TB8-08344

RAD File / Dossier de la SAR : TB8-08344 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 18, 2019 Date de la décision Panel E. Bobkin Tribunal Counsel for the person who is the subject of the appeal Mohamed Mahdi 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] For the following reasons, I am allowing the appeal brought by XXXX XXXX XXXX XXXX (the Appellant), a citizen of Sudan. I find that the Appellant has established that he is a person in need of protection, pursuant to section 97 of the Immigration and Refugee Protection Act (IRPA), based on new evidence not available to the RPD. Therefore, I am substituting a decision that the Appellant is a person in need of protection. [2] The Appellant alleges that he is targeted by Sudanese Security Forces due to his perceived political opinion. He alleges that he was involved with a charity in Sudan that supported people in Darfur, and when he returned to Sudan, he was targeted for this work. The RPD found these allegations were not credible. The RPD found that the Appellant's allegation that he worked for the charity lacked credibility because of issues with the name of the charity, dates he was involved and what it did, along with the letter from the charity. The RPD also found that the Appellant's detention and continued monitoring by the National Intelligence and Security Service (NISS) lacked credibility. [3] The Appellant alleges that the RPD erred. He alleges that there was an interpretation issue with regard to his charity's name. He alleges that the RPD erred in finding the arrest and monitoring were not credible. The Appellant also submits new evidence, which he argues establishes his risk. While I do not accept all of the Appellant's arguments, I find that the new evidence establishes a risk for the Appellant in Sudan. Therefore, I am granting his appeal. NEW EVIDENCE [4] The Appellant submitted a number of new documents on appeal. These include a letter from his father, medical documents about his father, a letter from his sister-in-law and a letter from his neighbour. I have determined that these documents are admissible but do not meet the test for an oral hearing. [5] I can only admit new evidence if the Appellants show that it meets certain criteria. Specifically, it must meet one of three legal tests. First, it is admissible if it post-dates the rejection of the Appellants' claim. Second, it is admissible if the evidence was not reasonably available when the claim was rejected. Third, it is admissible if the Appellant could not reasonably have been expected to provide the evidence at the time of the rejection of his claim. If one of these conditions is met, then the Appellant must also show the evidence is credible, relevant and new for it to be admitted. If any new evidence is admitted, then I can consider whether to hold an oral hearing. [6] In this case, all of the evidence relates to events which post-date the RPD's decision. The documents all relate to an allegation that, on XXXX XXXX, 2018, the Appellant's brother returned to Sudan to help his father with surgery and medical care and that, on XXXX XXXX, 2018, the brother was arrested by security forces looking for the Appellant. The RPD's decision was dated February 6, 2018. Therefore, the documents post-date the decision. For these reasons, they are also new. [7] I find the documents to be relevant because they relate to whether the Appellant is wanted by security forces in Sudan, which is a core allegation of his refugee claim. I find the documents to be credible as, although they are not affidavits, they are letters which are accompanied by identity documents. There are no credibility concerns on the face of the documents. Therefore, they meet the requirements for admission. [8] I am not holding a hearing because I find that the documents do not raise a credibility issue with regard to the Appellant. The documents all deal with events which allegedly occurred after the Appellant left Sudan. Therefore, they do not raise issues with his credibility. I cannot hold a hearing as the test is not met. SCOPE OF THE APPEAL [9] Generally, the RAD reviews the RPD on a standard of correctness after conducting an independent assessment of the evidence. If the RAD finds that the RPD had a meaningful advantage on assessing the credibility of oral evidence then the RAD may defer to the RPD. I do not find that deference is owed in this case. Therefore, I am applying the standard of review of correctness. ANALYSIS [10] The Appellant has made a number of arguments that the RPD erred in its decision. I generally find these not to be persuasive. However, the arguments are not determinative, as the Appellant has brought new evidence which was not before the RPD. In my view, this evidence is sufficient to establish that the Appellant faces a personal risk to his life or a personal risk of torture, and therefore he is a person in need of protection. [11] The Appellant alleges that, after he left Sudan and after his RPD's decision was rendered, his brother was arrested by security forces because of his relationship to the Appellant. He has provided a letter from his father, a letter from his sister-in-law and a letter from his neighbour, all confirming this allegation.1 I find this evidence to be credible for several reasons. [12] First, the documents are internally inconsistent. They all speak of the same events unfolding in the same way. Second, they come from three different sources. The Appellant's father may not be the most credible witness due to issues with his documents he provided at the RPD, but I have no such concerns with the Appellant's sister-in-law or his neighbour. Third, I find the neighbour's letter to be particularly credible, as he is an objective third party. Additionally, his letter does not attempt to overstate what was seen. He simply explains that he did not know who was detaining the Appellant's brother or why, but he observed someone "pulling my neighbour's son by the back of his head, putting him in the car and leaving."2 I find this to be quite candid. Fourth, the sister-in-law's letter gives details, including that their passports were taken and that her husband is diabetic, and therefore she worries about his health in detention.3 The letter confirms that the security forces were looking for the Appellant when they arrested his brother. I find these details credible. Finally, the documents are accompanied by government issued ID, and I find this lends credibility to the evidence. Therefore, I accept, on a balance of probabilities, that the Appellant's brother was arrested by security forces looking for the Appellant. [13] I considered whether this establishes that the Appellant has a nexus to the Convention, and I find it does not, as there is no evidence as to why the security forces are looking for the Appellant. Additionally, the RPD determined that the Appellant had not credibly established the facts that led to his imputed political opinion. I considered whether this was determinative, but I find it is not. This is because I find that the new evidence shows that the Appellant is personally being targeted by agents of the Sudanese state. Given the evidence about treatment of Sudanese detainees, I find this exposes the Appellant to a personal risk to his life or risk of torture, on a balance of probabilities. [14] The documents in the National Documentation Package (NDP) establish that the Sudanese State uses measures such as excessive force in arrest, disappearance, torture and killing against individuals that it targets.4 This clearly amounts a risk to life or a risk of torture, on a balance of probabilities. Therefore, given that I accept the state is seeking to arrest the Appellant, regardless of the reason, I find that he has established a risk under section 97. Finally, given that the agents of persecution in this case are part of the state apparatus, there can be no adequate state protection and no viable internal flight alternative for the Appellant. For these reasons, I find the Appellant is a person in need of protection. CONCLUSION [15] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes that decision with its own determination that the Appellant is a person in need of protection. (signed) "E. Bobkin" E. Bobkin December 18, 2019 Date 1 Exhibit P-2, Appellant's Record, at pp. 147-163. 2 Exhibit P-2, Appellant's Record, at p. 161. 3 Exhibit P-2, Appellant's Record, at p. 156. 4 NDP for Sudan (March 29, 2019), item 2.1, United States Department of State, Sudan: Country Reports on Human Rights Practices for 2018, March 13, 2019; and item 4.18, United Kingdom, Home Office, Country Policy and Information Note, Sudan: Opposition to the government, including sur place activity, November 2018. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-08344 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français