TB4-08672

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 : TB4-08672 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 XXXXXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 9, 2015 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Abdalla Elbashier Abosharia 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, (the Appellant), is a citizen of Sudan. He appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find him to be a Convention refugee or, in the alternative, the Appellant respectfully requests that the RAD refer the matter back to the RPD for re-determination. In spite of the submission of new evidence, the Appellant has not asked for a hearing in front of the RAD. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant is a citizen of Sudan, who graduated from high school in 1993, graduated from the XXXX XXXX XXXX XXXX XXXX in 1995, and was employed as a primary school teacher in XXXX until 2000. [4] The Appellant was a member of The Teachers Trade Union of Darfur and, as a member, was able to witness firsthand the war crimes committed in Darfur. The reports, given by the members of the union, led to exposure of the military regime's brutal nature to the international community. The Appellant sympathized with the students from the African tribes and had to help victims who were usually older people, children, and raped women. [5] The Appellant was questioned by the Sudanese security officers and asked to explain the purposes of his visits to the union. The Appellant was asked to distribute international food relief in remote attacked villages, or accompany the injured civilians to cities for treatment. In XXXX 2013, while accompanying some wounded victims for treatment, the Sudanese security officers suspected that some of the victims had been members of the Sudan Liberation Movement (SLM). During the subsequent search, the officers found money and a list of names. Suspecting the Appellant of collaboration with the SLM, the Sudanese security officers detained the Appellant, and he was deprived of food, water, and sleep. He was also beaten and threatened to be buried alive if he did not give the names of his superiors and relationship to the SLM. When the Appellant did not respond to the beatings, the Sudanese security released him and set a court date, with the expectation that the Appellant would stay away from any NGO offices, not leave the city, and to report to the security offices every week. [6] His family and colleagues at the union suggested he escape the country, and he managed to leave Sudan through Egypt and then to Canada. He fears return to Sudan because he would be persecuted, arrested, detained, tortured, and may be killed. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [7] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his/her claim or that was not reasonably available, or that he/she could not reasonably have been expected, in the circumstances, to have presented at the time of the rejection of the claim. [8] The Appellant has tendered four documents1 as proposed new evidence in support of his appeal: a faxed letter from the Darfur XXXX XXXX, written July 30, 2014 but faxed September 30, 2014, a faxed letter from the Sudan XXXX XXXX, written September 17, 2014 and faxed September 30, 2014, an affidavit from the Appellant outlining the reasons for the aforementioned documentation not being available, and an affidavit sworn by XXXX XXXX as to the date of arrival of the first two aforementioned faxes. [9] The RAD considered whether the Appellant could have reasonably been expected, in the circumstances, to have presented the evidence, prior to the hearing, or before the rejection of the refugee claim. [10] The RAD finds that the letter drafted after the RPD's decision relates to circumstances that existed prior to the Appellant's hearing on August 19, 2014 and the date of decision on September 3, 2014, some 3 1/2 months after the Appellant's refugee claim made on June 11, 2014. [11] The Appellant's explanation, for the lack of appropriate documentation, was made during testimony at the hearing. He testified that he left his country in a hurry, traveled on a fraudulent passport, and could not carry documents which spoke to his true identity. The information sent from the Darfur XXXX XXXX, written July 30, 2014, and faxed on September 30, 2014, states that: "we failed to deliver the letter for security precautions for XXXX and colleagues as we waited to find the suitable individual to send it with to Canada. When XXXX contacted us to send it to his lawyers by fax, the Hydro cuts resulting from the floods in the unexpected heavy rains led to a fax services cut". The IRB documentation package on Iran confirms that Iranian security forces often raid homes open mail and monitor the Internet and other electronic communications.2 However, there is no indication that this was the circumstance in this case. No documentation was submitted to confirm the alleged Hydro cuts resulting from floods to do expect unexpected heavy rains. In addition, the document submitted was faxed, and not notarized. The RAD does not accept the reasons proffered for the delay in having this documentation available for the hearing on August 19, 2014. It would be reasonable that such an important document, purported to support the Appellant's claim as a teacher in Sudan would be delivered in an expeditious manner, either by fax or email, if sending a letter by mail was deemed a security risk, and the document would be notarized to verify both the sender and the content. [12] The second letter from the Sudan XXXX XXXX XXXX was written, according to the date on the fax, on September 17, 2014, and faxed to the Appellant's counsel on September 30, 2014. No explanation is given for the delay in receipt of this letter. The RAD does not accept this letter as it could reasonably have been delivered prior to the Appellant's hearing, or rejection of his claim, and been dealt with by the RPD. The Appellant's affidavit stated that, "My brother failed to send a confirmation that I was a teacher and an active member of the union." No explanation was given as to why his brother could deliver an article such as his passport, but not other documents pertinent to the claim. [13] The RAD is not persuaded by the arguments given by the Appellant. The Appellant's argument is based upon an assumption that he could not obtain the documents prior to the hearing. As stated above, the Appellant's claim for refugee protection was made on June 11, 2014; a hearing was held on August 19, 2014, and a decision given on September 3, 2014. The letters in question were faxed on September 30, 2014, some 3 1/2 months after the original refugee claim. No explanation was given for the delay or probative evidence adduced to show that the Appellant made efforts to obtain the documents, before his hearing or decision. The RAD notes that the Appellant was represented by competent counsel at his RPD hearing. Accordingly, the Appellant could reasonably be expected to have tendered this document at the time of his hearing, or before the rejection of his claim. As there is no new evidence being admitted, an oral hearing will not be held. Memorandum of Appeal [14] The Appellant submits that the RPD found him not to be a credible witness for the following reasons: * the Appellant did not provide any objective documentary evidence to substantiate important elements in the claim; * the RPD found that many parts of his testimony and allegations did not have a "ring of truth" to it; * the RPD found that the appellant's testimony was vague and in some cases did not make sense. ROLE OF THE RAD [15] The RAD finds that the recent Federal Court decision, in Huruglica,3 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 Appellant 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 of 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." [16] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. The Appellant is in agreement that the RAD should conduct its own assessment of the evidence, and reach a decision. MERITS OF THE APPEAL Credibility Teaching in XXXX Darfur [17] The RPD drew an adverse inference to the Appellant's overall credibility and truthfulness of the allegations in the claim because he was unable to provide documentation to substantiate that he worked as a teacher, or that he worked as a teacher at the "XXXX XXXX school" in XXXX XXXX The Appellant testified that he had requested his brother to acquire the appropriate documentation, and was told by the new principal that the documentation would have to be acquired personally. The Appellant testified that when he called the principal of the school, he was given the same information. In the RPD's view, it was unreasonable that the principal would not provide a letter to substantiate that the Appellant had worked in that school for over 14 years. The RPD stated in its decision that the Appellant was not asking for a reference letter, or letter used for employment; he was simply asking for acknowledgment that he had worked at the school for that time. The RPD found it unreasonable, and not credible, that the Appellant did not then go to the Ministry of Education to obtain documentation or confirmation letters that he worked as a teacher. In addition, the Appellant did not contact his former teaching colleagues who still worked at the school in XXXX. The RPD did not find the Appellant's explanation reasonable when he testified that, "did not think about asking his former teaching colleagues per letters because the letters but not have an official stamp on it." In addition, the RPD drew an adverse inference from the Appellant's lack of documentation to verify his alleged teaching career, such as: post-secondary certificates, diplomas to indicate that he was a teacher. [18] The Appellant argues that the Appellant's explanations for the lack of probative and supporting documentation are reasonable, considering that he left the country using a fraudulent passport and that his new principal was a government agent who knew of his activities. The Appellant also argues that Sudan is not Canada and it has a totalitarian and oppressive government. The Appellant argues that we should not use our standards and rules for governing when hearing testimony from an Appellant. [19] The RAD, in listening to the DVD, and evaluating the documentation concurs with the RPD's findings. The Appellant, during testimony, had no clear understanding of the role of the Ministry of Education or the Teachers' Union because the Appellant's testimony lacked coherence, and the RPD asked additional questions to try and gain some clarity from the Appellant. The Appellant initially said that the Teachers' Union was responsible for curriculum, and then stated it was the Ministry of Education after repeated questioning by the RPD. The Appellant, early in testimony, said that he did not know the new principal where he taught, but then later testified that he had taught there when this person was principal, which is internally inconsistent testimony. When the Appellant was asked to name the Teachers' Union, he testified that it was called the Old Teachers' Union. When asked to name the current Teachers' Union, he said it was called the Teachers' Union. When asked by the RPD if there was any other title for this union, the Appellant continued testifying that it was the Old Teachers' Union. In the Appellant's Memorandum of Appeal, the Darfur Teachers' Union is named. For the Appellant not to know the official name of his alleged union, when he testified that he was actively involved with the union, is not credible. The RAD finds that the Appellant's inability to provide appropriate documentation without reasonable explanation, as well as testimony that was consistent and clear regarding his teaching experience and union membership in Sudan, is not credible regarding the basis of his claim, and draws a negative inference. The Principal [20] The RPD drew an adverse inference to the Appellant's overall credibility and truthfulness of the allegations in the claim due to the Appellant's omission, in his Basis of Claim form (BOC), of the new principal of the school where he allegedly taught. The RPD made this finding because of the Appellant's testimony regarding many alleged negative issues between the claimant and the new principal. When questioned by the RPD, the Appellant testified that the Sudanese government appointed the new principal and that he was sent to the school to investigate the activities of himself and other teachers as they were perceived to be critical of the government. The Appellant testified that he and a colleague were sent to another school because they were perceived as helping people who are enemies of the government. When questioned by the RPD regarding this omission, he stated that he "could only mention the more important matters in his claim like his 15-day detention." He also stated that he did not think the government appointing the new principal to be important. The RPD did not accept this explanation as reasonable given that he alleged that the principal was allegedly sent there to investigate him, and transferred him to another school for a period of time. The RPD did not accept the Appellant's explanation as reasonable or credible. [21] The Appellant respectfully submits that the RPD erred in drawing an adverse inference to the overall credibility of the applicant because he did not mention the principal in the BOC. The Appellant also submits that the new documentation, documentation not accepted by the RAD, clarified the major issues that the panel raised in its decision. [22] The RAD, in listening to the DVD, finds that the Appellant allegedly had many difficulties with the principal, including a transfer out of the school for two months. The Appellant also testified that the new principal was a government official, with no teaching background, and was sent to the school to investigate the Appellant for his alleged activities against the government. The RAD finds that the Appellant should have reasonably included such pertinent information regarding his circumstance in Sudan. It would be reasonable that if such an investigation was being carried out by the Appellant's immediate superior, the principal, that the Appellant would certainly have made mention of this fact, and talked about the potential of this investigation causing the security forces to question his loyalty to the government. The RAD concurs with the RPD's finding in this issue. Teaching in XXXX [23] The RPD placed little evidentiary weight on the Appellant's certificate of experience from the XXXX School Administration. The RPD, in examining the document, notes that the document is vague and does not mention essential information about the Appellant's teaching experience at the XXXX School, instead referring to his being a good example of manners, efficiency, discipline and his work. The RPD did not accept this documentation as probative with regards to the Appellant's alleged occupation as a teacher, and that he worked at XXXX School for 14 years. [24] The Appellant submits that the RPD provided no evidence to support its decision that the letter is vague, and is proof that the Appellant was a teacher in Sudan. [25] In observing the documentation presented, the RAD shares the same concerns as noted by the RPD. The document makes reference to: "The teacher XXXX XXXX XXXX has been working at the school since 1995 until 2000." Even if the RPD's concern about the vagueness of the letter is put aside, the panel finds that this document has no probative value in determining the efficacy of the Appellant's allegations that he worked as a teacher at "XXXX XXXX school" in XXXX for 14 years, a time period when he allegedly was confronted by security forces and forced to leave Sudan. The RAD also finds that the mention of the word, "teacher", in this document, does not overcome the Appellant's inconsistent and incoherent testimony regarding his teaching experiences in Sudan. No Educational Diplomas or Certificates [26] The RPD drew an adverse inference regarding the Appellant's overall credibility and truthfulness of his allegations because the Appellant did not produce documentation to support his allegations that he was a teacher; the Appellant did not mention in his BOC the vandalizing of his house and loss of his records caused by an alleged raid by the security forces, and that the Appellant did not make any effort to acquire new documents to support his allegations. [27] The Appellant argues that the submitted document from a school in Sudan verified that the Appellant was a teacher, and that the RPD ignored this fact. [28] In listening to the DVD, the RAD finds that the Appellant's lack of credible testimony regarding his teaching experiences in Sudan more probative than the document presented. In testimony, the Appellant's inability to explain coherently even the simplest principles regarding curriculum and roles of the various educational authorities causes the RAD to find that the document presented is not probative in determining that the Appellant was a teacher in Sudan. When the Appellant was asked where he was educated, he testified that he studied at a college in XXXX. He testified that his brother was unable to get the phone numbers for the college where he studied. While the RAD is aware that the institutions in Darfur may not operate with the same standards as those in Canada, nevertheless this testimony stretches credulity. It would be reasonable that the Appellant's family would be able to contact the teachers' college where the Appellant was educated, and acquire the appropriate documentation. [29] The RAD finds the Appellant's BOC narrative indicating the detention by security forces without mentioning the vandalizing of his home and destruction of records, not credible. The basis of the Appellant's claim has to do with his alleged profession, and the allegations of and physical harm by the security forces in Sudan. With competent counsel supporting him, it would be reasonable that such documentation would be sought, especially documentation regarding his alleged profession, a basis in this claim. The RAD draws a negative inference. Involvement in the XXXX XXXX [30] The RPD found, on a balance of probabilities, that the Appellant was not a member of the OTU, due to the lack of documentation. The RPD supported this finding by the Appellant's inability to identify the position of the alleged leader, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX held in the OTU, and his inability to provide any documentation from the alleged OTU to support his allegations that he was an active member. The RPD found that the Appellant's description of the humanitarian issues that the OTU were involved in to be vague. No documentation was given to support the Appellant's allegations that the OTU was involved with international humanitarian organizations. The Appellant also testified that he was unable to contact any of the five people he named in the OTU organization, a request that he allegedly made of his three brothers in the Sudan. With respect to the testimony provided by the Appellant, the RPD found it unreasonable that an organization that allegedly has contacts to, including international humanitarian organizations, could not be contacted. [31] The Appellant's counsel was of the opinion that there was no vagueness in the Appellant's testimony or narrative related to the union's involvement in opposing the prevailing government. The Appellant referred to documentation that supported his submission that the Sudanese government dissolved unions when the current government took power. The Appellant also quoted documentation supporting that unions in Sudan participate in struggles against all kinds of oppressive governments. [32] The RAD, in listening to the DVD, finds that the Appellant's lack of knowledge about the leadership within the union, of which he is allegedly a member, is compelling. When asked why he was unable to acquire a letter from XXXX XXXX, the claimant testified that his family was unable to contact him. The Appellant testified that his family knew that he would face dire consequences should he return to Sudan. Given such a circumstance, and knowing the importance of such documentation, it would be reasonable that his family would have been able to contact XXXX XXXX or somebody in the organization to acquire such documentation. The RAD finds the Appellant's testimony, on a balance of probabilities, not credible. [33] The Appellant's BOC gave a very detailed accounting of the alleged activities of the OTU, after they were replaced by the NTU. When the Appellant was asked the reasons for the OTU's involvement and issues outside the realm of teaching, the Appellant gave an unsatisfactory response. He stated that the OTU was, "responsible for humanity in solidarity with the people who were attacked by the government." In testimony earlier in the hearing, the Appellant had attempted to give a cogent answer regarding the responsibilities of the OTU. When giving this testimony, no mention was made of the OTU's responsibilities in this area. As stated earlier in this decision, the Appellant stated that they looked after the interests of teachers, set curriculum, and performed other responsibilities, none of which included the responsibilities outlined in the claimant's testimony at this part of the hearing. It would be reasonable that, when first questioned by the RPD on the role of the OTU, this much more comprehensive outline of responsibilities and duties, would have been given. The RAD draws a negative inference. The Appellant gave no credible testimony that would allow the RAD to find that he was a member of the OTU. Justice and Equality Movement [34] The RPD drew an adverse inference from the Appellant's inability to obtain documentation from the Justice and Equality Movement (JEM). The Appellant testified that the JEM movement had provided him financial assistance, accommodation, false documentation, and paid for his plane ticket to Canada. The RPD acknowledged the difficulty in obtaining documentation from this organization but found that the Appellant, given his circumstance, should have reasonably been able to acquire documentation to support his testimony. The RPD also used, as a basis for this finding, the Appellant's inability to provide appropriate documentation for other aspects of his claim. [35] The Appellant argues that the RPD erred in assuming that the JEM must have provided the Appellant with the letter supporting his claim. The Appellant submits that the RPD acknowledged that the JEM is an armed opposition organization and, as such, it would be difficult to obtain a letter from the organization. [36] The RAD, in reviewing the testimony and documentation available, agrees with the Appellant in that JEM is an organization in opposition to the Sudanese government and, as a result, getting documentation for this organization would be difficult. Given the circumstances, the RAD agrees with the Appellant in that an adverse inference should not have been given by the RPD. The RAD acknowledges that the Appellant's inability to provide appropriate documentation for his claim has created many credibility issues and has certainly created some doubt about the Appellant's inability to acquire documentation in this issue. The RAD finds that this adverse inference drawn by the RPD does not interfere with the overall findings of the RAD. Disposition [37] The RAD has found that the RPD decision can stand. CONCLUSION [38] Pursuant to Section 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. [39] This appeal is therefore dismissed. (signed) 'Robert S. Garner' Robert S. Garner February 9, 2015 Date 1 Exhibit P-2 - Appellant Record New Evidence 119-130 and affidavit 9-12 2 Exhibit 17, IRB documentation, Sudan, item 2.1, United States human rights report 3 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-08672