MB5-00844

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. / No de dossier de la SAR : MB5-00844 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered/heard at Montréal, Quebec Appel instruit à Date of decision September 4, 2015 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Anthony Karkar Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX XXXX, the appellant, who is a Tunisian citizen, is appealing against the decision of the Refugee Protection Division (RPD). He submits that the RPD erred in rejecting his claim for refugee protection. II. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD, namely that XXXX XXXX XXXX XXXXis not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. III. BACKGROUND A. Summary of alleged facts [3] Here are the facts alleged by the appellant in his appeal memorandum. [4] He is a Tunisian citizen, who arrived in Canada in XXXX2011. After the Islamists took power, he had heated discussions with Tunisian Muslims in Montréal who wanted a radically Muslim Tunisia. The situation deteriorated due to the fact that his wife is a Christian and he is no longer a practising Muslim. [5] Individuals in charge of a mosque in Montréal addressed religious officials in Tunisia and filed a complaint against him, accusing him of renouncing his religion. [6] At the start of 2013, his XXXX was discontinued because his conduct did not comply with the values of his country due to his pro-Western ideas.1 [7] In addition to his Basis of Claim Form (BOC Form),2 the appellant submitted a document before the RPD.3 B. The RPD's decision [8] The hearing before the RPD was held on January 9, 2015, and the decision to reject the claim for refugee protection was rendered on January 13, 2015.4 [9] The RPD found that the claimant was not credible. It noted that his testimony was vague and general regarding the people who might persecute him in Tunisia and that his BOC Form did not contain any information on this matter. It added that his testimony was laboured, vague and general regarding the reasons for his XXXXbeing discontinued and that he did not present any documentary evidence in this regard. Finally, it did not believe that he no longer practised his religion or that he had renounced it.5 [10] The RPD also analyzed the documentary evidence indicating that a marriage between a Muslim man and a non-Muslim woman is allowed in Tunisia and that there are many couples in which a Christian woman is married to a Muslim man.6 C. Grounds of appeal and remedy sought [11] In his memorandum, the appellant submits that his marriage, in itself, is enough for him to be persecuted in Tunisia, specifically with the prevailing regime of extremists.7 [12] He also submits that the fact that he did not answer certain questions should not undermine his credibility and that he indeed stated that his fears of returning to Tunisia stemmed from the fact that he no longer practises his religion, that he was insulted by other Muslim Tunisians and that a complaint was lodged against him by religious authorities in Tunisia.8 [13] He is asking the RAD to allow his appeal, set aside the RPD's determination and grant him the status of a "person in need of protection" or to refer the matter to the RPD for re-determination.9 IV. HEARING BEFORE THE RAD [14] The Refugee Appeal Division Rules state that the record of the person who is the subject of the appeal must include, among other things, a written statement indicating whether the appellant is requesting that a hearing be held under subsection 110(6) of the IRPA and a memorandum that includes full and detailed submissions regarding why the RAD should hold such a hearing, if the appellant is requesting that a hearing be held.10 [15] In a written statement, the appellant's lawyer requests that a hearing be held before the RAD.11 However, in his memorandum, the appellant does not present any submissions regarding why the RAD should hold a hearing. [16] Regardless, under subsection 110(6) of the IRPA, if there is evidence presented on appeal that is found to be admissible, it should be determined whether it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, whether it is central to the decision with respect to the refugee protection claim, and whether it would justify allowing or rejecting the refugee protection claim. If the answer is yes, the RAD may then hold a hearing. [17] However, in his appeal, the appellant does not raise any new evidence within the meaning of subsection 110(4) of the IRPA.12 Consequently, there is no cause to hold a hearing.13 V. APPROACH TO BE TAKEN IN THIS APPEAL A. The appellant's position [18] In his memorandum, the appellant does not specify the approach that, in his opinion, the RAD should adopt in his case. B. A brief summary of certain Federal Court decisions [19] In Akuffo, Justice Gagné states that when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings, although opinions within the Federal Court diverge on the level of deference that is owed.14 [20] In Sajad and Bui, Justice Shore states that the RAD owes a measure of deference to the RPD's findings when they primarily concern the credibility of the person claiming refugee protection.15 That being said, the RAD must conduct an independent assessment of the record on appeal, in other words, conduct its own assessment of the evidence, consider the parties' submissions and then confirm or dismiss the RPD's findings regarding the credibility of the refugee protection claimant(s).16 [21] In Balde, Justice Mosley states that the different strands in the jurisprudence to date within the Federal Court have all accepted the principle that the RAD must show deference to the RPD's findings of credibility, given that the RAD does not typically hold oral hearings and is therefore at a disadvantage in comparison to the RPD.17 C. A somewhat deferential independent assessment [22] Relying as much as possible on the Federal Court decisions rendered to date, I find that, in this case, while conducting an independent assessment of the record, I owe deference to the RPD's findings regarding the credibility of the appellant's testimony.18 VI. ANALYSIS OF THE MERITS OF THE APPEAL [23] In terms of credibility, a measure of deference is owed to the RPD's findings, specifically with respect to the refugee protection claimant's testimony. It should be noted that "in determining an application for refugee status, it was up to the female applicant to establish, on a balance of probabilities, the facts on which she based her application".19 For its part, the RPD is entitled to make findings based on implausibility, common sense and rationality. 20 Lack of credibility on an important aspect of the claim can amount to a finding that there is no credible evidence on which the claim can be based.21 [24] After conducting an independent assessment of the record, I find that the RPD did not err in its assessment of the claimant's testimony and the documentary evidence. Here is why. A. Assessment of the testimony [25] In this case, the RPD found that the claimant's testimony was vague and general regarding the people who might persecute him in Tunisia and that his BOC Form did not contain any information on this matter. It added that this same testimony was laboured, vague and general regarding the reasons for the decision to discontinue his XXXX and that he did not present any documentary evidence in this regard. Finally, the RPD did not believe that the claimant no longer practised his religion or that he had renounced it. [26] In his appeal memorandum, in my opinion, the appellant merely repeats what he stated before the RPD. He does not provide any argument in an attempt to demonstrate that the RPD erred when it concluded that his testimony was laboured, vague and general, and furthermore, he did not present any documentary evidence on the XXXX that he allegedly received in the past. I add that it is not enough for the appellant to ask the RAD to substitute its own analysis for that of the RPD regarding the assessment of the credibility of his testimony or regarding the fact that he did not present any evidence to corroborate that he did indeed in the past receive a XXXX, which was later discontinued. [27] In my opinion, the appeal before the RAD cannot be carried out as if the initial decision did not exist because the appeal under the IRPA has a specific purpose, that of rectifying any error in the decision of the RPD.22 Relying on the decision of Justice Roy in Spasoja, I am of the opinion that if the appeal before the RAD must indeed be dealt with as an appeal, "this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety."23 And as Justice Mosley has recently written, the RAD does not generally proceed with a new assessment of credibility in appeals that are brought before it.24 In this case, since the appellant has not presented any new evidence within the meaning of subsection 110(4) of the IRPA, the appeal must necessarily be based solely on the record of the initial decision-maker-the RPD. Although the discussions in the courts are not yet closed in this matter, in light of the state of the Federal Court case law to date, I find that in this appeal, the onus was on the appellant to establish the existence of an error, be it an error in law, in fact or of procedure, regarding the RPD's finding as to the credibility of his testimony. In my opinion, his arguments do not establish the existence of such an error. B. Analysis of the documentary evidence [28] According to the documentary evidence analyzed by the RPD, in Tunisia, Muslim men who marry Christian woman are not victims of persecution, this type of mixed marriage being common and permitted.25 [29] In his memorandum, the appellant submits that his marriage to a Christian woman is in itself enough for him to be persecuted in his country because of the prevailing regime of extremists. However, he does not refer to any document included in the documentary evidence in the file to support his statement. That being said, he criticizes the RPD for indicating that the documentary evidence states that Salafists have attacked targets considered to be non-Islamic and individuals accused of blasphemy against Islam, without necessarily applying this documentary evidence to his own case. [30] However, the RPD did not believe that the appellant had stopped practising his religion or that he had renounced it. In this context, his criticism is unfounded. In my opinion, given the credibility problems clearly identified by the RPD, in this case, the appellant did not establish that he has a well-founded fear of persecution by reason of his religion if he were to return to live in Tunisia. [31] That being said, the events of last summer are fresh in our minds and remind us that terrorists could go after the civilian population or foreign nationals in that country. Some non-Islamists suspect that, behind their ostensible differences, Salafists and An-Nahda, the ruling Islamist party, share similar designs. This opinion is not, however, shared by analysts of the situation.26 Regardless, Tunisia seems less able to absorb the major jihadi attacks, causing growing concern and creating a climate that could increase the political impact of a major terrorist attack.27 [32] In this context, I understand that the appellant may fear the presence of extremists in his country. That being said, given the credibility problems clearly identified by the RPD, I find that the appellant has not established that he would be subjected to a personalized risk to his life or even to a risk of cruel and unusual treatment. In fact, the nature and the seriousness of the risk to which he would face is comparable and similar to the nature and seriousness of the risk faced by a significant part of the Tunisian population. As his risk is not distinct from that faced by a significant part of the Tunisian population, he cannot, therefore, claim protection under section 97 of the IRPA.28 VII. CONCLUSION [33] For these reasons, I confirm the determination of the RPD, that is, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [34] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette September 4, 2015 Date IRB translation Original language: French 1 Appellant's memorandum, March 5, 2015, paragraphs 1 to 13, page 13 of the appeal record. 2 The Basis of Claim Form is reproduced on pages 23 to 32 of the Refugee Protection Division (RPD) record. 3 This is a letter from Citizenship and Immigration Canada, which is reproduced on page 95 of the RPD record. 4 RPD reasons and decision, pages 3 to 9 of the RPD record. 5 Idem, paragraphs 8 to 21, pages 5 to 8 of the RPD record. 6 Idem, paragraph 22, pages 8 and 9 of the RPD record. 7 Appellant's memorandum, paragraph 21, page 14 of the appeal record. 8 Idem, paragraphs 16 to 19, page 14 of the appeal record. 9 Idem, page 16 of the appeal record. 10 Refugee Appeal Division Rules, SOR/2012-257, subrule 3(3). 11 Lawyer's statement, page 17 of the appeal record. 12 Idem. 13 Balde v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-14, Mosley, May 12, 2015; 2015 FC 625, at paragraph 32: "Subsection 110(6) uses the permissive word 'may' because the RAD can either hold a hearing or not hold a hearing when those preconditions exist. If they are absent, as they were in this case, the RAD has no choice to make. It cannot hold a hearing." 14 Akuffo v. Canada (Minister of Citizenship and Immigration), No. IMM-6640-13, Gagné, November 12, 2014; 2014 FC 1063, at paragraphs 34 to 39. 15 Sajad v. Canada (Minister of Citizenship and Immigration), No. IMM-926-14, Shore, November 21, 2014; 2014 FC 1107, at paragraph 22. Bui v. Canada (Minister of Citizenship and Immigration), No. IMM-1654-14, Shore, November 28, 2014; 2014 FC 1145, at paragraph 25. See also to that effect: Malambu v. Canada (Minister of Citizenship and Immigration), No. IMM-7972-14, Noël, June 17, 2015; 2015 FC 763, at paragraph 42. 16 Hamidi v. Canada (Minister of Citizenship and Immigration), No. IMM-5049-14, Shore, February 26, 2015; 2015 FC 243, at paragraphs 1, 22, 23, 24 and 30. Brodrick v. Canada (Minister of Citizenship and Immigration), No. IMM-5986-13, Diner, April 17, 2015; 2015 FC 491, at paragraphs 34, 35 and 36. Abdul Fasit Fida v. Canada (Minister of Citizenship and Immigration), No. IMM-5921-14, Zinn, June 24, 2015; 2015 FC 784, at paragraph 10: "The RAD examined the various findings of the RPD upon which it based the finding that the applicant was not credible. It is clear from the decision that it conducted its own independent analysis of that evidence." 17 Balde v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-14, Mosley, May 12, 2015; 2015 FC 625, at paragraph 25. See also to that effect: Palden v. Canada (Minister of Citizenship and Immigration), No. IMMA. 4907-14, Locke, June 25, 2015; 2015 FC 787, at paragraphs 10 and 11. 18 Dowansingh v. Canada (Minister of Citizenship and Immigration), No. IMM-6581-14, Diner, July 30, 2015; 2015 FC 933, at paragraph 21: "This Court has repeatedly held that RPD's conclusions on issues of credibility based on testimony clearly warrant some measure of deference." (citations omitted) 19 Arreaga v. Canada (Minister of Citizenship and Immigration), No. IMM-996-13, Noël, September 25, 2013; 2013 FC 977, at paragraph 45. 20 Laszlo v. Canada (Minister of Citizenship and Immigration), No. IMM-3507-04, Von Finckenstein, April 6, 2005; 2005 FC 456, at paragraph 10. 21 Hernandez Cortes v. Canada (Minister of Citizenship and Immigration), No. IMM-4645-08, Teitelbaum, June 4, 2009; 2009 FC 583, at paragraph 30. 22 Aloulou v. Canada (Minister of Citizenship and Immigration), No. IMM-7949-13, LeBlanc, December 19, 2014; 2014 FC 1236, at paragraph 57. 23 Spasoja v. Canada (Minister of Citizenship and Immigration), No. IMM-7630-13, Roy, September 23, 2014; 2014 FC 913, at paragraph 39. 24 Denbel v. Canada (Minister of Citizenship and Immigration), No. IMM-3827-14, Mosley, May 13, 2015; 2015 FC 629, at paragraph 37: "However, and with the greatest respect, I do not agree that the RAD should routinely conduct a fresh assessment of credibility on appeals brought before it." 25 Immigration and Refugee Board of Canada, National Documentation Package (NDP) on Tunisia, December 23, 2014: Document 12.2, Tunisia: Treatment by society and the authorities of Muslims who are in a relationship with a Christian individual (2012-November 2013), November 14, 2013, pages 17 to 22 of the RPD record, more specifically on page 18. I note that the Index that appears in the RPD record on pages 36 to 45 refers to the March 14, 2014, version of the NDP on Tunisia, but the documents found in the RPD record are part of the December 23, 2014, version of that same package, and the decision itself also refers to that version. Consequently, I will use the latter version of the NDP on Tunisia. 26 Idem: Document 7.1, International Crisis Group, Tunisia: Violence and the Salafi Challenge; February 13, 2013, 56 pages, specifically on pages i, ii, and 37 to 44. 27 Idem: Document 7.8, International Crisis Group, Tunisia's Borders (II): Terrorism and Regional Polarisation, October 21, 2014, 19 pages, more specifically on pages 1 and 9. 28 Miranda Mejia v. Canada (Minister of Citizenship and Immigration), No. IMM-7164-14, Shore, April 9, 2015; 2015 FC 434, at paragraph 37. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB5-00844 2