MB8-14240

RAD File No. / No de dossier de la SAR : MB8-14240 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 April 19, 2021 Date de la décision Panel Me Michel Colin Tribunal Counsel for the person who is the subject of the appeal Jessica Lipes 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 (the appellant) is a citizen of Sudan. [2] In his Basis of Claim (BOC Form), he alleges that, after becoming a XXXX XXXX in Kadugli, he had a dispute with one of his superiors, which led to his transfer in 2009 to Khartoum, where security forces tortured him and accused him of being part of the rebel forces. Following his hospitalization to treat his injuries, he returned to his position, but was transferred to the XXXX XXXX shortly afterwards. In 2016, he paid a bribe that enabled him to work on an official mission at the Embassy of Sudan in Washington. At the end of his posting in May 2017, he failed to return to his country as did other colleagues. The authorities have been looking for him ever since. [3] The Refugee Protection Division (RPD) rejected his refugee protection claim, concluding that he failed to establish that he had indeed worked for the XXXX XXXX either in Washington or in his country. Consequently, the panel did not believe that the claimant will be targeted or persecuted for these reasons. As for his ethnicity, it found the evidence insufficient to conclude that the claimant was persecuted because of it or that he will be in the future. More specifically, the RPD noted inconsistencies between the appellant's testimony and BOC Form and the documents submitted in evidence concerning the fact that he was a XXXX XXXX or held other positions or titles as well as the dates of his transfers and the reasons for them. It considered insufficient the medical evidence filed in evidence under P-9 to establish that he had been tortured and did not find it credible that he had travelled to Washington for work without his work identity card, which states his job and title. It found it implausible, even in a context of corruption in Sudan, that the authorities kept him on the XXXX XXXX and at the XXXX XXXX and then allowed him to go work as a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Washington, when he claims to have been beaten, detained and suspected of being part of the Nubian rebellion in 2009, especially as he was unable to provide a spontaneous and consistent explanation of his duties. Consequently, his allegation that he has been sought since May 2017 for abandoning the mission is not credible. He did not establish that he was involved in political activities or that he would be persecuted if he were to return to his country merely because of his ethnicity or the simple fact that he claimed refugee protection in Canada. The RPD also considered that the documents submitted into evidence had no probative value due to multiple inconsistencies, which includes the certificate of appreciation filed in evidence under P-8, because it does not match the form used by the same authorities during the same period in other similar cases and the summons, filed in evidence under P-5, because the appellant was unable to establish that he was a XXXX XXXX in Sudan. As for his official passport, which by its very nature confirms that the appellant travelled on official business for the state, the RPD noted that the appellant could have obtained it irregularly because he had already paid bribes to join the mission in Washington. [4] Before the Refugee Appeal Division (RAD), the appellant submits that he did not bring his work identity card to Washington because it was of no use to him outside Sudan, especially since it was left behind at the XXXX XXXX and he no longer has access to it. He points out that documentary evidence is not always necessary to corroborate credible testimony and that he was neither generic nor vague in his statements about his work. He specifies that the XXXX XXXX is under the control of the national police directorate and that he had the title of XXXX XXXX, but never carried out the duties of a XXXX XXXX. With regard to the medical document filed under P-9, he submits that the RPD imposed an excessive burden of proof because such a document cannot, in a Sudanese context, contain information on arrest or torture as the cause of injuries. Furthermore, according to the Federal Court, documentary evidence should be considered for what it states and not what it does not. The appellant submits that the RPD erred in considering it implausible that the authorities kept him on the XXXX XXXX XXXX XXXX XXXX XXXX XXXX and then allowed him to go work as a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Washington. It cited the case law in that regard, which states that this type of conclusion is acceptable only in the clearest of cases, and stated that, in his case, his conflict with the captain was insufficient to believe he was no longer loyal. It is because he had bribed the person responsible for selecting candidates for the Sudanese mission to Washington that he obtained this post, and he notes that the documentary evidence demonstrates the troubling level of corruption that makes seemingly implausible acts possible. The appellant claims that he could not provide more details about his work because it was straightforward, routine and repetitive. He could not provide details on duties as a XXXX XXXX because he never performed such duties. The alleged contradiction regarding the duties of the signatory of the embassy letter (P-8) stems from a translation error that was confirmed by the interpreter at the hearing, which the RPD disregarded. The RPD wrongly insinuated that the appellant's passport could have been obtained irregularly because the appellant had already paid bribes to join the mission in Washington. The case law states that a document issued by a foreign country is presumed authentic. The RPD expressed reservations as to the manner in which the passport had presumably been obtained, but considered it sufficient to confirm his identity. The RPD erred in refusing to admit the video showing a reception attended by the appellant and his colleagues at the XXXX XXXX XXXX in Washington upon their arrival in XXXX 2016. The appellant points out that one of his colleagues from the embassy was recognized as a refugee by the RAD and that the documentary evidence refers to cases similar to his in Belgium. His situation is all the more serious when considering the injustices faced by Nubians in Sudan. The appellant filed new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and requested an oral hearing before the RAD under subsection 110(6) of this Act. [5] The previously constituted RAD dismissed the appeal on October 3, 2019. However, during the judicial review of this decision, the Federal Court considered that the RAD had not properly applied subrule 29(4) of the Refugee Appeal Division Rules (RAD Rules) because it did not take into account the probative value of the letter dated May 2, 2017, which, at first glance and despite a discrepancy in title, clearly identifies the appellant as one of the employees of the Embassy of Sudan in Washington who failed to return to his country at the end of his posting. The Court therefore referred the matter to a newly constituted RAD, hence this decision. [6] The determinative issue for the RAD is now whether the appellant established that he is a sur place refugee. [7] I admit the new evidence in part and deny the request for an oral hearing before the RAD. In my opinion, the RPD erred in concluding that the appellant failed to establish that he had worked XXXX XXXX XXXX XXXX XXXX in Washington given that documents issued by a foreign country are presumed to be authentic. The evidence regarding the fact that the appellant has been sought by the authorities since failing to return to his country at the end of his posting is not contradicted. That is sufficient to establish that there is more than a mere possibility that the appellant would be incarcerated as a result of this, at least in part due to the resulting political opinion against the state. Prison conditions in Sudan are severe enough to amount to persecution. The appellant established that he is a sur place refugee, that he would have no state protection and that there is no internal flight alternative available to him. DETERMINATION [8] The appeal is allowed. I substitute the RPD's determination with my own determination that the appellant is a Convention refugee. NEW EVIDENCE AND REQUEST FOR ORAL HEARING Some new evidence submitted by the appellant is admitted, but the oral hearing request is denied. [9] Under the IRPA,1 I can only allow evidence: i. that arose after the RPD rendered its decision; ii. that was not reasonably available at the time of the decision; or iii. that the person could not reasonably have been expected in the circumstances to have presented before the decision was made. [10] If the evidence meets one or more of these requirements, I must decide whether or not the evidence is new, credible and relevant before admitting it.2 [11] The appellant submitted the following documents with his memorandum for consideration as new evidence before the RAD: * Documents A: An affidavit from another refugee protection claimant (XXXX XXXX XXXX) dated July 23, 2018, whose claim was allowed and who confirms that the appellant was indeed XXXX XXXX XXXX XXXX XXXX XXXX, as well as a copy of his own certificate of appreciation, which is undated, but was likely issued in May 2017 based on its content and the affidavit. * Document B: A second certificate of appreciation issued in the appellant's name by the XXXX XXXX XXXX in Washington, which is undated, but was likely issued in May 2017 based on its content and the affidavit. [12] With regard to Documents A: The affidavit from one of the appellant's former colleagues at the embassy is dated July 23, 2018. His own certificate of appreciation, which is attached, likely dates back to early May 2017. They recount events that occurred before the RPD decision. The appellant explains that these documents were not reasonably available at the time of the decision because the affiant was afraid of signing such a statement before his own refugee protection claim received a favourable decision. [13] I agree with the appellant that this document was not reasonably available at the time of the decision and that this is new evidence. The affidavit is credible on its face because it is a sworn statement and the certificate of appreciation accompanying it is as well because the text appears on the letterhead of the XXXX XXXX XXXX in Washington, is signed and bears its stamp. In my opinion, these documents contain relevant facts to be considered in assessing the credibility of the testimony on the determinative issue. They support the allegation that the appellant worked at the XXXX XXXX XXXX in Washington and that he failed to return to his country, just like some of his other colleagues at the end of their posting, the very foundation of the claim to be recognized as a sur place refugee. These documents are therefore admitted. [14] Document B, the second certificate of appreciation issued to the appellant by the XXXX XXXX XXXX in Washington, predates the RPD decision. However, the appellant explains that he had put it inside a suitcase shipped to his wife. This suitcase took a long time to reach his family, and it was not until the end of June 2018 that his wife confirmed that she had received it. [15] I agree with the appellant that this document was not reasonably available at the time of the decision, and I have no reason to doubt its credibility and relevance. However, the appellant provides no explanation as to what makes the evidence new. On the contrary, he mentions multiple times in his memorandum that this document states the same thing as the certificate of appreciation filed before the RPD, the only difference being that one is a diploma meant to be framed and the other is a letter. Since the content brings no new evidence, this document is inadmissible. [16] Since perfecting his record, the appellant has asked the RAD to admit the following documents into evidence: * Documents C: A telephone message on September 1, 2019, from a former colleague who worked with the appellant at XXXX XXXX XXXX XXXX in Washington (XXXX XXXX) and a letter dated May 2, 2017, from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX recommending to the director general of the passport and immigration department that an investigation be opened into the employees who failed to return from the mission on May 1, 2017, including the appellant. [17] Pursuant to subrule 29(4) of the RAD Rules, consideration must first be given to the relevance and probative value of the submitted documents in bringing new evidence to the appeal and whether the appellants, with reasonable effort, could have provided them with the appeal record. [18] It is my view that these documents contain relevant facts to be considered in assessing the credibility of the testimony on the determinative issue, that is, whether the appellant established that he is a sur place refugee. As stated by the Federal Court, at first glance and despite a discrepancy in title, this letter dated May 2, 2017, clearly identifies the appellant as one of the XXXX XXXX XXXX XXXX XXXX XXXX in Washington who failed to return to his country at the end of his posting. This letter therefore has probative value. In my opinion, these documents bring new evidence to the appeal in that they independently confirm that the authorities are concerned about the appellant's failure to return to his country as required by the state and plan to investigate accordingly. The appellant could not have provided them as part of the appeal record because he only found out about them on September 1, 2019. [19] The evidence it contains dates back to May 2, 2017, but was not reasonably available at the time of the decision because the appellant only found out about them on September 1, 2019. [20] The evidence is new and relevant, as I already mentioned, in that it independently confirms that the authorities are concerned about the appellant's failure to return to his country as required and plan to investigate accordingly. It is credible at first glance because the text appears on the letterhead of the XXXX XXXX XXXX in Washington, is signed and bears its stamp. I therefore admit Documents C into evidence. [21] In my opinion, the documents admitted into evidence do not meet the criteria set out in subsection 110(6) of the IRPA, particularly because they are not central to the decision with respect to the refugee protection claim. I therefore deny the request for an oral hearing. ANALYSIS [22] My role is to examine all of the evidence and determine whether the RPD's determination is correct.3 The Refugee Protection Division erred in concluding that the appellant failed to establish that he had worked at the XXXX XXXX XXXX in Washington. [23] The appellant argues that the RPD wrongly insinuated that the appellant's passport could have been obtained irregularly because the appellant had already paid bribes to join the mission in Washington. The case law states that a document issued by a foreign country is presumed authentic. He points out that the RPD expressed reservations as to the manner in which the passport had presumably been obtained, but nevertheless considered it sufficient to confirm his identity. [24] I agree with the appellant in this regard. In addition, the documents regarding the U.S. visa state that he was on an official mission, and the certificate of appreciation that was filed in evidence indicates that he was with the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Washington. As correctly pointed out by the appellant, the RPD also erred in not considering the explanation provided at the hearing that the fact that the signatory of the letter filed under P-8 appears as [translation] "consul" and not [translation] "ambassador" was a translation error, as confirmed by the Board-certified interpreter at the hearing. In light of evidence of such quality and from multiple sources, I am of the opinion that the explanation that the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX is satisfactory to explain the inconsistencies between the documents identifying him as a XXXX XXXX in some instances and as a XXXX XXXX XXXX XXXX XXXX XXXXin others, both being essentially true. As pointed out by the Federal Court, the letter dated May 2, 2017, despite a discrepancy in title, clearly identifies the appellant as one of the XXXX XXXX XXXX XXXX XXXX XXXX in Washington who failed to return to his country at the end of his posting. [25] Although the RPD rightly concluded, in my opinion, that there were inconsistencies in the alleged career path before this posting, the fact remains that all of these documents from official and independent sources confirm that he worked at the XXXX XXXX XXXX in Washington and that he did not return to his country at the end of his mission. The discrepancies, such as his title, are insufficient, in my opinion, to cast doubt on an official passport and the U.S. visa. The evidence regarding the fact that the appellant has been sought by the authorities since failing to return to his country at the end of his posting is not contradicted. That is sufficient to establish that there is more than a mere possibility that the appellant would be incarcerated as a result of this, at least in part due to the resulting political opinion against the state. [26] The appellant testified that, on May 6, 2017, his wife was contacted in Sudan by someone from the passport administration to find out whether the appellant intended to return to the country. Then, on July 2, 2017, a summons was sent to his home in Sudan requesting that he report to a police colonel within one month. In addition, Belgian authorities had investigated the incarceration of Sudanese nationals upon their return to Sudan. Lastly, the new evidence reveals a recommendation to open an investigation into the matter. [27] All this evidence is essentially uncontradicted. I am therefore of the opinion that the appellant established, on a balance of probabilities, that he is sought by the authorities. That is sufficient, in my opinion, in such circumstances to establish that the appellant runs more than a mere possibility of being incarcerated if he were to return to his country today and facing treatment to which detainees are subjected in his country. Although there are many reasons for which he could be incarcerated, it seems obvious to me that these might include the imputed political opinion of embassy officials who embarrass the Sudanese state by failing to return to their country at the end of their posting, for which a diplomatic or official visa was issued. [28] In my view, it is useful to clarify that, even if the official passport was established to have been obtained irregularly, which is not the case, this would not have prevented the authorities from wanting to go after the appellant for the international embarrassment he had caused them by refusing to return to Sudan. Prison conditions in Sudan are severe enough to amount to persecution. [29] Under Tab 2.14 of the National Documentation Package on Sudan, the U.S. Department of State indicates that the prison conditions in Sudan are harsh and even life-threatening for prisoners. Health and sanitation conditions are often inadequate. Incidents of torture and rape are committed by guards. In my opinion, this evidence establishes that the prison conditions in Sudan are harsh enough to amount to a serious possibility of persecution. The appellant is a sur place refugee. [30] For all of these reasons, I find that the appellant is credible with respect to his allegations that he has been sought by the authorities since failing to return to his country at the end of his posting at the XXXX XXXX XXXX in Washington. I conclude that he established that he faces more than a mere possibility of persecution by reason of the political opinion that would be imputed to him if he were to return to Sudan today. He is a sur place refugee. I therefore do not have to examine whether the appellant's other allegations are founded. State protection and internal flight alternative [31] Considering that the appellant fears the authorities in his country and that they have control over ports of entry and the entire territory, it is my view that he has demonstrated, through clear and convincing evidence, that he would be unable to obtain state protection and that he would be at risk of imprisonment and persecution anywhere he went and lived openly in his country. CONCLUSION [32] The appeal is allowed. I substitute the RPD's determination with my own determination that the appellant is a Convention refugee. (signed) Michel Colin Me Michel Colin April 19, 2021 Date IRB translation Original language: French 1 Subs. 110(4) of the Immigration and Refugee Protection Act. 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FC 385. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 National Documentation Package on Sudan, March 31, 2021, Tab 2.1: ?Sudan. Country Reports on Human Rights Practices for 2019. United States. Department of State, March 11, 2020. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB814240 RAD.25.02 (January 2020) Disponible en français 11 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