MB7-06345

RAD File No. / No de dossier de la SAR : MB7-06345 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 / entendu à Date of decision May 17, 2019 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the person who is the subject of the appeal Meryam Haddad 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] The appellant, XXXX XXXX XXXX XXXX, a citizen of Morocco, alleges a fear of returning to Morocco after a video of him in a state of undress was shared on social media in his country. He claims that he was kidnapped and blackmailed by a criminal gang. He lost his job and appealed to the Ministry of Interior for protection with no success. He left Morocco for France and then came to Canada to claim refugee protection. [2] The Minister intervened in the appellant's hearing before the Refugee Protection Division (RPD), submitting press articles about him. The Minister's representative alleges that the pieces submitted raise contradictions in the refugee protection claim, the application to dismiss and the file submitted. [3] The RPD rejected the appellant's refugee protection claim, finding that he was not credible and that he did not meet his burden of establishing that the Moroccan state would be unable to provide him with adequate protection. [4] The appellant is asking the Refugee Appeal Division (RAD) to [translation] "set aside the determination, grant the claim for refugee protection and make any other orders that the Division deems necessary." In his arguments he adds that the RPD erred in finding that the appellant was not credible and that state protection was available. Various sub-elements are mentioned in his memorandum at paragraph 2.4 and subsequent paragraphs where his testimony was not vague-the appellant's negative publicity made it impossible for him to find a job; the actions taken by the authorities; and in the end, the scope of this task was too great for the Moroccan authorities. [5] The appellant is not requesting to present new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act1 (IRPA) and does not want a hearing to be held under subsection 110(6) of the IRPA, as mentioned on page 12 of the memorandum. DETERMINATION [6] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. [7] The appeal is dismissed. ANALYSIS Scope of the appeal [8] For questions of fact, of law, and of mixed fact and law, the RAD must apply the standard of correctness in accordance with Huruglica.2 [9] I conducted an independent analysis of all the evidence on the record, after listening carefully to the hearing, in order to form my own opinion about this refugee protection claim and to determine whether the decision rendered by the RPD is correct. [10] After taking into account all of the evidence on the record, both testimonial and documentary, the RAD comes to the same conclusion as the RPD, namely, that the appellant is not credible and that he did not demonstrate that the Moroccan state is unable to provide him with adequate protection. [11] The appellant believes that the RPD failed to properly assess his credibility, and that the impact on the decision is such that the appellant would not be persecuted in his country. [12] The very essence of this case is based on the appellant's credibility. [13] After listening to the recording, it must be noted that the appellant's testimony was laborious and vague in the explanations of past events. It must also be mentioned that the appellant is an educated man who spoke only in French during his testimony and that he spoke fluently. [14] The appellant states in his memorandum, in paragraph 2.4 and subsequent paragraphs, that the panel accused him of often being vague and unspecific in his testimony. The RPD, in its decision, noted that it had to insist in order to have a clear profile of the persecutors and that he failed to mention threats in his Basis of Claim Form (BOC Form). [15] As for the testimony, at the start of the hearing, the presiding member asked the appellant who he feared if he were to return. He responded: [translation] "I feared my life." He went on to say that he fears everyone because it was a public affair. The presiding member had to interrupt to bring the appellant back to his very simple question. He stated that he fears the fundamentalists and the people he works with at the XXXX XXXX XXXX. He added: [translation] "anyone could be out to hurt me." This is quite a vague explanation. He could not give specific names even though he knows his captors and he remained very vague in his explanations. Stating that he fears everyone in society is very general. [16] He states in paragraph 27 of the memorandum that, because of the media coverage of his case, it is reasonable for him to fear [translation] "everyone." It is understandable for a person who has seen a video of themselves circulating on social media to fear for their reputation. However, he needs to identify one or more individuals who would want to attack him, which he was not able to do. [17] In paragraph 2.9 of the memorandum, the appellant states that the RPD did not address the evidence concerning his job search. He states that after the media coverage of his case, he could not find a job. The RPD mentioned in its decision that it did not believe the appellant's allegation that he could not find a job because of his high level of education and his previous high-ranking employment positions. [18] It must be noted that the appellant has a university education and that he has held high-standing positions in XXXX XXXX. He prides himself on being an honest and principled person who has fought against nepotism and fundamentalists for the benefit of taxpayers. The panel notes that the appellant presents himself meticulously and that his professional life seems to have been flawless and spotless. With the education and experience he has gained over the years, the panel is of the opinion that the appellant will be able to find a job in Morocco. Perhaps the job will not be at the same level as his previous position, but what is important is his ability to find work. [19] The panel is of the opinion that the RPD did not err on this subject. [20] In paragraphs 2.11 and 2.12 the appellant argues that the RPD was wrong in criticizing the appellant for not having demonstrated a lack of state protection. The RPD states in paragraph 18 of its decision, that [translation] "the applicant did not meet the burden of establishing a lack of state protection in his case." [21] What exactly is the situation? The appellant, a XXXX XXXX XXXX, was apparently ambushed by people seeking a XXXX XXXX for a XXXX XXXX. The Moroccan authorities acted promptly by arresting these individuals. They were brought before the courts and found guilty. They were sentenced. The facts were reported in the media. The panel must note that the police and judicial authorities did the work that was expected of them. [22] According to the higher courts, state protection must exist and be accessible, but it does not have to be perfect. The question is whether the appellant can avail himself of the protection of the authorities in Morocco. Except in situations of complete breakdown of the state apparatus, it should be assumed that the state is capable of protecting its citizens. The evidence on the record indicates that police authorities, in concert with the appellant, set up a plan to arrest a criminal. Subsequently, other individuals were arrested, brought before the courts and convicted. The appellant must rebut this presumption and protection with "clear and convincing" evidence. [23] Faced with the evidence submitted and heard, the RAD is of the opinion that the appellant did not successfully rebut this presumption. The appellant, in his memorandum at paragraph 2.11, cites paragraph 23 of the decision: [translation] "The panel finds that the actions taken by the authorities demonstrate adequate, albeit imperfect, protection." The appellant argues that this suggests that state protection is insufficient, since it is qualified as imperfect. [24] The RAD does not share this view. The RAD notes that the Moroccan authorities have used resources and made efforts to arrest the individuals. They were sentenced to terms of incarceration. The result is probative. If the appellant is not satisfied with the individuals' sentence, so be it! That does not mean that protection was inadequate. There will always be those who will argue that the sentence is insufficient and others who will argue otherwise. The RAD notes that the Moroccan authorities have deployed resources and made efforts in this matter. [25] Another element mentioned in paragraphs 2.13 and 2.14 is that his outstanding work has caused him trouble and created enemies. He ends his written account by stating that [translation] "he had a quiet life and performed his duties in an honest manner." He goes on to state that [translation] "this way of working with integrity has, however, created enemies for him," and that it is "unreasonable to believe that a person who is a model citizen and who has nevertheless had to endure such persecution can be thought to have any kind of state protection in Morocco." [26] This quote pushes the interpretation of state protection to its limits. The syllogism of the quote does not hold. Just because he was a good citizen and suffered an unfortunate event does not mean that state protection does not apply in his case. [27] The RAD is of the opinion that the RPD did not err in its analysis of state protection. [28] The last element that was not raised in the decision, but which should be addressed, is the lack of a claim for refugee protection in France. The appellant testified that his problems began on XXXX XXXX XXXX XXXX, 2016. He decided to leave his country on XXXX XXXX XXXX He left Morocco on XXXX XXXX, 2016, for France. When asked by the RPD to explain why he did not claim refugee protection in France, the appellant stated that [translation] "it's like Morocco." The RAD cannot accept this answer. These are two distinct countries with different regimes. If the appellant feared for his life as he alleges, he should have claimed protection in the first country in which he arrived, that being France. In addition, he added that his choice and his end goal was Canada. If that was his original plan, why did he stay in France for XXXX days? This greatly undermines his credibility and consequently his fear as well. [29] For the reasons outlined in this decision, the RAD is of the opinion that the RPD rendered the correct decision. REMEDY [30] For these reasons, I confirm 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" under section 97 of the same act. [31] The appeal is dismissed. (signed) Michel Jobin Me Michel Jobin May 17, 2019 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act (S.C. 2001, c. 27). 2 Canada (Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., No. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB7-06345 RAD.25.02 (April 4, 2019) Disponible en français 7 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 4, 2019) Disponible en français