TB7-20178

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 / Dossier de la SAR : TB7-20178 TB7-20179 / TB7-20180 / TB7-20181 TB7-20182 / TB7-20183 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 21, 2018 Date de la décision Panel G. Erauw Tribunal Counsel for the person(s) who is(are) the subject of the appeal Howard P. Eisenberg Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX (the "female Appellant"), XXXX XXXX XXXX (the "male Appellant"), XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX (the "minor Appellants") are citizens of Sudan. They are appealing a decision of the Refugee Protection Division (RPD) denying their claim for refugee protection. The Appellants argue that the RPD erred in its internal flight alternative (IFA) analysis and its credibility assessment. After careful review of the evidence in the record, the Refugee Appeal Division (RAD) finds that the Appellants have a viable IFA in Port Sudan. Therefore, they are not Convention refugees or persons in need of protection. [2] For the reasons provided below, this appeal is dismissed. BACKGROUND [3] The Appellants allege that the female Appellant's family is demanding to conduct female genital mutilation (FGM) on the minor female Appellants. They also claim that the female Appellant's family will physically harm the male Appellant for refusing to allow the FGM on his daughters. The female Appellant further alleges that the minor male Appellant would be targeted by the agent of persecution in order to coerce her into agreeing to the FGM of the minor female Appellants. Further details are provided in their Basis of Claim (BOC) Forms, and their testimony at the RPD hearing.1 The RPD's Decision [4] The Appellants had a refugee determination hearing on July 11, 2017. In a written decision issued on August 24, 2017, the RPD rejected their claim. The RPD panel found the Appellants had a viable IFA in Port Sudan. Therefore, the RPD concluded that the Appellants do not have a well-founded fear of persecution on a Convention ground, or that they would not personally be subjected to a risk to life or a risk of cruel and unusual treatment or a danger of torture upon return to Sudan. ROLE OF THE RAD [5] For questions of fact, mixed fact and law, and law, the RAD applies the standard of correctness in accordance with the Federal Court of Appeal's decision in Huruglica.2 In assessing findings involving the credibility of oral testimony, the RAD may apply the modified standard of reasonableness in situations where the RPD enjoys a meaningful advantage.3 Unless otherwise stated in the reasons, the RAD uses the correctness standard on all findings and will consider the overall refugee determination on a standard of correctness, even where the RAD has deferred on some or all findings. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [6] Evidence from the person who is the subject of the appeal is only admissible on appeal if it meets one of the statutory conditions set out in subsection 110(4) of the IRPA, namely that it arose after, or was not reasonably available, or the person could not reasonably have been expected in the circumstances to have presented the evidence at the time the claim was rejected. If one of these conditions is met, the RAD will then consider if the evidence is credible, relevant, and new as endorsed by the Federal Court of Appeal in Singh.4 [7] In support of their appeal, the Appellants propose two documents as new evidence: 1) Permission to Use Tinted Glass Card of the Female Appellant's Brother-in-Law, issue date unknown, valid until 23 March 2008;5 and, 2) Marriage Certificate of the female Appellant's Sister and her Brother-in-Law, dated XXXX XXXX 1984.6 The Appellant's Argument on Admissibility of the New Evidence [8] The Appellants argue that the identity document from the female Appellant's brother-in-law regarding the permission to use tinted glass, and the marriage certificate of her sister and brother-in-law were not reasonably available at the time of the RPD's decision. They submit that although she received them on July 18, 2017, after the RPD hearing, they were not reasonably available because the Appellants were not aware of the rules regarding the submission of post-hearing evidence to the RPD and they did not advise their counsel that they received these documents. [9] They further argue that these two documents are relevant, probative and corroborate the female Appellant's testimony that her brother-in-law has the ability to reach her daughters in any part of Sudan and supports her testimony that her brother-in-law was a powerful man with connections to the regime that would enable him to find them in any part of Sudan. In regards to the marriage certificate, they submit that it is probative, relevant, and it corroborates the female Appellant's testimony that the agent of persecution married into her family. The RAD's Assessment of the New Evidence [10] I reject the Appellants' submissions and find the two documents provided as new evidence are inadmissible. [11] I do not accept the Appellants' explanation for why these documents could not have been provided at the time of the RPD's decision. The female Appellant's appeal affidavit states that although she had these documents prior to the RPD's decision, she never informed their counsel of the documents. The affidavit also implies that their former counsel did not advise them that they could provide post-hearing evidence, as he only told them after the RPD hearing that they would wait for the decision.7 However, notice has not been given to their former counsel, and as such, he has not had an opportunity to respond to the allegation that he did not advise the Appellants that they could provide post-hearing evidence to the RPD. Rather, the evidence before me is that the Appellants had nearly six weeks to provide post-hearing evidence and they were represented by competent counsel throughout the proceeding. Furthermore, although the Appellants provide an email from the female Appellant's niece to support that these documents were obtained on July 18, 2017, it is not clear whether any documents were attached to the email received by the female Appellant on July 18, 2017. In this respect, I note that the email chain provided indicates several documents were attached and sent to the female Appellant on May 7, 2017, which was before the RPD hearing. In light of the above, I find that the Appellants have not established that they could not have provided the above documents at the time the RPD rejected their claim. Therefore, I find the two documents submitted as new evidence do not meet the criteria of subsection 110(4). [12] Moreover, I note that the identity card of the brother-in-law expired more than 10 years ago and gives him permission to drive with window tinting. The Appellants provide no submissions in accordance with 3(3)(g)(iii) on how this document is relevant or credible with respect to the brother-in-law's power or his ability to locate the Appellants in Port Sudan in 2018. Also, I observe that the marriage certificate submitted is irrelevant to the issue in this appeal. There is no dispute as to whether the alleged agent of persecution is married to the female Appellant's sister, and therefore, it does not meet the relevance criteria in Singh. [13] For the above reasons, I find the two documents submitted as new evidence are not admissible as new evidence. Application to Submit Additional Documents (Rule 29 Application) [14] The Appellants submit an application under Rule 29 of the Refugee Appeal Division Rules for the admission of documents not previously provided. The Appellants request to submit an affidavit from the female Appellant's niece attesting to how she obtained the documents provided with the Appellant's record and explaining why she wrote a support letter in her mother's name at the RPD hearing.8 [15] Rule 29 allows the Appellants to make an application to provide a document not previously provided. Such an application must include an explanation of how the document meets the requirements of subsection 110(4) of the IRPA and how that evidence relates to the Appellants.9 In determining the application, the RAD must consider any relevant factors, including: the relevance and probative value of the document, any new evidence the document brings to the appeal, and whether the Appellants could have, with reasonable effort, provided the document with the Appellants' Record. The Appellants' Argument on the Rule 29 Application [16] The Appellants argue that the affidavit from the female Appellant's niece should be accepted. They submit that it post-dates the submission of the appeal record, as well as the RPD hearing and RPD's decision. They submit the affidavit was not available at the time the appeal record was submitted because the niece was sick. They also argue that the affidavit is relevant and probative, as it provides an explanation which goes to the negative credibility inference of the RPD about the letter purportedly written by the female Appellant's sister. They further submit that this affidavit should be read in conjunction with the documents provided above, as the affidavit explains how the documents were obtained in Sudan on July 18, 2017. The RAD's Assessment of the Rule 29 Application [17] I reject the Rule 29 Application. For the reasons provided above, the two documents allegedly obtained by the female Appellant's niece are inadmissible under subsection 110(4). The content of the niece's affidavit dealing with how she got those two documents does not address or remedy the reasons provided above in finding the documents were inadmissible under 110(4) and for credibility and relevance concerns. Therefore, this portion of the niece's affidavit is not accepted. [18] With respect to the niece's explanation for why she forged a document in her mother's name in order to support the Appellants' refugee claim, I also reject this aspect of the niece's affidavit. I find the Appellants have not established that the niece's affidavit could not have been provided at the time the appeal record was submitted. While the female Appellant and niece claim she was too ill to see a commissioner of oaths, the Appellants had more than a few days to provide an affidavit from the niece. The female Appellant's affidavit with the Rule 29 application states that she did not contact her niece until November 8, 2017, which is the day the appeal record was submitted to the RAD, and a day before the appeal record was received by the RAD. I also note that the RPD's decision was sent from the RPD registry on October 3, 2017 and the Appellants have not explained why they waited until the day before the appeal record was submitted to request an explanation from her niece for the fraudulent document, especially considering this was discussed during her RPD hearing and assessed in the RPD's decision. Her illness of a few days does not explain why the affidavit could not have been provided at the time the appeal record was submitted. Therefore, I reject the Appellants' Rule 29 application as the Appellants have not established that with reasonable effort the niece's affidavit could not have been provided with the appeal record. Request for an Oral Hearing [19] As there is no new evidence being accepted by the RAD, there can be no oral hearing in accordance to subsection 110(6) of the IRPA. Therefore, the application for an oral hearing is dismissed. DETERMINATIVE ISSUE [20] The determinative issue is whether the RPD erred in its IFA assessment. ANALYSIS The RAD find the Appellants have a viable IFA in Port Sudan [21] In order to determine whether a viable IFA exists, the RAD must consider the two-prong test outlined in Rasaratnam10 and Thirunavukkarasu.11 From these cases it is clear that the test to be applied in determining whether there is a viable IFA is: (a) The RAD must be satisfied, on a balance of probabilities, that there is no serious possibility of the appellant being persecuted in the part of the country to which it finds an IFA exists;12 and, (b) Conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all circumstances, including those particular to the appellant, for her to seek refuge there.13 [22] Both prongs must be satisfied to find that the Appellants have an IFA. The Appellants bear the burden of proof to show that they face a serious possibility or reasonable chance of persecution in the entire country and specifically in the potential IFA area. In this case, the proposed IFA area is Port Sudan, Sudan. The Appellants' Argument - 1st Prong of the IFA Test [23] The Appellants argue the RPD erred because it placed a lot of weight on the omission in the U.S. claim and the BOC, that the female Appellant's brother-in-law was an agent of persecution. Although the brother-in-law was not specifically mentioned, it was clear that the emphasis in both claims was that they were afraid the female Appellant's family would perform FGM on the female minor Appellants, so it was unreasonable for the RPD to make an adverse credibility finding for failing to specifically name the brother-in-law. They submit that the whole issue of the brother-in-law's participation and advocacy of the practice of FGM arose from the RPD's questioning about the female Appellant's sister. As such, the RPD did not fully appreciate that the risk was not only the brother-in-law as an agent of persecution, but the female Appellant's family, which is what she said in her BOC. However, it was the RPD's questioning that resulted in its conclusion that it was only the brother-in-law who was the agent of persecution. [24] The Appellants also argue that the RPD's IFA analysis was heavily premised on the fact that there was no evidence her family could find her there, which was pure speculation. Especially considering the female Appellant testified she did not feel safe anywhere in the country and that her brother-in-law could reach her if he is whom the female Appellant claims. They also submit that the RPD did not deal with the evidence that the female Appellant's family was mad that she and her husband escaped with the children. [25] The Appellants submit that the RPD was overzealous in its search for discrepancies between the oral testimony and the BOC, but while the oral testimony and the BOC was not word for word the same, the essence of the claim is clearly conveyed in the BOC. In this case, they argue that it was unreasonable for the RPD to conclude the female minor Appellants did not face more than a minimal chance of persecution, as they are clearly being sought by the female Appellant's family. They argue that the fact that there is no documentary evidence with respect to the brother-in-law's government connections is beside the point. [26] With respect to the RPD's finding about the declaration signed by the female Appellant's niece in her mother's name, the Appellants submit that this is adequately explained in the new evidence affidavit from the female Appellant's niece. The RAD's Assessment - 1st Prong of the IFA Test [27] I reject the Appellants' argument and find the RPD did not err. Even though the RPD accepted that FGM is prevalent in the country, and there are few legal impediments, this does not factor into the assessment as to whether Port Sudan is a viable IFA for the Appellants based on their circumstances. This is because the RPD found that the Appellants failed to establish that their alleged agents of persecution have the influence or means to locate them in Sudan. In addition, the RPD noted that there is no indication that any other party, including the state, would perform FGM on minors without parental consent. On the latter point, the RPD noted that the male and female Appellants are opposed to the practice. [28] First, with respect to the BOC omission about the female Appellant's brother-in-law, I disagree with the Appellants' submission. The BOC clearly informs the Appellants to include in their BOC everything that is important for their claim, such as dates, names and places. The Appellants signed their BOC forms and signed a declaration that it was fully interpreted to them. The omission of a powerful and influential family member who threatened the male Appellant, and allegedly has the ability to locate the Appellants throughout Sudan is not a minor detail, but central to their refugee claim and fear of persecution. [29] In their U.S and Canada narratives, the Appellants provided little details about their alleged agents of persecution. In both narratives, the Appellants mention briefly the female Appellant's mother and her family as the agents of persecution. No details are provided in the narratives as to the capacity, reach and influence of these agents, only that they insisted on performing FGM. In the BOC, it merely mentions that the male Appellant would be at risk for allowing his family to escape the practice. It was only at the RPD hearing when the RPD questioned about the female Appellant's meeting with her mother, where they wanted the minor daughters to undergo FGM, that she testified about the specific threat against her husband from her brother-in-law. At this time, the female Appellant also described the brother-in-law's background and why they felt so threatened. This is not an elaborative detail omitted from the BOC, but a significant fact central to their refugee claim. When confronted with the omission, the female Appellant failed to provide an adequate explanation, as she blamed her former U.S. counsel for not including this detail in their documents. I also do not accept this explanation, as it does not explain why the Appellants did not inform their Canadian counsel of this agent and the threat and why it is omitted from her Canadian narrative. The BOC forms the basis of her refugee claim in Canada and they were assisted by counsel in the preparation of their claim. One would expect such details to be included in her BOC. Her explanation does not explain why such information is not in her Canadian narrative. Therefore, I find the RPD did not err and I also draw a negative credibility inference due to the omission of the "powerful" and "influential" brother-in-law from the Appellants' BOC. [30] Second, while I acknowledge the Appellants' argument that the RPD did not adequately consider that the agent of persecution was not just the brother-in-law, but the female Appellant's "family", I do not find the RPD erred in this regard. The RPD's questioning, as well as its findings on the brother-in-law as an agent of persecution, was in response to the details provided by the female Appellant at the hearing, as well as the issue of whether Port Sudan was a viable IFA. Considering the Appellants provided scant evidence about how her "family" would find them in Port Sudan, and she did not even know if there were any extended family in Port Sudan, it was appropriate for the RPD to focus on the allegations that her brother-in-law was an influential and powerful person who could locate and harm them throughout Sudan. The RPD did what it was required to do by questioning the Appellants on this critical allegation and being responsive to the issues identified at the outset of the hearing. It was necessary for the RPD to assess the viability of the IFA in light of the allegation that there was a member of the family that was powerful and connected enough to locate them in the IFA. [31] Moreover, the RPD noted that the Appellants did not establish that anyone in their family, or even persons outside the family, have the influence or means to locate them in Port Sudan. It is the Appellants' burden to establish this fact, which they failed to do in this case. In fact, the female Appellant testified that she was not sure if there were extended family in Port Sudan who could locate her there, and that most of her family are in Khartoum, which is more than 14 hours distance by bus. The only evidence presented of an agent of persecution who could locate them in the IFA was her brother-in-law, evidence the RPD found not credible. [32] Third, the RPD found additional reasons to question the credibility of the allegation that their alleged agent of persecution could locate them in Port Sudan. In particular, the RPD found that the Appellants submitted a fraudulent document about who was after them, and it found that they did not provide a reasonable explanation for the lack of documentation about the power and influence of the brother-in-law. Other than providing new evidence to address these findings, which the RAD has found inadmissible, the Appellants provide no submissions about how the RPD erred in this assessment. Considering the Appellants do not contest these findings I see no reason to interfere with them. They are correct and based on the evidence in the record. In particular, I note that the female Appellant acknowledged that the support letter from her sister was not genuine. As well, the female Appellant was inconsistent in her testimony about whether she tried to get documents to support her claim, including documents about her brother-in-law's means and ability to locate them throughout Sudan. I concur with the RPD that the fraudulent document and lack of documentation about the agent of persecution, undermines their credibility regarding the alleged agent of persecution and the ability of her family to locate the Appellants in the IFA. [33] Based on the above credibility concerns, I find the Appellants are not credible regarding their alleged agent of persecution. As such, I find they have not established with sufficient credible and trustworthy evidence that their alleged agents of persecution would locate them in Port Sudan.14 Nor have they demonstrated that Port Sudan would not be a safe area to relocate. Therefore, I find the Appellants have not established that they face a serious possibility of persecution nor a risk to life, danger of torture or of cruel and unusual treatment in Port Sudan. The Appellants' Argument - 2nd Prong of the IFA Test [34] The Appellants provide no submissions on how the RPD erred in its assessment of the second prong of the IFA test. Rather, the Appellants simply state that the second prong only becomes engaged where the particular claimant does not face a well-founded fear of persecution in the proposed IFA, so they submit that the RPD's assessment that there is no reasonable chance of persecution in the IFA was unreasonable.15 The RAD's Assessment - 2nd Prong of the IFA Test [35] Considering the Appellants do not contest the RPD's findings about whether it is reasonable for the Appellants to relocate to Port Sudan, I see no reason to interfere with it. It is correct and based on the evidence in the record.16 The Appellants have the burden of establishing that the IFA is not reasonable in their circumstances, but have failed to do so in this case. [36] I agree with the RPD's reasons for finding that it would not be unreasonable for the Appellants to relocate to Port Sudan in their circumstances. The Appellants are well-educated possessing 16 and 17 years of education, and possess degrees in engineering and IT. They also have significant work experience with a bank and an oil company and will be able to relocate as a family unit with a male head of the household. Furthermore, they speak the language and practice the religion in Port Sudan, and there is no indication that the Appellants will be deprived of education or healthcare compared to persons in their home city of Khartoum. [37] Therefore, I find that the proposed IFA of Port Sudan is not unduly harsh or objectively unreasonable in the Appellants' circumstances. CONCLUSION [38] Having reviewed the whole record, including the testimony of the Appellants and the documentary evidence, I agree with the RPD for the same reasons, that Port Sudan is a viable IFA within Sudan. Therefore, the Appellants are not Convention refugees or persons in need of protection. This appeal is dismissed. DETERMINATION [39] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "G. Erauw" G. Erauw September 21, 2018 Date 1 Exhibit RPD-1, RPD's Record, Appellants' Basis of Claim (BOC) Forms, at pp. 18-70; and Exhibit RPD-1, RPD's Record, Audio Recording of the RPD Hearing. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 X (Re), 2017 CanLII 33034 (CA IRB). 4 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 5 Exhibit P-2, Appellants' Record, Permission to Use Tinted Glass Card, at pp. 29-30. 6 Exhibit P-2, Appellants' Record, Marriage Certificate of Female Appellant's Sister and Brother-in-Law, at p. 32. 7 Exhibit P-2, Appellants' Record, Emails from Female Appellant's Niece, at pp. 36-37. 8 Exhibit P-3, Appellants' Record, Rule 29 Application, Affidavit of the Female Appellant's Niece, at p. 4. 9 Rule 29(3), Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257. 10 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at 710. 11 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.), (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 12 Rasaratnam v. M.E.I, [1992] 1 F.C.706 (C.A.), at 710. 13 Thirunavukkarasu v. M.E.I., [1994] 1 F.C.589 (C.A.). 14 Kassim v. Minister of Citizenship and Immigration, 2018 FC 621. 15 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at p. 47, at para. 45. 16 See Dibia v. Canada (Immigration, Refugees and Citizenship), 2017 FC 1076, for a similar case where the appellant did not contest the second prong of the IFA test. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-20178 TB7-20179 / TB7-20180 / TB7-20181 TB7-20182 / TB7-20183 RAD.25.02 (August 08, 2018) Disponible en français 15 RAD.25.02 (August 08, 2018) Disponible en français