MB7-06202

RAD File / Dossier de la SAR : MB7-06202 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 May 3, 2019 Date de la décision Panel Kim Polowek Tribunal Counsel for the person who is the subject of the appeal Claire Houkayem Barrister and Solicitor 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 INTRODUCTION [1] XXXX XXXX XXXX XXXX (Appellant), a citizen of Libya, seeks refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1 [2] He is appealing a decision of the Refugee Protection Division (RPD) dated May 18, 2017, denying his claim for refugee protection. The Appellant alleges that if he returns to Libya he will be persecuted or harmed due to imputed political opinion by the SAL Brigade, a powerful militia group. The RPD found that the Appellant had not established that there was a serious possibility that the SAL Brigade extended to Torbrouk which was identified by the RPD as a viable internal flight alternative (IFA). [3] The Appellant submits new late evidence in support of his appeal but does not request a hearing before the Refugee Appeal Division (RAD). [4] The Appellant requests that the RAD set aside the determination of the RPD and find him to be a Convention refugee according to section 96 of the IRPA or a person in need of protection according to section 97. In the alternative, the Appellant requests that the RPD decision be set aside and that the matter be returned to the RPD for redetermination by a differently constituted panel. DETERMINATION [5] The appeal is allowed. Pursuant to section 111(1)(b) of the IRPA the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. BACKGROUND [6] In XXXX 2013, the Appellant filed a complaint against the SAL Brigade for having attacked and illegally taken over the farm of the Appellant's late grandfather in XXXX, Libya. [7] One year later, in XXXX 2014, the SAL Brigade was made aware of the existence of the Appellant and attacked his home. Shortly thereafter, in XXXX 2014, the SAL Brigade issued an arrest notice to multiple ports of entry in Libya seeking the capture of the Appellant with was followed by the issuance of a second notice against the Appellant a year later in XXXX 2015. [8] A cousin of the Appellant's father was kidnapped in XXXX 2015 and released upon payment of a ransom 15 days later. [9] The Appellant had been studying in Canada and due to his fears of being persecuted or harmed by the SAL Brigade if he returns to Libya, he filed a claim for refugee protection in August 2016. The Appellant believes the SAL Brigade to be a powerful militia which has presence all over Libya. Application to Submit New Documents Following the Perfection of the Appeal [10] The RAD received the Appellant's record (AR) on June 29, 2017; at the time, the Appellant did not submit any new evidence referred to in section 110(4) of the IRPA. On October 3, 2018 the Appellant filed an application under Refugee Appeal Division Rule 37 (RAD Rules)2 to tender documents not previously provided to the RAD. [11] In order to accept evidence under Rule 37, that request must be made in writing and without delay. The content of the application must comply with the standards set out in the rule. Rule 29 speaks to documents and submissions not previously provided and how the new evidence meets the requirements of the rules and of section 110(4) of the IRPA, with necessary explanations in writing. [12] In the application, the Appellant submitted numerous partially redacted RPD decisions as new evidence. All of these RPD decisions post-date his RAD application. The Appellant notes that all of these RPD decisions are similar in nature in that the refugee claimant feared prosecution by the militia in Libya. However, unlike in the Appellant's case, all of these RPD decisions found that there was no viable IFA in Libya and the claimant was granted refugee status. In addition to these RPD decisions, the Appellant also provides a number of documents from varying sources3 which describe country conditions in Libya, all of these documents post-date his initial date of Appeal. [13] The RAD has considered the Appellant's documentation, pursuant to the factors in Rule 29(4). Rule 29(4) of the RAD Rules states that: (4) In deciding whether to allow an application, the Division must consider any relevant factors, including (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. [14] The Appellant's application, while not fulsome in addressing how the new evidence meets the necessary criteria, points to the credibility of the RPD decisions given that they are evidence issued by the IRB itself, the relevance of the decisions in corroborating the lack of an IFA in Libya and their materiality in demonstrating that the IRB erred in making a negative finding with respect to IFA in the Appellant's claim. Regarding the country documentary evidence, the Appellant submits that this evidence corroborates the lack of IFA in Libya due to ongoing unstable country conditions. [15] The RAD has considered the Appellant's documentation, pursuant to the factors in Rule 29(4), and finds that the documentation provided by the Appellant related to country conditions in Libya was published after the RPD rejection of the Appellant's refugee claim, is probative, relevant to the appeal and the appellant's refugee claim and it was not reasonably available to the Appellant at the time he perfected his Appeal before the RAD. The evidence meets the evidence test under Section 110(4) of IRPA. Accordingly, the Appellant's Application to submit this documentation succeeds under the provisions of RAD Rule 29(4). [16] Regarding the RPD decisions submitted as new evidence by the Appellant, the RAD notes that proceedings before the Refugee Protection Division and Refugee Appeal Division must be held in the absence of the public4 and should not be disclosed without the consent of the persons involved in the proceeding (i.e. the claimant). Given that the Appellant has not provided any confirmation which would indicate that each claimant referred to in these RPD decisions has provided consent for disclosure to the RAD, and the fact that despite the partial redactions, many personal details remain in each of the RPD decisions, the Appellant's Application under Rule 29 to submit these RPD decisions to the RAD as new evidence fails on these grounds and will not be considered for further assessment under subsection 110(4) of the IRPA. Also, RPD decisions are not binding on either the RPD or RAD as each case is decided on its own merits. Identity [17] The Appellant has established his identity as a citizen of Libya through passport and testimony at his RPD hearing. RPD DECISION AND FINDINGS [18] The RPD found that the Appellant had credibly established his main allegations regarding what happened to him and his family and that his fear of the SAL Brigade and its affiliated groups was linked to the convention5 ground of imputed political opinion. However, it was determined that the Appellant had an IFA in Tobrouk, Libya and accordingly, his claim failed as a convention refugee or a person in need of protection. [19] In its determination that an IFA existed for the Appellant, the following key findings were made by the RPD: * The Appellant has not established that the SAL Brigade - directly or indirectly through Libya Dawn's militias or any other militia -has a reach that extends to Tobrouk. * The SAL Brigade is locally-based militia, focussed on common crime, who's profile is relatively small (no mention of this brigade having been found in any media). * Tobrouk does not appear to be affected by security issues of tribal origin and people from all regions of the country have found refuge in the city, including those escaping ISIS and religious persecution. * The Appellant has not established that he could not travel to Tobrouk by land from Egypt or fly to Tobrouk International Airport from abroad. * The Appellant has not established that the challenge of settling in Tobrouk, including absence of family or tribal ties and challenge of accessing basic services - would jeopardize his life or safety. Appellant Arguments [20] The Appellant submits that the RPD erred in finding that a viable IFA was available to the Appellant and that both prongs of the test were not satisfied.6 [21] The Appellant submits that the RPD erred by failing to rely on the most recent documentary evidence when assessing IFA. It is submitted that it well established that the RPD, RAD and PRRA officers must rely on the most recent documentary evidence7. ROLE OF THE RAD [22] When reviewing the RPD decision, the RAD is required to independently assess all the evidence and determine whether the RPD erred in relation to each alleged error of law, fact or mixed fact and law. For this assessment, the standard of correctness as per the Federal Court of Appeal decision in Huruglica8 is applied. The RAD may defer to the RPD in the exceptional situation that the RPD had a meaningful advantage in the circumstances, and reasons will be provided in that situation. DETERMINATIVE ISSUE IS IFA [23] The determinative issue in the present appeal is the viability of the IFA in Tobrouk as proposed by the RPD at the Appellant's refugee hearing held on as proposed by the RPD at his refugee hearing held on March 13, 2017. LEGAL TEST FOR IFA [24] The test for assessing the viability of an IFA is two-pronged. The first part of the IFA test is to ascertain whether the Appellant will face a serious possibility of persecution or face, on a balance of probabilities, a risk of torture, a threat to life or a risk of cruel and unusual treatment or punishment in the part of the country where it is alleged that there is a possibility of refuge. The second part of the test is to determine whether the situation in the part of the country considered as an IFA, taking into account all the circumstances including those specific to the Appellants, is such that it would not be unreasonable for the Appellants to seek refuge there. Both prongs must be satisfied for a finding that the Appellant has an IFA. ANALYSIS [25] The RAD has reviewed the written transcript of the hearing before the RPD and has considered all of the documentation in the RPD Record (RPDR) and the Appellant's Record (AR) in order to conduct an independent assessment of the Appellant's claim in light of his arguments on appeal. Credibility of Key Elements of the Appellant's Claim are Established [26] The RPD found the Appellant credible stating "the panel finds that the claimant credibly established his main allegations regarding what happened to him and his family."9 Further, the RPD accepted the Appellant's supporting documents of persecution as genuine, namely notices for arrest that the SAL had issued by XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, 2014 and XXXX XXXX, 2016 to the militias at multiple ports of Entry in Libya.10 The RAD's independent review of the record supports these findings. Risk to the Appellant in the IFA location of Tobruk, Libya [27] In its reasons for decision, the RPD concluded that there is a viable IFA for the Appellant in Tobrouk, Libya. In finding that there was no serious possibility of the Appellant facing persecution in Tobrouk, the RPD found that the Appellant had not established that the SAL Brigade had a reach that extended into the IFA of Tobrouk, which was situated in the safer East of the country.11 The Appellant submits that this finding was based on an incorrect assessment of the objective documentary evidence available to the RPD and/or lack of attention to documentary evidence, in particular a United Nations High Commissioner for Refugees (UNHCR) report.12 [28] Further, the Appellant submits that the RPD's finding that "Tobrouk does not appear to be affected by security issues of tribal origin and people from all regions of the country have found refuge in the city, including those escaping ISIS and religious persecution,"13 is an error as this finding did not reflect an accurate assessment of overall objective country documentation available to the RPD. [29] The RAD finds that the RPD erred in failing to adequately consider the totality of country documentation and the security implications for the appellant in the proposed IFA location. Given the RAD's decision to substitute a positive decision for the Appellant in this case it is not necessary for the RAD to review all of the Appellant's arguments. [30] While the RAD's review of the documentation regarding the city of Tobrouk14 in Libya reveals conflicting information regarding the safety of this city, it agrees with the Appellant that the objective country documentary evidence when assessed in its entirely, supports a finding that there is no IFA available in Libya. [31] The RAD reviewed the current NPD for Libya which confirms that the current situation in Libya is characterized by political and military fragmentation, hostilities between competing military factions, the proliferation of armed groups and a general climate of lawlessness, as well as a deteriorating human rights situation. Since 2014, armed conflict between rival armed groups has resulted in large numbers of civilian casualties, displaced hundreds of thousands of people, disrupted people's access to basic services and livelihoods, and destroyed vital infrastructure. In 2017, armed conflict and political instability reportedly had a direct impact on the lives of around 25 per cent of the population. Insecurity and the lack of governance have enabled illicit activities such as corruption as well as people smuggling and human trafficking to thrive, further fuelling instability in the country.15 [32] A review of all the evidence available finds the fighting and militia conflicts rage everywhere in Libya, including in the East where there the proposed IFA of Torbrouk is located.16 [33] The RAD observes that the country documentation available to the RPD at the time of the Appellant's claim noted the inability of state authorities to offer protection, the overall highly volatile and unpredictable overall security situation in Libya, the significant number of violations and abuses of international human rights and humanitarian law occurring throughout Libya, the fact that armed conflict and political instability have had a detrimental impact on millions of people, and that needs were reported to be particularly severe in both the east and south of the country.17 [34] Further, the RAD notes that the UNHCR report commends any measure taken by States to suspend forcible returns of nationals or habitual residents of Libya, including those who have had their asylum claim rejected. UNHCR urges all States to suspend forcible returns to Libya until the security and human rights situation has improved considerably.18 [35] In the end, considering the internal displacement especially in the East, the UNHCR recommends that there is (no IFA for) Libyan citizens: Given the volatility of the situation, the fragmentation of control and the plethora of armed groups, UNHCR considers that in the current circumstances the relevance and reasonableness criteria for an or relocation alternative are unlikely to be met. Suspension of forcible returns of nationals and habitual residents to Libya serves as a minimum standard and should not replace international refugee protection for persons found to meet the criteria for refugee status under the 1951Convention and the 1969 OAU Convention. This advice is valid until such time as the security and human rights situation in Libya has improved sufficiently to permit a safe and dignified return.19 [36] In the case of the Appellant, he has been personally targeted by the SAL Brigade and he fears the well documented intention of the SAL Brigade to arrest him anywhere in Libya, including, in the eastern region. The SAL Brigade in Libya, despite its small size and limited media presence, had enough influence in Libya to issue and circulate notices for the Appellant's arrest in Libya to multiple ports of entry, including the airport located in Tripoli. Further, the RAD finds that the country documentation corroborates that more than 200 militias are associated with Libya Dawn (which SAL Brigade is a part of) and has violent influence in Libya.20 [37] The RAD does not find that the Appellant could live in safety from his persecutors in Tobrouk dependent on the protection from a weak government or the unstable militias or other armed groups in the region that could change their allegiance depending on the military situation or on the economic opportunities. State Protection and IFA [38] Case law establishes a presumption that a state is capable of providing adequate protection to its citizens. In order to rebut this presumption, claimants must demonstrate, through clear and convincing evidence, that the authorities are unable or unwilling to provide them adequate protection given the alleged risks. Claimants must establish that they have a well-founded fear of persecution throughout their country of nationality. [39] The objective country documentary evidence shows that the situation in Libya is not currently stable and armed conflicts have permeated the entire country. Sources indicate that the intermediary government is not in control of the entire territory, nor is it in control of the security forces or the numerous militias which operate throughout Libya. As mentioned earlier in the IFA analysis, the Appellant has credibly shown the threats he faces from the agent of harm, the SAL Brigade, and their well-documented intention to arrest him anywhere in Libya. As a result, the risks feared by the Appellant are widespread and are not limited to any particular region. [40] Therefore, in consideration of the entirety of the evidence, including the claimant's personal profile and his particular situation, as well as the current conditions in Libya, the RAD finds that there is clear and convincing evidence that state protection would not be adequate for the Appellant if he was to return to Libya. The RAD finds that the presumption of state protection has been rebutted in these particular circumstances. CONCLUSION [41] The RAD finds that the Appellant has met his burden in establishing, through objective evidence, that he would not be safe from his milita persecutors in the IFA location and it would not be reasonable in all the circumstances for him to relocate to that location. [42] The analysis made by the RPD that there is no serious possibility of the claimant being persecuted or subjected, on a balance of probabilities, to a danger of torture or to a risk to life or of cruel and unusual treatment or punishment in the proposed IFA area cannot stand as the first prong of the IFA test is not met. The resulting decision must therefore be set aside. [43] Given the credibility findings of the RPD with which the RAD concurs, and given the RAD's independent analysis of the entirety of the record including the hearing transcript, the RAD finds that the Appellant is in need of refugee protection under section 96 of IRPA. [44] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) May 3, 2019 Kim Polowek May 3, 2019 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27. 2 Refugee Appeal Division Rules, SOR/2012-257. 3 The majority of the documentation appears to be from the newspaper, Libya Observer. The source of some of the docmentation, which appears to have been retrieved through an internet search, is not identifiable. 4 IRPA, Section 166 (c). 5 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. 6Appellant cites the following case: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] I F.C/ 706 (C.A.), p.710 7Appellant cites cases: Rizk Hassaballa v. Canada (MCI), 2007 FC 489 and Saalim v. Canada (MCI), 2015 FC 841. 8 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93 (Huruglica). 9 RPD Record (RPDR), Reasons for Decision, p. 9, para. 6, line 5. 10 RPDR, Reasons for Decision, p.11, para. 9, line 10. 11 RPDR, Reasons for Decision, page 7, para. 12, line 4. 12 National Documentation Package (NDP) for Libya, December 22, 2016, item 1:10: UNHCR Position on Returns to Libya-Update 1. Source: United Nations. High Commissioner for Refugees. Date of Document October 2015. Document also available at pg. 180, of Appellant Record. 13 RPDR, Reasons for Decision, page 14, para. 18, line 5. 14 NDP for Libya, March 29, 2019. item 13:5 Treatment of members of the Zintani tribe in Tobruk City; presence of Gaddafi supporters in Tobruk; presence and operational strength of IS in Tobruk; ability of Libyans fleeing conflict in other parts of the country to relocate to Tobruk and reside there safely; whether Tobruk airport is operational (2014-August 2016) Date of Document: 3 October 2016. 15 NDP for Libya, March 29 2019: Item 1.10: UNHCR Position on Returns to Libya - Update II Source: United Nations High Commissioner for Refugees. September 2018. 16 NDP for Libya, March 29 2019: Item 1.10: UNHCR Position on Returns to Libya - Update II Source: United Nations High Commissioner for Refugees. September 2018. 17 RPDR, Exhibit 3, NDP for Libya, March 31, 2017. Item 1:10: UNHCR Position on Returns to Libya-Update 1. Source: United Nations. High Commissioner for Refugees. Date of Document October 2015. Document also available at pg. 383 of Appellant Record. 18 NDP for Libya, March 29 2019: Item 1.10: UNHCR Position on Returns to Libya - Update II Source: United Nations High Commissioner for Refugees. September 2018. 19 NDP for Libya, March 29 2019: Item 1.10: UNHCR Position on Returns to Libya - Update II Source: United Nations High Commissioner for Refugees. September 2018. 20 RPDR, Exhibit 3, NDP for Libya, March 31, 2017. Item 1.11: Libya: Security Situation. Source: Netherlands. Ministry of Foreign Affairs. Sections 3.2.5; 4.2.2 and 3.3.3. December 19, 2014. Note: this document was subsequently removed from the NDP for Libya in the updated NDP of December 21, 2017. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB7-06202 RAD.25.02 (April 04, 2018) Disponible en français 13 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 (April 04, 2019) Disponible en français