TB5-08021

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 : TB5-08021 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)XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 27, 2015 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Laura Setzer Barrister and Solicitor 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 (the Appellant), a citizen of the State of Libya appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant asks that the matter be referred back to the RPD to a differently-constituted panel. DETERMINATION [2] Pursuant to Section 111(1) (a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD, that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that on XXXX XXXX XXXX 2014 while driving his pregnant wife to a medical appointment, the Appellant's car was stopped by a group of armed men who had blocked the road. The Appellant and his wife were relieved of their possessions and the Appellant's car was taken by the men. The Appellant reported the incident to the police who directed him to file a complaint with the Tripoli Military Council (TMC). The TMC after conducting an investigation arrested three men in connection with the robbery of the Appellant and his wife. [4] On XXXX XXXX, 2014 the Appellant was contacted by the Al-Zintan militia advising him to withdraw his complaint against the three men. The Appellant agreed to do that if they returned his car, as his belongings had been returned to him earlier by the TMC when they arrested the men. The Appellant also alleges that the militia threatens to rape his wife if he didn't comply with their demand. The Appellant further alleges that his shop was showered by gun fire, which resulted in the injury of a customer, and later that day it was fire bombed. The Appellant and his wife fled to a friend's house, but were found by the militia a short time later. [5] The Appellant and his Canadian born wife fled Libya on XXXX XXXX XXXX 2014 en route to Canada via Ireland, and arriving on XXXX XXXX XXXX 2014. A short time later, the Appellant filed a claim for refugee protection inland. [6] The Appellant's application for refugee protection was heard on December 10, 2014 and January 29, 2015. In a written decision dated April 21, 2015, the RPD rejected the claim, finding that the Appellant is neither a Convention refugee nor a person in need of protection. The RPD found that the Appellant was not a credible witness as his testimony was not trustworthy regarding the essential elements of his claim for refugee protection.1 [7] The Appellant argues that the RPD erred in its credibility findings. ROLE OF THE RAD [8] Appellant's counsel has made submissions in this regard to the role that the RAD plays in the review of an RPD decision which is consistent with the recent Federal Court decision in Huruglica.2 The RAD finds that the Huruglica3 decision provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. [9] 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." [10] 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. The RAD will recognize and respect the credibility findings of the RPD or other findings where the RPD has a particular advantage in arriving at its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL Did the RPD err in its credibility findings? [11] The Appellant argues that the RPD erred when it determined there was a contradiction between the testimony of the Appellant and his wife regarding who accompanied them to the military council. The Appellant argues that the reasons for decision state that the Appellant testified he was accompanied by six brothers, but his wife who was a witness at the RPD hearing, testified that she was not sure but thought it was only one brother.4 The Appellant argues that the question posed by the RPD was ambiguous one capable of two interpretations. The question, "who accompanied you to the military council?" can be understood in two ways. Either as, "who travelled with you to get to the military council building from the police station?" Or it can mean, "who accompanied you inside of the military council office when you went to make the complaint?"5 [12] The RAD disagrees with the Appellant's argument. The RPD provided detailed findings in its reasons. The RAD listened to the audio in regards to this specific argument and ironically found that it was the Appellant who is microscopic in his argument as opposed to the RPD as he alleges. The question which was posed to the Appellant by the RPD was actually, "so, they all accompanied you to the military council?"6 Prior to that to put things into context, the following exchange to place. The Panel asked, "and how did you go to the military council?"7 The Appellant responded, "they transferred me and gave me a paper, and told me to go to the military council."8 The Panel asked," how did you go to the military council?"9 The Panel, "by what means?"10 The Appellant responded, " I called my brothers from the police station and they came and took me by car."11 The Panel asked, which brothers?"12 The Appellant testified, " all my brothers came in that moment."13 The Panel asked, " how many?"14 The Appellant testified, "all my brothers came."15 The Panel asked, "how many do you have?"16 The Appellant testified, "six brothers"17 The Panel asked, "so they accompanied you to the military council?"18 The Appellant testified, "yes".19 The RAD found nothing ambiguous about the question, and found that the Appellant had no problem in answering the question. His answer was very clear. The RAD finds this argument put forth by the Appellant to be un-supportable and therefore it fails. [13] The Appellant further argues that during his wife's testimony, the member's question was also ambiguous regarding, who accompanied them to the military council. The RAD listened to the audio which included the exchange between the Panel and the Appellant's testimony. The questions put to the Appellant's wife were very clear, and they Appellant wife's testimony was very clear. The RAD found there was no ambiguity in the questioning,20 but inconsistencies between the Appellant's and his witness's (his wife) testimony as pointed out in the reasons by the RPD. The RAD finds this argument put forth by the Appellant to be without merit and as such it too fails. Documents from the Tripoli Military Council [14] The Appellant argues that the RPD erred by choosing to give no weight to the documents from the Tripoli Military Council (TMC), because the letters did not specifically mention the Zintan group as the members of an "armed gang."21 The RAD has reviewed the report from the TMC and it notes that throughout the entire report there is no mention of the Al- Zintan group, only the term "armed gang" is used. The RAD finds that it would be realistic for the TMC to name the Al-Zintan in the report, if indeed they were responsible. Throughout the NDP, there is substantial documentary evidence which shows the strength and the position the Al-Zintan holds throughout Libya. The RAD notes that the Appellant himself indicates in his Basis of Claim (BoC), The Zintan Militia is now very powerful. They attacked and destroyed the Tripoli airport.22 It would therefore be reasonable to find that the TMC would have named the group by the actual name, as opposed to "armed gang", especially when they had three of the gang members in custody. [15] The RPD clearly stated in its reasons that the Appellant's general credibility had been undermined and that the allegations made by the Appellant caused his claim for refugee protection to have been weakened. The RAD finds that, given the significant credibility findings, it was open to the RPD to assign the appropriate weight to these documents, and further that they do not overcome the totality of the adverse credibility findings in the absence of further corroborative proof. The RAD noted that when it assessed these documents, none of documents provided any corroborative or independent evidence of the Appellant's allegations. The RAD is not persuaded by this argument that has been put forth by the Appellant, as it does not find it supportable and, therefore, the Appellant's argument fails. [16] The RAD notes that all persons, whether they are claimants, Appellants and especially counsels are very aware that credibility, which certainly includes supporting documents, is always an issue at every hearing. The Appellant was represented by competent counsel who ought to have known that the Appellant's documents would be assessed by the presiding member and that the documents would be given the appropriate weight according to their relevance and credibility. [17] The Appellant submits that, as a result of his testimony, in which he testified in a manner which was consistent with the narrative in his Basis of Claim form (BoC), that the RPD credibility findings were marginal without regard for the record. The Appellant provides some examples. [18] Given the evidence in the record, the RAD finds the RPD findings on credibility to be supportable in this area of the evidence. The RAD, upon review of the audio of the hearing, finds that there was sufficient reason for the RPD to find the Appellant's testimony not credible. [19] In regards to the credibility findings by the RPD, the RAD recognizes and respects those findings. SUMMARY AND DETERMINATION [20] The RAD finds that the RPD's credibility findings were thorough and are supported by the evidence and, as a result of those findings; the RAD affords deference to those findings. The RAD also finds, on a balance of probabilities, that evidence on the record is abundant to support the RPD's overall determination. The RAD finds that, after conducting an independent assessment on the evidence before it in its entirety, it arrived at the same conclusion as did the RPD in its overall determination. The RAD further finds that the Appellant has not satisfied his burden of establishing a serious possibility that he would be persecuted or that he would be personally subjected to a risk to his life, or a risk of cruel and unusual treatment or punishment, or a danger of torture by any authority in Libya. DISPOSITION [21] 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. This appeal is, therefore, dismissed. (signed) "Luis F. Agostinho" Luis F. Agostinho August 27, 2015 Date 1 Exhibit RPD-1, RPD's Record, at p. 6, para. 26. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 4 Exhibit P-2, Appellant's Record, Appellant's Memorandum, (pages not numbered), para 10. 5 Exhibit P-2, Appellant's Record, Appellant's Memorandum, (pages not numbered), para 11. 6 RPD hearing, audio at 41:34 7 RPD hearing, audio at 40:05 8 RPD hearing, audio at 41:13 9 RPD hearing, audio at 40:26 10 RPD hearing, audio at 40:35 11 RPD hearing, audio at 40:46 12 RPD hearing, audio at 40:55 13 RPD hearing, audio at 41:01 14 RPD hearing, audio at 41:06 15 RPD hearing, audio at 41:14 16 RPD hearing, audio at 41:19 17 RPD hearing, audio at 41:24 18 RPD hearing, audio at 41:34 19 RPD hearing, audio at 41:36 20 RPD hearing, audio at 1:24 to 1:25:30 21 Exhibit P-2, Appellant's Record, Appellant's Memorandum (pages not numbered), para 17. 22Exhibit RPD-1, RPD's Record, at p. 19, BoC question 2 (h). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08021