TB9-12396

RAD File / Dossier de la SAR : TB9-12396 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 18, 2020 Date de la décision Panel E. Bobkin Tribunal Counsel for the persons who are the subject of the appeal N/A 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] These are my reasons for dismissing the appeal of XXXX XXXX XXXX XXXX (the Appellant), a citizen of Sudan. [2] The Appellant alleges that he has a history of political activity opposing the Sudanese government. He alleges that he comes from a political family and that his activism largely relates to his origin in the Nubian tribe and their opposition to the building of dams in the Nubian region of Sudan. The Appellant was not born in Sudan and has lived much of his life outside of Sudan in the United Arab Emirates (UAE) and in Malaysia. He alleges that, in 2015, when he returned to Sudan, he was detained when attempting to leave because of his political activities. He alleges that he later used assistance to flee Sudan and return to Malaysia, but when he began to receive threats in Malaysia, he fled and came to Canada via the United States. The Appellant brought a refugee claim along with his wife, whose claim was based upon her relationship with the Appellant. [3] The Refugee Protection Division (RPD) rejected the Appellant's claim on the basis that he was inconsistent and vague about his political activities and because his documents were inconsistent. The RPD accepted that the Appellant had attended anti-government protests in Canada and had posted anti-government content on his Facebook page. However, the RPD found this activity did not place the Appellant at a serious possibility of persecution. [4] The Appellant and his wife filed their appeal jointly. However, after their appeal was filed, the RAD administratively disjoined the appeals. [5] The Appellant argues that the RPD erred. He argues that the RPD incorrectly assessed the credibility of his political activities. The Appellant argues that, even based upon the facts accepted by the RPD, he faces a serious possibility of persecution. He also submits several news articles as new evidence with his record. In August of 2020, the Appellant contacted the RAD and requested a two-month extension of time to file new evidence stating that he has been ill. The RAD granted the request to October 30, 2020. On October 22, 2020, the Appellant contacted the RAD and indicated that he no longer had Counsel and reiterated his request to file further documents. The RAD indicated that the deadline for the request remained at October 30, 2020. The same day, the RAD received a request from Counsel to be removed from the record. This was granted. On November 3, 2020, the RAD received a package of documents from the Appellant, which I have considered. [6] I find that the RPD correctly identified the determinative issue as credibility, and I find that the RPD correctly concluded that the Appellant had not established his allegations, on a balance of probabilities. I also concur with the RPD that the remaining credible evidence does not establish a risk for the Appellant. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE [8] According to the law,1 I can only accept evidence that: (i) arose after the RPD's decision; or (ii) was not reasonably available at the time of the decision; or (iii) that the Appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [9] 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.2 For evidence submitted after the record was perfected, I must also consider Rule 29 of the RAD Rules. The Appellant submitted a package of country conditions evidence with his appeal record in June 2019. In November 2020, the Appellant submitted a package of personal documents. I find that most of the country documents are admissible and none of the personal documents are admissible. The country conditions documents submitted with the Appeal Record [10] The Appellant submitted seven news articles about the treatment of political activists in Sudan. Six of these articles post-date the rejection of the claim by the RPD, and one does not. I find that the six articles which post-date the rejection of the claim are admissible, and the one article that pre-dates the claim is not. [11] The six articles which post-date the rejection of the claim are evidence which arose after the rejection of the claim and therefore meet the test for admission under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). They are also new for this reason. The articles come from independent third-party news sources, and therefore I find them credible for admission. They relate to the treatment of activists in Sudan and are therefore relevant to the Appellant's claim. I admit these articles. [12] The seventh article is from March 25, 2019. The RPD's decision is from April 30, 2019. The Appellant argues that this article is admissible because it "arose after the RPD hearing."3 The Appellant has misstated the test. The relevant date is the rejection of the claim not the RPD hearing. The Appellant has failed to establish that the article arose after the rejection of the claim. The Appellant has not argued that this evidence was not reasonably available to him prior to the rejection of the claim or that this is evidence which he could not reasonably have been expected to provide prior to the rejection of his claim. Therefore, the Appellant has not established that this article meets the requirements of subsection 110(4) of the IRPA. The article is not admissible. [13] The Appellant requested a hearing "in the event that the RAD finds the record insufficient to grant protection."4 Again, this misstates the test. The RAD is only allowed to hold a hearing if there is new evidence which is admissible, and which raises a serious credibility concern with regard to the Appellant, and which is determinative. In this instance, the new evidence is country conditions evidence and not related specifically to the Appellant. It raises no issues of credibility with regard to the Appellant. Therefore, it does not meet the requirements for an oral hearing, and I cannot convene an oral hearing. The personal documents submitted on November 3, 2020 [14] On November 3, 2020, the Appellant submitted a letter from a Sudanese Canadian community organization, a psychotherapist report, and three letters from his family. For the following reasons, I find these documents are inadmissible. As I find these documents are inadmissible, I cannot hold an oral hearing based upon them. The letter from the XXXX XXXX XXXX XXXX XXXX does not meet the requirements of subsection 110(4) of the IRPA [15] The Appellant presented a letter from the XXXX XXXX XXXX XXXX XXXX stating that he is a member of the organization and has participated in and volunteered for many programs and activities.5 I find the document inadmissible under subsection 110(4) of the IRPA. The letter states that the Appellant joined the organization in XXXX 2018.6 This is one year prior to the rejection of the Appellant's claim. Therefore, I find the information in the letter does not post-date the rejection of the claim. [16] The Appellant has not provided information to suggest that this letter was not reasonably available to him or that he could not reasonably have been expected to provide the letter prior to the rejection of his claim. He did provide such an explanation about the letters from his family that could not have been provided sooner, but there is no explanation about the XXXX letter.7 I recognize that the Appellant is unrepresented at this time. However, given that his involvement with this organization pre-dates his refugee hearing, when he had Counsel, I find the Appellant has not explained why he could not have provided this letter prior to the rejection of his claim. I find the letter inadmissible under subsection 110(4). As this issue is determinative, I have not given reasons under rule 29, as I would not admit this evidence even if the rule 29 test was met. The psychotherapist report does not meet the requirements of subsection 110(4) [17] The Appellant provided a report from a registered psychotherapist, dated XXXX XXXX XXXX 2020, stating that the Appellant has been attending psychotherapy since XXXX XXXX XXXX 2019. It discusses the Appellant's symptoms and treatment.8 I find the report does not meet the requirements of subsection 110(4) of the IRPA. [18] The psychotherapist notes that "[m]ost of XXXX concerns stemmed from severe fear that was a result of past traumatic experiences which are affecting his present life" and describes this fear as based on events in Sudan.9 For this reason, I find that the Appellant has not established that the information in this report post-dates the rejection of his refugee claim. [19] I find that the Appellant has not established that this report was not reasonably available to him at the time of the rejection of his claim or that this was evidence that he could not reasonably have been expected to provide prior to the rejection of the claim. The report notes that the Appellant decided to seek psychological assistance after the separation from his wife, which post-dated the rejection of the claim.10 However, I do not find that this reasonably explains why a psychological assessment was not sought previously for the Appellant. The Appellant had Counsel throughout the RPD process, and there is no allegation that this Counsel was not competent. [20] The issue of the Appellant's mental state was raised at the first sitting of the RPD hearing which was adjourned because the Appellant was not feeling well physically because he stated that he was not getting enough sleep,11 which was one of the concerns in the psychological report. The Appellant also stated in the second sitting before the RPD that he was psychologically stressed.12 Counsel also emphasized this in his written submissions to the RPD arguing that credibility concerns were related to "his mental state at the time of the testimony."13 The RPD Member also raised the possibility of the Appellant seeing a mental-health professional at the second sitting. The Appellant said he had seen a family doctor, but no evidence was provided from this person, and the Appellant stated that he did not see a mental-health professional after the first sitting because there was no time due to him working 12-14 hours a day.14 [21] I do not find this reasonable, given that Counsel and the Appellant had clearly been made aware of the potential importance of such a report. Moreover, Counsel for the Appellant did not request an adjournment to attempt to get such a report or attempt to submit a report after the second sitting before the RPD, despite making post-hearing submissions. For this reason, I find the Appellant has not established that such a report was not reasonably available prior to the rejection of his claim by the RPD. Similarly, given that Counsel was aware of the potential impact of mental health on the credibility assessment, I find the Appellant has not established that such a report is evidence which he could not reasonably have been expected to provide prior to the rejection of his claim. [22] Therefore, I find the report inadmissible under subsection 110(4) of the IRPA. As this issue is determinative, I have not given reasons under rule 29, as I would not admit this evidence even if the rule 29 test was met. The letters from the Appellant's family are inadmissible [23] I find that the determinative issue on the admissibility of the three letters from the Appellant's brothers and father is that they are not credible as required by the case law. According to the factors in Raza, as upheld in Singh, evidence must be new, relevant and credible to be admitted on appeal, even where the evidence meets subsection 110(4) of the IRPA and rule 29 of the RAD Rules.15 Raza states the following about credibility in relation to the admissibility of new evidence: "Is the evidence credible, considering its sources and the circumstances in which it came into existence? If not, the evidence need not be considered."16 [24] I find that the letters are not credible based on the source and circumstances of the events described. I am guided by the approach in a similar RAD decision which was recently upheld by the Federal Court in Idugboe.17 There are several reasons that I have concerns with regard to the credibility of the letters. [25] First, similarly to the evidence in Idugboe, one of the letters originates from the Appellant's father, who already provided evidence which was inconsistent with the Appellant's Basis of Claim (BOC) form and testimony and was found to be lacking credibility by the RPD. As explained below, I have upheld this finding. Therefore, I already have concerns about the Appellant's father as a reliable source of evidence. [26] Second, I note that all three of the letters are very similar in terms of their font and format. While this consideration is not determinative, it is one factor in my analysis. [27] Third, I find that the timing of the events described in the three letters is concerning. The Appellant alleged in his BOC that he was last in Sudan in 2015, and he was detained at that time.18 His BOC states that, one week after this detention occurred, security officials came to his father's house.19 There is no mention in the BOC of any further visits by security officials to his family's home between 2015 and the signing of the BOC in 2018. There was no testimony about further visits by authorities at the Appellant's hearing. The three letters from the Appellant's brothers and father state that authorities came to look for the Appellant in XXXX and XXXX 2020 as well as an allegation of state harassment from XXXX 2019 to XXXX 2020. I find that the timing of the events is suspicious and improbable. [28] Fourth, I find that the three letters are an attempt to re-cast the Appellant's claim in response to findings made by the RPD. The Appellant's BOC alleged that he was a political activist for the Nubian tribe which opposed dam building in Sudan and the mistreatment of their people.20 His narrative and testimony focused on this, and his BOC is clear on this point. At several points in the narrative, he alleges the following: (a) His family hails from the Nubian tribe which defends their heritage and their land which was taken for dams and destroyed by the Sudanese government;21 (b) His father constantly reminded him of his Nubian roots and heritage and the loss of their connection to the land and held meetings for the Nubian community in the UAE;22 (c) While in university, the Appellant became active in Nubian culture and in advocating and raising awareness for Nubians;23 (d) He planned gatherings against the Kajbar dam and travelled to assist Nubian people affected by the dam;24 and (e) The Appellant was involved in a national campaign against the dam and the six-party committee against dams which led to his detention.25 [29] At the RPD hearing, the RPD found these allegations lacked credibility. The RPD also noted that the Appellant had presented Facebook posts which did not suggest any Nubian political activity or anti-dam activity and, instead, were only general anti-government posts. The RPD considered the Appellant's explanation that he had broadened his political activity but rejected it finding that this was omitted from the BOC and therefore not credible.26 As explained below, I concur with this finding. The RPD accepted that the Appellant had made the posts on Facebook but found this did not establish his risk. [30] The letters from the Appellant's father and brothers now attempt to re-cast the Appellant as having been a broad anti-government activist. The letters make no mention of Nubian culture or anti-dam activity. Instead, they state that the Appellant's family is being threatened because the Appellant is opposed to the current regime and has been opposed to the previous regime of Al Bashir on social media,27 because he is involved in anti-government activities,28 and because he is "an outspoken activist against the Al-Ingaz regime and the military."29 These letters are an attempt to minimize the allegations found to be lacking credibility and emphasize a different claim. Moreover, they appear to be an attempt to respond to the RPD's finding that there was no evidence that the Appellant's social media posts had come to the attention of the authorities in Sudan. Given that the posts in question were from 2012 to 2018, I find it improbable that there was no evidence that the posts had come to the attention of authorities during this time but then happened to do so after the rejection of the claim. [31] When I consider the four factors described above cumulatively, I find that the letters from the Appellant's father and brothers lack credibility in their source and circumstances. I therefore find that they are inadmissible, pursuant to the case law. As this issue is determinative, I have not given reasons under rule 29 or subsection 110(4) of the IRPA, as I would not admit this evidence even if the legislative tests were met. THE ROLE OF THE REFUGEE APPEAL DIVISION [32] My role is to look at all the evidence and decide if the RPD made the correct decision.30 There is an exception to this, where the RAD defers to the RPD if the RPD had a meaningful advantage in assessing the credibility of oral evidence. I do not find this case falls into the exception. Therefore, I will be looking at whether the RPD's decision was correct. ANALYSIS [33] The RPD held that the central allegations in the Appellant's claim, that he was involved in political activity against the Sudanese government's building of dams in Sudan and Malaysia and was detained as a result, was not credibly established, on a balance of probabilities. The RPD accepted that the Appellant had posted anti-government material on his social media and attended protests in Canada, but it found this did not expose him to a serious possibility of persecution or a risk to his life, a risk of torture, or a risk of cruel and unusual treatment or punishment, on a balance of probabilities. I find this decision is correct. The credibility findings made by the RPD are correct [34] The RPD found that the central allegations of the Appellant's claim were not credible because he was inconsistent about his political involvement; he failed to provide relevant corroborative documents; he gave vague and confusing testimony about his political involvement and because a letter from his father was inconsistent with his allegations. The Appellant argues that these findings are in error. I am not persuaded by his arguments, and I concur with the RPD. The Six-Party Committee [35] The RPD held that the Appellant had been inconsistent about his involvement with the Six-Party Committee, which was the anti-dam committee he alleged he was involved in.31 The RPD held that he had at various times stated that he became involved in 2010 or 2011, 2013, 2014, or 2015. The RPD considered the explanation of the Appellant which was that he was tired and stressed and made mistakes. The RPD rejected this explanation given that there was no psychological evidence or medical evidence to suggest the Appellant has physical or mental health issues. The RPD found that the stress of the hearing did not reasonably explain the discrepancies given that it was not a simple mistake in the date but, rather, a change in the circumstances as well as a significant time lapse. The Appellant argues that the RPD failed to accept his reasonable explanation for the inconsistencies and that the inconsistencies are not central to his claim.32 I am not persuaded by this argument. [36] The Appellant has not explained why the RPD's failure to accept the explanation is an error but merely asserts this. Reviewing the record, I agree with the RPD. It is clear that the changes are more than forgetting dates but, rather, inconsistencies in the core allegations. For example, at the first sitting of the hearing, the Appellant stated that he was introduced to the six-party committee by XXXX XXXX whom he met in 2015 at a protest in Sudan at the Ministry of Justice and that they met after the protest when people were introducing themselves to each other.33 This contradicts the BOC stating that the Appellant knew Mr. XXXX in 2014.34 The Appellant's explanation that he was confused about the dates does not make sense because the first testimony relates to an event described as happening in 2015 not 2014, and therefore the inconsistency is more than a misremembered date. The Appellant describes a protest in 2015 at the Ministry of Justice in his BOC.35 This post-dates meeting Mr. XXXX according to the BOC. Therefore, I agree with the RPD that the inconsistency is not reasonably explained. [37] I am also not persuaded by the Appellant's argument that these inconsistencies are not central to the claim. The Appellant emphasized at several points in his testimony that the six-party committee was the organization that he was involved in to promote his political causes and advocate against the building of dams in Sudan. Therefore, inconsistencies in his evidence regarding this group are central to the claim. I find that the inconsistencies in the Appellant's evidence about the six-party committee undermine the allegation that he was involved in the committee and in political activities against the Sudanese government in Sudan and Malaysia. Lack of corroborative evidence [38] The Appellant argues it was wrong for the RPD to make a finding based on a lack of corroborative documentation given the testimony and the other evidence on file, including the certificate of Nubian heritage.36 I disagree. [39] Sworn testimony is presumed to be true unless there are valid reasons to doubt the truthfulness of the testimony. Where there are no such reasons, it may not be correct for the RPD to consider a lack of corroborative documents. In this case, as discussed above, the RPD found the Appellant's testimony with respect to his involvement in Nubian causes lacked credibility. I have upheld this finding. Therefore, it was correct for the RPD to consider the lack of corroborative documentation. The RPD noted that the only documentation provided by the Appellant about the six-party committee was inconsistent with the Appellant's testimony that the organization was opposed to dam building and, rather, stated it was opposed to gold mining.37 This is a further reason to doubt the Appellant's credibility based on the documents provided. [40] Additionally, the RPD Rules and the BOC instructions state that a claimant has an obligation to provide corroborative documentation.38 Reviewing the transcript, the RPD provided the Appellant an opportunity to explain what documents he had tried to obtain. For example, the RPD asked the Appellant whether he had considered printing out the six-party committee's Facebook page, and the Appellant testified that he did not think of doing this.39 I see no error in this approach. [41] The Appellant points to a certificate of his grandfather which shows he is Nubian and argues that this was not considered by the RPD.40 I do not find this argument persuasive. The RPD discussed this certificate at the hearing. 41 The certificate establishes that the Appellant comes from a Nubian family, which the RPD accepted. The document is not probative of whether the Appellant is an anti-government activist. It does not, as the Appellant argues, make up for the lack of probative corroborative documentation. [42] For these reasons, I find that the RPD correctly concluded that issues with corroborative documentation is one reason to doubt the credibility of the Appellant's allegations. The father's letter [43] The Appellant alleged that he had been detained. However, the RPD found that a letter corroborating this detention from the Appellant's father lacked credibility for the following reasons: (a) The letter states that the Appellant told his family that he was beaten and tortured while in detention, but the Appellant's BOC/testimony was that he was not but was threatened. (b) The letter was brief and vague, without giving details about the Appellant's situation. (c) No original letter had been provided; the author was not a witness, and the letter could only be authenticated by the Appellant who lacked credibility.42 [44] The Appellant argues that it was wrong for the RPD to make negative credibility findings based upon the discrepancy in the Appellant's father's letter because there was evidence to corroborate the detention in his passport, and therefore the RPD was being overzealous.43 I disagree. The RPD gave three reasons to find the letter lacked credibility, and having reviewed the letter, I agree that it lacks credibility for the reasons set out by the RPD. The Appellant has not actually argued that the RPD erred in finding the letter inconsistent but, rather, argues that there was other evidence of the detention, and therefore the RPD was overzealous in relying on this inconsistency. I disagree. [45] The other evidence in question is the Appellant's passport. The RPD acknowledged the Appellant's passport which shows a cancelled exit stamp on the date the Appellant alleged he was detained. The RPD acknowledged that this was consistent with the Appellant's allegation but found that the evidence did not establish why the departure was cancelled and therefore was insufficient to overcome the credibility concerns.44 The stamp does not establish the detention but, rather, that there was some reason the departure was cancelled. The RPD balanced this evidence and found it did not outweigh the credibility problems. I agree. The credibility problems were significant, and therefore I do not find the RPD was overzealous in not putting more weight on the passport stamp. [46] Moreover, in assessing the Appellant's passport and the exit stamp, I note that the Appellant was inconsistent in when he received his passport back. At his hearing, he testified that he was given his passport back at the end of the detention,45 but in his BOC, he states that he received his passport back when he fled Sudan after the detention. While this is not determinative, it supports the RPD's conclusion that the stamp in the passport is insufficient to establish the detention. For these reasons, I concur with the RPD's finding. [47] The Appellant argues that the RPD did not make a finding "that the detention did not occur."46 I disagree. The RPD did not explicitly find that the detention did not occur but found that the credibility concerns caused the Panel to "doubt the veracity of all of the principal claimant's evidence."47 I find this encompasses the detention. The RPD accepted the objective evidence, including the Facebook posts, the photographs of the Appellant at protests in Canada and the stamp in the passport but found these did not establish a claim, which I will discuss further below. The RPD did not accept that the passport stamp established the detention but, rather, found that the stamp was insufficient to overcome the credibility concerns, including the issues with the Appellant's father's letter.48 [48] The Appellant is asking the RAD to conclude that the cancelled passport stamp establishes his detention, on a balance of probabilities. I find this would be speculative, particularly considering the credibility concerns discussed above. I concur with the RPD's assessment of the Appellant's letter. I find that the letter undermines the allegation that the Appellant was detained in Sudan on XXXX XXXX, 2015. Looking at the evidence and the credibility issues cumulatively, I find the Appellant has not established, on a balance of probabilities, that the detention occurred. Unchallenged findings [49] The RPD made a number of other credibility findings which the Appellant has not addressed in his memorandum. The RPD found that the Appellant's Facebook evidence undermined his allegation that he was involved in protesting the dams in Sudan and Nubian causes because there is no mention of these issues in any of the posts. The RPD found that the Appellant's explanation that his interests broadened was inconsistent with the BOC which focused on the Nubian people and dams in Sudan.49 This finding is not challenged, and I agree with that finding. [50] The RPD also held that the Appellant had given vague and shifting testimony about what political activities he was involved in and when, including whether he attended protests or organized protests, when he had visited the Nubian area of Sudan and what his activities were.50 The Appellant has not challenged this finding, and I agree with the finding. [51] The Appellant argues that the RPD focused excessively on the evidence of the Appellant's involvement with the six-party committee which is not central to his claim.51 I disagree. As discussed above, the six-party committee was central to the claim. Moreover, as explained here, the RPD made additional credibility findings which are not challenged by the Appellant and with which I agree. I find these are further reasons to doubt the credibility of the Appellant's allegations. Conclusion on credibility findings [52] The Appellant argues that, given the credibility findings were cumulative and amounted to a finding that the entirety of the Appellant's evidence was found to be lacking credibility, they cannot be separated, and the decision must be set aside.52 Given that I do not find the RPD erred in its credibility findings, this argument is not relevant to my decision, as there is no reason to set aside the decision. [53] When I look at the credibility issues together and the record as a whole, I agree with the RPD's assessment. I find that the Appellant has not established, on a balance of probabilities, that he was involved in anti-government activity in Sudan and Malaysia and particularly with anti-dam activity. I also find that the Appellant has not established that he was detained in XXXX 2015, on a balance of probabilities. The Appellant has not established a risk of persecution on the basis of the accepted facts [54] The RPD accepted that the Appellant had made anti-government Facebook posts and had attended protests in Canada but found that he had not established this exposed him to a risk under section 96 or 97 of the IRPA.53 The Appellant argues that there is documentary evidence that individuals with his profile face persecution in Sudan, and the RPD ignored this evidence.54 He argues that the RPD erred by focusing on one document suggesting that the Appellant would not be at risk, but other documents in the National Documentation Package (NDP) show he would be at risk. I have reviewed the record, and I do not agree. I find the RPD correctly concluded that the Appellant does not face a serious possibility of persecution based upon the credible evidence of his political opinion. [55] The Appellant faults the RPD for relying heavily on a UK Home Office report as opposed to other documents on file. However, the UK Home Office report is the most directly relevant article, as it discusses opposition to the government including sur place activity. Both the first and second versions of this report were before the RPD. 55 The RPD quoted the first version, but the second version, which is more updated, similarly notes that "not all political opponents suffer persecution and that for this to happen, their level of political engagement has to be fairly high."56 The report confirms that for an individual to face a risk, the political activities must be "public and known to the intelligence service."57 The report does go on to state that it may not take much for the National Intelligence and Security Service (NISS) to create a file on an opponent, including mere suspicion, but this does not mean that the file will be used.58 [56] The report is also helpful in determining the question of whether the Appellant's involvement in political demonstrations in Canada and his social media activities are known to the Sudanese authorities, on a balance of probabilities. In discussing surveillance in Sudan, the report notes that Sudan increased its internet surveillance capability in 2011 due to the Arab Spring.59 However, the unit doing this work still only consists of 200 agents.60 The report also states that, despite this: "the internet remains a relatively open space for freedom of expression."61 The report notes that there is a strategy to manipulate online conversation and that there is targeting of online activists and journalists during politically sensitive periods.62 [57] With regard to surveillance abroad, the report notes that there are refugee claimants who allege that there are Sudanese spies in the diaspora and growing concerns from members of the Sudanese opposition in the United Kingdom about increased numbers of Sudanese intelligence officers in the UK and the EU.63 However, the report states that some of the individuals are merely seeking their own safe haven and not reporting back to Sudan.64 The report goes on to list a number of cities and countries where the NISS are active, but Canada is not on the list.65 The report also notes that opposition leaders abroad may be subject to arrest upon return to Sudan.66 There is some evidence that government critics are subject to surveillance, including Nubians, but this is contrasted with the statement that there is "no independent evidence of" this type of surveillance.67 [58] The report continues on in this manner stating that there are conflicting reports of who is surveyed and to what degree. Of particular relevance, the report notes that "those whose political activity is not particularly great or who do not have great influence in the country in which they live or within their own community will not be followed very closely" and that it would take more than occasional participation in public demonstrations to place someone at risk.68 The report notes that even being featured in media photographs would not necessarily expose someone to a risk if they were not a leader, spokesperson or organizer.69 [59] Reviewing the report, I agree with the RPD. The credible evidence is that the Appellant posted anti-government statements on his social media, in a time when he was largely living in Malaysia, not Sudan, and that he has attended political demonstrations in Canada.70 The Appellant argues that the RPD accepted that the Appellant was an "outspoken critic" and attended demonstrations.71 I find that this overstates the RPD's decision. The RPD accepted that the Appellant holds anti-government views and "has expressed them over social media," but it does not find he is an outspoken critic.72 Given that there is no credible evidence that the Appellant is a leader, organizer or spokesperson in any anti-government activity, I find the RPD correctly concluded that the Appellant had not established that this activity would expose him to a serious possibility of persecution or a section 97 risk, on a balance of probabilities. [60] Regarding the other reports pointed to by the Appellant, I have reviewed them. The Appellant argues that the evidence "is clear that activists and political opponents who have been returned to Sudan face detention upon arrival."73 However, again, in the documents cited by the Appellant, the individuals discussed are described as "vocal critics" known to the government.74 For example, one individual mentioned both in the NDP and in an article submitted by the Appellant was detained in Saudi Arabia at the request of the Sudanese Intelligence and then extradited to Sudan.75 This individual is not similarly situated to the Appellant who has not established he is, on a balance of probabilities, known to the Sudanese authorities. [61] Other reports cited by the Appellant are not as clear cut and similarly situated to his situation, and they discuss in broad terms about opponents.76 The UK Home Office report discussed above, is much more detailed and applicable to the Appellant's situation. I therefore give it greater weight. I acknowledge that the RPD did not discuss all of the sources cited by the Appellant, but I do not find this to be an error because I do not find these sources to be as relevant and applicable to the case at hand. [62] The Appellant argues that the RPD erred by putting the burden on the Appellant to prove the government is aware of his opposition activities and that the test is whether there is more than a mere possibility someone with his profile would be persecuted, which is established by the evidence.77 I do not agree. The burden in a refugee claim is on the Appellant to establish they face more than a mere possibility of persecution. In the Appellant's case, the evidence showed that he could face such a risk if the authorities were aware of his activities which would be more likely if he were a prominent, known activist or a leader, as discussed above. Given that the Appellant did not bring sufficient evidence to establish this profile, and given that the question of whether his activities had come to the attention of authorities is a question of fact, the burden was on the Appellant to establish this, on a balance of probabilities. The RPD found he did not do so, and I agree for the reasons reviewed above. [63] The Appellant argues that the new evidence confirms he is a sur place refugee.78 I do not agree. The new evidence is in line with the evidence in the NDP, discussing the general political situation in Sudan. There are discussion of arrests of demonstrators at protests in Sudan79 and use of force to break up protests80 as well as the targeting of vocal critics of the regime.81 Again, I do not find that this evidence reflects individuals similarly situated to the Appellant, as discussed above. [64] For these reasons, I find that the RPD correctly concluded that the Appellant has not established that his social media or involvement in demonstrations in Canada exposes him to a serious possibility of persecution or a section 97 risk, on a balance of probabilities, in Sudan. CONCLUSION [65] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Erin Bobkin E. Bobkin November 18, 2020 Date 1 Subsection 110(4) of the IRPA. 2 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96; Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 3 Exhibit P-2, Appellants' Record, at p. 113. 4 Exhibit P-2, Appellants' Record, at p. 16. 5 Exhibit P-3, Rule 29 Application,XXXX Letter. 6 Exhibit P-3, Rule 29 Application, XXXX Letter. 7 Exhibit P-3, Rule 29 Application, Letter from XXXX. 8 Exhibit P-3, Rule 29 Application, Psychotherapist's Report. 9 Exhibit P-3, Rule 29 Application, Psychotherapist's Report, at p. 3. 10 Exhibit P-3, Rule 29 Application, Psychotherapist's Report, at p. 4. 11 Transcript of the RPD Hearing (February 11, 2019), at p. 23. 12 Transcript of the RPD Hearing (April 4, 2019), at p. 16. 13 Exhibit RPD-1, RPD Record, at p. 277. 14 Transcript of the RPD Hearing (April 4, 2019), at p. 16. 15 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96; Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 16 Raza, 2007 FCA 385, cited in Singh, 2016 FCA 96, at para 64. 17 Idugboe, Cordilia v. M.C.I. (F.C., no. IMM-5916-18), McHaffie, March 4, 2020, 2020 FC 334. 18 Exhibit RPD-1, RPD Record, at pp. 27-28. 19 Exhibit RPD-1, RPD Record, at p. 28. 20 Exhibit RPD-1, RPD Record, Exhibit 2. 21 Exhibit RPD-1, RPD Record, at p. 25. 22 Exhibit RPD-1, RPD Record, at pp. 25-26. 23 Exhibit RPD-1, RPD Record, at p. 26. 24 Exhibit RPD-1, RPD Record, at p. 26. 25 Exhibit RPD-1, RPD Record, at p. 27. 26 Exhibit RPD-1, RPD Record, at p. 9. 27 Exhibit P-3, Rule 29 Application, Letter of XXXX 28 Exhibit P-3, Rule 29 Application, Letter of XXXX 29 Exhibit P-3, Rule 29 Application, Letter of XXXX 30 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 31 Exhibit RPD-1, RPD Record, at pp. 6-7. 32 Exhibit P-2, Appellants' Record, at p. 110. 33 Transcript of the RPD Hearing (February 11, 2019), at pp. 22-23. 34 Exhibit RPD-1, RPD Record, at p. 27. 35 Exhibit RPD-1, RPD Record, at p. 27. 36 Exhibit P-2, Appellants' Record, at p. 110. 37 Exhibit RPD-1, RPD Record, at p. 8. 38 RPD Rule 11; and RPD Record, at p. 16. 39 Transcript of the RPD Hearing (April 4, 2019), at p. 27. 40 Exhibit P-2, Appellants' Record, at p. 110. 41 Transcript of the RPD Hearing (February 11, 2019), at pp. 11-12. 42 Exhibit RPD-1, RPD Record, at pp. 10-11. 43 Exhibit P-2, Appellants' Record, at p. 111. 44 Exhibit RPD-1, RPD Record, at p. 11. 45 Transcript of the RPD Hearing (April 4, 2019), at pp. 20, 22-23. 46 Exhibit P-2, Appellants' Record, at p. 111. 47 Exhibit RPD-1, RPD Record, at p. 10. 48 Exhibit RPD-1, RPD Record, at p. 11. 49 Exhibit RPD-1, RPD Record, at p. 9. 50 Exhibit RPD-1, RPD Record, at p. 8. 51 Exhibit P-2, Appellants' Record, at pp. 109-110. 52 Exhibit P-2, Appellants' Record, at p. 111. 53 Exhibit RPD-1, RPD Record, at pp. 11-14. 54 Exhibit P-2, Appellants' Record, at pp. 107-109, 113-114. 55 Exhibit RPD-1, RPD Record, Exhibit 4, NDP for Sudan (April 30, 2018), item 1.4; and Exhibit 17, NDP for Sudan (March 29, 2019), item 4.18, United Kingdom, Home Office, "Country Policy and Information Note, Sudan: Opposition to the government, including sur place activity", November 2018. 56 NDP for Sudan (March 29, 2019), item 4.18 (ibid.), at p. 51. 57 NDP for Sudan (March 29, 2019), item 4.18 (ibid.), at p. 51. 58 NDP for Sudan (March 29, 2019), item 4.18 (ibid.), at p. 51. 59 NDP for Sudan (March 29, 2019), item 4.18 (ibid.), at p. 53. 60 NDP for Sudan (March 29, 2019), item 4.18 (ibid.), at p. 53. 61 NDP for Sudan (March 29, 2019), item 4.18 (ibid.), at p. 53. 62 NDP for Sudan (March 29, 2019), item 4.18 (ibid.), at p. 53. 63 NDP for Sudan (March 29, 2019), item 4.18 (ibid.), at pp. 54-55. 64 NDP for Sudan (March 29, 2019), item 4.18 (ibid.), at p. 55. 65 NDP for Sudan (March 29, 2019), item 4.18 (ibid.), at p. 55. 66 NDP for Sudan (March 29, 2019), item 4.18 (ibid.), at p. 56. 67 NDP for Sudan (March 29, 2019), item 4.18 (ibid.), at p. 56. 68 NDP for Sudan (March 29, 2019), item 4.18 (ibid.), at pp. 57-58. 69 NDP for Sudan (March 29, 2019), item 4.18 (ibid.), at p. 58. 70 Exhibit RPD-1, RPD Record, at pp. 27, 247-263. 71 Exhibit P-2, Appellants' Record, at pp. 108-109. 72 Exhibit RPD-1, RPD Record, at pp. 11-12. 73 Exhibit P-2, Appellants' Record, at p. 108. 74 Exhibit RPD-1, RPD Record, Exhibit 17, NDP for Sudan (March 29, 2019), item 2.5, Human Rights Watch, "Sudan: World Report 2019: Events of 2018", January 2019, at pp. 550-551. 75 Exhibit RPD-1, RPD Record, at p. 186. 76 Exhibit RPD-1, RPD Record, Exhibit 17, NDP for Sudan (March 29, 2019), item 2.3, Freedom House, "Sudan: Freedom in the World 2018, 2018. 77 Exhibit P-2, Appellants' Record, at pp. 108-109. 78 Exhibit P-2, Appellants' Record, at p. 113. 79 Exhibit P-2, Appellants' Record, at p. 24. 80 Exhibit P-2, Appellants' Record, at p. 27. 81 Exhibit P-2, Appellants' Record, at p. 31. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-12396 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français