MB6-02855

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 : MB6-02855 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 at Ottawa, Ontario Appel instruit à Date of decision August 31, 2017 Date de la décision Panel Me Christina Harrison Baird Tribunal Counsel for the person who is the subject of the appeal John Rokakis, Esq. Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Salvatore D'Aloia Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX1, a citizen of Yemen, appeals the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant requests to submit new evidence but not to have an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) allow the appeal and refer the matter back to the RPD for re-determination. [2] The Minister intervened before the RPD and in the Appeal. DECISION [3] Pursuant to s. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. The Appellant is neither a "Convention refugee" under s. 96 of IRPA nor a "person in need of protection" under s. 97 of IRPA. [4] The appeal is dismissed. BACKGROUND [5] The Appellant alleges that if he is returned to Yemen, he may be targeted by the Al Houthi militia and forces loyal to former Yemeni president Ali Abdullah Saleh. He claims that his profile as a former employee at a natural gas production site makes him a desirable asset for these forces, which would like to reinitiate natural gas production for financial reasons. The Appellant states that workers who refused to cooperate with these forces were threatened with military trial or physical harm. [6] The RPD determined that the Appellant had failed to establish his credibility regarding key elements of his testimony. In particular, the RPD found that the Appellant's credibility was damaged by his repeated denials that he had lodged a refugee claim elsewhere, when in fact he had done so under a different identity in the United Kingdom (UK). Moreover, the RPD found several inconsistencies in the Appellant's testimony about how he was able to obtain the expired Yemeni passport that he produced as proof of identity. In addition, the RPD found that the Appellant's credibility was damaged by inconsistencies in his testimony about the whereabouts of a newer passport, which would have provided information about the Appellant's travel since 2008. Finally, based on evidence submitted by the Minister, the RPD found that the Appellant had been present in the UK in 2012, despite his assertion that he had not returned there since his departure in 2008. The RPD found the Appellant's insistence that he had not returned to the UK also damaged his credibility. As a result of this accumulation of credibility problems, the RPD did not believe the Appellant's claim for refugee status. [7] The Appellant submits that the RPD erred by misapprehending the evidence, thereby coming to the incorrect conclusion that he was not credible. He argues that the RPD erred when it found that his stay in the UK was pivotal, though he concedes it may be probative.2 The Appellant also argues that the RPD erred by preferring the Minister's evidence to his own testimony about his whereabouts in September 2012. He submits that the Minister's evidence on this point should have been given no weight at all. 3 The Appellant suggests that these questions are peripheral to the determinative issue: his fear of future harm in Yemen. In addition, the Appellant argues that the RPD ignored evidence of the Appellant's risk due to his religion. For these reasons, the Appellant requests that the RAD allow the appeal and refer the matter back to the RPD for re-determination. DECISION ON WHETHER TO ADMIT NEW EVIDENCE [8] In light of the RPD's negative credibility findings, the Appellant submitted as new evidence on appeal the following two documents: - UK Home Office Notice dated 4 November 2008; and - Letter from Solicitor Naeein Baig to UK Immigration Service dated 5 November 2008. 4 [9] The Appellant argues that the proposed new documents bear his name and corroborate his evidence, and should therefore be admitted to counter the Minister's evidence, particularly Exhibit M-8, which is redacted and does not bear his name, but purports to record his presence in the UK in September 2012. [10] The test for admissibility of new evidence is provided in s. 110(4) of IRPA, which states that the person who is the subject of the appeal (here, the Appellant) may 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. In addition, the jurisprudence requires the evidence to be new, credible and relevant.5 [11] I find that the two items presented by the Appellant are not new evidence within the meaning of s. 110(4) of IRPA. They were created well before the rejection of the Appellant's claim. Rule 3(g)(iii) of the RAD Rules requires the Appellant to include in his record full and detailed submissions regarding how any documentary evidence meets the requirements of s. 110(4). The Appellant argues that he could not reasonably have been expected to present this evidence at the time of his rejection. He submits that the Yemeni entry stamp in his passport and the letter of employment indicating that he was employed by the XXXX XXXX XXXX XXXX (XXXX) company from 11 January 2009 to 3 May 2015, should have been sufficient to establish when he departed the UK and where he was located. [12] I do not agree. At best, the Yemeni entry stamp can be taken as proof of a departure from the UK in 2008. By no means does that stamp prove that this was the Appellant's final departure from the UK, as he alleges. Similarly, even at its best, the letter of employment can only show the period during which the Appellant was registered as a worker at the natural gas plant. It cannot prove that he did not leave Yemen during the stated period, and in fact, he states that he did travel outside Yemen several times. These two documents, presented to the RPD, were not able to prove the date of the Appellant's final departure from the UK, nor to give a full account of his whereabouts between 2008 and 2015. As a result, it was reasonable to expect the Appellant to present all existing evidence that was reasonably available to him on these points. In light of the Minister's intervention, the Appellant was clearly on notice that his credibility and his presence in Yemen would be important issues at the RPD. [13] The Appellant does not argue that the proposed documents were not reasonably available to him. Both the notice and the letter from his counsel should reasonably have been available to him at the time his claim was rejected. Absent argument on this point, I conclude that they were available. The application to submit new evidence fails because the Appellant could reasonably have been expected in the circumstances to have presented the proposed new evidence at the time his claim was rejected. Refugee claimants are not permitted to split their evidence by presenting at the RAD evidence that could have been presented to the RPD. 6 [14] Since the proposed new evidence fails to meet the requirements of s. 110(4), it is not necessary to pursue a further analysis of the jurisprudential criteria. The Appellant's request to adduce new evidence is denied. DECISION ON WHETHER TO HOLD AN ORAL HEARING [15] The general rule is that the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD.7 The RAD only has discretion to hold an oral hearing when there is additional documentary evidence and all of the conditions in s. 110(6) are met.8 I have held that the new documents proposed by the Appellant do not meet the statutory criteria in s. 110(4), and therefore the RAD does not have discretion to hold an oral hearing in this case. SCOPE OF THE RAD APPEAL [16] The RAD is required to consider carefully the decision of the RPD and to carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. The process before the RAD is a "hybrid appeal," which differs from a judicial review. The Federal Court of Appeal has explicitly distinguished the RAD's review of the RPD from the high level of deference afforded by appellate courts to lower courts. The RAD applies the standard of correctness to all questions of law. The RAD also applies the standard of correctness to findings of fact and findings of mixed fact and law, where those findings raise no issue of credibility of oral evidence.9 [17] For findings that require an assessment of the credibility or weight to be given to oral evidence, the RAD should determine whether the RPD benefited from a meaningful advantage over the RAD, and whether the RAD should therefore give deference to a particular finding. Whether deference should be accorded will be determined based on the circumstances of each case.10, 11 Where the RPD enjoys a meaningful advantage in making a particular finding, the RAD may assess that finding using the standard of reasonableness, modified to apply to the RAD context.12 [18] Having made its own analysis of the record, the RAD may either confirm the decision of the RPD, or set it aside and substitute its own decision.13 The RAD must provide a final determination unless it cannot do so without hearing the oral evidence presented to the RPD. Only in cases where it cannot make a final determination, the RAD may refer the matter back to the RPD for re-determination. 14 ANALYSIS [19] I have listened to the recording of the hearing before the RPD and analyzed the RPD Record. I have considered all the arguments of the Appellant, including the Appellant's Memorandum and counsel's written submissions to the RPD, dated 12 November 2015. The determinative issue before the RPD was credibility. The key question in this refugee claim is whether the Appellant is at risk of harm by the Al Houthi militia and forces loyal to former Yemeni president Ali Abdullah Saleh, as a former employee at a natural gas site. Credibility [20] The Appellant testified that on 3 May 2015, he was with his family at the residential camp belonging to the XXXX XXXX XXXX XXXX (XXXX) company in Safer sector, Ma'rib governorate. A colleague allegedly called him to warn that the Houthi and forces loyal to former president Saleh had entered the XXXX production site by force. These forces were demanding that workers resume production, which had been ceased by order of the government of President Hadi on 30 April 2015. The Appellant stated that he and his family immediately fled by a shortcut through the desert, driving to his home village of Aldhalea (also spelled Al-Dhale or Al-Dhale'e) by way of Sana'a. According to the Appellant, he was tracked down in Aldhalea in June 2015, and he received a call on 24 June from a local official, telling him to report to work under the hostile forces.15,16 To corroborate this story, the Appellant presents a letter of employment dated 1 August 2015. The letter confirms his period of employment from 11 January 2009 to 3 May 2015, when production was stopped and workers were ordered to leave the workplace.17 [21] The RPD did not believe this story. The RPD reasoned that the Appellant's presence in Yemen - and conversely, his time in the UK - was pivotal to his credibility.18 The RPD therefore found that the Appellant's credibility was damaged when he deliberately did not mention an extended stay and unsuccessful refugee claim in the UK, and when he denied a reliable report that he was present there in 2012, four years after his alleged final departure in 2008. 19 In addition, the RPD noted that the Appellant neglected to mention that his father had been living in the UK since 2000, and had abetted the Appellant to make the refugee claim there under a false identity.20 Moreover, the RPD remarked that the Appellant's identity documentation, consisting of an expired passport, was mailed to Canada from the UK. 21 [22] In my view, the RPD did not err. The Appellant's lack of credibility regarding his whereabouts - including his presence in the UK after 2008 - directly and negatively impacts the trustworthiness of his evidence about his presence in Yemen during 2015, and his fear of future harm there. The Appellant has omitted the truth or lied directly about parts of his refugee story, even after reaching the safety of Canada. For example, in his immigration forms, he stated that he was living in Yemen from 2005 to 2008, when in fact he resided in the UK for most of this period. 22 Asked how his expired passport came to be sent to him from the UK, the Appellant told CBSA that in Aldhalea, his father had given it to a cousin to take to the UK.23 However, asked the same question at his RPD hearing, the Appellant spoke for two minutes without answering the question. When the RPD repeated the question, the Appellant said that his mother had sent the passport from Yemen to his father in the UK, by way of a cousin.24 Confronted with these omissions and contradictions, the Appellant did not give a satisfactory explanation. He continued to insist on contradictory versions of events and, in some cases, blamed faulty interpretation. [23] The Appellant's complaint about interpretation is not persuasive, since the Appellant confirmed that he understood the interpreter at his interview with CBSA on 7 July 2015.25 Moreover, as the RPD noted, the Appellant had more than one opportunity to correct his story as it related to the carriage of his passport to the UK. His evidence that his father had entrusted his passport to a cousin who was leaving Aldhalea for the UK was also part of a detention review on 10 July 2015.26 The interpreter before the Immigration Division on that date was different from the one on 7 July 2015. [24] The Appellant also volunteered information to the Canada Border Services Agency (CBSA) that his more current passport had been destroyed in a bombardment. 27, 28 Later, he told the RPD that he left that passport behind at the LNG residential camp. 29 The Appellant has not given a credible explanation for his failure to present a current passport. Since the Appellant destroyed the passport and documents on which he travelled, there is no documentary evidence to support his allegations about any but the last leg of his route from Yemen to Canada. The Appellant also has demonstrated his willingness and ability to obtain and use false documents, even after reaching the safety of the UK. For example, the Appellant purchased and used a false birth certificate to claim refugee status as a Somali national in the UK. 30 As a result, the presumption of truth is rebutted and there is valid reason to doubt the allegations of the Appellant. [25] To summarize, the only evidence of the Appellant's presence in Yemen in May 2015 is his word, and a letter of employment that he obtained in August 2015. The letter does not refer to the reason for stopping production at the XXXX XXXX XXXX XXXX (XXXX) company in Safer, nor to any attempt by hostile forces to reinitiate it. The Appellant has failed to show it is more likely than not that his allegations are true. [26] The Appellant objects to the RPD preferring the evidence of the Minister to that of the Appellant. In particular, he submits that the Minister's evidence about the report of his presence in the UK in 2012 should have been given no weight at all. 31 This argument must fail. First, the refugee divisions at the Immigration and Refugee Board (Board) have a longstanding practice to accept as objective technical evidence the records generated pursuant to the Five Country Conference High Value Data Sharing Protocol.32 The Board's reliance on such records is reasonable because they are government records kept in the course of migration administration, and are produced to State partners for the purpose of sharing migration information based on biometric data. Second, while the document about which the Appellant complains indeed has been redacted, the field that is partially blacked out is "File Name" rather than a personal name. The link to the Appellant is made by his fingerprints, which were taken on 11 October 2007, and which returned the match from the UK database, despite the Appellant's use in the UK of a different name and nationality. Moreover, the record indicates that the same person reported to a Reporting Centre on 20 September 2012. There is no merit to the Appellant's argument that the weight of this record should be diminished by the redaction. His simple denial that he was in the UK in 2012 is insufficient to controvert the prima facie evidence from the UK immigration record. This is so, especially in light of the Appellant's repeated failure to tell the truth to Canadian authorities. The RPD did not err. [27] In this case, the RPD met the Appellant in person on three occasions and heard the details of his refugee claim over the course of an afternoon. The RPD was able to benefit from visual cues in the hearing room, which gave it a meaningful advantage to weigh the credibility of oral evidence. Even had I disagreed with the RPD's credibility assessment, which I do not, this would have been an appropriate case to defer to the finding of the RPD that the Appellant lacked credibility about his presence in Yemen. In summary, the Appellant has not presented credible information about his whereabouts or activities, and therefore has failed to show that he faces the risk that he alleges. [28] Having conducted an independent analysis of the record, I find the RPD reached the correct conclusion: the Appellant is not a credible witness and I do not believe his refugee claim. Risk profile of the Appellant [29] In addition to a very serious credibility problem, the Appellant faces another obstacle to protection in Canada under either s. 96 or 97 of IRPA. To be recognized as a "Convention refugee" or a "person in need of protection", the risk of harm must be personal to him or he must be a part of a group that is collectively targeted. The Appellant argues that his refusal to work at the natural gas site - under the orders of the Houthis and forces loyal to former president Saleh - puts him in danger: these armed groups would impute to him an opposing political opinion and persecute him. In the alternative, the Appellant states that he faces a risk to his life, or of cruel and unusual treatment or punishment, or of torture, because of his refusal to use his skills in furtherance of their financial aims. Yet the Appellant himself testified that the natural gas site where he had been working has been returned to government control. His position is that given the ongoing conflict and instability, he could still be targeted for his skills at a later date.33 I have reviewed the documentary evidence, both from the time that the Appellant appeared before the RPD, and from the present day. Though there are human rights and humanitarian concerns of a generalized nature in Yemen, including ongoing armed conflict and an outbreak of cholera, I am unable to conclude that the Appellant faces a serious possibility of persecution based on his occupation in the natural gas industry. Nor has he shown on a balance of probabilities that his occupation places him at risk to his life, or of cruel and unusual treatment or punishment, or of torture. [30] The Appellant adds that the RPD erred by ignoring evidence of the Appellant's risk due to his religion.34 In my view, counsel on Appeal is attempting to raise a new issue, which is not supported by evidence. The RPD asked the Appellant whom he feared and why.35 The focus at the RPD was entirely on his risk profile as a worker in the natural gas industry. The Appellant has not pointed to any evidence on the RPD record about the sect of Islam to which he belongs, nor about any risk to him due to such membership. Counsel before the RPD did not raise this argument in her written submissions dated 12 November 2015. It is clear that the Appellant may not raise a new allegation of risk for the first time on appeal, and I do not accept this argument. CONCLUSION [31] Pursuant to s. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. The Appellant is not a "Convention refugee" under s. 96 of IRPA or a "person in need of protection" under s. 97 of IRPA. [32] The appeal is dismissed. Christina Harrison Baird Me Christina Harrison Baird August 31, 2017 Date /ag 1 Hereinafter "the Appellant". 2 Appeal Record, page 13, para. 1. 3 Ibidem, pages 13-15, paras. 2-3. 4 Ibidem, pages 18-22. 5 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII) at paras. 38 and 44 to 49. 6 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII) at paras. 15 and 50. 7 Section 110(3) of IRPA. 8 Balde v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-14, Mosley, May 12, 2015, 2015 FC 624 at para. 32. 9 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, at paras. 37, 48, 78 and 103. 10 Ibidem at para. 70. 11 X (Re), 2017 CanLII 33034 (CA IRB). 12 Ibidem at para. 116. 13 Section 111(1)(a) and 111(1)(b) of IRPA. 14 Section 111(1)(c) and 111(2) of IRPA; Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93 at para. 103. 15 Basis of Claim narrative, RPD Record, pages 41-42. 16 Audio recording of the RPD Hearing on 6 November 2015, hereinafter "Hearing" at minutes 28:00 and 1:20:00. 17 RPD Record, pages 221-222. 18 Ibidem, paragraphs 24, 29 and 42. 19 Hearing at minutes 40:00 and 47:00. 20 Ibidem, at minutes 40:00 and 56:00. 21 Ibidem, at minute 48:00. 22 Ibidem, at minute 1:09:00. 23 Exhibit M-4, RPD Record, page 158. 24 Hearing at minute 48:00. 25 RPD Record, page 156. 26 Ibidem, page 88. 27 Exhibit M-4, RPD Record, page 159. 28 Hearing at minute 1:59:00. 29 Ibidem, at minutes 52:00 and 1:59:00. 30 Ibidem, at minute 40:00. 31 Appeal Record, pages 13-15, paras. 2-3. 32 E.g. X (Re), 2013 CanLII 69347 (CA IRB); X (Re), 2015 CanLII 30378 (CA IRB). 33 Hearing at minute 2:23:00. 34 Appeal Record, page 153, para. 4. 35 Hearing at minute 19:00. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB6-02855 10 RAD.25.02 (2014.09.11) Disponible en français