TB6-12708

mmigration 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 : TB6-12708 Private Proceeding / Huis clos Reasons and decision ? Motifs et decision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 27, 2016 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Elyse Korman Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of Nepal, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not provided new evidence in support of his claim, and he has not requested an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and find that he is a Convention refugee or a person in need of protection. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and finds that the Appellant is neither a Convention refugee nor a person in need of protection. Background [3] The Appellant alleged a history of problems with XXXX beginning in 2003. The Appellant stated that he joined the Nepali Congress party and the XXXX XXXXAssociation in 1995, and XXXX XXXX XXXX XXXX XXXX in XXXX 2003. As a result, XXXX threatened him on several occasions and tried to force him to support their candidate and join their party. The Appellant stated that it was a dangerous time, and he felt unsafe. He further stated that XXXX XXXX had been abducted and killed. As a result, he quit his job and left his village. In XXXX 2004, the Appellant left Nepal to work in Malaysia. [4] He returned to Nepal in XXXX 2008. In XXXX 2010, he was pushed by a XXXX who demanded that XXXX XXXX be suspended, which he refused. He was threatened with abuse or death if he called the police and forced to go with them for 15-20 minutes. He agreed to join them out of fear. As a result, he left Nepal in XXXX 2010 and went to XXXX, UAE to work. He returned to Nepal for a visit in XXXX 2012. He returned again in XXXX 2013 because his father was ill. [5] In XXXX 2014, the Appellant was told by an agent, he could get him a visa to work in Canada, and after nine months, he could apply for permanent residence. He received a work visa in XXXX 2014. In XXXX 2014, the Appellant's father suffered a stroke. The Appellant quit his job in XXXX and returned to Nepal. In XXXX his father died, and 13 days of rituals were held. The Appellant alleged a XXXX XXXX appeared and asked him to come to his office. The Appellant left Nepal and travelled to Vancouver in XXXX 2015. [6] In Canada, the Appellant had difficulty obtaining a job, and he heard from his wife that she had heard from people in their village that XXXX were looking for him. He left Vancouver in XXXX 2016 and travelled to Toronto because there was a large Nepali community there. He still could not find a job and he was advised to make a refugee claim. He fears that he will be kidnapped, abused or killed for failing to cooperate with the XXXX if he were to return to Nepal. The Issues [7] The RPD panel (the panel) indicated that the determinative issue in regard to this claim is credibility. [8] The Appellant submits that the issues in this appeal are: * Did the RPD err in finding that he lacks subjective fear of persecution? * Did the RPD make unsustainable credibility findings? The Role of the RAD [9] The RAD notes that the Federal Court of Appeal's decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. [10] The RAD concludes from its statutory analysis, with respect to findings of fact and mixed fact and law, that the RAD is to review RPD decisions applying the correctness standard, and that there may be deference to the RPD where the findings of fact involve the assessment of oral evidence. [11] The RAD must carefully consider the RPD's decision and, after doing so, must carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. Reavailment [12] The panel noted that the Appellant left Nepal in 2003 and alleged he feared for his life. The panel further noted that the Appellant returned to Nepal on six separate occasions for various reasons, including holidays and his parents' illness. The panel found these multiple returns reflect negatively on his subjective fear. [13] The panel noted that the Appellant explained his early returns to Nepal were short visits, and he kept a low profile. The panel rejected the explanation and noted that the Appellant indicated that they were holidays, and he missed his family. The panel found a person with a true fear of persecution would not have returned for a holiday. [14] The panel noted that some of his returns were to tend to his ailing parents. The panel indicated that it was sympathetic but found three separate returns to Nepal, twice for two months and once for four months did not demonstrate a subjective fear of persecution. The panel noted that, on his return to Nepal in XXXX 2014, he did not maintain a low profile as he participated in 13 days of ritual following his father's death. [15] The panel found the Appellant's demonstrative lack of subjective fear undermined the credibility of his allegations. [16] The Appellant submits that the panel erred by focusing on his "so-called" reavailments to Nepal. The Appellant further submits that there is a difference between reavailment and return. The Appellant submits as well that a return only becomes a reavailment in circumstances where there is reason to fear persecution. [17] The Appellant submits that democracy had been restored in Nepal when he returned from Malaysia in 2008, and in these circumstances, he hoped it would be safe to return. The Appellant notes that he was not wanted by the XXXX at that time. The Appellant further notes that he had been asked by XXXX to join them on one occasion before he left Nepal in 2003. There was no imminent threat at the time, and he left as a precaution because the XXXX were known to be violent toward those who refused to cooperate. The Appellant argues that the fact that he may not have been subjectively afraid of returning to Nepal in these circumstances was not a valid basis for finding that he was not credible and that there is not now a subjective fear of persecution. The Appellant argues that the panel erred by finding that his return to Nepal was a reavailment. [18] The Appellant submits as to his other "so-called" reavailments that there is a need to appreciate that they were the result of pressing personal and family matters in Nepal, including his mother's illness in 2012, his father's illness in 2013, and his father's death in 2014. [19] The Appellant argues that it is in the realm of reasonable expectations that he would return to Nepal on these occasions despite his fear of persecution. The Appellant cites in this regard a decision of the Federal Court, in Mohammadi, in which the Court stated that family loyalty may lead a person to engage in dangerous conduct that otherwise might be viewed as inconsistent with subjective fear of persecution.2 The Appellant argues that the panel erred by impugning his credibility based on his alleged reavailments. [20] The Appellant notes that he did not return to his home village where he had problems with XXXX, and he did not return to Nepal when his mother died because of what happened when he returned for his father's funeral. [21] The RAD has reviewed and assessed all of the evidence in the record as to this matter, and it is not persuaded by the Appellant's argument. The RAD does not agree with the Appellant that his multiple returns to Nepal after a confrontation with XXXX in 2003 and 2010 should not be defined as reavailments. [22] The RAD notes that the Appellant stated in his Basis of Claim (BOC) that he left Nepal in 2003 because he feared for his safety, and he was pressed to join the XXXX. He agreed out of fear, and he then left Nepal and went to Malaysia. The Appellant further states in his BOC that he was threatened with physical harm and pressed to join the XXXX in 2010. He agreed to join the Young Communist League (YCL) out of fear and then left Nepal again and went to XXXX. In 2012, he returned to Nepal because his mother was sick, and he returned again in 2013 because his father was sick. In XXXX 2014, he quit his job in XXXX and returned to Nepal because his father had a stroke. [23] The RAD notes that, while some of his returns concerned his ailing parents, his early returns were described by the Appellant as holidays and because he missed his parents. The RAD further notes that the Appellant stated in his BOC that political instability continued after returning to Nepal in 2008 and XXXX started disturbances. There is no mention in the BOC that he thought it would be safe to return because democracy had been restored in Nepal. [24] As to the Appellant's returns to Nepal to tend to his ailing parents, the RAD acknowledges that close family obligations may cause a person to risk harm by returning to the place where this risk is present. The RAD notes, however, that the Appellant remained in Nepal for approximately a month on the two occasions and approximately four months on another occasion. As well, there is no evidence that the Appellant kept a low profile during these three periods. The RAD finds that the panel did not err by finding these returns, as well as the brief returns noted above, to be reavailments in the context of the Appellant's written and oral evidence that he feared persecution from XXXX because he did not cooperate with them, as he stated he would, but rather left the country. [25] The RAD has reviewed the Federal Court's decision, in Mohammadi,3 noted above and finds the circumstances in the case at bar are different. In Mohammadi, the applicant had briefly returned to a bookstore to look for his cousin. The bookstore was in an area where a demonstration had taken place in which the claimant and his cousin had participated, and there were security forces who were arresting people in the area. The Court noted that the applicant cited Federal Court case law which stated that "it is never particularly persuasive to say an action is implausible simply because it may be dangerous for a politically committed person".4 [26] In the case at bar, the Appellant does not act as a "politically committed person", and he does not return to an area of risk for a brief period, and agents of the state are not pursuing him. Rather, he returned to Nepal for personal reasons and remained in Nepal for an extended period of time. [27] The RAD concurs with the panel's finding that the Appellant's multiple reavailments demonstrate a lack of subject fear. Delay in Claiming [28] The panel noted that the Appellant's problems in Nepal began in 2003, and he did not seek protection in Canada until June 2016. The panel further noted that the Appellant was in Canada for more than a year before he made his claim. The Appellant explained that he was unaware of the refugee system during that time. [29] The panel rejected this explanation and noted that the Appellant was well educated and found it reasonable to expect that he would have made enquiries regarding seeking protection, if in fact he feared persecution in Nepal. [30] The Appellant argues that his actions in Canada were consistent with a subjective fear of persecution. [31] The Appellant reviewed his efforts to obtain employment in Canada and his claim for protection when he was advised it was possible to do so. The Appellant argues that these actions demonstrated a subjective fear of returning to Nepal and not that the Appellant lacks a subjective fear of persecution in Nepal. [32] The RAD is not persuaded by the Appellant's argument. While the Appellant's efforts to seek employment in Canada over a period of a year clearly reflect his desire and need to meet the obligations of his work visa, the RAD finds that there is no evidence in the record that his actions reflected subjective fear as to his return to Nepal. The RAD concurs with the panel's finding that it was reasonable to expect that the Appellant would have made enquiries as to the possibility of obtaining protection in Canada soon after his arrival, given his education and given his alleged fear of persecution if he were to return to Nepal. The XXXX 2016 Threatening Letter [33] The panel noted that it was not until the Appellant initiated his claim for protection in late XXXX 2016 that his wife allegedly received a threatening letter from the YCL in early XXXX 2016.5 The panel noted that, in all of the years that the Appellant alleged problems with XXXX, he did not receive written threats. The panel found the arrival of the letter to be "decidedly convenient and highly improbable" and rejected the letter as not credible. In addition, the panel noted that the letter threatened consequences if the Appellant did not present himself in one month. The panel further noted the deadline had passed, and there was no evidence that the Appellant's wife and children in Nepal had been harmed. [34] The panel cited country documentary evidence indicating that YCL had stopped issuing written threats since 2006. This document further states that, after 2009, some cases of oral threats have been documented, but there is no evidence of threat letters issued by XXXX groups since 2010. The panel found, on the basis of the evidence above, that the threatening letter provided by the Appellant is likely fraudulent. [35] The Appellant submits that the panel's finding in this regard is in defiance of the presumption of truthfulness and cannot be sustained. The Appellant further argues that the issuance of the letter is within the realm of reasonable expectations. [36] The RAD has reviewed the evidence in the record concerning this letter. The RAD finds that the presumption of truthfulness does not apply to this document, as the Appellant merely received it from another party and has no first-hand knowledge as to its creation. [37] The RAD concurs with the panel's finding that the arrival of this letter-only after the Appellant made his very late claim and after a period of 13 years during which the Appellant alleged problems with the XXXX without any written threats-is extraordinarily coincidental and is therefore not credible. [38] The RAD is guided in this regard by the decision of the Federal Court, in Huang, in which the Court cites its decision in Granada that held that "an applicant's overall credibility may affect the weight given to the documentary evidence".6 Inconsistent Testimony [39] The panel noted that counsel, in the hearing, asked the Appellant if he had any contact with XXXX during his six return trips to Nepal before XXXX 2014. The Appellant responded that he did not. The panel further noted that this contradicted information in his BOC narrative in which he indicated that he had contact with the YCL in XXXX 2010. The Appellant explained that he did not understand the question, and Counsel submitted that the Appellant made a distinction between visits and his decision to stay in Nepal XXXX 2008. The panel noted that the distinction was the result of leading questions and placed little weight on the Appellant's response. [40] The Appellant argues that the panel impugned his whole testimony based on a single contradiction in his evidence. The Appellant notes that he explained in the hearing that he misunderstood the question and thought that there was a distinction between his visit to Nepal and the two-year period when he believed he had returned to Nepal for good. The Appellant submits that the panel erred by impugning all of his oral evidence based on this one contradiction that was satisfactorily explained. [41] The RAD has reviewed the evidence in the record concerning this matter, including the recording of the RPD hearing. The RAD acknowledges that the panel made a sweeping statement as to its concern about the Appellant's oral testimony. However, the panel makes no clear negative finding in this regard. The RAD notes that the panel does provide a specific example of inconsistent testimony concerning the Appellant's interaction with XXXX during his return to Nepal in 2010. The RAD further notes that the panel also makes no clear finding in this regard, but it simply noted that the Appellant "did not project a sincere and candid demeanour". The RAD finds that, while such a finding is open to the panel, it might also have found that the Appellant's inconsistent testimony on a matter central to his claim might well have resulted in the drawing of a negative inference. [42] The RAD acknowledges that the lack of previous experience of persecution does not necessarily mean that the Appellant would not be in jeopardy of persecution in the future. The RAD has found that the Appellant would not be at risk of persecution if he were to return to Nepal. In addition, the RAD takes notice that no evidence has been provided that the Appellant's alleged experiences with XXXX were more than threats without any physical harm and clearly not rising to the level of persecution. CONCLUSION [43] The panel found the Appellant's reavailments, delay in claiming and overall lack of subjective fear reflected negatively on his credibility, and it further found the Appellant had failed to demonstrate a true fear for his life in Nepal. [44] The RAD finds, on the basis of its review and assessment of the totality of the evidence in the record, that the panel has not erred in this conclusion. DISPOSITION [45] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Milton Israel" Milton Israel December 27, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Mohammadi, Amin v. M.C.I. (F.C., no. IMM-3219-02), Russell, September 5, 2003, 2003 FC 1028. 3 Mohammadi, Amin v. M.C.I. (F.C., no. IMM-3219-02), Russell, September 5, 2003, 2003 FC 1028. 4 Samani, Hassan v. M.C.I. (F.C.T.D., no. IMM-4271-97), Hugessen, August 18, 1998; 1998, F.C.J. No. 1178. 5 Exhibit P-2, Appellant's Record, p. 49. 6 Huang, Suishan v. M.C.I. (F.C., no. IMM-1972-10), Near, March 10, 2011, 2011 FC 288. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-12708