MB8-26237

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 : MB8-26237 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 at Montréal, Quebec Appel instruit à Date of decision September 26, 2019 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Stéphanie Valois Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] The appellant, XXXX XXXX XXXX XXXX, a citizen of Sudan, presented evidence before the Refugee Protection Division (RPD)1 and stated that he feared returning to his country, first, because instead of returning to his country after an official mission to the United States of America, he came to Canada and claimed refugee protection; second, because he had previously disobeyed orders, leading to his punishment; and finally, because he had taken part in demonstrations as a student.2 [2] The RPD rejected his claim for refugee protection, concluding as follows: - He had not established that he would be persecuted for his political opinion if he returned to his country. - He had sought to mislead it about his occupation as a XXXX XXXX. - He had neglected to mention in his Basis of Claim Form his reason for refusing to join a mission in the Darfur war zone and that the disciplinary measures in response to this refusal did not, in any event, constitute persecution. - His failure to seek asylum in the United States of America was not consistent with the behaviour of someone who feared persecution. - He had not established that members of his family had been arrested for not disclosing his location to his country's security services. - He had not established through credible and trustworthy evidence that he had been sentenced to imprisonment in his country, as no weight could be given to a photocopy of a notice in this regard.3 [3] The appellant submitted that the RPD erred in finding that he was not credible based on secondary facts that were inconclusive and insufficient to reject the balance of his sworn testimony.4 He later applied to have admitted as evidence a document that had not been submitted with his appeal record.5 The Refugee Appeal Division dismisses the appeal. [4] I found that there were insufficient grounds to authorize the use of the document that had not been submitted with the appeal record (I) and that the RPD did not commit the errors for which it was criticized (II). My reasons are as follows. I. EVIDENCE PRESENTED ON APPEAL [5] In my opinion, there are insufficient grounds to authorize use of the document that was not submitted with the appeal record. [6] Rule 29 of the Refugee Appeal Division Rules (RAD Rules) states that if an appellant wants to use a document or provide written submissions that were not included in the appeal record, the person must make an application to the RAD in accordance with rule 37.6 Such documents may be used only upon written authorization from the RAD. [7] Subrule 29(4) of the RAD Rules provides that, in deciding whether to allow an application, the RAD must consider any relevant factors, including the document's relevance and probative value, any new evidence the document brings to the appeal and whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the record. [8] In the affidavit accompanying his application, the appellant stated that on XXXX XXXX, 2019, he received a WhatsApp message from a Sudanese friend in the United States who had obtained a document from another person working at the Embassy of the United States.7 I have read the document in question. The interpreter who translated this document certified that this was a true translation of the photocopy of the document written in Arabic. This document is dated XXXX XXXX, 2017, and signed by a XXXX XXXX XXXX XXXX XXXX of the passport and civil registry office in Washington and indicates, among other things, that eight individuals fled, including XXXX XXXX XXXX XXXX XXXX XXXX XXXX, that multiple factors assisted them in their flight and that most of these individuals were new to the XXXX XXXX and had received training to help them establish stronger ties with their occupation. The document concludes by recommending the formation of an investigation committee concerning the individuals mentioned.8 [9] This document does not provide evidence arising after the claim for refugee protection was rejected, or any new evidence. In fact, it is dated XXXX XXXX, 2017, several months before the RPD rendered its decision. Additionally, the appellant produced a document before the RPD stating that an investigation committee had been formed concerning his absence from work on XXXX XXXX, 2017, and his failure to return to the country.9 [10] Next, I find that no probative value should be given to this document.10 It is not clear who exactly sent this document to the appellant or through which person working at the Embassy of Sudan in the United States of America the document may have been obtained. The document in question is also incomplete in that several of its paragraphs contain areas that are blank. In his application and affidavit, the appellant did not provide any explanation for this. I find that the purpose of this document is to complete a deficient record, notably with passages indicating that the majority of the individuals who fled were new to the XXXX XXXX and had received training to help them establish stronger ties with their occupation. [11] Finally, the appellant did not present submissions in either his application or his affidavit to establish that, even with reasonable effort, it would not have been possible for him to submit the document at the same time as his appeal record. II. ANALYSIS OF APPEAL [12] The RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule concerns situations in which the RPD enjoys a meaningful advantage with respect to the credibility assessment.11 This being said, it is not the role of the RAD to proceed with a de novo review of refugee protection claims but instead to determine whether the RPD has in fact erred as alleged by the appellant.12 [13] After carrying out my own analysis of the record, including listening to the recording of the hearing held before the RPD,13 I find that the RPD did not enjoy any particular advantage and that the correctness standard of review applies, and I consequently conclude that the RPD did not err as alleged. A. Appellant's situation in the United States of America [14] In the absence of valid reasons, failure to claim international protection at the first opportunity may have a negative effect on the refugee protection claimant's credibility.14 However, the reasons cited by the person for acting as he or she did should be examined. In this regard, the doctrine notes that failure to claim asylum in an intermediary country is not in itself indicative of the absence of fear with regard to the country of origin.15 [15] In his memorandum, the appellant submitted that he stayed only two weeks in the United States, on a valid visa, and consequently was at no risk whatsoever of being deported or having other problems with the American authorities. He further argued that due to the situation in that country, many asylum seekers have preferred to come to Canada, especially since Sudan was placed on a list of banned countries by the American president. Lastly, he argued that the RPD's conclusion on this point cannot be determinative and that it relates to the assessment of his subjective fear rather than his credibility as such.16 [16] At the hearing before the RPD, the appellant stated that, if he had paid a bribe in order to have the opportunity to go work at the XXXX XXXX in Washington for XXXX XXXX, it was because he wanted to leave his country due to the problems he experienced while working at the XXXX XXXX and when he was a student.17 When asked why he completed his XXXX XXXX XXXX mission at the XXXX XXXX after arriving in the United States rather than leaving and claiming asylum in that country, the appellant responded that the only document he had, his passport, was with them and because he found out that it was easier to ask to go to Canada. When confronted about the fact that he could have presented other identity documents besides simply his passport, the appellant explained that he did not know how to claim asylum in that country and never sought legal advice in this regard, but that Sudanese citizens he met there had told him that the situation had been chaotic for them as Sudanese citizens after arriving at American airports, having been returned to Sudan.18 [17] The RPD found that the behaviour of the appellant, who waited to complete his work as part of the XXXX XXXX and come to Canada to make a claim for refugee protection, was not consistent with the behaviour of someone who feared persecution and was more like that of someone seeking the country that was offering the best conditions for immigrating.19 Based on my independent analysis of the record, the RPD did not err in that regard. In fact, during the six months he spent in the United States of America, there was nothing preventing the appellant from reporting to the appropriate American authorities to claim asylum, and his explanations concerning this point are not convincing. Moreover, during that entire time, the appellant was working for the XXXX XXXX using a passport issued to him by these same authorities,20 and they even commended him on the work he performed within the electronic passport and civil registry delegation.21 Based on my own analysis of the record, this also does not correspond to the behaviour of someone who allegedly fears persecution by his country's own authorities. [18] Such behaviour demonstrates a lack of subjective fear22 and is inconsistent with that of someone who is truly fearful for his life.23 On this point, it is important to note that the negative credibility finding made under section 96 may affect the validity of a claim under section 97 of the IRPA, even though subjective fear is not part of the assessment for the latter section.24 B. Appellant's credibility seriously undermined [19] When they swear that certain claims are true, refugee claimants are presumed to be speaking truthfully. However, this presumption is rebuttable where the evidence is inconsistent with testimony or where the RPD is unsatisfied with the explanation provided for those inconsistencies.25 The RPD may draw negative inferences based upon implausibilities, inconsistencies or omissions. It is the entirety of the evidence that must be assessed, and RPD members may apply common sense and their human experience.26 - Appellant's occupation [20] In his memorandum, the appellant argued that he was not a XXXX XXXX in the sense normally understood, since he was not responsible for XXXX XXXX and did not XXXX XXXX XXXX or XXXX XXXX, but instead worked for the XXXX XXXX XXXX XXXX XXXX. He further argued that his employment was not challenged and that the work he performed in his position was clearly established.27 [21] With respect, I find this argument to be unfounded. [22] During the hearing, the RPD questioned the appellant at length about his employment in Sudan and when he was working for the XXXX XXXX in the United States of America. The RPD also confronted him with the fact that documents concerning him, notably his passport, indicated that he was a XXXX XXXX. The appellant explained at that time that he was not a XXXX XXXX but rather a XXXX XXXX who worked XXXX XXXX XXXX XXXX XXXX XXXX. He also explained that his identity card originally indicated that his occupation was a XXXX XXXX, but they had to change it to XXXX XXXX in the passport so they could travel to the United States of America.28 [23] In its decision, the RPD found that regardless of the position he held within his ministry, on a balance of probabilities, the appellant was a XXXX XXXX. The RPD also found that the fact that the appellant had attempted to mislead it on this point had undermined his credibility.29 [24] Based on my own analysis of the record, the RPD did not err in that regard. It should be noted that documents issued by foreign authorities are presumed to be authentic.30 According to the passport on which the appellant travelled from Sudan to the United States of America, his occupation is XXXX XXXX.31 In my opinion, the appellant's explanations contradicting this document, along with multiple other documents in which he is identified as a XXXX XXXX XXXX, are unacceptable. There is a major contradiction between his testimony and these documents as to the nature of his occupation, and this contradiction seriously affects his credibility. - Failure to return to Sudan upon completing work in the United States of America [25] In his memorandum, the appellant argued that his current fear is based on the fact that he deserted the mission for which he travelled to the United States of America and feared being interrogated and arrested upon returning to Sudan. He further argued that the RPD erred in rejecting the disciplinary proceeding and notice confirming his sentence to six months in prison, a fine and removal when he had provided a reasonable explanation for the lack of a certified copy of this document. Finally, he argues that the RPD did not have grounds to reject this evidence even if it was a copy.32 [26] With respect, I find these arguments to be unfounded. [27] In its decision, the RPD noted that the appellant had failed to show that he had made any effort whatsoever to get an original copy of this decision or sought information as to the possibility of appealing this decision. It further noted that it would have expected the appellant to attempt to get a certified copy of the original decision. Lastly, it found that the appellant had failed to establish through credible and trustworthy evidence that he had been sentenced to imprisonment in his country, and it did not give any weight to this document.33 [28] At the hearing, the RPD asked the appellant how he had obtained this document.34 He replied that one of his friends had sent it to him and had found the document after speaking to an acquaintance in the XXXX XXXX XXXX and requesting a copy of it from that person. The RPD also asked him if, in deciding to leave, to flee, he knew that he could be penalized. The appellant responded at first that he did not before stating later that he did know.35 [29] Subrule 42(1) of the RPD Rules provides that where a copy of a document has been provided by a party, the original document must be provided without delay, on the written request of the Division, or no later than at the beginning of the proceeding at which the document will be used.36 [30] Based on my own analysis of the record, the appellant did not make an effort to get a certified copy of this document. That being said, it is understandable that it may have been risky to attempt to obtain a certified copy of the document. Regardless, he also made no effort to get an affidavit from the friend who managed to get a copy of this document. Failing to file supporting documentation that it is reasonable to expect may have an impact on a refugee protection claimant's credibility.37 It is clear from rule 11 of the RPD Rules that a refugee protection claimant has a duty to provide documents and other elements in support of the claim. I find that this is clearly a situation in which it was reasonable to expect the appellant to make an effort to get an affidavit from his friend, who could have corroborated that he did get the document in question by requesting it from one of his own friends working at the civil registry.38 He failed to do so, and this failure affects the credibility of his statements in this regard. [31] I find that I am entitled to therefore conclude that there is a credibility issue, without giving the appellant the opportunity to explain himself, given that his credibility does not constitute a new issue in this appeal.39 [32] As for the authenticity of this document, it should be noted that documents issued by a foreign government authority that appear genuine on their face are presumed to be authentic, but that this presumption may be rebutted if there are valid reasons to doubt their authenticity.40 [33] In my opinion, there were valid reasons for doubting the authenticity of this document. As I explained above, not only was no original copy of this document produced before the RPD, the appellant also failed to make any effort to get an affidavit from the friend who allegedly obtained the document in question on his behalf. In its decision, the RPD explained why the very content of this document led it to give the document no probative value, notably the fact that neither the names of witnesses nor the nature of their testimony had been indicated.41 [34] What is certain is that, according to case law, a decision maker may draw a conclusion concerning the weight to give to a document after assessing the document's credibility or probative value, or both.42 It is open to the RPD not to give evidentiary weight to assessments or reports based on underlying evidence found not to be credible.43 Finally, evidence is not assessed in isolation from the overall claim for refugee protection. Where an applicant's personal testimony is not credible, it is reasonable for the RPD to have credibility concerns with the supporting documentary evidence, and the RPD may opt to accord it minimal weight.44 Based on my own analysis, the RPD did not err in not according probative value to this document. CONCLUSION [35] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX XXXX is neither a refugee under section 96 nor a person in need of protection under section 97 of the IRPA. [36] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette September 26, 2019 Date IRB translation Original language: French 1 The documents in question are reproduced at pages 129 to 155 of the RPD record. 2 Basis of Claim Form (BOC Form), original version, pages 29 to 45 of the RPD record, and updated BOC Form, pages 25 to 28 of the RPD record. 3 RPD Reasons and Decision, October 24, 2018, English version, pages 3 to 11, and French version, pages 12 to 22 of the RPD record. 4 Appellant's memorandum, undated, pages 1 to 9 of the appeal record. 5 Application received on September 16, 2019, for a document from the XXXX XXXX in Washington to be admitted as evidence, page 1. 6 RAD Rules, SOR/2012-257. 7 Affidavit accompanying Application received on September 16, 2019, page 2. 8 Translation of document accompanying Application, pages 3 and 4. 9 This document, filed as P-9, is reproduced at pages 153, 154 and 155 of the RPD record. 10 Magonza v. Canada (Minister of Citizenship and Immigration), No. IMM-1506-18, Grammond, January 7, 2019; 2019 FC 14, paragraphs 27 to 31. 11 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. Rozas del Solar v. Canada (Minister of Citizenship and Immigration), No. IMM-2645-17, Diner, November 14, 2018; 2018 FC 1145. 12 Canada (Minister of Public Safety and Emergency Preparedness) v. Gebrewold, No. IMM-4058-17, LeBlanc, April 6, 2018; 2018 FC 374, paragraph 25. 13 Recording of hearing held on September 18, 2018, 00:01 to 02:18:11. 14 Lopez v. Canada (Minister of Citizenship and Immigration), No. IMM-1755-13, Kane, January 29, 2014; 2014 FC 102, paragraphs 35, 36 and 37. Ortiz Garzon v. Canada (Minister of Citizenship and Immigration), No. IMM-925-10, O'Keefe, March 11, 2011; 2011 FC 299, paragraphs 28, 29 and 30. Mesidor v. Canada (Minister of Citizenship and Immigration), No. IMM-2233-09, Shore, December 4, 2009; 2009 FC 1245, paragraph 11. 15 James C. Hathaway and Michelle Foster, The Law of Refugee Status. Second Edition, Cambridge, Cambridge University Press, 2014, 693 pages, page 98. 16 Appellant's memorandum, pages 8 and 9 of the appeal record. 17 Recording of hearing, 38:00 to 43:00. 18 Ibid., 53:30 to 58:00. 19 RPD Reasons and Decision, paragraph 18, page 20 of the RPD record. 20 This document is reproduced at pages 62 to 74 of the RPD record. 21 This document is reproduced at pages 151 and 152 of the RPD record. 22 Rivera v. Canada (Minister of Citizenship and Immigration), No. IMM-5826-02, Beaudry, November 5, 2003; 2003 FC 1292, paragraphs 29 and 30. 23 El-Khatib v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-15, LeBlanc, April 27, 2016; 2016 FC 471, paragraph 12. 24 Dowansingh v. Canada (Minister of Citizenship and Immigration), No. IMM-6581-14, Diner, July 30, 2015; 2015 FC 933, paragraph 18. 25 Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, paragraph 21. 26 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, paragraphs 22 and 27. 27 Appellant's memorandum, page 5 of the appeal record. 28 Recording of hearing, 30:00 to 40:00. 29 RPD Reasons and Decision, paragraphs 12 and 13, pages 16 and 17 of the RPD record. 30 Elhassan v. Canada (Minister of Citizenship and Immigration), No. IMM-9787-12, de Montigny, December 12, 2013; 2013 FC 1247, paragraph 21. 31 This document is reproduced at pages 62 to 74 of the RPD record. 32 Appellant's memorandum, pages 6, 7 and 8 of the appeal record. 33 RPD Reasons and Decision, paragraph 20, page 21 of the RPD record. 34 This document is reproduced at pages 153, 154 and 155 of the RPD record. 35 Recording of hearing, 01:49:30 to 01:54:00. 36 RPD Rules, SOR/2012-256. 37 Mercado v. Canada (Minister of Citizenship and Immigration), No. IMM-4493-09, Gauthier, March 12, 2010; 2010 FC 289, paragraph 32. Kallab v. Canada (Minister of Citizenship and Immigration), No. IMM-5130-17, Annis, May 16, 2019; 2019 FC 706, paragraph 150. 38 With respect to the question of knowing when refugee protection claimants can be asked to provide documents corroborating their claims, a detailed analysis is provided in Luo v. Canada (Minister of Citizenship and Immigration), No. IMM-5059-18, Strickland, June 17, 2019; 2019 FC 823, paragraphs 18 to 22. 39 Corvil v. Canada (Minister of Citizenship and Immigration), No. IMM-4055-18, LeBlanc, March 12, 2019; 2019 FC 300, paragraphs 13, 14 and 15. Marin v. Canada (Minister of Citizenship and Immigration), No. IMM-3821-17, Mosley, March 2, 2018; 2018 FC 243, paragraphs 36, 37 and 38. Adoye v. Canada (Minister of Citizenship and Immigration), No. IMM-3058-17, Favel, March 5, 2018; 2018 FC 243, paragraphs 11 to 15. 40 Elhassan, supra endnote 30. 41 RPD Reasons and Decision, paragraph 20, page 21 of the RPD record. 42 Magonza, supra endnote 10. 43 Lawani, supra endnote 25, paragraph 24. 44 Ogaulu v. Canada (Minister of Citizenship and Immigration), No. IMM-3862-18, McDonald, April 30, 2019; 2019 FC 547, paragraph 26. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB8-26237 11 RAD.25.02 (2014.09.11) Disponible en français