TB5-03664

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 : TB5-03664 Private Proceeding / Huis clos Redetermination of the Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX(A.K.A. XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 25, 2015 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Alyssa J. Manning Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of Egypt, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has submitted new evidence in support of his claim and he has requested an oral hearing. The Appellant further requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and substitute a decision that he is a Convention refugee or a person in need of protection. Alternatively, the Appellant requests that the matter be returned to the RPD for reconsideration by a differently-constituted panel. The Appellant further requests that should the RAD feel that there are credibility concerns not identified by the RPD, there should be an oral hearing or notice of new issues so that the Appellant has an opportunity to respond to the issues raised. Determination [2] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its decision that the Appellant is a Convention refugee. The appeal is allowed. Background [3] The Appellant alleged in his Basis of Claim (BOC) form that he did not finish high school and worked for a small business. He further alleged he is not a religious or political activist, but his house is adjacent to a large mosque and he prayed there. He alleged as well that members of the XXXX XXXX frequently attended the mosque before the election of Mohamed Morsi. After Morsi was removed from power, members of the XXXX XXXX asked people to demonstrate against the government. [4] The police raided the mosque in XXXX 2014, arrested many people, and XXXX of the Appellant's friends were killed in a clash associated with the raid. As the Appellant was escaping, a security officer tried to grab him. He pushed the officer away and escaped. The next day, security officers came to the Appellant's home and accused him of membership in the XXXX XXXX. The Appellant's family contacted him at work and told him not to come home. He went to a friend's home and stayed there for 15-20 days. He then moved to an uncle's home. Security officers returned to the Appellant's home. His brother arranged for a passport and visa and his safe exit from Cairo airport on XXXX XXXX, 2014. The security forces continue to look for him. The issues [5] The panel indicated the determinative issues in this claim are: credibility; whether the Appellant has a well-found fear of persecution based on perceived political opinion; and whether the Appellant would, more likely than not, be subjected personally to a risk to his life or a risk of cruel and unusual treatment or punishment if he were to return to Egypt. [6] The Appellant submits the issues in this appeal are: whether the panel erred by placing little weight on the documentary evidence based on findings; and whether the panel erred by making a number of credibility findings that are not supported by the evidence. Role of the RAD [7] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [8] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [9] In this regard, the Court in Huruglica considered the appropriate relationship between the RAD and the RPD.1 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [10] The Court determined that, in conducting its assessment, the RAD can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error". [11] The RAD will review all of the evidence in the RPD's record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Admissibility of evidence presented on appeal [12] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his/her claim, or that was not reasonably available, or that he/she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection of the claim. [13] The Appellant submits three documents as new evidence: a google document concerning internet faxing,2 the Appellant's affidavit,3 and a transcript of the hearing.4 [14] The RAD notes the google document clearly indicates that a document may be sent as an internet fax. The RAD further notes the Appellant is responding to the panel's statement in its reasons that internet fax does not exist, and also to the panel's concern regarding how the documentary evidence reached Canada. The RAD finds that this document could not reasonably have been submitted before the RPD's decision, that it is relevant, and it is admitted. [15] The Appellant stated in his affidavit that the panel seemed frustrated with everyone involved, interrupted the Appellant, and, as a result, the Appellant did not feel comfortable in answering the questions. The Appellant further stated the panel often demanded yes or no answers when the question required a longer explanation. The Appellant submits as well that the panel misunderstood much of his evidence and the Appellant feels he did not receive a fair hearing. The RAD finds that the Appellant's concerns could have been noted in the hearing, where he was represented by counsel. The RAD further finds that this document is not new evidence and therefore it is not admitted. [16] The RAD notes that the transcript of the hearing is based on the CD recording, which is part of the RPD's record. The RAD further notes it has reviewed the CD recording. The RAD finds the transcript is clearly not new evidence and it is therefore not admitted. Application for an oral hearing [17] The Appellant asks that an oral hearing be held pursuant to subsection 110(6) of the IRPA. Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. According to subsection 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and if accepted, would justify allowing or rejecting the refugee protection claim. The RAD notes that the only document admitted is the google document concerning the existence of internet fax. The RAD finds as well that this is a matter of fact and not credibility, and no oral hearing is required. The RAD notes that its determination of this case makes an oral hearing unnecessary. The request for an oral hearing is dismissed. Corroborative documentary evidence submitted by the Appellant [18] The panel noted the Appellant asked for an adjournment on the day of his hearing, scheduled for September 18, 2014, in order to have several documents translated from Arabic to English. The Board rejected the request and the hearing began late. The Appellant was asked to provide the translated documents prior to the next sitting and to bring the originals as well at the time of the second sitting. [19] The panel noted the Board did not receive the translated documents prior to the second sitting on October 23, 2014, but the translated documents were provided at the second sitting and the panel took time to read them. The panel further noted that the originals were not disclosed. The Appellant explained that there is no mail coming in or out of Egypt. The panel noted it had no objective evidence that Egypt has no working mail or that there are no courier services from Egypt to Canada. [20] The panel noted as well that the Appellant had five weeks between the two sittings and did not provide translation of the documents prior to the second sitting, or the originals at the last sitting. The panel also noted the Appellant could not provide coherent evidence as to how the corroborating evidence arrived in Canada. The panel put little weight on documents where the originals were not provided. [21] The Appellant provided copies of letters from his uncle, brother, mother, and a friend. The panel noted that the Appellant could not testify with clarity whether the documents were faxed, sent by electronic mail, or when they were sent or who sent them. The panel gave little weight to these documents because the Appellant failed to provide originals. In addition, the panel put little weight on this evidence as the Appellant's own evidence lacked credibility. [22] The Appellant submits that although the RPD Rules require a claimant to submit original documents of copies that have been submitted, the failure to do so does not automatically entitle the panel to assign no weight to the document. The Appellant further submits the panel should enquire why the originals could not be submitted and then assess the explanation. [23] The Appellant notes that in addition to giving little weight to the documents because originals were not provided, the panel also found his explanation was unreasonable or not credible. In this regard, the panel noted in its reasons that the Appellant explained there were no original documents because there is no mail coming in and out of Egypt. The panel rejected this explanation and stated the Appellant could not provide coherent evidence how the corroborating evidence arrived in Canada. The panel further stated the Appellant could not testify with clarity whether the documents were faxed, sent by electronic mail, or when they were sent or who sent them. [24] The Appellant submits that the transcript of the hearing indicates that the panel based its finding on a misapprehension of the evidence. The Appellant cited the questions and answers regarding the documents, and submits he stated that his brother sent the documents by fax and the originals were not sent because his brother was afraid of the government, and because the mail system in Egypt is monitored by the government. The panel asked why he could not courier the documents. The Appellant responded that he asked his brother about this and his brother said he can send the documents by fax. [25] The Appellant acknowledges there was some confusion because the documents were not translated at the first sitting, but he was clear that the documents were sent by fax to his lawyer and his brother feared using the mail system. [26] The Appellant submits that he stated in the second sitting that the letters were sent through internet fax and the panel responded that internet fax does not exist. [27] The Appellant submits he never testified that there is no mail coming out of Egypt. The Appellant further submits he provided clear evidence of how the documents were sent to Canada. In addition, the Appellant notes a simple Google search for "internet fax" reveals that there is such a thing as internet fax. [28] The Appellant submits the panel's conclusions noted above are based on an erroneous finding of fact, which led the panel to draw erroneous negative credibility inferences as to the documentary evidence. [29] The Appellant further submits it is unfair to criticize him for his failure to produce original documents when they are not in his possession and the person who holds the documents refuses to send them. The Appellant reiterates that the panel misunderstood the evidence in this regard as he did not state that there is no mail coming out of Egypt. [30] The Appellant submits that if the panel correctly understood the evidence, it may have found his reasons for not providing original documents to be reasonable. The Appellant further submits that in this context the panel may not have made negative credibility findings about his explanation and this would have affected the weight given to the documents. [31] The RAD has reviewed all of the evidence in the RPD's record concerning the Appellant's documentary evidence. The RAD has reviewed, in particular, the CD recording of the hearing. [32] In regard to the Appellant's testimony concerning the source of the documentary evidence, the method of transmission to Canada, and the reason for the Appellant's failure to provide original documents, on the basis of its review of the CD recording, the RAD agrees with the Appellant. [33] The RAD finds there is no evidence that the Appellant stated there is no mail service in and out of Egypt. The RAD further finds that while the Appellant's testimony was sometimes convoluted, he clearly stated that his brother sent these documents to the Appellant's lawyer by fax. The RAD finds as well, the Appellant clearly stated his brother did not mail the original documents because the Egyptian government monitors the mail system. The Appellant further stated that he asked his brother if the original documents could be couriered and his brother said he can do it by fax. [34] In regard to internet fax, the RAD has admitted as new evidence a google document confirming that there is such a service, which the Appellant's brother apparently used. [35] The RAD finds the panel's conclusions were based on a misapprehension of the facts, and therefore the panel's negative credibility findings in this regard are not supported by a sufficient evidentiary basis. [36] The RAD notes the panel gave the documents little weight on the basis of its credibility findings and also because no original documents were disclosed. As to the former, the RAD has indicated above that the panel's credibility findings were not well-founded. As to the latter, the RAD notes the Appellant provided an explanation as to why the originals could not be disclosed. The RAD finds the explanation is credible and agrees with the Appellant that the panel's finding to grant the documents little weight may have been influenced by its credibility findings. Credibility [37] The panel found there was insufficient credible and trustworthy evidence with regard to pivotal areas of the Appellant's testimony. [38] The panel noted the Appellant alleged he is at risk of persecution if he were to return to Egypt because he is perceived to be a member or supporter of the XXXX XXXX, as he prayed in the village's only mosque where authorities believed members of the XXXX gathered. [39] The panel found that the Appellant did not provide credible evidence that his mosque was raided or that he is perceived to be a XXXX supporter. [40] The panel noted the Appellant's testimony was reticent, and repetition of questions and prompting of answers were required. The panel further noted that the Appellant's evidence was inconsistent between his Port of Entry (POE) statements and his BOC, and during the two sittings of the claim. The panel found the Appellant's testimony was evasive and changing. The panel further found the Appellant was not a credible witness. [41] The Appellant submits that the panel's description of his testimony as not forthcoming and evasive is unreasonable and unfair. The Appellant further submits the panel was frequently aggressive in its questioning, and that the questions were unclear and often changed while the Appellant was answering. The Appellant states that as a result he was confused. The Appellant noted the panel appeared to be frustrated about the proceedings and this negatively affected the hearing. The Appellant also submits the panel clearly misunderstood the evidence he provided. [42] The RAD notes the Appellant sometimes did not answer questions directly, requiring repetition of the question, and there were some problems with the interpreter as well. The RAD agrees with the Appellant that the panel appeared to be frustrated in this regard. The RAD further notes however, that the hearing could be characterized as a frustrating experience. The RAD notes as well there was some confusion because the documents were not translated at the first sitting of the hearing. The RAD finds, in spite of this difficulty, the panel remained calm and professional and there is no evidence that the Appellant did not receive a fair hearing. The passport and visa [43] The panel noted the Appellant was unable to provide a clear answer as to when he applied for a passport. The panel further noted this concerned the timing as to when his subjective fear materialized. The panel stated the Appellant was asked three times about the date his passport was applied for or issued, and his answers were incoherent. The panel noted the passport was issued on XXXX XXXX, 2014. The Appellant explained that his brother obtained the passport for him but he did not respond to a request to clarify the explanation. [44] The panel asked the Appellant how he obtained his Canadian visa while in hiding. He first testified that his brother obtained the visa for him and that he never left his hiding place. When it was noted in the hearing that visa applicants must go to the embassy to provide fingerprints, the Appellant changed his testimony and stated his brother took him to the embassy. The Appellant was asked to explain the inconsistency and he stated his brother took him to the embassy so "he would be considered as not been there himself". The panel noted the explanation lacked any sense or logic and found that the Appellant was not in hiding prior to leaving Egypt. The panel further noted that the Appellant omitted any mention in his BOC that he left his hiding place to attend the embassy. [45] The Appellant submits that given the passport was issued on XXXX XXXX, 2014, and presuming that his brother would have obtained it and given it to him sometime after this date, the Appellant's evidence, as indicated in the transcript of the hearing, that his brother gave him the passport in XXXX or late XXXX, is consistent with the documentary evidence. [46] The Appellant further submits he was consistent as to how he received the Canadian visa. The transcript indicates the Appellant testified his brother took care of the procedures while he was in hiding. In response to the panel's question as to whether the Appellant personally applied for the visa, he responded his brother took him by car for about five minutes, that was the only time and then his brother completed the process. [47] The panel asked if the Appellant went to the embassy to get the visa and he said no. The panel noted the embassy had the Appellant's fingerprints and he had to be there to obtain the visa. The Appellant explained he was taken to the embassy by his brother for five minutes to provide his fingerprints and his brother took care of the rest of the procedure. [48] The Appellant submits the CD recording of the hearing indicates he did not testify that he never left his hiding place and he did not change his testimony when the panel stated that the embassy had his fingerprints. The Appellant further submits he testified that he was taken to the embassy by his brother to provide fingerprints and his brother took care of everything else. [49] The RAD has reviewed the CD recording of the hearing in regard to the passport and visa. The RAD acknowledges the Appellant's testimony was initially confusing but the Appellant clearly stated that his brother took him by car to the embassy in order to give his fingerprints and then he returned to his hiding place. The RAD notes the panel confirmed this testimony in the hearing. [50] The RAD finds that the panel's finding that the Appellant was not in hiding prior to his exit from Egypt is based on a misapprehension of the evidence and lacks sufficient evidentiary support. Exit from Egypt [51] The panel questioned the Appellant regarding how he left Egypt while being wanted by Egyptian security forces. The Appellant was asked when he first went to the Cairo airport and he responded he went only once when he left the country. When asked whether he may have gone to the airport twice, he did not answer. The panel provided evidence that the Appellant had been refused boarding on a flight to Canada on XXXX XXXX, 2014, and the Appellant changed his testimony and indicated he was refused boarding because his documents were not in order. He further testified he found a "contact" through his brother and he went back into hiding at his uncle's friend's home for another 10 days before leaving. [52] The Appellant was asked why he omitted to mention in his BOC that he went into hiding a second time, and he explained he did not think this was important. The panel found that the omission of this evidence regarding how the Appellant was hiding from security authorities and his two trips to the Cairo airport, are central to his claim. The panel drew a negative credibility inference from the omission of this evidence as well as from his evasive and inconsistent testimony with regard to what occurred prior to departing for Canada. [53] The Appellant submits that the transcript of the hearing indicates that the Appellant did not testify that he only went to the airport once. The transcript indicates the panel asked the Appellant if he was ever refused permission to board a plane in Egypt to come to Canada, and he responded yes. The Appellant explained that his documents were not in order. [54] The Appellant submits he testified that he was once denied boarding and he did not change his testimony in this regard. The Appellant notes he was asked if he went to the embassy once and he said yes. The question did not deal with the airport. [55] The Appellant submits the panel's finding that he was inconsistent and evasive in this regard is patently unreasonable. The Appellant noted the panel misstated his evidence and did not accurately recall its own questions. [56] The RAD has reviewed the CD recording of the hearing in this regard and agrees with the Appellant. The RAD notes the Appellant did testify he was initially refused boarding at the Cairo airport because his documents were not in order. The RAD further notes the panel asked the Appellant how many times he went to the embassy, not the airport, and the Appellant responded he went one time. [57] The RAD finds the panel's negative inference on the basis of the Appellant's evasive and inconsistent evidence was founded on a misapprehension of the evidence. The RAD further finds the Appellant's failure to mention, in his BOC, his two trips to the airport is insufficient to draw a negative inference. The POE interview [58] The panel noted the Appellant was asked several times by the panel and his counsel about his POE statements,5 and their inconsistency with his BOC narrative. The panel noted the Appellant was asked several times why he was coming to Canada and whether he was persecuted in Egypt, but he did not mention that he was being pursued by security forces as a member of the XXXX XXXX. Rather, he stated he wanted to live and work in Canada; he is bored in Egypt; Egypt has not given him anything good; he could not come to Canada any other way and he now wants to file a refugee claim. [59] The panel noted the definition of refugee protection was explained to the Appellant several times and he said he understood. He further stated he was not involved in any politics or any religious groups and he left Egypt because of "wrong doing that is there". [60] The Appellant was asked by the panel and his counsel why he did not say that security forces were looking for him or that he feared returning to Egypt. He explained he was afraid if he told Canadian authorities they would have sent him back to Egypt or called the Egyptian embassy. The panel found the Appellant's explanation lacked common sense in that he came to Canada to seek protection and he had indicated to an immigration official that he wished to claim protection. The panel drew a negative inference based on the Appellant's "inconsistent and nonsensical" evidence. [61] The Appellant submits it is reasonable that someone coming to Canada to make a refugee claim may be afraid to disclose the reasons at the Port of Entry. The Appellant notes in this regard that he came without the help of a smuggler to give advice about what is safe to disclose to Canadian authorities. [62] The Appellant cites the Federal Court decision in Lubana6 in which the Court stated that "a person's first story is usually the most genuine and, therefore, the one to be most believed." The Court further stated that "...although the failure to report a fact can be a cause for concern, it should not always be so." The Court cited in this regard James C. Hathaway, The Law of Refugee Status,7 which states that "most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority". [63] The Appellant submits that given the documentary evidence confirming that Egyptian officials frequently commit human rights abuses and the Appellant's own experience with security officials, it is reasonable for him to fear disclosing his reasons for being wanted by Egyptian authorities to Canadian officials. The Appellant further submits the panel's finding that this is "nonsensical" is contrary to the actual experience of many refugees and the jurisprudence. [64] The RAD has reviewed the evidence regarding the Appellant's Port of Entry interview and finds that while it was open to the panel to draw a negative inference regarding the inconsistent nature of the Appellant's stated reasons for making a claim, the Appellant's explanation for doing so is credible. The RAD further finds, in the context of Federal Court jurisprudence noted above, that the Appellant's behaviour in this regard does not undermine the credibility of his subsequent BOC narrative. The RAD notes, in this regard, that the Appellant explained that he received advice after the Port of Entry interview that made him feel more secure in providing details of his experience in Egypt. The RAD further notes the Appellant did not finish high school and he appears to be an unsophisticated witness. The Imam [65] The panel noted the Appellant initially did not know who was the Imam who led prayers in the mosque, but subsequently he remembered the name. The panel further noted the Appellant changed his testimony several times as to whether this Imam was a member or supporter of the XXXX. The panel noted as well, the Appellant testified the Imam was arrested by security forces in the XXXX 2014 incident, but he failed to mention this in his BOC. The panel found the Appellant's inconsistent testimony diminishes his credibility. [66] The Appellant submits the transcript reveals he knew who the Imam was. The Appellant acknowledges that he initially testified the Imam was a member of the XXXX XXXX and later that he was a supporter of the XXXX XXXX, and this appeared to be a contradiction. The Appellant further submits that the transcript reveals why he was not sure about the Imam's membership. The Appellant testified the Imam spoke about the XXXX in sermons and encouraged people to support the XXXX, but he did not know if the Imam himself was a member. The Appellant submits the panel overstated the contradiction and his evidence was not incoherent. [67] The Appellant notes that while he initially testified the Imam was a member of the XXXX, he subsequently testified the Imam does not really belong to them, but he used to talk about the XXXX. The panel subsequently asked if the Appellant knew the Imam was a member of the XXXX and he said "I don't know". [68] The RAD has reviewed the CD recording in regard to the Imam. The RAD agrees with the Appellant that he did know the name of the Imam when the question was asked. The RAD finds that the Appellant's testimony as to whether the Imam is a member of the XXXX XXXX was somewhat confusing, but agrees with the Appellant that his apparent inconsistency in this regard is explained by the Imam's actions. The Appellant testified that the Imam preached support for the XXXX and, as a result, he stated that the Imam was a member of the XXXX; although subsequently, he indicated he did not know if the Imam was a member. [69] The RAD finds the Appellant's ambivalent response to the panel's question is insufficient evidence to diminish his general credibility. Documentation of the XXXX 2014 incident in the mosque [70] The panel noted it expected objective documentary evidence to corroborate that security forces attack mosques because they believe those who attend mosques may be members of the XXXX XXXX. The panel noted the Appellant's evidence indicated the mosque had a capacity of XXXX worshippers and XXXX XXXX members were known to frequent it, and some documentary evidence, such as news articles, would be expected. The panel found, in the context of the lack of any corroborative evidence, that the raid did not take place. [71] The Appellant submits the panel misunderstood the evidence. The Appellant further submits he never stated that mosques are routinely raided because Egyptian authorities generally believe that mosque attendees are members of the XXXX XXXX. The Appellant submits as well that he indicated that this particular mosque was raided because it was suspected that members of the XXXX gather there. [72] The Appellant argues that the fact that documentary evidence does not indicate what kind of buildings are targeted for raids, does not take away the fact that the Appellant's mosque was raided because XXXX members were suspected to gather there. The Appellant cited country documentary evidence which indicates thousands of XXXX members have been detained without due process, and many are rounded up solely as a result of their peaceful assembly. [73] The Appellant submits that in a situation where thousands of people are killed and tens of thousands are arrested throughout Egypt because they are identified as being members or supporters of the XXXX XXXX, it is unreasonable to dismiss his claim on the basis that a small raid on a mosque was not mentioned in documentary evidence. [74] The RAD has reviewed the evidence, including the CD recording, regarding the lack of documentation concerning the XXXX 2014 raid on the Appellant's mosque. The RAD agrees with the Appellant that the panel's question concerned whether mosques in Egypt are generally raided because Egyptian authorities believe attendees are likely XXXX XXXX members. The RAD agrees with the Appellant that the lack of documentation concerning this particular raid is insufficient evidence on which to base a finding that the raid never took place. Whether the Appellant's friends were killed during the raid [75] The panel noted the Appellant testified he was sitting with XXXX friends on the day of the raid and he ran from the mosque when he was grabbed by a security officer. He further testified that none of his friends were killed that day or hurt. The panel noted in the hearing that the Appellant indicated in his BOC that XXXX of his friends were killed by security forces that day and further noted that the Appellant could not provide a reasonable explanation for the inconsistency. The panel further noted the Appellant stated he did not mean killed, but he just wrote killed. [76] The panel further noted that the Appellant stated that a man named XXXX was hurt but he was not a friend, but changed his testimony in response to counsel's question and said that he thinks someone was hurt. The panel found, in the context of the Appellant's inconsistent, illogical and contradictory evidence, that he was not at the mosque that was raided by security forces and that he is not wanted by the security forces as a perceived member of the XXXX XXXX. [77] The Appellant submits the transcript reveals that the Appellant did not state that none of his friends were killed that day or even hurt. The Appellant notes the panel asked if any of the XXXX friends that he named were killed and he said no. The Appellant further submits that he testified that the XXXX friends who were killed and mentioned in the BOC were different people. [78] The Appellant submits that the panel misunderstood the BOC statement to mean that the XXXX friends who were killed, were the XXXX friends that were named by the Appellant at the hearing. The Appellant also submits that had the panel not made this error, it may not have made a negative credibility finding in this regard. [79] The RAD has reviewed the evidence, including the CD recording, concerning killings during the raid. The RAD finds the Appellant's testimony in this regard is vague and somewhat confusing as to what friends he was referring to when he said XXXX friends were killed. The RAD further finds that the Appellant does explain in the hearing that the XXXX friends who were killed were not the friends who he specifically named in the hearing. [80] The RAD notes that the Appellant's testimony throughout the hearing appeared to be changing; but, it was more likely a reflection of how he expressed himself, as he considered the questions asked. The RAD finds the Appellant should be given the benefit of the doubt in this regard, and further finds that there is insufficient evidence to support the panel's finding that he is not being pursued by Egyptian authorities. [81] The RAD notes that the Federal Court in Maldonado8 has held that when a claimant swears that certain facts are true, this creates the presumption that they are true unless there is reason to doubt their veracity. The RAD finds that in this case, the Appellant's evidence has not been rebutted. [82] The RAD further notes the panel's repeated misapprehension of the evidence casts doubt on the decision as a whole. Disposition [83] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and finds that the Appellant is a Convention refugee. The appeal is allowed. (signed) "Milton Israel" Milton Israel November 25, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Exhibit P-2, Appellant's Record, p. 15. 3 Ibid., pp. 13-14. 4 Ibid., pp. 18-77. 5 Exhibit RPD-1, RPD's Record, pp. 28-85 and 13-26. 6 Lubana v. Canada (M.C.I.), 2003 FCT 116, para. 13. 7 James C. Hathaway, The Law of Refugee Status, Toronto: Butterworth, 1991, at pp. 84-85. 8 Maldonado v. Canada (Minister of Employment and Immigration ), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : TB5-03664 RAD.28.07 (June, 2015)