TB3-09649

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 : TB3-09649 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 Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 10, 2015 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal John W Grice 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 (the Appellant), a citizen of Guinea-Bissau, appeals a decision of the Refugee Protection Division (RPD), denying his claim for refugee protection. The Appellant has not submitted new evidence in support of his claim. He has requested an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and substitute a finding that he is a Convention refugee or a person in need of protection. Alternatively, he requests that the matter be remitted to the RPD for reconsideration by a differently-constituted panel. Determination [2] Pursuant to section 111(1)(b), the RAD sets aside the determination of the RPD and substitutes its finding that the Appellant is a Convention refugee. The appeal is accepted. Background [3] The Appellant alleged in his Basis of Claim Form (BOC) that he began working with his father for the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (XXXX) in 2009. He began speaking out against corruption and drug dealing in XXXX 2009. He was threatened and beaten by military men in XXXX 2009. [4] His father sent him to Bafata where he continued to speak out and he was threatened twice. A report to police provided no help. [5] In XXXX 2010 he was attacked, beaten and threatened by military men and he stopped his political activity for a while. In 2011 his father sent him to XXXX where he began speaking to young people. In 2012 he moved to Bissau to help organize a protest. There was violence and he was beaten and hospitalized. [6] He became a fugitive and went to live in XXXX XXXX. Subsequently he fled to Canada. [7] In the hearing the Appellant provided further details. He spoke out about ten times in the 2009 electoral campaign to hundreds of people. In XXXX he spoke twice to forty to fifty people. He spoke five times to youth in XXXX. He also spoke door to door when he organized a protest in 2012. Minister's application [8] In an August 1, 2013 application, the Minister raised questions as to the Appellant's credibility. It was noted that the Appellant failed to provide information as to countries transited on the way to Canada. It was further noted that the Appellant's XXXX membership card contains a number of arguably suspicious features: a smudge on the photo that did not have a consistent end with the photo; the date of birth appeared to be tampered with; most of the numbers on the card appear to be tampered with. [9] The Minister indicated that document analysis was forthcoming, but no further submissions were made by the Minister. [10] The panel made no negative findings as to the card's authenticity and found it is of no use in establishing his actual political activity in the context of the claim. The panel found the claim does not turn on his alleged membership in XXXX, but on whether he spoke out against political powers in his country. The issues [11] The panel indicated the determinative issue in this claim is credibility. [12] The Appellant submits the issues in his claim are: What is the Standard of Review? Did the panel err in its analysis of the credibility of the Appellant? The role of the RAD [13] 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. [14] 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. [15] 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. [16] 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." [17] The RAD will review all of the evidence in the RPD record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Application for an oral hearing [18] The Appellant requests a hearing pursuant to section 110(6) of IRPA, This section indicates that the RAD may hold a hearing if there is documentary evidence that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; that is central to the decision with respect to the refugee protection claim; and that, if accepted, would justify allowing or rejecting the refugee protection claim. [19] In this case, no new documents were provided by the Appellant to be considered as new evidence. Therefore the application for an oral hearing is dismissed. Standard of Review [20] The Appellant has submitted a substantial analysis of the jurisprudence regarding this matter and concludes that the RAD owes no deference to the findings of the RPD. It is further submitted that the RAD should simply ask itself whether the decision under appeal is the correct decision or not. [21] The RAD notes that there are conflicting Federal Court decisions on this matter and that it is now being considered by the Federal Court of Appeal. The RAD further notes that the dominant thrust of Federal Court opinion on this matter supports the Court's decision in Huruglica. As noted above, the RAD is guided by this decision in its consideration of this appeal. Credibility [22] The panel found that the Appellant was not a credible witness. [23] The Appellant submits that the panel erred in its analysis of his credibility. [24] The panel found that the Appellant did not give a credible presentation of his political activity. The panel noted that the Appellant testified that one had to belong to a political party to be taken seriously. The panel further noted that it may seem surprising that the appellant joined XXXX and then became openly critical of that party. The panel indicated it did not draw a negative inference in this regard. [25] The panel noted the central issue in this case is what the Appellant alleges that he actually did from a political standpoint. [26] The panel noted it is the Appellant's willingness to speak out about such matters as drug-trafficking that allegedly caused the agents of persecution to wish to harm him [27] The panel noted the Appellant testified that he gave a number of speeches in 2009 and 2010 to hundreds of people in one location and to smaller numbers in others. He spoke for about a half hour and in addition he spoke to people door to door when organizing a protest in 2012. [28] The panel noted that when the Appellant was asked what he said during these speeches, he was able to give only a few minutes of description. The panel noted the Appellant was given time to deal with this point and his counsel tried to help him. The panel noted that the Appellant was not able to give more than a brief general description of the content of his speeches. [29] The panel found, given the importance of these speeches in the Appellant's life, it to be unreasonable that he could only give a few minutes of generalities. [30] The panel found that the Appellant did come up with a few specific points but he could not give a clear account of the content of the alleged speeches. The panel found that the Appellant's account of having spoken out as he alleges is without credibility. [31] The panel further found the Appellant has failed to establish that the agents of persecution have any reason to harm him and he does not have a well-founded fear of persecution in his country. [32] The Appellant submits that initially his testimony regarding his speeches could be described as being generalities or an overview. However, subsequently his testimony provided concrete examples that cannot be considered generalities. [33] The Appellant quoted lengthy passages from the transcript of the hearing in which he mentioned the naming high ranking military officers involved in drug trafficking and the instability of the country. He further noted that this is well known but no one speaks out and those who do are attacked. He further noted he talked about the knowledge of these leaders of the Colombians who were allowed to enter the country and given security. The Appellant stated as well the military take away your car if they like it and the general suppression in the country. He stated that he talked about all this in his speeches. [34] The Appellant testified as well that he talked about the government in the same way he talked about the military. He indicated there was a war between them for domination in the country. He stated that he police were involved with the military and none of these groups respected human rights in the country. The Appellant stated that no one had anyone to go to and the mere fact that people listen to you makes you a threat. [35] The Appellant submits that when he provided more detailed information, the panel did not seek further details, but took a recess. The Appellant further submits that subsequent to the recess the panel did not ask him for any further details concerning the contents of his speeches and moved on to other aspects of the Appellant's testimony. [36] The Appellant submits as well that by not asking for any further details regarding the contents of his speeches, the panel implied that he was satisfied with the extent of the details provided. In that context, the Appellant asserts that the panel violated the principles of natural justice by implying he was satisfied with the extent of the detail provided, and then basing his determination on a lack of such detail. [37] The RAD has reviewed and assessed all of the evidence in the RPD record, including the transcript of the hearing. The RAD notes that the panel indicated that the central issue in this case is what the Appellant actually did when speaking out in regard to the political situation in Guinea-Bissau. In particular, the panel was concerned with what the Appellant said in his political speeches and his brief general response when asked what he said during these speeches. [38] The panel noted it had given the Appellant time to expand his description of the content of his speeches but the Appellant's response remained brief and general. [39] The panel further noted the Appellant subsequently did mention specific points but his account of his speeches' content remained unclear. The panel found the Appellant's account lacked credibility and he had failed to establish that the agents of persecution had any reason to harm him. [40] The RAD notes its review of the transcript of the hearing does not reflect the panel's description of the Appellant's testimony concerning the content of his political speeches. The RAD notes that the Appellant agreed with the panel that his initial response to questions concerning what he said in his speeches was limited and general. However, the RAD agrees with the Appellant that his subsequent responses contained concrete example and cannot be considered generalities. [41] The RAD notes the Appellant indicated he named high military officials and described their participation in drug trafficking. He talked about their knowledge of Colombian participation in this business and their protection by the military. He talked about the suppression of human rights in the country and indicated in this regard that the police were involved with the military. [42] The RAD notes the panel provides no clear analysis as to the kind and extent of information concerning the content of the Appellant's speeches that would have satisfied it. [43] The RAD notes that after the Appellant provided a more extensive and detailed description of the content of his speeches, the panel took a break. When the hearing reconvened the Appellant was asked to account for his criticism of XXXX when he was participating in an electoral campaign in support of XXXX. [44] The Appellant provided a substantive response concerning the in-fighting and corruption in the party and subsequently indicated that he emphasized the problems with the military and the police. He also reiterated, in response to the panel's question that he would not have been taken seriously if he had not joined the party. [45] The RAD notes the panel specifically indicated it made no negative finding concerning the Appellant's critique of the party he had joined. [46] The RAD further notes the panel found the Appellant had failed to establish that the agents of persecution had any reason to harm him. The RAD further notes, however, the panel makes no finding regarding the Appellant's alleged beating and hospitalization in Bissau 2012, as a result of his participation in the organization of a protest. [47] The RAD has reviewed country document evidence2 concerning the human rights situation in Guinea-Bissau. It is indicated that the authorities failed to maintain effective control over the security forces. It is further indicated that official corruption by government officials is exacerbated by their impunity, their suspected participation in drug trafficking and a lack of respect for the rights of citizens to elect their government. [48] It is further indicated the police are poorly paid and corrupt, and civilian courts are reluctant to assert their jurisdiction over members of the military. Members of both the government and the military reportedly trafficked in drugs and assisted international drug cartels by providing access to the country's infrastructure. [49] The RAD notes that the Appellant submitted substantial additional evidence in this regard. [50] The RAD finds the content of the Appellant's speeches is reflected in the objective evidence concerning the situation in Guinea-Bissau. [51] The RAD finds the panel has provided insufficient evidence on which to challenge the truthfulness of the Appellant's allegations that he spoke out publically against government and military corruption in Guinea-Bissau and as a result he was attacked by members of the military and on one occasion hospitalized as a result of a beating. The RAD notes in this regard that the Appellant submitted medical documentation3 and this evidence was neither noted nor challenged by the panel. [52] The RAD notes in this regard that the evidence in the hearing transcript indicates the Appellant did provide extensive and substantive responses to the panel's questions regarding the content of the Appellant's speeches and the panel failed to make clear why this evidence was not sufficient to satisfy it on what the panel indicated is the central issue in this claim. Disposition [53] Pursuant to section 111(1)(b) of IRPA, the RAD sets aside the determination of the RPD and substitutes its finding that the Appellant is a Convention refugee. The appeal is accepted. (signed) "Milton Israel" Milton Israel August 10, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799 2 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for Guinea-Bissau (28 June, 2013), item 2.1 3 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for Guinea-Bissau (XXXX XXXX, 2013), pp. 129-133 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB3-09649