VB9-08174

RAD File / Dossier de la SAR : VB9-08174 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 Vancouver, BC Appel instruit / entendu à Date of decision January 5, 2021 Date de la décision Panel Ron Liberman Tribunal Counsel for the person who is the subject of the appeal Thaer Abuelhaija Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (Appellant), a citizen of Libya, appeals a decision of the Refugee Protection Division (RPD) dated August 21, 2019, rejecting his claim on the grounds of a lack of forward-facing risk. I have conducted an independent analysis of all the evidence concerned, including the entire Apellant Record and the oral testimony. I find that the RPD was correct that the Appellant has not provided sufficient evidence to establish that he is a Convention1 refugee or a person in need of protection. BACKGROUND [2] The Appellant alleges as follows. While studying in Canada, he visited Libya. During his sister's wedding there, an Al-Quds militia (AQ militia) fighter threatened him with a gun for his opposing political views. At a checkpoint, he was subsequently abducted and beaten. He was rescued by a man hired by his friend. He hid with his friend, who helped him to flee to Tunisia, from where he took a plane to Canada and made a refugee claim. If returned to Libya, the Appellant fears the person who threatened him at his sister's wedding, the AQ militia to whom this individual belongs, and the Tripoli Revolutionaries brigade with whom they associate and who have issued an arrest order for the Appellant. RPD FINDINGS [3] The RPD found that the Appellant failed to establish that his abduction was connected to events at his sister's wedding, or that it was anything other than a kidnapping for ransom, which the objective country conditions' evidence establishes is a common crime in Libya. The RPD found a lack of a forward-facing risk to the Appellant in Libya. APPELLANT'S ARGUMENTS [4] The Appellant argues that the RPD erred by finding the Appellant to be credible but nevertheless rejecting his evidence about who abducted him, and it erred in finding that there was no nexus between his abduction and his political opinion. The RPD failed to consider that the Appellant expressed his political opinion openly, resulting in his subsequent kidnapping by the militia. ROLE OF THE RAD [5] In accordance with the decision in Huruglica,2 when reviewing the decision of the RPD, I have applied a standard for my review of correctness while conducting an independent assessment of the entirety of the evidence before me. HISTORY OF THE CLAIM [6] The RPD rejected the Appellant's original claim on January 3, 2018 after hearing the claim on three separate dates. On October 9, 2018, the Refugee Appeal Division (RAD) sent the decision back for re-determination by a different RPD Panel, finding that there had been a denial of natural justice in the determination of the original claim. Minister's Counsel intervened at the most recent RPD hearing, but has not intervened in the present appeal to the RAD. ANALYSIS [7] No new evidence was submitted for consideration in this Appeal following the RPD decision of August 21, 2019, and as a result I have not held an oral hearing in this case. [8] I analyze below the credibility findings of the RPD. [9] The RPD found that the Appellant was credible as to his allegation that at his sister's wedding in XXXX 2016 he got into an argument with a man named XXXX XXXX (AS) who is a member of AQ. During this argument the Appellant was threatened with a gun, but afterwards he did not concern himself with this incident and forgot about it. The RPD also accepted that, in XXXX XXXX 2016, the Appellant was abducted and held in a room without toilet facilities for ten days after which, as a result of his friend XXXX intervention and the Appellant's mother providing a bribe, the Appellant was released from captivity. I find no reason, based on my analysis of the testimony, to depart from these finding of the RPD. [10] The RPD found that the Appellant's testimony about the identity of his abductors was speculative. As explained below, I agree with this finding of the RPD also. [11] The Appellant claimed that his friend XXXX knew the identity of the abductors at the checkpoint because like them he was from Misrata; nevertheless, XXXX had not told him who the abductors were but the Appellant was "80 percent sure"3 that the abductors were from the AQ militia, except that the area where he was held did not belong to that militia. [12] Counsel submits that the RPD erred by accepting the credibility of the Appellant's testimony regarding the incident with AS at his sister's wedding and the abduction at the checkpoint, but nevertheless failing to identify the agent of persecution as the AQ militia, as attested to in the Appellant's Basis of Claim (BOC) form. Counsel submits that the testimony and the documentary evidence suffice to confirm the Appellant's allegations. [13] I find that the Appellant's testimony alone is insufficient to confirm that the abductors were in any way connected with AS or that they were the AQ militia:4 MEMBER: Sir, how is it that you don't know who kidnapped you if XXXX, your friend, communicated directly with the individuals? CLAIMANT: XXXX does know the, I would say the anatomy of the area and who is at which check stop. There are those, a number from this tribe and those from that tribe, and his involvement with the whole group would know how this took place. MEMBER: But he didn't tell you who kidnapped you? CLAIMANT: There was no particular name that was mentioned but (inaudible) is a member of was indicated. MEMBER: I'm sorry. Are you saying the group, the militia group that you mention in your narrative was responsible for your kidnapping? CLAIMANT: I would say 80 percent they were, but where I was kept does not belong to the (inaudible) Brigade. MEMBER: And after you were released, were there any further incidents? CLAIMANT: I left right away. [14] The lack of certainty by the Appellant as to the identity of the abductors confirms to me that the Appellant does not have other cogent evidence to support his contention as to who they were. [15] As regards documentary evidence, the Appellant provided a medical report at the RPD. It is not clear from this report, or from any other evidence, how the doctor who wrote the medical report would know who the Appellant's abductors were. [16] I therefore agree with the RPD, based on the lack of credible evidence in this regard, that the Appellant is speculating as to the identity of his abductors. [17] The RPD also gave little weight to an arrest warrant for the Appellant which purported to have been issued by the Tripoli Revolutionaries brigade associated with AQ and to the assertion that the warrant had been issued because of the incident with AS at his sister's wedding. This finding of the RPD has not been disputed by the Appellant. In my independent review of the evidence, I accept these findings of the RPD related to the arrest warrant, and I adopt the RPD's reasons in that regard relating to an absence of a forward-facing risk to the Appellant. [18] The RPD noted that abduction for ransom is a common, daily occurrence in Libyan society. Although I notice that the RPD erred in referencing the wrong NDP in this connection, and the evidence in the correct Libyan NDP item regarding the type of kidnapping the Appellant alleged he endured is not confined to Tripoli, I find the RPD is correct that kidnapping for ransom is, sadly, a frequent occurrence in Libya.5 Counsel at the RPD accepted as much. While I acknowledge there is some evidence in the NDP that the militia in Tripoli carry out abductions,6 the NDP indicates the abductions concerned were made in the context of influencing elections. I note there is also evidence of persons persecuted by the militias for their political opinion in the NDP, but this is in the context of Imams speaking out against the militia,7 or other vocal and influential individuals such as journalists, or in one instance because they were accused of violating Sharia law. The Appellant does not fit any of these profiles. [19] Counsel submits that the RPD also erred by not taking into account the previous incident at the wedding of the Appellant's sister, but I find the connection between that event and the subsequent abduction of the Appellant has not been established on the evidence before me, neither has the Appellant provided evidence that AS is determined to continue targeting the Appellant because of an isolated incident at his sister's wedding. [20] Similarly, although Counsel refers to evidence in the NDP that detention facilities such as those described by the Appellant exist, and that freedom of expression in Libya is limited by attacks on journalists and others who express views that are not in line with those of the militia, in my assessment there is insufficient credible evidence that the Appellant was held in detention owing to the expression of his political views on a single isolated occasion. Given the objective evidence about the frequency of kidnapping for ransom in Libya, and that the Appellant only describes a single occasion on which he expressed a political opinion which is in opposition to that of the militia concerned, I agree with the RPD that, on a balance of probabilities, the Appellant was not targeted for his political opinion but was instead a victim, several months after he expressed his opinion at his sister's wedding, of a common crime. For that reason, I agree with the RPD that this case falls under section 97(1) of the Immigration and Refugee Protection Act (IRPA)8, rather than under section 96. The Appellant has not provided any further credible evidence to show that he faces anything more than a generalized risk of kidnapping for ransom which the objective evidence shows is a common, daily risk faced by Libyans in general. CONCLUSION [21] In consequence, I agree with the RPD that any risks the Appellant are generalized risks which fall under section 97(1) of the Act and which are therefore excluded by operation of section 97(1)(1)(b)(ii) of the Act. [22] For the preceding reasons, I find the Appellant's claim fails. DETERMINATION [23] Pursuant to section 111(1)(a) of the IRPA,9 the RAD finds that the Appellant is neither a Convention refugee, nor a person in need of protection. (signed) Ron Liberman Ron Liberman January 5, 2021 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, [2014] 4 RCF 811. 3 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 8, para. 18. 4 Transcript of RPD Hearing on July 9, 2019, at p. 12. 5 National Documentation Package (NDP) for Libya (March 29, 2019), item 1.8: Libya. 2018 Humanitarian Needs Overview, December 2017. 6 NDP for Libya (March 29, 2019), item 4.8: Libya's Next Elections: A Step Forward or a Step Back?, August 17, 2018, at p. 11. 7 NDP for Libya (March 29, 2019), item 2.9: Libya: Vulnerable Groups, December 19, 2014, at section 5.2. 8 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 97(1). 9 IRPA, section 111(1)(a). --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-08174 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