TB8-02975

RAD File / Dossier de la SAR : TB8-02975 TB8-02976 / TB8-02977 / TB8-02978 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX(a.k.a XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 19, 2019 Date de la décision Panel D. Goff Tribunal Counsel for the persons who are the subject of the appeal Michael F Loebach Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The appellants, XXXX XXXX XXXX XXXX XXXX (the principal appellant, "PA") and her minor children XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (the minor appellants, "MAs"), allegedly citizens of Sudan, appeal a decision of the Refugee Protection Division (RPD) of October 2, 2017 rejecting their claim for protection. [2] The appellants alleged before the RPD a fear of persecution in Sudan on political grounds. In particular, they alleged the PA had been detained by the National Intelligence and Security Service (NISS) in August 2016 due to her husband's (XXXX XXXX) perceived involvement in anti-government regime activities. XXXX is currently in hiding and the appellants do not know his whereabouts. The RPD dismissed the appellants' claim finding it not to be credible. [3] The appellants ask the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and substitute a positive determination or, to refer the matter back to the RPD. They argue the RPD erred in its analysis by conducting a microscopic and "callous" assessment of the evidence and by failing to assess the totality of the situation. They have submitted new evidence. They have not asked for an oral hearing. DETERMINATION [4] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (the "Act"),1 the RAD refers the matter back to the RPD for redetermination before a different member. The appeal is allowed. ANALYSIS Role of the RAD [5] The RAD is to review the RPD's findings of law, fact (and mixed fact and law), which raised no issue of credibility of oral evidence, applying the correctness standard.2 Rule 29 - Application to Provide Further Documents [6] The appellants have submitted an application to provide late disclosure encompassing: a. Youtube video screenshots and transcripts from an event by the Sudanese Londoners Activists Solidary Day on February 2, 2019; b. Statutory declaration from XXXX XXXX XXXX; c. Letter from XXXX XXXX; d. Pictures of the PA at an event in Toronto, ON, on April 6, 2019; and, e. Aljazeera news article, dated April 8, 2019.3 They submit these documents are "new" as they relate to events occurring after their RPD hearing. [7] The RAD finds the proposed documents are relevant to the appellants' potential sur place claim based upon the PA's recent, political activities in Canada. The RAD also accepts the appellants' explanation as to why they could not have reasonably been expected to present these documents to the RPD. The new evidence also meets the requirements as established in the Raza4 decision. The documents have accordingly been admitted as new evidence. Admissibility of new evidence presented on appeal [8] The appellants also submitted new evidence with their Appellants' Record "in response" to the RPD decision, namely: a copy of a handwritten note emailed from a friend in London, ON, named, "XXXX XXXX XXXX XXXX." They also submitted a brief note from a doctor, dated July 9, 2018, which indicates the PA has a "known case of depression".5 They submit they could not reasonably have been expected in their circumstances to have provided these documents to the RPD because their previous counsel did not tell them to do so. [9] Subsection 110(4) of the Act provides that the appellants "may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection."6 The RAD has no discretion to disregard the statutory requirements. [10] Having carefully reviewed the appellants' submissions and the proposed documents, the RAD finds the appellants have failed to meet their burden for admitting the proposed evidence in compliance with the statutory requirements of the Act. In this regard, the RAD notes the onus is on refugee claimants to establish their claim, including to provide trustworthy and credible corroborating evidence. It is trite to note that credibility is always an issue in all claims. Moreover, the appellants were represented by very experienced counsel Mr. Aaron Weinstock and Mr. Moe Mahdi in the preparation of their documents and at their hearing before the RPD. Both counsels regularly appear before the Board. Indeed, counsel submitted numerous documents to the RPD on behalf of these appellants.7 As such, the RAD does not find the appellants' argument that their counsel did not tell them to provide corroborating evidence to be persuasive. The documents have accordingly not been admitted as new evidence. Oral Hearing [11] The appellants have not requested an oral hearing. The panel has nevertheless considered holding a hearing in an effort to provide a final determination of this claim. However, the panel is restricted from being able to do so, as the new evidence is not determinative of the claim. The RPD Findings [12] Having independently reviewed the evidence, the RAD finds the RPD erred by overemphasizing peripheral issues in dismissing the claim; by failing to adequately assess the merits of the core of the claim i.e., imputed and actual political opinion; and, by also failing to assess the documentary evidence. Credibility Concerns [13] The RPD concluded, "the lack of a record of entry under the alleged aliases undermines the allegation that they were forced to flee on false documents because they were wanted by the NISS."8 The RPD determined this issue to be "central to the claim". The RAD does not agree. The lack of a record of entry into Canada is not a central element of this claim. The RPD thus erred in finding it to be so. The RAD does however note that the alleged timeline of events, including the appellants' travel history, is a relevant and valid factor in assessing the appellants' overall credibility. [14] The RPD also took a negative inference due to the apparent inconsistent evidence about whether the PA met the smuggler/agent at the airport or at her house. The RPD determined this to be "central to this claim".9 The RAD does not agree. This was a peripheral detail, which the PA elaborated upon during her testimony. As such, the RAD finds the RPD erred in finding this issue to be "central to this claim". [15] The RPD also took a negative inference due to an "omission" in the evidence about who picked the appellants up from the airport in Canada. The RPD determined this omission to be "significant". The RAD does not agree. To begin with, the PA's Basis of Claim form details that she "called my friend in London Ontario who came to pick us up". As such, the RAD does not agree with the RPD that there was an omission in the appellants' evidence. Moreover, the RAD finds this issue to be a minor detail, which the PA elaborated upon during testimony. [16] The RPD also took a negative inference due to the PA's testimony wherein she was unable to remember the exact years of her schooling and her respective ages during that time. The RAD finds the RPD erred in doing so, as this issue was again not determinative to the central elements of the claim. Failure to Consider other Evidence [17] Based primarily upon these peripheral issues, the RPD concluded the PA was not a credible witness and dismissed her testimony. The RPD further extended that finding to also dismiss the documentary evidence. The RAD finds the RPD erred in doing so, specifically by not assessing the documentary evidence and providing adequate reasons why it did not consider it relevant or trustworthy, or why it chose to disregard it.10 [18] The RAD notes the RPD is not required to refer to each and every piece of documentary evidence. However, the more important the evidence not specifically mentioned and analyzed in the Board's reasons, the more willing the Federal Court is to find that the RPD made an erroneous finding of fact without regard to the evidence,11 and the same reasoning is applicable to the RAD's review of the RPD's reasons. CONCLUSION [19] Upon its own review of the record, the RAD has its own concerns with credibility of the PA and the allegations of persecution. However, without the benefit of hearing oral evidence on the central elements of the claim and without the originals of the appellants' personal documents, the RAD is of the opinion that it cannot provide a final determination of this claim. [20] The RAD similarly does not find the appellants' proposed new evidence to be determinative of this claim before the RAD. In this regard, the RAD notes refugee claimants who assert a sur place risk must provide some evidence to show that their activities in Canada have made them a target.12 [21] Pursuant to paragraph 111(1)(c) of the Act, the RAD sets aside the determination of the RPD and refers this matter back to the RPD for redetermination by a differently-constituted panel. [22] This appeal is allowed. (signed) "D. Goff" D. Goff September 19, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Exhibit P-3, Appellants' Rule 29 Application, at pp. 5-27. 4 Raza v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 5 Exhibit P-2, Appellants' Record, at pp. 384-391. 6 Subsection 110(4), Immigration and Refugee Protection Act, (S.C. 2001. C. 27). 7 Exhibit RPD-1, RPD's Record, Exhibits 7, 8, 9, 12, and 14. 8 Exhibit RPD-1, RPD's Record, RPD Reasons, at p. 7, para. 14. 9 Exhibit RPD-1, RPD's Record, RPD Reasons, at p. 8, para. 17. 10 Nasufi, Udi v. M.C.I. (F.C., no. IMM-5925-10), Scott, May 19, 2011, 2011 FC 586; Khan Mostafa v. M.C.I. (F.C, no. IMM-5685-02), Tremblay-Lamer, September 17, 2003, 2003 FC 1076; Cepeda-Gutierrez, Carlos Arturo v. M.C.I. (F.C.T.D., no. IMM-596-98), Evans, October 6, 1998. 11 Dessie, Worku v. M.C.I. (F.C., no. IMM-3927-11), Mactavish, December 19, 2011, 2011 FC 1497, at paras. 7-8. 12 Teklewariat, Sahlemarian Kei v. M.C.I. (F.C., no. IMM-532-16), Tremblay-Lamer, September 12, 2016, 2016 FC 1026, at para. 15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-02975 TB8-02976 / TB8-02977 / TB8-02978 RAD.25.02 (April 04, 2019) Disponible en français 7 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 04, 2019) Disponible en français