MB4-01445

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 : MB4-01445 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 Montréal, Quebec Appel instruit à Date of decision July 16, 2014 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Anthony Karkar Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX XXXX, the appellant, who is a citizen of Tunisia, is appealing against a decision of the Refugee Protection Division (RPD), alleging that it erred in rejecting his claim for refugee protection. II. DETERMINATION OF THE APPEAL [2] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD's determination, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. III. BACKGROUND A. Basis of the claim [3] In the Basis of Claim Form (BOC Form), which he signed on December 10, 2013, the appellant states that he is a citizen of Tunisia; that he was born on XXXX XXXX, 1988; that he speaks Arabic, English and French; and that his mother, sister and two brothers were living in Tunisia, while his father was living in France at that time.1 [4] In his BOC Form, the appellant states that from XXXX XXXX to XXXX XXXX, 2013, he returned to Tunisia for a vacation and met, dated and had sexual relations with a young woman who, two months after his return to Canada, informed him that she was pregnant. He also states that at the start of November 2013, his mother informed him that this young woman had kept the child, in spite of their prior agreement that she would have an abortion, and that she had accused him of rape to his family.2 [5] In his BOC Form, the appellant states that, since then, he has received death threats from the young woman's family and that his mother has been harassed by that same family and the Salafist community, of which the young woman's father is a member.3 [6] In his BOC Form, the appellant states that if he were to return to Tunisia, he would certainly be killed by that young woman's family or the Salafist community, as that young girl's family is extremely religious and her father is very involved in the Islamist community. He also states that the Salafis would not hesitate to kill him to preserve the honour of the young woman and the family.4 [7] In his BOC Form, the appellant states that, almost every day, Salafis knocked on his mother's door to tell her that he was a dead man. He also states that the young woman told the Salafis that he was returning to Tunisia on XXXX XXXX, 2013.5 [8] In his BOC Form, the appellant states that he could not ask the police for help because he was accused of a very serious crime and he knows that he would not be believed. He also states that, in any case, if he were to return to the country to ask for assistance, he would be killed by Salafis upon his arrival.6 [9] In his BOC Form, the appellant states that he had not moved to another part of his country to seek refuge there, as he was already in Canada when the death threats and problems started.7 [10] In his BOC Form, the appellant states that he left his country on XXXX XXXX, 2010, with a student visa simply to study, as he did not have any problems at that time. He also states that he had the intention of returning to Tunisia after his stay and that he did not apply for permanent residence after his studies.8 [11] In his BOC Form, the appellant states that he is extremely afraid of having to return to Tunisia, as honour crimes are frequent there and he risked a merciless death, without any chance to defend himself.9 [12] Before the RPD, the appellant did not submit any other document, except for his BOC Form. B. RPD decision [13] The hearing before the RPD was held on February 17, 2014, and the decision was rendered orally at the end of the hearing.10 [14] In its reasons for decision, the RPD indicates that in its opinion, the appellant, then called the claimant, was speculating when he stated that the young woman's family was closely connected to a very broad Salafist network. It also indicates that, according to his testimony, what he knew about the family of this young woman, he learned through his mother, who informed him that she had been visited by the father of that young woman with friends and that the young woman's father looked like a Salafi.11 [15] In its reasons for decision, the RPD indentifies the internal flight alternative (IFA) as being the determinative issue. In this regard, it first found that the appellant had not presented credible or sufficient evidence to establish that the father of the young woman benefitted from a Salafist network throughout the entire country: [translation] The claimant testified to the effect that he feared the Salafis and XXXX's family throughout the country, including Sousse, because the Salafis have a sophisticated network in Tunisia and they can be found everywhere. In spite of this, the panel is of the opinion that the claimant is speculating, as we have said, and that XXXX demonstrated a lot of independence during the claimant's short stay. She allegedly comes from a Salafist family that is extremely religious. The claimant stated that XXXX's father was a Salafi because that is what his mother inferred basically from his attire. The panel finds that his attire does not amount to credible or sufficient evidence that the father would have contacts with a Salafist network throughout the country.12 [16] Then, the RPD found that it was not objectively unreasonable to ask the appellant to relocate to Sousse after indicating that, according to his testimony, he had no other fear of relocating there except for the fear associated with the young woman's family and the Salafis. The RPD also indicated that, according to his testimony, no legal action had been brought against the appellant for rape, as the young woman's family had decided not to inform the authorities.13 [17] Hence, the RPD's final conclusion that the existence of an IFA is fatal to a claim for refugee protection, regardless of whether it was made under section 96 or section 97 of the IRPA. C. Grounds of appeal and remedy sought [18] In his memorandum, the appellant submits that the RPD erred in rejecting his claim for refugee protection.14 [19] In reading the appellant's memorandum, I believe I understand that he disagrees with the RPD's conclusions, but he does not necessarily identify the errors that the RPD allegedly made with respect to the existence of an IFA. [20] In this respect, this is what his lawyer wrote: [translation] 24. The RPD rejected the appellant's claim on the ground that there is an internal flight alternative; 25. That said, as the Salafis are present in large numbers and influential throughout the country, XXXX's family, which adheres to the principles of this religious group and benefits from its support, would have the means to find the appellant throughout Tunisia should he return; 26. It is therefore impossible for him to relocate elsewhere without fear of persecution;15 [21] In relation to the RPD conclusion that the attire of the young woman's father does not amount to credible or sufficient evidence in establishing that he has contacts with a Salafist network throughout the country, the appellant's lawyer responded by emphasizing two things: [translation] 31. In this regard, it should first be noted that Salafis have a particular and traditional appearance and attire that allows Tunisian citizens to easily identify and distinguish them from the rest of moderate Muslims, as the appellant's mother was able to do; 32. Furthermore, there is reason to note that the Salafist phenomenon has grown in popularity for some time throughout Tunisia, as it has elsewhere in the Arab world, and that the members of this group are increasingly intervening in a number of spheres of society; 33. The documentary evidence also refers to the increased presence of militant Salafis establishing themselves locally, intervening in neighbourhood issues, administrative problems, and even marital conflicts and demonstrating vigilante violence; 34. That said, the fact that the appellant's mother had repeated visits from a number of different people whom she all identified as being Salafis clearly demonstrates that the members of this group are dedicated to mutual support and assistance, and that they are prepared to act on one another's behalf in the interest of their fundamental religious principles;16 [22] With respect to the RPD's finding that the young woman exhibited behaviour demonstrating her independence from her family, the appellant points out in his memorandum that it is not because a person's family has certain values and beliefs that this person shares them.17 In this regard, he submits that the RPD erred in conducting an analysis based on the standards applied in Canadian society, without exercising sufficient caution in assessing the various cultural standards and the practices followed in various social, policing and political systems.18 [23] The appellant is asking the RAD to allow his appeal, set aside the RPD's determination and grant him the status of a person in need of protection or to refer the matter back to the RPD for re-determination.19 IV. HEARING BEFORE THE RAD A. The appellant did not present any new evidence on appeal and did not request that a hearing be held before the RAD [24] In his memorandum, the appellant did not indicate that he is presenting any new evidence within the meaning of subsection 110(4) of the IRPA, and did not request that a hearing be held before the RAD as indicated by subsection 110(6) of the IRPA. [25] In this respect, it is appropriate to point out that under subsection 110(3) of the IRPA, the RAD generally proceeds without a hearing, on the basis of the record of proceedings of the RPD: 110. (3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. 110. (3) Sous réserve des paragraphes (3.1), (4) et (6), la section procède sans tenir d'audience en se fondant sur le dossier de la Section de la protection des réfugiés, mais peut recevoir des éléments de preuve documentaire et des observations écrites du ministre et de la personne en cause ainsi que, s'agissant d'une affaire tenue devant un tribunal constitué de trois commissaires, des observations écrites du représentant ou mandataire du Haut-Commissariat des Nations Unies pour les réfugiés et de toute autre personne visée par les règles de la Commission. B. Test under subsection 110(6) of the IRPA [26] Under subsection 110(6) of the IRPA, when evidence presented on appeal is found to be admissible, it should be determined whether it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, whether it is central to the decision with respect to the refugee protection claim and whether it justifies allowing or rejecting the refugee protection claim. If the answer is yes, the RAD may then hold a hearing. 110. (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. 110. (6) La section peut tenir une audience si elle estime qu'il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois : a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause; b) sont essentiels pour la prise de la décision relative à la demande d'asile; c) à supposer qu'ils soient admis, justifieraient que la demande d'asile soit accordée ou refusée, selon le cas. C. There is no cause to hold a hearing before the RAD [27] In this case, since the appellant has not presented any new evidence within the meaning of subsection 110(4) of the IRPA, there is no cause to hold a hearing V. STANDARD OF REVIEW TO BE APPLIED IN THIS APPEAL [28] The assessment of the evidence related to the IFA constitutes a question of fact. I am of the opinion that the standard of review to be used in similar cases is that of reasonableness.20 [29] When reviewing a decision on the standard of reasonableness, the analysis must be concerned with the justification, transparency and intelligibility within the decision-making process, as well as with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.21 VI. ANALYSIS OF THE MERITS OF THE APPEAL Did the RPD commit one or more errors when it concluded that an IFA was available to the appellant? [30] I conclude that the RPD did not commit any errors when it concluded that an IFA was available to the appellant and, consequently, that its decision to reject the appellant's claim for refugee protection falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Here is why. [31] I reviewed the information included in the appellant's BOC Form. I also read the arguments that his lawyer presented in the appeal memorandum. In my opinion, these arguments overall are aimed at repeating what was already stated before the RPD. However, I am of the opinion that, in this administrative appeal, I must show deference to the RPD's findings with respect to credibility and the assessment of evidence.22 [32] As part of its demanding duties, the RPD must assess all the evidence presented before it. That being said, the RPD is presumed to have considered all of the evidence before it and the failure to mention a specific piece of evidence does not amount to a failure to consider it.23 The RPD can also reach a different conclusion based on evidence that seemingly or actually runs counter to its conclusion, but in such cases it must demonstrate that it was fully aware of this evidence-in other words, that it considered it, but arrived at a different conclusion.24 On the other hand, relying on a generic analysis of a country's conditions and thereby failing to consider key elements of the evidence cannot be found to be reasonable, unless at the very least the IRB indicates why it discounted this evidence.25 [33] The first question to be asked when examining the possibility of an IFA is whether there is another part of the country where the claimant would not be subjected to persecution or to a risk to his life.26 The claimant has the burden of demonstrating that he did not have an IFA in another part of his country.27 [34] In light of all of the appellant's testimony, the RPD found that he had not established that the family of the young woman in question would be willing or able to pursue him throughout Tunisia, namely in Sousse. In addition, it found that the appellant also did not establish that this same family had a network among the Salafis capable of finding him no matter where he settled in Tunisia. [35] I, myself, find that in his appeal, the appellant did not demonstrate the error that the RPD made in this matter. Furthermore, I am of the opinion that the RPD did not commit an error when it concluded that the attire of the young woman's father, as perceived by the appellant's mother, did not amount to credible or sufficient evidence that the young woman's father would have contacts in a Salafist network throughout the country. The information in the appellant's BOC Form and testimony remained at a general level that, in my opinion, does not amount to reliable evidence sufficient enough to establish that an IFA was not available to him in another part of the country. [36] It was then necessary to answer the second question to be asked when examining the IFA, that is, whether it would be objectively unreasonable or unduly harsh for the appellant to go and settle specifically in Sousse.28 In this respect, the threshold must be set very high, and refugee protection claimants or appellants must present actual and concrete evidence of conditions jeopardizing their life and safety in travelling or temporarily relocating to a safe area.29 In this matter, the appellant has not presented any evidence to establish that it would be objectively unreasonable or unduly harsh to expect him to go to Sousse. I, myself, do not see any error in the RPD's assessment with respect to this second question. [37] After carefully reading the RPD's reasons for decision, I find that the RPD did consider the appellant's various statements and explanations regarding the IFA. The RPD justified the reasons for finding that the an IFA was available to the appellant in Sousse. I see no error in how the RPD proceeded with the analysis of the IFA. This conclusion is reasonable; in other words, it falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Consequently, there is no reason for me to intervene in this decision. [38] Regarding the argument that the RPD did not exercise sufficient caution in its assessment of the young woman's behaviour, I find that it is not an element that is relevant to the IFA issue. Consequently, I find that it is unnecessary for me to respond to it. [39] To conclude, I consider it necessary to add that it is certainly unfair for a person to have to leave the city where he was accustomed to living because he fears reprisals from a family who holds a grudge against him because he had sexual relations with a young woman, who became pregnant and gave birth to a child. That said, refugee protection can only be granted if the RPD is satisfied, on a balance of probabilities, that the person fears persecution or having his life threatened throughout his country of origin. In this case, the appellant failed to discharge his burden of demonstrating, in a concrete manner, that by going to settle in Sousse, he would have reason to fear persecution or would be subjected to a personalized risk.30 As a result, his claim for refugee protection could not be accepted. [40] Acting as the RPD did in this case is, in my opinion, consistent in every regard with one of the objectives of the IRPA, namely, to establish fair and efficient procedures that will maintain the integrity of this system, while upholding respect for the human rights and fundamental freedoms of all human beings.31 VII. REMEDY [41] For these reasons, I confirm the RPD determination, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [42] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette July 16, 2014 Date IRB translation Original language: French 1 Basis of Claim Form (BOC Form), pages 10, 15 and 18 of the RPD record. 2 Idem, page 10 of the RPD record. 3 Idem 4 Idem, page 11 of the RPD record. 5 Idem 6 Idem 7 Idem, page 12 of the RPD record. 8 Idem 9 Idem, page 13 of the RPD record. 10 Notice of Decision, pages 1 and 2 of the RPD record. Reasons for the RPD decision, pages 3 to 8 of the RPD record. 11 Idem, page 5 of the RPD record. 12 Idem, page 6 of the RPD record. 13 Idem, page 7 of the RPD record. 14 Appellant's memorandum, paragraph 43, not paginated. 15 Idem, paragraphs 24, 25 and 26, not paginated. 16 Idem, paragraphs 31 to 34, not paginated. 17 Idem, paragraph 39, not paginated. 18 Idem, paragraph 42, not paginated. 19 Idem, Conclusions, not paginated. 20 Walcott v. Canada (Minister of Citizenship and Immigration), No. IMM-5280-09, Gibson, May 10, 2010; 2010 FC 505, paragraph 18. Ndam v. Canada (Minister of Citizenship and Immigration), No. IMM-5447-09, Beaudry, May 14, 2010; 2010 FC 513, paragraph 4. Ferencova v. Canada (Minister of Citizenship and Immigration), No. IMM-3940-10, Mosley, April 8, 2011; 2011 FC 443, paragraph 8. 21 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, paragraph 47. Gabor Miroslav v. Canada (Minister of Citizenship and Immigration), No. IMM-3466-09, Russell, April 12, 2010; 2010 FC 383, paragraph 22. Bethany Lanae Smith v. Canada (Minister of Citizenship and Immigration), No. IMM-5699-11, Mosley, November 2, 2012; 2012 FC 1283, paragraph 19. 22 Iyamuremye v. Canada (Minister of Citizenship and Immigration), No. IMM-5282-13, Shore, May 26, 2014; 2014 FC 494, paragraph 39: "It is clear from the case law that an appellate body cannot substitute its own reasoning for that of a specialized tribunal of first instance, the tribunal of fact, having the advantage of having heard viva voce testimony and with its authority conferred by the Inquiries Act, unless the trial judge made a 'palpable and overriding error' that led to an erroneous result." 23 Ferencova v. Canada (Minister of Citizenship and Immigration), No. IMM-3940-10, Mosley, April 8, 2011; 2011 FC 443, paragraph 24. 24 Herrera Andrade v. Canada (Minister of Citizenship and Immigration), No. IMM-544-12, Gleason, December 18, 2012; 2012 FC 1490, paragraph 14. 25 Ramirez Meza v. Canada (Minister of Citizenship and Immigration), No. IMM-4267-10, Noël, March 10, 2011; 2011 FC 274, paragraph 8. 26 Rasaratnam v. Canada (M.E.I.), [1992] 1 F.C. 706 (C.A.) and Thirunavukkarasu v. Canada (Minister of Citizenship and Immigration), [1994] 1 F.C. 589. 27 Yanez Alfaro v. Canada (M.C.I.), F.C. No. IMM-5397-05, Beaudry, April 10, 2006; 2006 FC 460, paragraph 22. 28 Rasaratnam v. Canada (M.E.I.), [1992] 1 F.C. 706 (C.A.) and Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589. 29 Campos Navaro v. Canada (M.C.I.), F.C. No. IMM-3158-07, De Montigny, March 17, 2008; 2008 FC 358, paragraph 20. 30 Guerilus v. Canada (Minister of Citizenship and Immigration), No. IMM-5100-09, Boivin, April 13, 2010; 2010 FC 394, paragraphs 14 and 15. 31 Paragraph 3(2)(e) of the IRPA. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-01445 RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-01445 3