TB5-10650

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 : TB5-10650 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 November 03, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Bjorn Harsanyi 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, a citizen of Kenya, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. No new evidence has been submitted in support of his appeal, nor is he requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellant is, however, asking the RAD to overturn the decision. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD This appeal is dismissed. Background [3] The Appellant is a Christian from Nairobi, who arrived in Canada in XXXX 2014. He alleges that he fears Al-Shabaab as a result of two attacks; one in XXXX 2014, when his cousin was killed in a XXXX attack and one in XXXX 2014, when his parents' property in XXXX was burned down and dozens of people were killed. His family fled the area and the Appellant has not heard from them since. [4] The Appellant also fears Al-Shabaab on the basis of other killings of Christians, eg. the Westgate Mall attack and the University in Garissa. He also alleges that he would become a victim of forced conversion to Islam and recruitment by Al-Shabaab, as he knows five friends to whom this has happened. MINISTER'S INTERVENTION AT THE RPD [5] The Minister intervened by way of submissions only pursuant to paragraph 170(e) of the IRPA and Section 29 of the RPD rules, with respect to credibility of this claim as follows: a) The Appellant arrived in Canada on XXXX XXXX, 2014 and was issued a study permit valid from XXXX XXXX, 2014 to August 31, 2014 to study at the College XXXX XXXX XXXX. b) On February 11, 2015 the Appellant made a refuge claim, stating that he feared that he will be forced to convert to Islam by Al Shabaab militias. c) The Appellant declares that a neighbouring Muslim community attacked his Christian community on two separate occasions in XXXX 2014 and XXXX 2014. SUBMISSIONS * The Minister submits that the Appellant has a Facebook account in the name of XXXX XXXX. * The Minister submits that this is supported by the fact that XXXX XXXX studies at the College XXXX XXXX XXXX, his mother's name is the same as that contained in the Appellant's BOC and he is friends with XXXX XXXX XXXX, the same name as referred to as his father in his BOC form. * The Minister submits that Facebook indicates that the Appellant is actively communicating with his mother and father, which is in direct contradiction to the Appellant's assertion that his parents and siblings have disappeared since the alleged attacks of XXXX 2014. (M-2, pages 10-14) [6] Based on the foregoing, it is the Minister's position that the allegations detailed in the Appellant's BOC form are unlikely to be truthful, and therefore there is no credible or trustworthy evidence on which to accept the claim. ROLE OF RAD [7] Counsel has made no submissions in this regard. However, a recent Federal Court decision in Huruglica1 has provided the RAD with guidance, which the RAD will follow. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision. 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 an "overriding and palpable error." SUBMISSIONS BY THE APPELLANT [8] Did the RPD err in its credibility findings? Cousin's killing [9] The RPD noted that in the Appellant's BOC form he stated that his cousin XXXX was killed after refusing to join Al-Shabaab and to recite the Quran. However, in contrast, the RPD noted that the death certificate and police report submitted by the Appellant states that his cousin was killed by a XXXX attack during a meeting near his residence in XXXX. The Appellant alleged that his cousin had met with his friends for a social visit, whereas the police report indicates that his cousin had assembled with others for a local security meeting. Later, the Appellant changed his testimony to state that they met for both purposes. The RPD concluded that the Appellant had adjusted his testimony to be consistent with the police report. [10] The Appellant was also confronted with the allegation in his BOC form that his cousin was attacked for failing to recite the Quran and refusing to join Al-Shabaab, whereas his testimony was silent on this issue. When asked to explain, the Appellant stated that he believes that this is the reason his cousin was later killed in the XXXX attack, and he did not mention this in his earlier testimony, because it did not come to his mind. [11] The RPD found the Appellant's testimony on this issue to be lacking in credibility, when considering that earlier in the hearing, he stated that he could not understand the reason for the attack on his cousin, however, in Kenya most people attacked are Christians. [12] The Appellant submits that it is important to keep in mind that he was self-represented, particularly when the RPD found his testimony to be "vague" or "evasive". It is argued that he responded to the questions in an open and eager manner. [13] On this particular issue, the Appellant submits that the RPD made an unfair credibility finding regarding his testimony about his cousin's death, and that his change in testimony should be considered in light of his self-representation and lack of sophistication. Specifically, it is argued (page 8 of the RPD transcript) that he appears to misunderstand the question posed by the RPD. He explains, it is submitted, that in Kenya most people attacked are Christians and he did not understand the reason behind the attack. The RPD it is argued, then concludes that the Appellant is inconsistent with the statement in his BOC form. The Appellant argues that he was attempting to express that he did not understand the motivation as to why Muslims would want to harm Christians. Notably, the Appellant submits that at page 40 (lines 9-10 of the RPD transcript), he reiterates that "and what I understand is that...I don't know what they have against Christianity". Finally, it is argued that the RPD ought to have been more sensitive to the fact that the Appellant was self-represented as often these individuals misunderstand questions and respond without first listening to the question asked. [14] The RAD finds that some allowances must be made for Appellants who do not have the benefit of the services of counsel. However, having said this, the onus is on the Appellant to explain any internal inconsistencies or contradictions to what is contained in the BOC form. After reviewing the transcript of the proceedings, the RAD finds that the Appellant did not address the concerns expressed by the RPD. [15] However, even if the RAD were to accept that the foregoing finding by the RPD was unfair due to a misunderstanding, the analysis with respect to what follows sufficiently detracts from the credibility of the Appellant and this finding would not be fatal to the determination made by the RPD. Facebook profile [16] In light of the submissions by the Minister, the RPD asked the Appellant to explain the contradiction of how he could be communicating with his parents on Facebook when he allegedly has had no contact. The RPD also noted that the Appellant had not ultimately attended the school, for which he came to Canada to study. The Appellant acknowledged that this was his profile on Facebook. However, he alleged that his sister must have set up these account and noted that his parents have never provided comments on his profile. [17] The RPD found that the Appellant's BOC form was clear when it stated that the Appellant had not heard from his parents or siblings. In his testimony, he stated that he believes from information gleaned from his aunt in XXXX that they are in a refugee camp on the XXXX XXXX XXXX. The RPD found it unlikely that anyone but the Appellant's parents or his sister would set up his parents' Facebook account. The RPD found that even if it was his sister who set up the account as stated as a possibility by the Appellant, it is unreliable that she would not set up her own account or that she would not respond to the Appellant's inquiries about their welfare and whereabouts. In light of these inconsistencies, the RPD found that the evidence surrounding this issue, undermined the Appellant's credibility. The Appellant made no submissions in this regard [18] The RAD finds that it was open to the RPD to make the aforementioned finding, given the lack of a reasonable explanation for the contradiction with respect to communication with his parents. Moreover, the RAD finds that since the Appellant acknowledged that this was his Facebook account, we find that given the names provided in the account, on a balance of probabilities, as the Minister has submitted, are those of his parents, the Appellant's credibility is called into question. Forced killings of Christians [19] The RPD further noted that if forced conversions and killings of Christians are an ongoing problem, it would expect to see this referenced more frequently in the NDP package. While accepting that Al-Shabaab is behind some violence and has created some instability, the RPD considered that there was insufficient evidence to support the notion that violence directed at Christians is so frequent, systematic or common in Nairobi that the Appellant faces a serious possibility of persecution or a personalized risk of harm on a balance of probabilities. In reaching its conclusion, the RPD replied on the documentary evidence.2 Kenya is over 80 percent Christian and the Constitution and other laws and policies generally protect religious freedom. While acknowledging that Christians were killed in the September 2013 Westgate Mall terrorist attack in Nairobi were committed by Al Shabaab as well the attack on a university in Garissa, the RPD noted that were no reports in evidence of forced conversion [20] The RPD further acknowledged that there are reports in the NDP of discrimination against Christians in historically Muslim areas in the North East and on the Coast, however the Appellant has never resided there. The RPD also considered the reports from Human Rights Watch,3 Freedom House4 and Amnesty International5 and found insufficient evidence of forced conversions and killings of Christians. [21] No submissions were made by the Appellant on this issue. [22] Upon review of the documentary evidence, the RAD concurs with the RPD's findings that the preponderance of the objective evidence does not corroborate the Appellant's testimony. We concur that there was insufficient evidence to support the assertion by the Appellant that he would be forced to convert to Islam or that there is a serious possibility that the Appellant would be subject to a personalized risk of harm, on a balance of probabilities. [23] After conducting an independent assessment of the entire record, the RAD finds that the Appellant is not a Convention refugee or a person in need of protection. [24] Accordingly, pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. This appeal is dismissed. (signed) "Roslyn Ahara" Roslyn Ahara November 03, 2015 Date 1Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799). 2 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Kenya (23 December 2014), item 12.1. 3 Ibid., item 2.3. 4 Ibid., item 2.3. 5 Ibid., item 2.5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-10650