MB9-19409

RAD File / Dossier de la SAR : MB9-19409 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision June 9, 2020 Date de la décision Panel Kim Polowek Tribunal Counsel for the person who is the subject of the appeal Annabel Busbridge Barrister and Solicitor Conseil de la|des 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] I allow this appeal. XXXX XXXX XXXX XXXX XXXX (Appellant), citizen of Libya, is appealing a decision of the Refugee Protection Division (RPD) dated August 9, 2019, rejecting his claim for refugee protection on the basis of credibility. [2] The Appellant came to Canada on a student visa in 2014. His problems started when he decided to go back to Tripoli for a family visit in 2017. While in Tripoli, he was kidnapped by armed men on XXXX XXXX, 2017 and held captive for XXXX days. He was beaten and the criminals insisted that he give them information about his money transfers and bank accounts abroad and threatened to involve family members. The Appellant was released after his family paid a ransom. After his release, the Appellant stayed in hiding until he was able to leave Libya for Montreal with his family's support on XXXX XXXX, 2017. He decided to make a refugee claim in Canada because he was fearful to return to Libya or to his home in Tripoli. He fears being targeted by authorities in Libya for kidnapping, again due to his time spent in Canada, perceived wealth and his western values. [3] The first ground of appeal is that the RPD demonstrated a reasonable apprehension of bias as it appeared to have made up its mind regarding the outcome f the Appellant's claim and he was denied a full and proper hearing as a result. Second, it is submitted that the RPD erred in its assessment of the Appellant's credibility. Third, it is submitted that the RPD's Internal Flight Alternative (IFA) analysis was nonsensical and further casts doubt on the RPD's conduct at the hearing. [4] I have found that the Appellant was denied a full and proper hearing and that the RPD's credibility findings were flawed. As such, I have conducted my own independent assessment and find that the evidence is sufficient to find that the Appellant faces risk of harm should he return to Libya. DECISION [5] The appeal is allowed. I substitute my own decision that the Appellant is a person in need of protection. ANALYSIS [6] My role is to look at all the evidence and decide if the RPD made the correct decision.1 Breach of Procedural Fairness [7] On appeal, it is submitted that the RPD breached procedural fairness when it intervened and made it clear that they did not want to hear testimony regarding the content of the Appellant's narrative, even though credibility was the determinative issue. [8] While I do not agree with Counsel that the RPD is always required to ask questions to verify inconsistencies, omissions or contradictions between the Appellant's oral testimony and his written narrative, I agree that in this case the RPD breached procedural fairness. [9] It is settled law that where there is a breach of procedural fairness, the issue should be raised at the earliest opportunity. A "failure to object at the hearing amounts to an implied waiver of any perceived breach of procedural fairness or natural justice that may have occurred."2 Having listened to the hearing, I find that Counsel did raise such a concern to the RPD, that the concern was largely overlooked by the RPD and the consequence to the Appellant was that he was denied an opportunity to tell his story. [10] In this case, the RPD intervened when Counsel asked the following question of the Appellant: "What happened on the day you were attacked?"3 Before the Appellant could respond, the RPD interjected and explained that it would expect that the Appellant would be able to repeat with precision what he had already written in his basis of claim form and narrative. The RPD then stated that the Appellant had already explained in detail what happened during the kidnapping in his Basis of Claim form, did not think it was a useful exercise for him to repeat what was already in the Basis of Claim form and emphasized that credibility was the main issue. The following exchange took place between the RPD and Appellant's Counsel: 001:06:45 Panel: So if you're to ask him what happened and he's going to repeat what happened while he was kidnapped, then I don't think that's necessarily a useful exercise if he's going to simply repeat what he's already stated in his basic claim form. So, in your question when you asked what happened, um, are you looking for something else? 01:07:05 Counsel for the Appellant: No, I was actually offering the claimant an opportunity to have you judge his credibility about what happened because often I find members do want to see is there, are there any consistencies, are there contradictions, are there omissions to what happened. If you accept what is written in his affidavit as what happened, and you find that credible, then we can move on. 01:07:26 Panel: No I don't think that's my point. I'll make it clearer. I would expect that the claimant, regarding his allegation of what he's written in his basic claim form and his affidavit - which is the narrative - that he's written it, that he would be able to repeat it with precision. Repeating with precision is not necessarily a sign that he would be able, that these events occurred. Although the presumption is, our starting point is that we assume it's truthful, unless we've got a good reason to think otherwise. But just on the face of it the exercise of repeating what he's already stated in his statement, in his written statement in the basic claim form, is not in my estimation a useful exercise. I expect, it's my general understanding that the person would be able to, to repeat those same things that he has stated in the general sense of his... and to ask him to repeat it again just to see that if maybe it would be the same. I assume it will be the same. 01:08:23 Counsel for Appellant: Well not everyone can explain what happened to them and often they explain it differently than what is written. But it can enable someone to see, you know, how credible they are. 01:08:36 Panel: I don't see it that way. 01:08:37 Counsel: Ok. 01:08:37 Panel: For me, I, my presumption is that he would be able to do it. He spoke English, he had composed ..., he said it wasn't interpreted to him his composition of the affidavit and, so I would assume he would be able to repeat it with precision. So, apart from that exercise, so that's my assumption. I'm not... I'm telling you very, you know up front about it. So if the exercise is to see is if he'll say it the same way... 01:09:08 Counsel: No it's not. 01:09:08 Panel: ...I assume he will. 01:09:08 Counsel: Yeah, no that's not the exercise. The exercise... the... it's not an exercise, it's more to see when someone recounts something that happened to them in verbal manner, it often comes out differently than reading it. 01:09:22 Panel: Right. Ok. Well then in this case, if I understand you correctly, if you're thinking the ecounting of the event that there's some other elements that may lead me to think other than simply repeating it, that this is a, an event which actually occurred, we are talking about credibility. Maybe you have specific questions about what is in the basic claim form and what may not have been elaborated on in terms of details. That I understand, ok. If that's what you're talking about. If in the telling, we would come to understand that it seems, that it gains credibility or more credibility than maybe what we began with. I understand that in that sense. But if it's simply to repeat what's in the basic claim form, there is no added value to it for me. I assume he would be able to repeat it. 01:10:09 Counsel: Right no. It just that it would be concerning to me if there were no information on the record about the actual incident which caused him fear. 01:10:15 Panel: There is. There is on the record. This is a declaration. This is written testimony. He signed an affidavit and he has completed his basic claim form. That's part of the record. So it's on record. And the purpose of the hearing is to deal with outstanding issues where we need to hear certain things. And so I have a focus of there are certain things that I think I need to ask questions about. Things that I have question about since there seems to be some incongruities. For example, the national documentation package is very clear on showing how Libya and Tripoli are dangerous places. Dangerous places in 2017. And why a person would return there is a big question. Why a person would think they were safe if a person, his own industry as a money trader, has a problem and were the victims of either threats or crimes. And where even while he was in Canada, he had heard about his colleagues being the victims of threats and crimes. So, again the question is why would a person willingly return to such an environment and expect that they would have no problems. So, again, so this is my focus, the incongruities, and the questions I have about things not necessarily asking the claimant to repeat what he's already written in his basic of claim form. So, I hope I've made myself clear. Again, I don't want to interrupt your questions but at the same time, I just want to make it clear that the purpose of the questions in general should be not to have the claimant repeat what he wrote in his basic claim form. [11] Having listened to the hearing and considering the exchange between Counsel and the RPD outlined above, I find that the RPD erred when it did not allow the Appellant's Counsel an opportunity to ask questions relating to the material event of his kidnapping. The Appellant's story is central to his claim and it was a breach of fairness to the Appellant to be denied this opportunity to be heard and share details both he and his Counsel believed were important to the determinative issue of credibility. As well, I do not agree with the RPD that the purpose of the hearing is to deal with outstanding issues which are defined solely by the RPD Member or that there is no value in a refugee Claimant sharing details of their narrative at the hearing. In this case these views of the RPD Member interfered with the Appellant's right to be heard. [12] I agree with the RPD's observation that repeating a narrative with precision at the hearing does not equate with its truthfulness, but I am unclear as to why the RPD would expect that this would in fact occur at the hearing if the Appellant was given the opportunity. Given that credibility was the determinative issue, I would expect that the RPD would have taken the time to ask some questions of the Appellant if only to test the credibility of the central event or identify inconsistencies, omissions or contradictions between the Appellant's oral testimony, his written narrative or his supporting documentation. This largely did not occur in this case and as such, I find that it was incorrect for the RPD to find in clear and unmistakable terms that the Appellant was not credible regarding central elements of his claim and then state definitively that it did not believe that the Appellant was kidnapped. As I see it, this would have been a stronger credibility finding if the RPD had taken more time to analyze the central allegations in the narrative and provided Counsel with an opportunity to ask the questions they wished to regarding the Appellant's story. Credibility [13] As noted, the determinative issue for the RPD was credibility and the RPD found that the Appellant was not credible on several aspects of his claim. These issues included the Appellant's return to Libya in 2017 despite knowing that there were dangers present, the fact that his family in Libya has never been subject to threats or kidnapping despite having demonstrated an ability to pay a ransom, the fact that he did not know the identity of his kidnappers and the Appellant's smiling behaviour during parts of his testimony. On appeal, Counsel submits that there are errors with each of these credibility findings. [14] In this case, the RPD met the Appellant in person and as able to benefit from visual cues in the hearing room, which gave it some advantage over the Refugee Appeal Division. The RPD referred to some of these visual cues in its decision.4 In the circumstances of this case, I find that the advantage enjoyed by the RPD is not meaningful enough to require deference. [15] Regarding the credibility of the Appellant, I agree with the RPD that there are credibility concerns but my own assessment assigns less importance to the particular credibility findings of the RPD. For example, I agree with Counsel that the fact that the Appellant does not know the identity of his kidnappers is a factor which should not significantly impugn his credibility or lessen the probability that he fears forward-looking harm. As well, while I was not at the hearing, I am inclined to weigh against impugning the Appellant's credibility on grounds of facial expressions, such as smiling, given the lack of information available to the RPD regarding the Appellant's particular personality or contributing cultural factors. While I agree with the RPD that the Appellant's behaviour of travelling back to Libya in 2017 despite him knowing the dangers is a relevant credibility issue, I find that his explanation for doing so is not outside the realm of reasonableness. Specifically, this explanation being that neither he or his family had experienced threats or harm prior to 2017 and that he had not seen his family for over three years. Finally, I do not agree with the RPD that the fact that members of the Appellant's family have not been subjected to threats or kidnapping in Libya since 2017 is so implausible that it impugns the Appellant's credibility regarding his forward-looking risk. As explained by the Appellant, his employment as a money trader put him at higher risk, as did the fact that he had been out of the country for several years. Thus, I am inclined to not impugn the Appellant's credibility based on the fact that other family members have not suffered harm since his kidnapping in 2017. [16] More importantly, I find that the RPD erred in how the Appellant's supporting documentation was assessed and weighed. For example, the RPD makes note of the letters from the Appellant's uncle, brother and father attesting to the kidnapping event but assigned less probative value to these letters as evidence than the Appellant's own testimony. The reasoning of the RPD is that the Appellant was closest to the event and can be questioned about it. Other documents such as photos and descriptions of the location of the kidnapping were also assigned low probative value by the RPD as their probative value was seen to depend on the Appellant's testimony to describe what they mean. The problem which arises with this reasoning of the RPD is that the Appellant was not afforded an opportunity to be questioned specifically about the kidnapping event, nor was the documentary evidence canvassed in any depth at the hearing. Accordingly, any credibility concerns that the RPD had with this documentation was not put to the Appellant at the hearing. [17] Overall, I find that there are errors with the RPD's credibility assessment. Objective Basis and Section 97(1) [18] Given the noted issues with the RPD's credibility assessment, I have conducted my own. [19] The Appellant fears risk of life-threatening kidnapping. I find that no nexus is drawn from his evidence to a Convention5 ground, and so the claim falls under Section 97(1).6 [20] Having listened to the hearing, I find that the Appellant testified in a straightforward manner and made no efforts to embellish elements of his claim. I accept that he was a victim of targeted kidnapping in Libya in 2017 as described in his narrative and I have no good reason to doubt the authenticity of the Appellant's documentation, which attests to his victimization and concerns regarding his future risk should he return to Libya. [21] The documentary evidence that was before the RPD provided a clear objective basis for the Appellant's fear of returning to Libya. I find that by all accounts, "the overall security situation in Libya remains poor and volatile."7 Rival political and military authorities continues to battle for control of territories, and despite the intervention of the United Nations (UN), and the support of the Government of National Accord (GNA), the country is divided and unsafe. As a result, the United Nations High Commissioner for Refugees (UNHCR) recommends the suspension of forcible returns to Libya as of September 2017.8 [22] According to the UNHCR Position on Returns to Libya - Update II: Violations and abuses of international human rights and humanitarian law continue to be perpetrated by all parties to the conflict with impunity for even the most serious of crimes. The most common violations and abuses reportedly include: arbitrary detention, abductions, enforced disappearances, torture and other forms of ill-treatment, rape and other forms of sexual violence against both women and men, unlawful killings, including summary executions, forced displacement, as well as both targeted and indiscriminate attacks against civilians and civilian objects, including medical facilities, schools, mosques, etc. Men, women and children are reportedly at risk of being targeted for arbitrary arrest and kidnapping by armed groups and security forces affiliated with rival governments "for financial [emphasis added] or political gain, on the basis of their tribal origin or family identity, or for their perceived political affiliations and opinions."9 [23] As "both rival governments in Libya have weak control over the police and regional militias providing internal security, armed groups have been allowed to carry out arbitrary detentions, unimpeded."10 This has led to instability and a general lack of security everywhere, including Tripoli, despite the UN backing of the GNA. It is noted that "in Tripoli alone, an estimated 40 different militia groups operated" in 2017.11 Clearly, the risk of kidnapping from these groups is one that is faced generally by many in Libya. [24] However, I have considered the Appellant's individual circumstances. While the general security situation poses a risk for much of the Libyan population, I find given the Appellant's past victimization, the non-random nature of the event, his profile and the deteriorating security situation in Libya, that the forward-looking risk to life for the Appellant is personalized and the risk to him is heightened beyond the more abstract risk of widespread kidnapping in Libya. As the jurisprudence indicates, it is not sufficient to conclude that the risk of criminal activity encountered by the Appellant is generalized because a significant portion of the population is subject to that same criminal activity.12 As I see it, Section 97(1)(b)13 should not be read in a manner that strips it of its content and meaning. In this case, if life-threatening kidnapping is a risk that is faced by many, if not most, Libyans, and this were to act as a bar to protection, the requirements of section 97(1)(b) could hardly ever be met. State Protection [25] I find that the presumption of state protection has been rebutted by the country conditions information. I note that the National Documentation Package (NDP) at Item 1.10, states that the current situation in Libya is characterized by a continued lack of rule of law and order, ongoing fighting between rival armed groups in many parts of the country and daily assassinations, bombings and kidnappings. Intense fighting between opposing armed groups over control of territory, resources and infrastructure has resulted in the death of thousands of people, including civilians. The overall security situation in Libya remains highly volatile and unpredictable with violations and abuses of international human rights and humanitarian law across Libya. This lack of law and order is also described in other documents on file.14 One document states that the actions of armed groups are not subject to any meaningful judicial control.15 Another source refers to the severe structural weakness of the police and other security services, the absence of the rule of law and the lack of a judicial system with the capacity to deal with remedies for human rights violations and the reliance on, and impunity of, militia groups throughout Libya.16 I find that, as a result of this situation in Libya, that there is no effective state protection for the Appellant in Libya. Internal Flight Alternative (IFA) [26] Any discussion of IFA for the Claimant comes up against the reasonableness criteria of the analysis. NDP item 1.10 states the following: Given the volatility of the situation, the fragmentation of control and the plethora of armed groups, UNHCR considers that, in the current circumstances, the relevance and reasonableness criteria for an internal flight or relocation alternative are unlikely to be met.17 [27] While the city of Tripoli was raised as a potential IFA at the hearing, I find that given the lack of general security in Libya and in Tripoli, combined with the fact that I have accepted that the Appellant was kidnapped in Tripoli, I find that Tripoli is not a viable IFA. CONCLUSION [28] The appeal is allowed. I substitute my own decision that the Appellant is a person in need in of protection. (signed) "Kim Polowek" Kim Polowek June 9, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Kamara v Canada (Citizenship and Immigration), 2007 FC 448, at para 26. RPD hearing.3 4 Exhibit RPD-1, RPD Record, RPD Reasons, at paras. 32 and 33. 5 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 6 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 97(1). 7 National Documentation Package (NDP) for Libya (March 31, 2020), item 1.10: UNHCR Position on Returns to Libya - Update II, United Nations High Commissioner for Refugees, September 2018. 8 Ibid. 9 Ibid. 10 Ibid, at item 11.1: Guide to Freedom of Expression in Libya, Lawyers for Justice in Libya; International Media Support, 22 November 2017. 11 Ibid. 12 Herrera Chinchilla v. Canada (Citizenship and Immigration), 2014 FC 546, at para. 28. 13 IRPA, section 97(1)(b). 14 NDP for Libya (March 31, 2020), item 1.11: DFAT Country Information Report: Libya, Australia. Department of Foreign Affairs and Trade, 14 December 2018. 15 NDP for Libya (March 31, 2020), item 2.5: Final report of the Panel of Experts on Libya established pursuant to resolution 1973 (2011), S/2018/812, United Nations. Security Council, 5 September 2018. 16 NDP for Libya (March 31, 2020), item 1.7: Libya: Country Information Package. Version 1.2, Law Enforcement Training For Capacity Building, November 2018, Claudia Knering. 17 NDP for Libya (March 31, 2020), item 1.10: UNHCR Position on Returns to Libya - Update II, United Nations High Commissioner for Refugees, September 2018. --------------- ------------------------------------------------------------ ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-19409 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français