TB5-03295

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 : TB5-03295 Private Proceeding / Huis clos 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 April 22, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Claire Houkayem Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor 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 Lebanon, appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] The Appellant did not provide documents for consideration as new evidence pursuant to s.110(4) of the Immigration and Refugee Protection Act (the Act or IRPA), and the Appellant did not request a hearing before the Refugee Appeal Division (RAD) pursuant to section 110(6). [3] The Appellant "demands that the matter of whether she is a Convention refugee within the meaning of the definition, or a person in need of protection, be referred back to the RPD for re-determination or that she be determined a Convention refugee by the Refugee Appeal Division". DETERMINATION [4] Pursuant to Section 111(a) of the Act, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection pursuant to sections 96 and 97(1) of the IRPA. [5] This appeal is dismissed. Background: [6] The Appellant alleged before the RPD that she is a Sunni Muslim who is afraid of Hezbollah members. She was enticed to go with some people in May 2011 on the pretence of making a marriage arrangement for her daughter, and she went with her daughter and her son, XXXX. Upon arrival at the destination they were all threatened; the Appellant's son was held as hostage to extort the Appellant and her husband for US$50,000 for the release of her son XXXX. After XXXX was released, the Appellant and her family were targeted for more extortion with threats. The Appellant believes that her captors were members of the Hezbollah group, belonging to the Shia sect of Islam and they are persecuting the Appellant because she belongs to the Sunni sect of Islam. [7] The Appellant filed a complaint with the Beirut police in 2011, and was told that the police were unable to offer her protection and advised her to leave Lebanon. Shortly afterwards, she was taken to XXXX District Police Station where XXXX XXXX alleged that he had given the Appellant money to help him obtain an Italian visa. The Appellant was charged with having produced fraudulent visa documents. The Appellant's ex-son-in-law, XXXX XXXX, was also arrested but he died while in custody. The Appellant was released on $10,000 bail in XXXX 2011. The Appellant was convicted on fraud charges by the court, which was overturned on XXXX XXXX, 2013, by a different justice. [8] The Appellant applied for a Canadian visa in XXXX 2013 that was granted on XXXX XXXX, 2013. The Appellant left Lebanon on XXXX XXXX, 2013 and claimed protection on January 13, 2014. [9] Her claim was heard by two sittings in March and June 2014. The RPD, by a decision dated August 28, 2014, rejected her claim and found that the Appellant is not credible. The Issues [10] The Appellant's issue is "Did the Tribunal err in fact and in law in concluding that the applicant is not a Convention refugee and a person in need of protection?" Role of the RAD: [11] The Appellant made submissions citing Huruglica1 and a few other recent jurisprudence and states that "the RAD commits an error when applying the reasonableness standard of review rather than to proceed with an independent examination of the refugee claim". [12] Huruglica is the generally followed Federal Court decision that provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion or the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is. to intervening on facts only where there is an "overriding and palpable error." [13] Thus, I will be guided by the Huruglica decision, and arrive at my determination after a review of the totality of the evidence before me. Also following Huruglica, I will recognize and respect the RPD's credibility findings where it enjoys a particular advantage. In a number of recent decisions,2 the Federal Court also confirmed that the RAD may show a certain level of deference towards the RPD's finding when credibility issues are involved, and that the RAD must conduct an independent assessment of the evidence as a whole. [14] In considering the RPD's findings, I also heard the audio recording of the hearing. After considering all the evidence, I find that the RPD did not err in its overall determination, and I find that the Appellant is neither a Convention refugee nor a person in need of protection for the following reasons. Thereby, I confirm the RPD's determination for the following reasons under the heading 'Analysis'. Analysis: [15] The Appellant alleges that the RPD erred by stating that "her testimony was vague and evasive", and that the RPD impugned "the applicant's entire credibility ...simply because of the delay in departure". I am not persuaded by the Appellant's argument. A careful review of the RPD's decision shows that the RPD found that the Appellant's behaviour was inconsistent with an alleged fear of persecution or harm in Lebanon because of her delay in departure of nearly two years, and re-availment on two separate occasions when the Appellant voluntarily returned to Lebanon despite her alleged fear of persecution and harm, and delay in departure even after she had obtained a Canadian visa, and in claiming protection after arrival in Canada. The RPD correctly recognized that delay in itself is not a determinative factor in refugee claims. The RPD provided cogent, detailed and transparent reasons for its finding that the Appellant is not a credible witness. [16] Having reviewed the audio recording, I concur with the RPD's finding that, at times, the Appellant was evasive and vague. However, even if I were to consider that the Appellant was not evasive or vague, there were other problems in this rather complex and lengthy claim containing a 24 1/2 page narrative. The Appellant provided corroborative evidence which created additional problems of inconsistency between her testimony and narrative. [17] The Appellant provided conflicting testimony about if and when she made the decision to leave Lebanon. [18] The Appellant submits that the RPD panel "dismisses the applicant's documents on the basis that her credibility was undermined by the delay of departure. The entire refugee claim fails because of the delay in departure. This is a serious error." [19] The RPD had many concerns, as I do, other than just the delay in departure from Lebanon. Moreover, the RPD did not dismiss the Appellant's documents as the counsel alleges; the RPD found that the documents submitted in support of the claim contradict the Appellant's declarations and testimony. [20] On the issue of more than two years of delay in departing from Lebanon, the Appellant testified that she was waiting the result of the trial. Counsel for the Appellant submits that this is a reasonable explanation for the delay in departure. I am not persuaded. If the Appellant was indeed afraid for her life in Lebanon since mid-2011, court case or not, she could leave the country. There is no evidence that the court considered her to be a flight risk and therefore confiscated her passport. A person who leaves the country of his or her nationality, due to a well-founded fear of persecution, claims protection in a different country, that refugee does not go back to the country of persecution or harm. In fact, if the person goes back and re-avails of the protection of the country person left behind, it may become a ground for vacation of the status as a refugee or protected person. [21] In this case, the Appellant remained in Lebanon even after obtaining a visa to come to Canada for more than a month, and then waited almost three months after arriving in Canada to claim protection. [22] All these elements put together point to a lack of well-founded fear of persecution, and the RPD did not err in coming to that determination. The explanations provided by the Appellant for her delay in leaving Lebanon and delay in claiming while in Canada were found that the RPD to be unreasonable. I concur with that finding of the RPD. [23] Regarding the Appellant's allegation that the RPD dismissed corroborated documents, I am not persuaded as I note that the RPD considered all documents submitted and noted issues with them. For example, the Appellant's letter entitled "To Whom It May Concern" issued by the German Embassy. This document states that the German embassy received a fax on XXXX XXXX, 2011 from some unknown person stating that XXXX was kidnapped on May XXXX, 2011. This document meant to corroborate the Appellant's testimony in fact contradicts the Appellant's testimony. The Appellant had testified that XXXX was kidnapped on May XXXX and released on XXXX XXXX, and that information was conveyed to the German embassy in Beirut by XXXX XXXX. There are three discrepancies: first, regarding who sent the fax, XXXX or an anonymous source; second, when the kidnapping took place and finally when the fax was sent to the Embassy. The Appellant's explanation for these three inconsistencies was that this is an error. This explanation was found by the RPD to be an unreasonable explanation, and I find that it is supportable based on facts. [24] Based on the foregoing, the RPD found that the kidnapping of her son XXXX did not take place as alleged by the Appellant. I concur. [25] I also note that the RPD "Asked (the appellant) to explain why she had waited until XXXX 2013 to apply for a Canadian visa when the Lebanese Court of Appeal had handed down its decision on XXXX XXXX, 2013, the claimant stated that she had not been thinking about leaving Lebanon". [26] I also note that the Appellant testified that her son XXXX was held for ransom and seriously abused, and her husband is also receiving threats yet both of them remain in Lebanon. [27] The Appellant's legal documents further contradict the Appellant's testimony. Court documents submitted by the Appellant show that she was charged in Lebanon in 2011 with extortion and counterfeit of a European visa, and she was convicted in 2011 of fraud and counterfeiting and was required to reimburse the sum of $48,000 to XXXX XXXX. The RPD provided a detailed analysis of court documents at pages 8 to 10 of its reasons. There was definitely some discrepancy between the amount of money exchange between the Appellant and Mr. XXXX. The Appellant's testimony, in this area, was correctly identified by the RPD as evasive and vague. [28] The RPD provided cogent, transparent and detailed reasons for its findings. Having considered the totality of evidence before me, I find that the RPD's determination is supportable. [29] The Appellant also submits that the RPD did not properly consider the risks to the Appellant pursuant to section 97. The Appellant cites principles of section 97 and that the risk must be considered personal and not generalized. The Appellant, however, does not identify where and how the RPD erred as required by RAD Rule 3(g). [30] The Appellant submits that the Hezbollah does not suffer any persecution from the Lebanese government. The Hezbollah is a political movement, and it is represented in the Lebanese government. Documentary evidence shows that "Hizbullah has continued to acknowledge openly that it maintains and expands a substantial military capacity separate from that of the Lebanese State. It further claims that its arms serve as a deterrent against potential aggression from Israel.3" Documentary evidence also shows that "at times, Hezbollah "tortures" detainees that are suspected of collaboration with Israel before giving them to the Lebanese authorities.4" Documents do not indicate that the Hezbollah persecutes Sunni Muslims as the Appellant alleges, even if the Hezbollah were interested in her. Documentary evidence and their actions show that Hezbollah's focus is on Israel. [31] It is a trite law that an incredible person may also be a refugee or a person in need of protection. As the court in Zhuravel5 stated: [1] So much of Ms. Zhuravel's story is so outlandish it beggars belief. Small wonder her claim for refugee status was dismissed by a member of the Refugee Protection Division of the Immigration and Refugee Protection Board. However, one may be a liar and a refugee both. After stripping away the lies, Ms.Zhuravel had still made out a strong case that she was the victim of domestic violence in the Ukraine. [32] In this case, however, even if I strip away every credibility-related issue, there is insufficient credible evidence remaining that the Appellant is a Convention refugee or a person in need of protection. [33] Based on the foregoing and a thorough review of the Record, I find that the Appellant is neither a Convention refugee nor a person in need of protection. Therefore, this appeal fails. The RAD confirms the RPD's determination. Conclusion: [34] Pursuant to subsection 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [36] The appeal is therefore dismissed. (signed) 'Atam Uppal' Atam Uppal April 22, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 2 Youkap, Felicie Kouamo v. M.C.I. (F.C., no. IMM-5051-14), Shore, February 27, 2015, 2015 FC 249 (CanLII) 3 RPD-1 National Documentation Package, Lebanon, page 73, item 1.7 4 Ibid., item 4.3 5 Zhuravel, Danuta v. M.C.I. (F.C., no. IMM-7427-10), Harrington, July 12, 2011, 2011 FC 870 (CanLII) --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03295