VB8-01865

RAD File / Dossier de la SAR : VB8-01865 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 Vancouver, BC Appel instruit / entendu à Date of decision May 8, 2019 Date de la décision Panel Daniel Tucci Tribunal Counsel for the person who is the subject of the appeal Leonardo Aniceto Barrister and Solicitor 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] XXXX XXXX XXXX XXXX (Appellant), is a citizen of Djibouti appealing a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. He requests that the Refugee Appeal Division (RAD) set aside the RPD's decision under section 111(1)(c) of the Immigration and Refugee Protection Act (Act or IRPA)1 and send the matter back to the RPD for redetermination before a different panel. DETERMINATION OF THE APPEAL [2] Pursuant to section 111(1)(a) of the Act, he panel confirms the determination of the RPD. The panel therefore finds that the appellant is not a Convention2 refugee or a person in need of protection. BACKGROUND [3] The appellant is a citizen of Djibouti. The appellant was employed in a bank for several years. He joined the Movement for Democratic Renewal and Development (MRD) in XXXX 2013. He was a XXXX XXXX in XXXX. The appellant was also involved in the recruitment of new youth members to the MRD. The appellant stated that he was one of the organizers of an event that took place on XXXX XXXX, 2015. The appellant stated that he was arrested by the authorities at the event and that he was detained for ten days. While being detained, the appellant stated that he was severely beaten. He was held in a cell without any clothes and cold water was poured on his body. The appellant stated that he suffered permanent harm as a result of his treatment in detention. [4] The appellant was hospitalized for one day following his release from custody. The appellant continued his activities with the MRD. This led to his arrest and further mistreatment while in custody. The appellant fearing for his safety in Djibouti applied for and received a U.S. visitor visa in December 2016. The appellant did not leave Djibouti immediately as he did not have the funds to travel to the United States. He left for the United States when he has sufficient funds. Once in the United States, he became seriously ill. He was hospitalized for a period of time. The appellant was diagnosed with serious liver issues including Hepatitis B. The appellant stated that the Hepatitis and the blindness in his left eye were the result of the mistreatment by the authorities in Djibouti. [5] The appellant chose not to make a refugee claim in the United States. He traveled instead to Canada where he made a refugee claim. The appellant believes that he will be harmed or killed if he returns to Djibouti. ISSUES [6] The RPD Member found that the determinative issue in this claim was credibility. The RPD Member determined that the appellant had not provided sufficient credible or trustworthy evidence to establish his claim under either section 96 or 97 of the Act. The appellant argues that the RPD Member erred in her assessment of his credibility and that he had in fact provided sufficient credible and trustworthy evidence to establish his claim. NEW EVIDENCE AND ORAL HEARING [7] The appellant's counsel has submitted new evidence under section 110(4) of the Act. This includes a letter from XXXX XXXX XXXX (XXXX), an MRD XXXX XXXX XXXX in Djibouti who states that the appellant is a member of the MRD. The appellant also provided an affidavit explaining why the letter from XXXX was not provided at his RPD hearing. [8] The panel finds that the evidence presented by the appellant under section 110(4) of the Act does not meet the criteria to be admitted in this appeal. The appellant states in his memorandum that he did not ask XXXX for a letter confirming his membership in the MRD as he believed that his membership card was sufficient. He then argues in the following paragraph of his memorandum that he was hospitalized for a month in Canada and was thus unable to submit all the documents he needed to support his claim. He then states that he only realized after receiving the RPD Member's decision that he needed more evidence to support his membership in the MRD. [9] The panel finds that the appellant despite his hospitalization for approximately one month from mid-March to mid-April 2017, still had ample opportunity to provide the panel with his disclosure. The panel notes that the RPD Member accepted late disclosure from the appellant on the day of the hearing on March 1, 2018. The panel therefore finds that the appellant had sufficient opportunity to obtain the XXXX letter for his RPD hearing. In addition, the panel finds that the appellant was well aware prior to his RPD hearing that his membership in the MRD was central to his claim. He was represented by counsel at the RPD hearing and he should have reasonably known that the RPD Member would consider his membership in the MRD as a central factor in his claim as this was the primary reason for his alleged mistreatment by the Djibouti officials. [10] The purpose of section 110(4) is not to perfect the appellant's evidence from the RPD. The appellant obtained the letter after the rejection of his refugee claim. Despite obtaining the letter subsequent to the rejection of his claim, it was open to him to obtain the letter for his refugee claim. The panel therefore rejects the new evidence presented by the appellant as it does not meet the requirements to be accepted under section 110(4) of the Act. As the panel has rejected the appellant's application to allow new evidence for this appeal, there is no need to conduct an oral hearing into this matter. SCOPE OF RAD APPEAL [11] When reviewing the RPD decision, the panel is required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. The panel may defer to the RPD's credibility assessment of oral testimony, if the panel finds that the RPD had a meaningful advantage in the circumstances. Reasons will be provided in the panel's analysis if the panel finds that the RPD had a meaningful advantage. ANALYSIS OF THE MERITS OF THE APPEAL [12] The panel has reviewed the evidence in the record including the review of the transcript of the RPD hearing. The panel has made its own independent assessment of the appellant's credibility. The panel finds that the appellant was not a credible witness. The panel agrees with the RPD Member that the appellant's testimony was contradictory. At the RPD hearing, the appellant was asked about his time off from the bank where he worked. The appellant initially made no mention of time he missed from work as a result of his detention for ten days. He was asked the same question again by the RPD member and he stated that he took some vacation time in early 2016 and this was primarily to care for his ailing father. The appellant was asked again about this time period. He then stated that after being detained for ten days, he returned to work despite the alleged severe beating he suffered at the hands of the Djibouti officials. He stated that as a result of his mistreatment, he lost the vision in one eye and he contracted Hepatitis B from the beating. [13] The appellant further testified that he had no vision problems prior to his arrest and detention in December 2015. The panel finds that the appellant has not provided sufficient credible and trustworthy evidence to establish that he contracted Hepatitis B from the alleged beating he suffered at the hands of the Djibouti officials. Moreover, the panel finds that the appellant's testimony is not credible that he was severely beaten for ten days to the point of losing his vision in one eye as well as suffering permanent damage to his liver, yet he returned to work almost immediately following his release. When this was put to the appellant, he explained that his boss did most of his work at the bank. The panel finds that the appellant improvised his testimony to try and explain the contradiction between the severe beating he suffered in custody and his immediate return to work. [14] The panel also finds the appellant's testimony to be contradictory as he claims that he returned to work on XXXX XXXX, 2016 for a period of one week and then he took one month off for vacation. The appellant provided a medical note from the doctor who treated him in hospital. The note indicates that he was hospitalized for one day on XXXX XXXX, 2016, the time that he stated he was back at work. The panel finds that the appellant did not provide a reasonable explanation for the contradictions in his testimony regarding the key period that led him to leave Djibouti and seek protection in Canada. [15] The panel agrees with the RPD Member that the appellant did not provide a reasonable explanation for the problems with his MRD Membership card. It is clear to the panel that the years of paid dues has been overwritten on the card by hand. The panel does not accept his explanation for this modification of the membership card. The panel finds that this raises concerns about the genuineness of the membership card. The panel finds that this issue with the membership card and the appellant's inability to provide details of the MRD political objectives beyond the generalities of seeking justice and education raise serious doubts about the appellant's membership in the MRD. The panel finds that the appellant has not provided sufficient credible and trustworthy evidence to establish that he was a member of the MRD in Djibouti. [16] The panel finds that the appellant was not credible with respect to his medical condition. The panel accepts that the appellant has serious medical issues as outlined by the medical information provided by the U.S. and Canadian health care professionals. The reports do not provide sufficient credible and trustworthy evidence to establish that his medical issues stem from his alleged mistreatment in Djibouti. Moreover, there is no indication in the U.S. and Canadian medical reports that the appellant informed the physicians or medical staff that his serious medical issues were the result of the beatings he suffered in Djibouti. When asked about why the reports make no mention of his treatment in Djibouti, the appellant states that he was in a coma and was unable to provide the information. The panel finds that his explanation is not reasonable as there is no indication that the appellant was unconscious or unable to communicate with medical staff in the U.S. or Canada during the entire time he was hospitalized. The panel finds that the appellant improvised his testimony at the hearing to try and explain why he did not disclose what he believed to be the cause of his medical problems. The panel finds that this is a material omission that negatively impacts the appellant's overall credibility. [17] Although not determinative of the claim, the panel agrees with the RPD Member that the appellant did not provide a reasonable explanation for the delay in his departure from Djibouti. He stated that he believed he was in danger following his first detention. He remained in Djibouti for more than one year. He obtained a U.S. Visa in November 2016, yet he did not leave Djibouti for several more months. The appellant testified that he did not have the funds to leave the country. The panel does not find his explanation reasonable. The appellant was employed at this time and he ultimately sought the assistance of his family to help him leave the country. The appellant's life was in danger and his health was severely compromised. The panel finds that his delay in departure because of his lack of funds is not reasonable given his employment and his family assisting him to leave the country several months after receiving his U.S. Visa. The panel finds that given his circumstances, he would have left shortly after receiving his visa. His delay in departure shows a lack of subjective fear on his part and this negatively impacts his overall credibility. [18] Having considered all the evidence, the panel finds that the appellant has not established his claim under section 96 or 97 of the IRPA. The panel therefore confirms the decision of the RPD and rejects his claim. CONCLUSION [19] For all these reasons, the panel confirms the decision of the RPD and rejects his claim under both section 96 and 97 of the Act. [20] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (Act or IRPA). (signed) "Daniel Tucci" Daniel Tucci May 8, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB8-01865 RAD.25.02 (April 04, 2018) Disponible en français 4 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 (April 04, 2019) Disponible en français