agree, the force of the multiple negative credibility findings in this case is such that I find the presumption of truthfulness that attached to the sworn testimony of the Appellants11 has been rebutted. [57] With all due respect to Counsel's submission on appeal about the objective evidence, while I accept the National Documentation Package (NDP) establishes that opponents of the Jordanian government are detained and can sometimes be tortured - subject to very limited steps to "investigate, prosecute, and punish officials who committed abuses"12 - the RPD's findings turn on the credibility of the Appellants. In this case the Appellants' allegations that they were arrested because of their political beliefs and were subsequently persecuted are, in my assessment, not credible. The Appellants have failed to establish their profiles as individuals who face persecution or who have been persecuted in Jordan because of their political beliefs. [58] In summary, I agree with the RPD that the Appellants are not credible, and that if returned to Jordan they do not face a serious possibility of persecution nor, on a balance of probabilities, a danger of torture, a risk to life, or a risk of cruel and unusual treatment or punishment. DETERMINATION [59] Pursuant to section 111(1)(a) of the IRPA,13 the RAD confirms the Decision of the RPD that the Appellants are neither Convention14 refugees nor persons in need of protection. (signed) "Ron Liberman" Ron Liberman February 7, 2022 Date 1 Refugee Protection Division Rules, SOR/2012-256, Rule 55. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended, section 110(4). 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 4 IRPA, section 110(6). 5 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 6 R. v. G.D.B., 2000 SCC 22, [2000] 1 SCR 520. 7 Exhibit RPD-1, RPD Record, p. 48 8 Exhibit RPD-1, RPD Record, medical reports, at pp. 107-112. 9 Exhibit RPD-1, RPD Record, police arrest warrant, at pp. 105-106. 10 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at pp. 40-41. 11 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (FCA). 12 National Documentation Package (NDP) for Jordan (March 31, 2020), item 2.1: Jordan. Country Reports on Human Rights Practices for 2019., United States. Department of State., at Executive Summary. 13 IRPA, section 111(1)(a). 14 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-11196 TC1-11197 RAD.25.02 (August 20, 2021) 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 (August 20, 2021) Disponible en français