TB8-12051

RAD File / Dossier de la SAR: TB8-12051 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision November 13, 2020 Date de la décision Panel Charles A. McDermott Tribunal Counsel for the person who is the subject of the appeal Olujide Oladejo Conseil de la 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 dismiss this appeal. [2] XXXX XXXX XXXX XXXX XXXX XXXX XXXX (the Appellant) is citizen of The Gambia. The Appellant alleges that he is in danger of being humiliated, physically abused, arrested, tortured and killed by Gambian authorities due to his perceived political affiliation and alleged XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [3] The Appellant was a XXXX XXXX at XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Yundum and his responsibilities included XXXX XXXX XXXX XXXX XXXX XXXX XXXX. In early XXXX 2016, the Appellant arranged XXXX XXXX for Mr. XXXX XXXX XXXX, XXXX XXXX XXXX of a prominent opposition party in The Gambia and the Appellant's XXXX. Later that evening, the Appellant alleges that he was arrested at home by agents of the National Intelligence Agency (NIA) and taken to its headquarters, where he was held and questioned for one week before being released with orders to report to NIA headquarters weekly. The Appellant then travelled to Senegal to obtain a visa for a conference his employer was sending him to in Montreal. When he tried to return to The Gambia, a police officer friend told him that there was a warrant issued for his arrest. The Appellant remained in Senegal until he could make arrangements to travel to Canada. [4] Since his arrival in Canada, the Appellant was informed by his wife that he has also been accused of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [5] The Refugee Protection Division (RPD) found that the Appellant was not credible and that he had not established an objective basis for his fears. The Appellant argues that the RPD erred in its credibility analysis and that it ignored or failed to properly apply the test in respect of change in country conditions. [6] The Appellant has submitted new evidence and has requested an oral hearing. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither Convention refugees nor a person in need of protection. NEW EVIDENCE The evidence presented by the Appellant is accepted [8] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [9] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.2 [10] The Appellant has submitted a Bench Warrant3 dated XXXX XXXX, 2018 and issued by the XXXX XXXX XXXX. The Appellant argues that he did not become aware of the warrant until after the hearing of his refugee claim. [11] The Appellant does not say how or when he became aware of the bench warrant or how he obtained a copy. Nevertheless, I find that the bench warrant was not reasonably available at the time of the RPD decision. I find that the warrant is relevant and new in that it does contradict the RPD finding that the Appellant is not wanted in Gambia. I have no reason to doubt the credibility of the warrant. I accept the warrant into evidence. REQUEST FOR ORAL HEARING [12] Subsection 110(6) of the Immigration and Refugee Protection Act (IRPA) gives me the discretion to hold an oral hearing if new evidence has been accepted that raises a serious issue with respect to the credibility of the Appellant, that is central to the decision with respect to the Appellant's claim and that, it accepted, would justify allowing or rejecting the Appellant's claim. [13] The bench warrant shows that the Appellant is wanted for questioning regarding XXXX XXXXthat was under his control. There was no evidence before the RPD, nor is there any before me, that this accusation is in any way related to the Appellant's other allegations. I find that the bench warrant would not justify allowing or rejecting the Appellant's claim. The request for an oral hearing is denied. ANALYSIS [14] My role is to look at all the evidence and decide if the RPD made the correct decision.4 [15] I invited the Appellant to make submissions on the latest version of the National Documentation Package for The Gambia, dated May 29, 2020. The Appellant's submissions were sent on November 2, 2020, and I have entered them as Exhibit P-3. The RPD did not err in its analysis of the Appellant's allegation of his detention by the National Intelligence Agency (NIA) in 2016 [16] The RPD found that it was more probable than not that the Appellant was not detained and accused of passing sensitive government information to the Gambia Moral Congress (GMC) Party. The Appellant argues that his testimony was not contradicted by any direct evidence and a warrant of arrest dated XXXX XXXX, 2016, corroborates his testimony. [17] The RPD did not err and the Appellant's arguments must fail. The RPD did not accept the Appellant's explanation that the NIA did not inform his XXXX employer about his detention, saying it defied logic and common sense. I agree. It does defy logic and common sense that the NIA would allow the Appellant to return to a XXXX XXXX position XXXX XXXX XXXX XXXX while on bail without at least informing the agency of its suspicions. Although the Appellant stated that this was a common practice of the NIA, he presented no evidence to support this assertion. [18] The RPD also found it not credible that the Appellant's employer would nominate him for an international symposium in light of his alleged detention. The objective evidence5, beginning at page 15, states that the government of the day imposed restrictions on foreign travel by many persons released from detention, often by confiscating their travel documents and that as a rule, government employees required permission from the Office of the President before travelling abroad on official trips. The Appellant has not presented any explanation as to why he would be exempt from these two provisions. [19] The RPD also found that the Appellant was in Senegal from XXXX XXXX, 2016, to XXXX XXXX, 2016, and could not have been detained by the NIA as alleged. The Appellant argues that the RPD misconstrued the evidence. [20] The RPD did not err and the Appellant's argument must fail. The RPD correctly noted that the Appellant's passport6 contained a departure stamp from Gambia dated XXXX XXXX, 2016. Just below is a stamp that indicates the Appellant entered Senegal at XXXX in 2016 on the XXXX, however the month is obscured by a departure stamp from XXXX, Senegal in XXXX 2016. The placement of the two Senegal stamps is similar to those just above on the same passport page for an entry to and exit from Senegal on XXXX XXXX, 2015, where the exit stamp partially covers the entry stamp. I infer from this that the Senegal border official concluded that the departure in XXXX 2016 was related to the entry on the XXXX of an unknown month in 2016. Based on the location of the entry stamp just below The Gambia departure stamp, both indicating exit from The Gambia and entry to Senegal on the XXXX, I find that, on a balance of probabilities, the Appellant did enter Senegal on XXXX XXXX, 2016, contrary to his testimony. The Appellant has not provided any credible or trustworthy evidence that he returned to The Gambia between XXXX and XXXX 2016. These findings seriously undermine the Appellant's credibility. [21] The "Police Wanted" notice7 does support the Appellant's assertions. However, the notice is dated XXXX XXXX, 2016, XXXX days after the Appellant's alleged release from detention. It does not make sense that the NIA would allow the Appellant to return to a XXXX XXXX XXXX position and to leave the country (even if it is only to Senegal), yet then almost immediately decide to re-arrest him. I find that, on a balance of probabilities, the Appellant was not detained by the NIA as alleged and I find that this seriously undermines the Appellant's credibility. The RPD did not err in its analysis of the Appellant's allegations that his sons were kidnapped [22] The RPD found that two of the Appellant's sons were not kidnapped and drew an adverse inference against the Appellant's credibility as a result. The Appellant argues that the RPD misapprehended the evidence. [23] The RPD did not err and the Appellant's argument must fail. The RPD discussed the Appellant's allegation in paragraphs 16 to 19 of its decision. I find this analysis to be sound and I adopt it as my own. [24] The Appellant also argues that the kidnapping of his sons was not the basis of his claim. This argument must also fail. The Appellant does allege that his agent of persecution was also responsible for the kidnapping of his sons. The RPD was correct to explore the kidnapping allegation as part of its credibility analysis. [25] I find that the Appellant failed to establish that his sons were kidnapped, and I draw a negative inference as a result. Accusation regarding XXXX XXXX XXXX [26] The RPD found that the Appellant's testimony was materially inconsistent regarding his being wanted in The Gambia and drew an adverse credibility inference as a result. The Appellant argues that his explanation was reasonable. [27] The RPD did not err. The RPD questioned the Appellant why he did not include anything in his Basic of Claim (BOC) narrative about learning of the accusation XXXX XXXX XXXX XXXX XXXX XXXX XXXX from a police officer friend when he tried to return to The Gambia from Senegal. The Appellant testified that his friend told him "it was not serious" and this was why he did not include it in his BOC narrative. At the same time, however, the Appellant testified that his friend also said it was not safe for him to return to The Gambia. The inconsistency remains and the Appellant did not provide any explanation. I draw a negative inference from the inconsistency. [28] The new evidence and the letter8 from XXXX XXXX XXXX XXXX XXXX (the Appellant's former employer) do support the Appellant's assertion that he is wanted by Gambian authorities to answer the XXXX XXXX XXXX. However, the Appellant has not presented any evidence that suggests this is related to his other allegations. The Appellant does not deny that he was XXXX XXXX XXXX XXXX, and it was reasonable for authorities to want to question him about the matter. As he has not presented himself for questioning, it was also reasonable for the authorities to conclude that the Appellant may have had something to do with XXXX XXXX XXXX and request that he be charged. However, being charged with a crime is not necessarily persecution. The Gambia has a working legal system and the objective evidence9 is that the law provides for the right to a fair and public trial, and an independent judiciary generally enforced this right. If the Appellant were to return to The Gambia, he may very well face a trial, but the objective evidence is that that he would be able to mount a defence at a fair and impartially decided trial. I find that, on a balance of probabilities, having to answer the charge of XXXX XXXX XXXX is not persecution and does not present a risk to life or of cruel and unusual treatment or punishment. Conclusion on credibility [29] I find that the Appellant is not a credible witness for the same reasons that the RPD did. Accordingly, the presumption of truth of his sworn evidence10 has been rebutted. The RPD did not err in its analysis of the objective basis for forward-looking fear of the Appellant [30] The RPD found that the Appellant had not established an objective basis for his forward-looking fear upon return to The Gambia and that his fears are not well-founded. The Appellant argues that he is still at risk due to the influence of the former president's supporters. [31] The RPD did not err and the Appellant's argument must fail. The objective evidence11 states that civilian authorities maintained effective control over the security forces and that the former president is in exile in Equatorial Guinea. The Appellant failed to provide any credible or trustworthy evidence to support his argument. [32] The Appellant also argues that the current government of The Gambia came into power only three years ago and it is premature to conclude that the changes in government will redress all the persecution suffered by many Gambian citizens. However, as I have found that the Appellant allegations of persecution are not credible, there is no merit to this argument. [33] The Appellant also argues that the applicable legal test regarding change in country conditions has not been met. There is no merit to this argument. The determinative issue in this appeal is credibility and the Appellant has failed to establish that he is at risk of persecution regardless of the country conditions. [34] The Appellant is correct that The Gambia 2019 Human Rights Report12 states that significant human rights issues continue to exist in The Gambia. However, only one-harsh and potentially life-threatening prison conditions-could be applicable to the Appellant. The report states that while conditions reportedly improved during the year, they remain inadequate. Unlike prior years, there were no credible allegations of mistreatment in 2019. The Appellant may very well be arrested on the charge of XXXX XXXX upon his return to The Gambia. However, as I have already stated, he will be able to mount a defence before an independent judge. I find that any treatment that the Appellant may face relating to the XXXX charge does not rise to the level of persecution. [35] I find that the Appellant failed to present sufficient credible or trustworthy evidence to establish that there is a well-found objective basis for his fears. CONCLUSION [36] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) "Charles A. McDermott" Charles A. McDermott November 13, 2020 Date 1 Subsection 110(4) of the IRPA. 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 3 Exhibit P-2, Appellant Record, page 13. 4Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 5 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for The Gambia, May 31, 2017 version, item 2.1, The Gambia. Country Reports on Human Rights Practices for 2016, United States Department of State, March 3, 2017. 6 Exhibit RPD-1, RPD Record, page 66. 7 Exhibit RPD-1, RPD Record, page 185. 8 Exhibit RPD-1, RPD Record, page 183. 9 Exhibit RAD-1, National Documentation Package (NDP) for The Gambia, May 29, 2020 version, item 2.1, Gambia. Country Reports on Human Rights Practices for 2019, United States Department of State, March 11, 2020, at page 4. 10 Maldonado v. Canada (MEI), [1980] 2 FC 302. 11 Exhibit RAD-1, National Documentation Package (NDP) for The Gambia, May 29, 2020 version, item 2.1, Gambia. Country Reports on Human Rights Practices for 2019, United States Department of State, March 11, 2020, at page 1. 12 Ibid, at pages 2-3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR: TB8-12051 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