MB8-16089

RAD File / Dossier de la SAR : MB8-16089 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Montréal, Québec Appel instruit / entendu à Date of decision June 11, 2019 Date de la décision Panel Me Zofia Przybytkowski Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Joseph W. Allen Conseil(s) (de la/des) personne(s) en cause Designated representative N.A. Représentant(e) désigné(e) Counsel for the Minister N.A. Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellant is XXXX XXXX XXXX XXXX, a citizen of Egypt. He alleges that he fears returning to Egypt because he is a target for revenge as part of a deadly blood feud. His uncle killed a member of the XXXX XXXX XXXX clan in 1980, and was sentenced to 25 years in prison. The Appellant alleges that the son of the man who was killed by his uncle wishes to take his revenge on him. [2] The Refugee Protection Division (RPD) rejected his claim for refugee protection because it deemed that his testimony was not credible. This conclusion was based on the Appellant's long delay in claiming refugee protection in Canada, omissions and implausible elements in his testimony, as well as his lack of efforts in obtaining documents to support his claims. [3] The Appellant argues that he adequately explained the omissions in his written claim, the lack of supporting documents, as well as the delay in claiming refugee protection. He further argues that the objective evidence he submitted corroborates his claims. [4] I have completed an independent assessment of all the evidence, including the RPD and Refugee Appeal Division (RAD) records, and I have listened to the audio recording of the hearing held before the RPD. DETERMINATION [5] The appeal is dismissed. I conclude that the RPD's assessment of the Appellant's credibility is correct, although I set aside some of the RPD's conclusions. The Appellant has not demonstrated that he faces a serious possibility of persecution on a Convention ground, or that, on a balance of probabilities, he would be personally subjected to a risk to his life or a risk of cruel and unusual treatments or punishment. ANALYSIS No nexus to a Convention ground [6] Although the RPD analyzed the Appellant's claim under section 96 and paragraph 97(1) of the Act1, the Appellant argues that his claim was based on section 96 of the Act2, and that he faces a serious possibility of persecution based on his membership in a social group, his family. I disagree and I will analyze his claim according to paragraph 97(1) of the Act. [7] It bears reminding briefly that a refugee claimant can claim a nexus only to the social group formed by his family, when a family member is persecuted due to a Convention nexus. Such is not the case here. The Appellant claims he faces persecution because of his relation to his uncle, and his uncle committed a crime related to a land-dispute. The Appellant has not established that there is a nexus to the Convention in this case. Delay in claiming [8] The Appellant argues that, according to case law, the delay in claiming refugee status in Canada is not a decisive factor in a refugee claim. He is correct, insofar as it is not a decisive factor in most cases. However, the case law brings a few more elements that the RDP needs to examine in order to determine how significant a factor it is in a refugee claimant's credibility. In some cases it can weaken the credibility of the Appellant with regards to the events alleged in his country of nationality, as I conclude that it does in this case. [9] The Federal Court has recently reaffirmed that: "[a]lthough a delay in claiming refugee protection is not determinative with respect to the outcome of a refugee claim it may constitute sufficient grounds for rejection in itself, in the right circumstances. This would generally be the case when the refugee claimant cannot provide a satisfactory explanation for the delay in claiming"3. [10] The Appellant arrived in Canada in 2009 and made his refugee claim in 2017. During all that time, he had no valid status in Canada. He explained that the reason he did not make his claim during the eight years that he spent in Canada was his fear of being refused refugee status and of being deported, based on misinformation from members of the Egyptian community. When the RPD asked if he was afraid of being detected while living underground, which would also expose him to deportation, he responded that he worked in jobs where he was hidden from view, such as washing dishes or painting houses. [11] Considering that the Appellant had no valid, if even temporary status in Canada, and risked deportation at any time, I agree with the RPD that his explanation is not satisfactory and his behaviour is inconsistent with that of someone who fears for their life. The Federal Court has also confirmed a decision where following the advice of third parties was not considered a valid explanation for a delay in claiming refugee status, in a case where a claimant had waited for one year and a half before claiming4. [12] Given that, in the present case, the Appellant waited eight years before filing his refugee claim, I find that he has not adequately explained this significant delay. Considering the particular circumstances of his case, namely the length of the delay and the absence of any valid temporary status in Canada, this weighs considerably against his credibility. Omissions and implausible elements [13] The RPD noted that the Appellant failed to mention, in his written narrative, that a member of his family's rival clan worked in an intelligence agency related to the Egyptian government. The Appellant argues that what the people he fears do for work was a detail that he did not think to mention in his written narrative and that he could state during his hearing. I agree with his argument, and I do not attribute much importance to this omission. [14] The Appellant also testified that only adult male family members are targeted by the blood feud. According to the same logic, his brother, who is a disabled adult, is not a target. The RPD considered that the Appellant's brother is an adult and therefore a valid target. It remains unclear whether the record supports such a conclusion by the RPD and I therefore reject it. Lack of supporting documents [15] The RPD rejected the Appellant's explanations as to why he was unable to obtain documents from the hospital or the police, confirming his claim that he was stabbed in 2008, a few weeks before leaving the country. The Appellant claims that he adequately explained the lack of documents, stating that the hospital sent his file to the police without keeping copies, and that the police stations were burnt down during the 2011 revolution. I disagree with the Appellant, and conclude that the RPD was correct in rejecting the Appellant's explanations. [16] The Appellant states that the 2011 revolution is a known event, which was covered by news services worldwide. However, the Appellant claims that the revolution "completely destroyed" the country. The fact that the country was allegedly destroyed completely is not a generally known fact, and the Appellant has not provided evidence to support his claim. Even if it was established that all police stations were burned down, I do not find plausible the Appellant's explanation that the hospital kept no copies of his file. [17] I am not satisfied with the Appellant's explanations regarding the lack of documents demonstrating he was the victim of a murder attempt by stabbing. This considerably weakens his credibility with regards to the threat he faces in Egypt, given that the stabbing was the event that prompted him to leave the country. CONCLUSION [18] For the above reasons, I conclude that the RPD was correct in determining that the Appellant's testimony was not credible and his behaviour was inconsistent with the alleged fear. I therefore confirm the RPD's conclusion that the Appellant is not a Convention refugee or a person in need of protection. [19] The appeal is dismissed. Zofia Przybytkowski Me Zofia Przybytkowski June 11, 2019 Date /ag 1 Paragraph 97(1) of the Immigration and Refugee Protection Act. 2 Section 96 of the Immigration and Refugee Protection Act. 3 Milovic v. Canada (Citizenship and Immigration), 2015 FC 1008, at para. 17. See also Duarte v Canada (Minister of Citizenship and Immigration), 2003 FC 988 (CanLII), at paragraph 14; Velez v Canada (Minister of Citizenship and Immigration), 2010 FC 923 (CanLII), at paragraph 28; Licao v Canada (Minister of Citizenship and Immigration), 2014 FC 89 (CanLII), at paragraphs 49 to 53. 4 Singh, Nirmal v. M.C.I. (C.F., IMM-7334-05), Teitelbaum, 13 juin 2006, 2006 FC 743. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-16089 RAD.25.02 (September 18, 2018) Disponible en français 4 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 (September 18, 2018) Disponible en français