TB5-03832

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 File No. / N° de dossier de la SAR : TB5-03832 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 Toronto, Ontario Appel instruit à Date of decision August 25, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Eve Sehatzadeh 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 (the Appellant) is a citizen of Kenya. She appeals a decision of the Refugee Protection Division (RPD) dated March 18, 2015, rejecting her claim for refugee protection. [2] On Appeal, the Appellant submitted documents for consideration as new evidence pursuant to s.110(4) of the Immigration and Refugee Protection Act1 (IRPA or the Act). The Appellant requests an oral hearing pursuant to s.110(6) of the Act. [3] Pursuant to the Refugee Appeal Division (RAD) Rule 29, the Appellant also submitted three documents on June 23, 2015 (exhibit P-3) followed by two more documents on July 17, 2015 (exhibit P-4). [4] The RPD heard the claim on March 11, 2015 and in rejecting the claim, the RPD found that the Appellant was not credible and lacked a well-founded fear of persecution due to a Convention ground. The RPD also found that the Appellant did not rebut the presumption that effective state protection is available to her in Kenya. [5] The Appellant declared that she obtained a visa to the United States of America (USA) and arrived in XXXX, USA on XXXX XXXX, 2014. She alleged that she entered Canada on XXXX XXXX, 2014 through an illegal crossing. [6] She was found to be eligible to make a claim to the RPD for refugee protection as she was exempt from the provisions of the Safe Third Country Agreement between Canada and the USA. Applications under Rule 29 [7] The Appellant provided a total of 5 articles that in the Appellant's opinion rebut the presumption of state protection. [8] These articles post-date the rejection of the claim by the RPD and provide current information in the Northeastern Kenya that security is insufficient to deal with attacks by the Somali terrorist group Al Shabab, and that the Kenyan government is neglecting the Northeast that is stoking Islamist resentment; and that ethnic Somalis living in this region campaigned for the region's absorption into Somalia; and that the police leadership is becoming ineffective and that the Al Shabab attacked a police vehicle. [9] The two applications under Rule 29 are allowed. Documents submitted pursuant to ss. 110(4) of the Act. [10] Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [11] The Appellant's five documents submitted pursuant to rad rules 29 appear to meet the conditions of section 110(4), these documents arose after the rejection of the claims and were not reasonably available or expected before rejection. Therefore these documents are accepted as new evidence. [12] The appellant had initially provided the following documents on appeal: 1. Affidavit of XXXX XXXX XXXX, dated May 1,2015, including its Exhibits "A" to "E"; This affidavit and the attachments describe events and information that arose prior to the rejection of the claim and therefore this item does not meet the statutory requirements of the act, and it is not a reasonable explanation why these items could not have been obtained prior to the rejection and therefore this item is not accepted as new evidence. 2. Daily Nation article entitled, "Kenya: Three dead in attack on Mandera Governor Ali Roba's convoy", dated March 13,2105; this article also predates the rejection of the claim that by just a few days. This and several other documents show that Al Shabab terrorists with the roots in Somalia are attacking Nigerian interests in reprisal to the Kenyan forces attacking Al Shabab interests in Somalia. This article along with the next two articles in my opinion could not have been reasonably available and therefore items to three and four are accepted as new evidence. 3. The Star article entitled, "AI Shabaab claims Mandera attack that killed one", dated March 16,2015; 4. Reuters article entitled, "Somali Islamists kill four in cross-border attack on Kenyan town", dated March 18,2015; 5. Amnesty International article entitled, "Kenya University attack highlights security failures", dated April 2, 2015; this and the remaining articles postdate the rejection of the claim and therefore could not have been reasonably available prior to the rejection. I will accept documents 5 to 12 as new evidence. 6. France 24 article entitled, "Why Kenya can't contain the al Shabaab threat", dated April 3, 2015; 7. CNN article entitled, "After Al-Shabaab's Garissa massacre, local Kenyan schools fear they're next", dated April 9,2015; 8. Xinhuanet News article entitled, "Al-Shabaab hijacks bus in northeastern Kenya: official", dated April 17,2015; 9. Daily Nation article entitled, "Revealed: Shocking security blunders in the wake of the Garissa atrocity", dated April 19,2015; 10. BBC News article entitled, "Kenya suspends police over Garissa 'security failings"', dated April 21,2015; 11. IRIN News article entitled, "Is Kenya's security police the real enemy within?", dated April 22, 2015; and 12. Xinhuanet News article entitled, "Somalia militants abduct 2 Kenyan teachers", April 25, 2015. [13] With the exception of document one and its attachments, the remaining documents meet the statutory requirements and therefore these documents are accepted as new evidence. Appellant's Issues [14] The Appelalnt's issues are: Did the RPD err in its credibility findings?; Did the RPD err in its finding that the claimant had failed to rebut the presumption of state protection?; and Should new evidence be admitted under s. 110(4). I will rephrase the issue as follows: is the Appellant a Convention refugee or a person in need of protection. Standard of Review / Role of the RAD. [15] The Appellant submits that "no deference is owed to the RPD"2 by the RAD. [16] The jurisprudence on the role of the RAD is evolving, however, at present; guidance provided by Justice Phelan in Huruglica seems to be generally accepted. I am guided by this case where the court stated the following: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error." [17] Moreover in Tkachuk v. Canada (Citizenship and Immigration), 2015 FC 672 (CanLII), the Federal court stated, [36] I have considered the high degree of deference owed to the Board with respect to credibility, given that the Board observes the applicant and can probe an applicant's testimony and the manner in which it is provided. [18] Guided by Huruglica, I will consider the evidence in totality and arrive at my own determination. Also guided by Huruglica, I will recognize and respect the RPD's credibility findings where it had particular advantage. [19] The RPD found the Appellant to be not credible due to several inconsistencies, omissions and her failure to claim in the USA where she remained for another three months without status (after the permitted time for visit on her multi-entry visa had expired). The RPD considered the explanation and found the explanation not reasonable. [20] The claim for refugee protection was denied on two grounds by the RPD, credibility of the appellant as well as state protection. I will focus only on the issues related to the credibility of the appellant. [21] The Appellant's claim is based on her work with XXXX XXXX; an NGO in Kenya, and because of her work, the Al Shabab has targeted her. Therefore, it would be reasonable for the RPD to expect that the Appellant would provide clear and cogent evidence regarding her work. She is a highly educated and sophisticated person. [22] The articles submitted by the appellant regarding state protection indicating weaknesses of the Kenyan authorities to deal with the terrorist group Al Shabab demonstrate that the Kenyan authorities have not been always successful to predict where the Al Shabab will strike, and shortcomings in the police force. Terrorists are able to bypass all security measures and attack their targets; this can happen not only in Kenya but anywhere the terrorist cells are active. While I accepted documentation supporting the incursions by the terrorists in the Northeastern regions of Kenya and the inability of the police and other authorities to prevent all such attacks, I find that the new evidence does not overcome the concerns raised by the RPD regarding the Appellant's credibility. The Appellant submitted that she did not seek state protection because she was in the United States when the threats were made. [23] The Appellant provided documents to show that two of her brothers were killed by Al Shabab, I find it rather curious that the death certificates3 show the cause of death as "Al Shabab Attack." I would reasonably expect the death certificate to show a cause of death such as heart attack or excessive bleeding after a gunshot and not "Al Shabab Attack." Even if I were to accept that the two brothers were killed in an al Shabbat attack, the documentary evidence provided by the appellant shows that the Al Shabab group has victimized people in the markets at the university campuses and has specifically targeted high ranking officials. I find that there is no Nexus between the appellant's work for an NGO and the death of her brothers by Al Shabab. I also note that the information about the informant in the death certificates being a relative is contradicted by the appellants own evidence on page 26 of exhibit P-2 that a neighbor was the witness to the alleged attack and not a relative. [24] The RPD had serious concerns about the police report and provided cogent reasons supported by documentary evidence for its concerns. I agree with the RPD's reasoning which is transparent. In my opinion, the Appellant's submissions do not remove the issues raised regarding its credibility. The alleged report is handwritten on a plain sheet of paper. In addition to the issues raised by the RPD, I note that the report4 states "a message of threat to assassinate (kill)." I find it unlikely that the police would state the meaning of the word "assassinate." Moreover, the report mentions that the "anti terror police unit within our territory" are investigating the complaint. It is unlikely that the police would not provide the proper name of the "Antiterrorism Police Unit." This is in addition to the cogent and detailed commentary provided by the RPD in its reasons.5 [25] The Appellant also submits that "her claim for refugee protection qualifies for refugee protection pursuant to s. 96 and 97 IRP A. This is the case irrespective of whether or not the credibility findings of the RPD concerning other events that the Appellant provided evidence about are upheld or not".6 I presume that it is because of the allegation that she worked for an NGO. The Appellant still has to establish credibility first. I am aware that even an incredible person may also be a refugee or a protected person at the same time. However in this case, credible evidence was not forwarded to establish that. [26] The RPD also noted the Appellant's failure to claim protection in the USA despite her stay there for several months including more than XXXX months without any status. The RPD discounted her explanation, as I do, that she was afraid for her husband, an employee of the XXXX XXXX in Nairobi. It is not a reasonable explanation that she was afraid her husband would lose his job with the XXXX XXXX; this subjective fear is not supported by any objective evidence. [27] Respecting and recognizing the RPD's credibility findings, I have considered the issues raised by the RPD, explanations by the Appellant and the counsel's arguments and find that the RPD's credibility determination is supportable. [28] Based on the foregoing I find that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) "Atam Uppal" Atam Uppal August 25, 2015 Date 1 As enacted by S.C. 2001, c. 27 [The Act or IRPA]. 2 Exhibit P-2, Appellant's Record, Memorandum, para. 12 3 Exhibit RPD-1, RPD's Record, Exhibit 7, pp. 80, 81 4 Ibid., p. 83 5 Exhibit RPD-1, RPD's Record, pp. 7, 8, para. 10 6 Exhibit P-2, Appellant's Record, Memorandum, p. 92, para. 21 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03832