TB9-19699

RAD File / Dossier de la SAR : TB9-19699 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 Toronto, ON Appel instruit / entendu à Date of decision January 17, 2020 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person who is the subject of the appeal Amro Hayek 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 (the Appellant), citizen of Jordan, appealed a decision of the Refugee Protection Division (RPD), dated July 2, 2019, rejecting his claim for refugee protection. The Appellant has submitted new evidence with the appeal as referred to in paragraph 110(4) of the Immigration and Refugee Protection Act (IRPA).1 DETERMINATION [2] 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, pursuant to paragraph 111(1)(a) of the IRPA. I find the Appellant has not provided sufficient persuasive evidence to establish that he faces a serious possibility of persecution or risk to life, risk of cruel or unusual treatment or punishment or danger of torture in Jordan. BACKGROUND [3] The Appellant alleged that he has been threatened with death by his brother-in-law because of a dispute over a business. His full allegations are set out in the Basis of Claim (BOC) form.2 RULE 29 Application to Submit Documents Not Previously Provided [4] On November 29, 2019, the Appellant submitted an amended Appellant's Record with a personal affidavit3 and a statement4 concerning the new evidence. The proposed new evidence was already contained in the Appellant's Record. Assessment of these documents is unnecessary, as they were clearly designed to accompany a perfected Appellant Record. NEW EVIDENCE [5] Subsection 110(4) of the IRPA provides that an Appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected5 in the circumstances to have presented, at the time of the rejection. In addition, if the new evidence meets one of the explicit legislative factors in subsection 110(4), then the second step of the analysis is for the RAD to apply the adapted Raza factors endorsed in Singh.6 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. [6] The Appellant provided a series of documents7 as proposed new evidence that he submits he obtained following the RPD hearing. He states that that he could not have anticipated the need to provide additional documents. I am not persuaded by the argument of the Appellant. [7] I have listened to the audio recording of the RPD hearing and note that the Appellant was questioned by the RPD about the issues this evidence appears to address. I find the explanation that he was unaware of the need to provide additional evidence is not supported by his testimony in the record. The Appellant's testimony at the hearing confirms that he was confronted about providing the evidence that he now submits as new. He has failed to adequately explain why the evidence was not before the RPD. The Appellant has been assisted by the same experienced Counsel at the RPD and the RAD. The Appellant has not explained why neither he nor his Counsel made a motion to provide the documents as post-hearing submissions. [8] In reviewing these documents there appear to be two handwritten statements from individuals.8 Neither of these documents contain a date to ascertain when they were produced. Additionally, the Appellant has submitted what appears to be a doctor's note written on a page from a prescription pad9. The document "header" is not interpreted, but the body of the note is handwritten in English. I note that there is a date on the document, but I am unable to understand if the year is "2014, 2017 or 2019". I also note the signature on the document is unclear and there appears to perhaps be a "stamp" which would seal the document, but the stamp is incomplete. [9] The Appellant has provided no explanation as to whether these documents were available to him prior to the issuing of the RPD decision or acquired after that date. The absence of clear dates on these documents and the lack of any additional submission as to why they should be admitted does not allow the RAD to assess whether they meet the statutory requirements of subsection 110(4). These documents will not be admitted as new evidence in this appeal. [10] In addition, the Appellant has submitted divorce documents and banking information10. I note that these documents all predate the RPD decision and as discussed previously the Appellant has provided little explanation as to why this information should be admitted as new evidence or why there was no application to the RPD to provide it post-hearing. These documents do not meet the requirements of subsection 110(4) to be admitted as new evidence in this appeal. [11] I have further considered the Raza and Singh factors, if I were to find the documents met the requirements of subsection110(4) of IRPA. The Appellant submits the "witness statements" confirm that they witnessed the "event". I have reviewed the documents and find they provide no confirmation of witnessing an assault or any event. The individuals simply repeat information that is already in the record, but they do not provide any background as to how they came to be aware of this information. I assign little evidentiary weight to the documents. The Appellant has provided little explanation as to how this evidence meets the criteria of credibility, relevance and newness. [12] Additionally, the Appellant states the doctors note confirms he had a fractured shoulder and that the attack took place. I have reviewed the note and find there is no confirmation of a shoulder fracture, nor is there any description of how the injury occurred. When I consider these findings in concert with the concerns surrounding the date of issue, I assign little weight to the document. [13] I note that the ability to submit new evidence under subsection 110(4) of IRPA, does not include the ability to supplement a deficient record before the RPD. I find all of the Appellant's proposed new evidence does not meet the requirements, as set out in subsection 110(4) and it will not be admitted as new evidence in this appeal. ORAL HEARING [14] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) of the IRPA that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.11 [15] The Appellant has submitted no admissible new evidence in support of his appeal. As such, the RAD must proceed without a hearing on the basis of the RPD's record, and his application for an oral hearing is denied. ANALYSIS Uncontested Findings [16] I note that the RPD made the following findings that have not been contested by the Appellant: * The Appellant did not provide reliable corroborating evidence to support his allegation that his brother-in-law is an influential person in Jordan and would be able to harm him without any fear of consequences; * There was no reason to believe that the agent of persecution would have the intention or ability to perpetrate harm against the Appellant in Jordan, as alleged; * The Appellant was asked about documentation to explain where the funds from splitting the business with his brother-in-law went. His explanation was that he did not know he needed to provide this documentation. The Appellant provided additional testimony in this regard that was not credible; * The documentary evidence tendered in support of his claim, such as court documents and a police report12 were inconsistent with the Appellant's allegations. The RPD placed little weight on these documents as support for his claim; and, * The Appellant failed to provide clear and convincing evidence that state protection is unavailable to him in Jordan. The Appellant's only response, when asked why he did not seek assistance from the police, was "he never approached the police because the police are corrupt and that his brother-in-law has friends in the police." Yet, as noted previously, the RPD found the Appellant did not provide persuasive evidence which linked his brother-in-law to influence with the police. [17] The RAD has reviewed the uncontested findings of the RPD and finds they are without error. Arguments [18] The Appellant is assisted by Counsel in advancing his appeal at the RAD. The Appellant submits that he is both a refugee under section 96 and a person in need of protection under subsection 97(1) of the IRPA. He additionally submits that he has provided evidence of the socio-political situation in Jordan, where both politicians and tribal leaders exert influence. He argues that the RPD erred: * In its assessment of the documentary evidence; * In assigning little weight to the fact that he was tortured, forced to make a life-changing decision and flee Jordan; and, * In not considering that his past traumatic experiences and psychological condition, may prohibit the Appellant from providing precise answers to questions. [19] I find that the Appellant has not advanced any specific arguments to establish that the RPD erred in its assessment of his return to Jordan. I note that Rule 3(3)(g) of the RAD Rules requires the Appellant's Memorandum to include the following, among other things: i. the errors that are the grounds of the appeal; and, ii. where the errors are located in the written reasons for the Refugee Protection Division's decision that the Appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing. [20] In conducting an independent review, I have listened to the entire recording of the Appellant's testimony. I note the Appellant has identified a series of locations in the audio recording, where items such as the grounds of his fear, his reasons for not seeking state protection and mistakes in translation occur. I find the Appellant's submissions in his Memorandum are generally vague. The Federal Court has stated, Appellants have the obligation to explain how the documents submitted could have affected the merits of the application.13 Rather, the Appellant has the burden of demonstrating how the RPD erred in drawing a particular finding with reference to the evidence, jurisprudence or rule of law. The RAD cannot be expected to comb the Appellant's evidence and guess why the Appellant believes the RPD erred. [21] I find that, as much as the Appellant has identified the locations in the recording that he feels would affect the outcome of his appeal, he has not advanced any argument or evidence to establish how theses errors affected the decision the RPD has made. [22] For example, the Appellant was asked by the RPD why he did not approach the police. He testified that his brother-in-law is connected to a lot of powerful people. He was subsequently asked why he would stay in Jordan if he was at risk? He was additionally asked why he did not seek protection earlier. The Appellant responded that he tried to leave Jordan. He described that he travelled to Saudi Arabia and Australia, but he had no status and had to return. He did not explain why he made no attempts to seek protection there. In the Memorandum, the Appellant does not provide any submissions as to how he finds this exchange and the RPD's finding associated with it is in error. [23] I note that the Appellant alleges that he may have experienced anxiety and difficulty in focusing during his testimony. He implies that this arises out of a psychological condition due to past traumatic experiences that may have an impact on his ability to testify. The Appellant fails to identify where in the recording these concerns were located. I further note that the Appellant has not advanced any persuasive evidence to support that he is suffering from any condition that may affect his ability to testify. [24] I note that in the audio recording of the RPD hearing, at 1:07:00-1:11:00, the RPD asks the Appellant about an inconsistency in his statements. The Appellant states that he is nervous and that he has not seen his family for two years. The RPD explains to the Appellant that it is understood that he is nervous, but it is necessary to assess his credibility based on inconsistencies between statements in his BOC narrative and his testimony and that he needs to "focus" to explain these. She explains that she will put these inconsistencies to him and they make up part of the assessment used to reach a decision. I find the RPD carefully explained the rational for their concerns and provided the Appellant with opportunity and guidance to address the issues. There is no evidence that the Appellant is being treated unfairly. [25] Following this review, I find that while the Appellant's testimony was at times inconsistent and contradictory, there were no obvious indications that the Appellant experienced any concerns or difficulty testifying. [26] I have further assessed the documentary evidence in the record. I note that some of the evidence provided by the Appellant discusses aspects of Tribal Law in Jordan14. I note that many of the examples discussed tend to focus on disputes between "tribes" of differing heritage or background.15 This differs from the allegations in the current case in that the conflict arises from a dispute between business partners who are related through marriage. I additionally note that the Appellant's documentary evidence confirms that his current situation has been thoroughly addressed through the courts in Jordan.16 [27] I further note that the evidence indicates that the state authorities do act to provide protection in situations similar to that alleged by the Appellant. The competent authorities ... provide protection to those at risk of being a victim of revenge. For example, the competent authority represented by the administrative governor puts those at risk in jail for protection purposes rather than for penalization, so same would be under the protection of the government until referred to the competent court. The Amman lawyer also indicated that the government does provide "some kind of protection as a precautionary measure to prevent any crime from happening," which can include not exposing those involved or placing both parties in jail for "protection" in cases where revenge might be taken. [28] I find that there is noncompliance with Rule 3(3)(g)(i) and (ii). It is not the duty of the RAD to engage in a search for errors in the RPD's decision in the absence of guidance from the Appellant. I note the words of Justice Gleeson in Ghauri where he remarked in orbiter: that it is the responsibility of the appellant, not the RAD, to establish that the RPD erred in a way that justifies the RAD's intervention. It is not the RAD's function to supplement the weaknesses of an appeal. The court concluded that "appellants before the RAD that fail to specify where and how the RPD erred do so at their own peril."17 [29] The RAD has completed an independent assessment of the RPD's Record, including listening to an audio recording of the RPD hearing and reviewing all of the documentary evidence provided, as it relates to the specific errors alleged in the Memorandum. The RAD need not look further for errors not disclosed by the Appellant, and the RAD upholds the RPD's decision. CONCLUSION [30] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee, nor a person in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "Robert Bebbington" Robert Bebbington January 17, 2020 Date 1 Subsection 110(4), Immigration and Refugee Protection Act, (S.C. 2001. C. 27). 2 Exhibit RPD-1, RPD Record, Exhibit 2, at pp.8-20. 3 Exhibit P-2, Appellant's Record, at p. 8. 4 Ibid, at p.22. 5 Subsection 110(4), Immigration and Refugee Protection Act, (S.C. 2001. C. 27). 6 Raza, Syed Masood v. Minister of Citizenship and Immigration (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in Minister of Citizenship and Immigration v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para. 64. 7 Exhibit P-2, Appellant's Record, at pp.25-36. 8 Exhibit P-2, Ammended Appellant's Record, at pp.26-29. 9 Ibid., at p.25. 10 Ibid., pp. 30-36. 11 Subsection 110(6), Immigration and Refugee Protection Act, (S.C. 2001. C. 27). 12 Exhibit RPD-1, RPD Record, Exhibit 5, at pp.114-204. 13 Canada (Minister of Citizenship and Immigration) v. Patel, 2002 FCA 55, at para 5. 14 Exhibit RPD-1, RPD Record, Exhibit 6, at pp.210-233. 15 Ibid, at pp.225-232. 16 Ibid, at pp.114-204. 17 Ghauri v. Canada (Citizenship and Immigration), 2016 FC 548 (CanLII), at para. 34. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-19699 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français