MC0-06401

RAD File / Dossier de la SAR : MC0-06401 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 June 9, 2021 Date de la décision Panel Dilani Mohan Tribunal Counsel for the person who is the subject of the appeal Kibondo Max M Kilongozi 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] These are my reasons for dismissing the appeal by XXXX XXXX XXXX XXXX (Mr. G). After independently reviewing the record I find that the Refugee Protection Division's (RPD) decision is correct, and that Mr. G is neither a Convention refugees nor a person in need of protection. BACKGROUND [2] Mr. G is a citizen of Malawi and fears persecution by supporters of the Democratic Progressive Party. In 2018, he officially became a political advisor to his friend who was running as a candidate for the opposition UDF party in the XXXX 2019 election. In XXXX 2018, at one of their meetings, Mr. G advised his friend to include messaging against the discrimination and killing of people with albinism in his campaign speeches. This was overheard by a bodyguard who later quit the campaign and misrepresented his advice to the candidate for the ruling party in the area. As a result of this, Mr. G began receiving death threats over the phone by the ruling party supporters. Within days, his home was set on fire, and a month later, Mr. G was ambushed and assaulted. He was hospitalized for four weeks because of that injury. Although he reported the threats, arson and assault to police, nothing was done. In XXXX 2018, Mr. G's friend who serves on the police force informed him that no protection would be forthcoming. Mr. G immediately made arrangements with his brother to travel to the United States since he had a pre-existing visa. He arrived in the US in XXXX 2018, then traveled to Canada several months later on March 21, 2019 and claimed for refugee protection. In XXXX 2019, Mr. G's friend was successfully elected to office. [3] The RPD rejected Mr. G's claim on the basis of credibility. Although the RPD accepted he is the friend of an elected Member of Parliament and opposition party member, it found that he had not established his role as a political advisor. The RPD found that Mr. G was unable to testify spontaneously about the work he did in organizing meetings and rallies, or in providing feedback to his friend about his speeches. The RPD also noted that all of the details about his work was missing from Mr. G's narrative and drew negative credibility inferences. The RPD drew other negative credibility inferences from inconsistencies between the supporting letter and email from the MP, and Mr. G's testimony. The RPD noted that there was a difference in the way both described the timing of Mr. G's involvement, and whether or what research he had produced to assist police in their investigations into the murders of people with albinism. The RPD concluded that Mr. G's politician friend had most likely embellished his letter and email to make it seem that Mr. G had been more involved than he was, and the RPD gave the letter little weight. The RPD further noted that articles identifying Mr. G's friend as an elected official did not additionally serve to establish his role as a political advisor. Additionally, it was noted that, beyond his work with his friend, Mr. G did not engage in any further advocacy on behalf of people with albinism. The RPD further found that Mr. O's omission of the identity of his persecutors undermined his credibility, and it found that his other documentary evidence was insufficient to establish his allegations. Finally, the RPD noted that Mr. G's delay in leaving Malawi undermined his credibility. Arguments on appeal [4] Mr. G argues that the RPD erred by failing to conduct a separate analysis under s. 97 of the Immigration and Refugee Protection Act. He argues that the RPD did not dispute the aspects of his corroborative evidence from his MP friend, stating that he was an advisor and that his life is in danger. [5] Mr. G has not introduced any new evidence but has requested an oral hearing. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [6] I have applied the standard of correctness while reviewing the RPD decision and have conducted an independent assessment of the evidence before me. NO ORAL HEARING PERMITTED [7] The RAD may hold an oral hearing only when there is new evidence that raises a serious issue about the Appellants' credibility; is central to the decision, and which, if accepted, would justify allowing or rejecting the claim. Since no new evidence was submitted, I am barred by law from convoking a hearing. ANALYSIS [8] The determinative issues are credibility and the sufficiency of evidence. My reasons are as follows. No error in the RPD's treatment of the MP's letter and email [9] Counsel for Mr. G has not disputed any of the RPD's credibility findings. Instead, he argues that, on the basis of the letter and email provided by Mr. G's MP friend, the RPD ought to have found that Mr. G was a political advisor and that his life is in danger. Counsel also incorrectly states that the RPD did not dispute the corroborative evidence from the MP1 when, in fact, the RPD, did exactly that. The RPD stated that it was giving the MP's letter and email little weight because Mr. G's lack of credibility about his role as an advisor indicated that his friend had embellished or exaggerated Mr. G's role in his campaign to bolster his claim.2 [10] Although I have not been asked to reconsider the RPD's credibility findings, I am tasked with independently assessing the evidence. And because of the links between the RPD's treatment of the MPs evidence and the credibility findings, I have looked at the relevant underlying findings. [11] I agree with the RPD's assessment that the quality of Mr. G's testimony does not reflect what one would expect from an individual who self-describes and is described by his MP friend as an "advisor and campaign director".3 Mr. G's testimony about his work consisted of repeating that he would choose places to have a meeting or rally, review speeches, and open for his friend at rallies by telling people to wait for him to arrive.4 When pressed, his details were vague. For instance, though he claimed to have reviewed his friend's speeches, he could not describe the content of any speeches beyond speaking about the persecution faced by people with albinism in Malawi.5 Nor could he provide any clarity about the research that his friend referred to in his email. Mr. G stated that he reviewed newspapers and visited the home of a family with children with albinism but could not say more than that the family was afraid.6 [12] Based on the foregoing, I find, on a balance of probabilities, that Mr. G's involvement and influence in his friend's campaign is overstated. I agree with the RPD's assessment that the MP friend's letter is unreliable because it presents Mr. G as much more involved than he was able to demonstrate on his own. And because the heart of the issue is Mr. G's involvement, I prefer his evidence over that of his friend. Moreover, I find, as did the RPD, that the letter and email from the MP are deserving of little weight because of the incongruence between the letter's description of Mr. G's role and his demonstration of his knowledge of the political campaign. No challenges made to the RPD's treatment of the other documentary evidence [13] Mr. G's counsel has not challenged the RPD's treatment of his other documentary evidence, which included medical reports, photos of his burnt family home and of his scar, and a police report. The RPD also addressed the country conditions evidence about the treatment of people with albinism, and the actions of the government in addressing that issue. I have considered the RPD's reasons and no reason perceptibly arises that is sufficient to overturn its findings. As a result, I find that Mr. G has not established the facts of his claim on a balance of probabilities. Accordingly, I find that he does not face a serious possibility of persecution in Malawi on the basis of his perceived political opinion. The claim does not succeed on s. 97 [14] To succeed under s. 97, Mr. G must establish the risk he faces on the higher standard of a balance of probabilities, rather than the s. 96 standard of a serious possibility. Regardless of the standard on which the risk must be demonstrated to exist, the standard for the establishment of the facts underlying the claim remains the same. The facts must be established on a balance of probabilities. [15] I have already found that the facts of the case have not been established to the requisite standard of a balance of probabilities. I therefore find, on a balance of probabilities, that Mr. G would not face a risk to his life, or a risk of cruel and unusual treatment or punishment in Malawi. CONCLUSION [16] I dismiss the appeal and confirm the decision of the RPD that Mr. G is neither a Convention refugee nor a person in need of protection. (signed) "Dilani Mohan" Dilani Mohan June 9, 2021 Date 1 Exhibit P-2, Appellant's Memorandum, at p. 59, para. 8. 2 Exhibit RPD-1, RPD Record, RPD Decision, at pages 6-9, paras. 24-48. 3 Exhibit RPD-1, RPD Record, at page 103. 4 RPD Hearing Recording at 00:31:50 - 00:33:32, 00:45:54 - 00:55:05. 5 RPD Hearing Recording at 00:45:14 - 00:52:46; 01:00:00 - 01:04:42. 6 RPD Hearing Recording at 00:59:04 - 00:08:13. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC0-06401 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français