TB9-12157

RAD File / Dossier de la SAR : TB9-12157 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXXa.k.a. XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 7, 2020 Date de la décision Panel Joseph W. Richards II Tribunal Counsel for the person who is the subject of the appeal Rodney L. Woolf 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 (the Appellant) is a citizen of Jordan. [3] The Appellant, an ethnic Palestinian, fears persecution or section 97 harm from the authorities in Jordan. While attending the XXXX University, the Appellant supported and promoted the ideas of the Muslim Brotherhood. He specifically campaigned for social and economic justice, as well as an end to state surveillance. On XXXX XXXX XXXX 2010, he was arrested, detained, and interrogated. Two days later, he was released and warned that, if he did not stop his activism, he would lose his citizenship. Since that incident, the Appellant had to report to the headquarters of the intelligence department twice a year. In XXXX 2012, he was unable to secure employment in the public sector due to his previous encounters with intelligence officers. The Appellant then started to organize events promoting Palestinian culture. In XXXX 2014, he came to Canada for a Palestinian festival. He did not know that he could claim refugee protection at the time and, instead, planned to secure his status in Canada through postsecondary studies at XXXX College. His visa application was rejected. The Appellant returned to Jordan and found a job as an XXXX in Saudi Arabia. He did not feel safe there because of his past affiliation with the Muslim Brotherhood. The Appellant's fear was amplified by the crackdown on the Muslim Brotherhood by Saudi Arabia and Jordan; both governments considered this political movement to be subversive. Each time the Appellant travelled to Jordan from Saudi Arabia, he faced more questions about his activities, with the last trip taking place on XXXX XXXX XXXX 2017. The Appellant arrived in Canada on XXXX XXXX XXXX 2017, using a legitimate visitor's visa. [4] The Refugee Protection Division (RPD) determined that the Appellant lacked credibility. The Panel noted that the Appellant omitted six arrests from his Basis of Claim (BOC) and Schedule A forms, that the university would not have allowed him to complete his studies if he truly was an activist, that the Appellant was always able to travel in and out of Jordan, and that the Appellant failed to initiate an asylum claim in Canada in 2014 and subsequently re-availed to Jordan. Overall, the RPD found that the Appellant was never arrested or detained and was not an activist while attending university in Jordan. The Appellant's actions were inconsistent with a subjective fear of persecution. [5] The Appellant contends that the RPD erred by misapprehending the evidence, failing to consider the testimony of the Appellant's brother, and misconstruing the nature of the Appellant's claim. He asserts that the Schedule A form clearly reveals his intent to mention his multiple arrests. The Appellant merely followed the advice of an immigrant consultant and, as a result, focussed on pursuing a Canadian student visa rather than seeking refugee protection. Furthermore, the RPD failed to recognize the possibility that the Appellant's risk of harm in Jordan would only materialize if he exercised his rights to freedom of speech and assembly. [6] The determinative issue in this appeal is the Appellant's credibility. After reviewing the record, I find that the RPD correctly determined that the Appellant lacked credibility. The evidence fails to credibly establish subjective fear or section 97 harm. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE The Appellant's affidavit is not admissible as new evidence [8] The Appellant's Record includes an extensive affidavit from the Appellant dated XXXX XXXX XXXX 2019.1 However, Counsel's explicit position is that the Appellant is not requesting to admit new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA).2 In light of this position and the fact that an appeal to the Refugee Appeal Division (RAD) is not an opportunity to correct a deficient record, I have only considered the Appellant's affidavit as a supplement to the Appellant's memorandum. An oral hearing is not permissible [9] The Appellant is requesting an oral hearing.3 Since I have not admitted any new evidence, I am not permitted to hold a hearing, pursuant to subsection 110(6) of the IRPA. ANALYSIS The role of the Refugee Appeal Division [10] The RAD reviews the RPD's decision and comes to an independent assessment of the refugee claim.4 In providing a final determination, the RAD will intervene if it finds that the RPD erred, unless the RPD's decision can be confirmed on another basis.5 The standard of correctness applies.6 If the RPD has a meaningful advantage in assessing the credibility of oral testimony, then the RPD's finding may be accorded deference.7 [11] In this case, the RPD did not have a meaningful advantage. Accordingly, I have conducted an independent assessment of the oral and documentary evidence using the correctness standard. The RPD correctly determined that the Appellant lacked credibility [12] This appeal turns on the Appellant's credibility and, in particular, his subjective fear. The Appellant objects to the Panel's credibility determinations with respect to his multiple arrests in Jordan, the testimony of the Appellant's brother, the Appellant's student activism, and the Appellant's 2014 re-availment to Jordan. For the reasons that follow, I find that the Appellant lacked credibility with respect to his central allegations (and thereby lacked subjective fear), and failed to credibly establish, on a balance of probabilities, that he would face section 97 harm if returned. The Appellant's arrests in Jordan [13] Counsel argues that the RPD misinterpreted the Appellant's testimony regarding his beatings by the Mukhabarat, the Jordanian intelligence agency. Counsel submits that the Appellant meant that he was "beaten down" psychologically as a result of his detention, and not physically injured. The RPD noted that the Appellant failed to mention being beaten in his BOC. I find that the RPD did not err. [14] When asked by Counsel if he was harmed during detention, the Appellant responded, Yes, they beat me up. So throughout the entire detention period, I was subjected to beating. They would put me in a dark room. This caused me several psychological problems in the aftermath of detention and that caused me to feel incessant worry, like feeling of worry, being worried, stressed out and terrified.8 [15] When confronting the Appellant with the fact that he did not mention being beaten in his narrative, the Panel specifically stated, "...I'm talking about the beatings. There's no mention of you being beaten."9 The Appellant responded, "So it happened after the first time", meaning that he was not assaulted during the first detention - the only detention actually mentioned in the BOC.10 I also note that, in Counsel's closing submissions at the RPD hearing, he stated that the Appellant "...was brought in, he was put in a dark room, he was beaten, he was questioned, he was threatened."11 [16] I find, based on the evidence, that the Appellant employed the word "beaten" in only one sense: physical assault by the Jordanian intelligence authorities during detention. I note that the Appellant testified with the assistance of the interpreter, and he has not alleged that there were any errors in the interpretation. [17] Moreover, the RPD correctly noted that the alleged physical assault was not mentioned in the Appellant's BOC form. It is a significant component of the Appellant's alleged fear, and his response to the omission was inadequate; whether it happened during the first arrest or subsequent ones, it is a glaring omission that impugns his credibility. Therefore, I agree with the RPD that a negative credibility finding was warranted in the circumstances. [18] This was not the Appellant's only significant BOC omission; the Appellant failed to mention six of his seven arrests. The Appellant explained at the RPD hearing that, when completing the forms, he was instructed to only list the first incident and to explain the rest at the hearing. Counsel argues that the Appellant's Schedule A form demonstrates an intent to mention all of his detentions. I disagree with Counsel, and I find that the Appellant's explanation is unreasonable. The RPD did not err in drawing a negative credibility inference. [19] The Appellant confirmed at the beginning of the hearing that the BOC form was true, complete, correct and accurate.12 He was assisted in completing it, and he declared, through his signature, that the form was complete and that he fully read and fully understood its entire content in English. Similarly, the Appellant warranted the completeness of the Schedule A form, though for this form, he was assisted by an interpreter. The form contains a handwritten note indicating that the Appellant was detained "more than once" ("about five times") and was "once detained for three days and released".13 However, the Appellant testified that he was detained for three days on several occasions: XXXX XXXX XXXX 2010, XXXX XXXX XXXX 2011, XXXX XXXX XXXX 2012, XXXX XXXX XXXX 2012, XXXX XXXX XXXX 2013, and XXXX XXXX XXXX 2014.14 In the Schedule 12 form, the Appellant checked "No", in response to whether he has ever been sought, arrested, or detained by the police or military or any other authorities in any country.15 [20] The multiple discrepancies undermine the Appellant's credibility. When a claimant warrants the accuracy of their narrative, and their testimony and other documentation materially alters the scope and gravity of the allegation, the Appellant's believability is squarely at issue, absent a reasonable explanation. The Appellant's explanation that he was merely following directions does not suffice. I have considered the fact that the Appellant does not require assistance to read in English, and he is particularly well educated, holding both XXXX and XXXX XXXXinXXXX XXXX. I reject Counsel's submission that the Appellant's documents signalled an intent to provide more details at the RPD. Not only does the Appellant's Schedule A form conflict with the Schedule 12 and the BOC, but it also conflicts with the Appellant's testimony in terms of the frequency and duration of the arrests. When the Appellant's documentation is viewed in its entirety, his intent is not clear and certainly does not display a consistent intent to disclose all of his alleged detentions at the RPD hearing. The noted discrepancies all pertain to the serious issue of the Appellant's detention, that is, the deprivation of his liberty. Therefore, a negative credibility finding is warranted. Accordingly, I find that the RPD did not err and that the arrests did not occur as alleged. The testimony of the Appellant's brother [21] The Appellant's brother, XXXX, testified at the hearing. The Appellant argues that the RPD failed to consider the totality of the evidence given that XXXX testimony was not referred to in the RPD's decision. I find that the RPD did not err. [22] Not every piece of evidence presented to the RPD must be referred to in the written decision. XXXX testified that he travelled to Jordan four or five times since obtaining his Canadian passport in 2017. He stated that he was questioned at length by authorities upon entering the country, concerning the length and purpose of his stay as well as the nature of his political and religious affiliations. He was also asked general questions about the Appellant's activities. The authorities made XXXX go to the office of the Mukhabarat. They told him to present his passport there, giving him the option of bringing the passport himself or having the passport forwarded, by them, on his behalf. XXXX was never denied entry into Jordan or otherwise affected during his visits. The testimony was unremarkable; it does not support the Appellant's allegations that he faces persecution or section 97 harm if returned. Instead, it merely confirms that Jordanians who travel abroad may face more extensive security-related questions when they return. Accordingly, the RPD did not err in not mentioning this testimony in its reasons. The Appellant's activism and travel history [23] The Appellant submits that the RPD erred in finding an inconsistency between the Appellant's completion of undergraduate and graduate studies and the Appellant's alleged activism. The Appellant argues that the RPD's finding is based on mere speculation; the Appellant was able to continue his studies because he stopped his political activism to the satisfaction of the authorities. I agree with the Appellant's explanation in part, but I do not find that the RPD erred. [24] The RPD appropriately raised the inconsistency; the Appellant continued his studies at the XXXX University, uninterrupted, for four years after the alleged detention of XXXX 2010. The RPD determined that because the RPD managed to complete his studies, it is unlikely that he was a political activist or that he was ever detained as a result of his activism. [25] My independent assessment leads to a different, more nuanced, finding. The discrepancy noted by the RPD reveals not whether the Appellant was an activist, but, rather, the degree of his political activism as perceived by the agent of harm. It is plausible, then, that the Appellant participated in the Muslim Brotherhood in an isolated manner up to XXXX 2010, was questioned by the intelligence services, ceased his political activities and, since that time, has not been considered a serious security threat by the authorities. This explains why the Appellant was issued a passport with a national number in XXXX 2014, was allowed to enter and exit Jordan three times and has faced routine additional security checks like his brother, XXXX XXXX This finding also aligns with my finding, above, that the Appellant's arrests did not occur as alleged. Thus, the lack of credibility of the Appellant's narrative stems from exaggeration rather than outright fabrication. Following either the reasoning of the RPD or my own leads to the same outcome; the evidence fails to credibly establish a forward-facing risk of persecution or section 97 harm. [26] I note the Appellant's testimony that he decided to come to Canada in 2017 not to flee persecution or to avoid section 97 harm but primarily to assist his ailing brother. He applied for a visitor's visa for that purpose in XXXX 2017.16 He was living in Saudi Arabia, and he even stopped over in Jordan for a couple of days, before heading to Canada. The Appellant explains that this stopover was needed in order to get medication for his brother, though he did not explain why such medication would not be available in Canada. I therefore find that the Appellant's itinerary in 2017 further undermines the credibility of his subjective fear. [27] Another material fact detracting from the Appellant's subjective fear is that he spent over two months in Canada in 2014, and he allegedly discussed his options for staying in Canada with an immigration consultant. When confronted with why he did not seek asylum at the time, the Appellant testified that he did not know that refugee protection was an option. I note that when pressed by the Panel about why he did not disclose to his immigration consultant that he feared returning, the Appellant's story shifted, stating that this individual "...wasn't a consultant, per se, he just gave me hand to fill out the application."17 I find that this explanation is unreasonable as it lacks credibility; the Appellant replied to the initial inconsistency of failing to apply for refugee status by providing further inconsistent testimony in minimizing the advice that he received. The evidence, as a whole, demonstrates that in 2014 the Appellant clearly understood that he needed help in order to secure his status. In a span of two months, he managed to apply for and obtain conditional acceptance to a postsecondary institution in Canada. Under these circumstances, failing to seek asylum and then returning to Jordan warrants a negative credibility finding and detracts from the Appellant's subjective fear. The RPD did not err. [28] The lone remaining question is whether the Appellant would resume his political and religious activism if returned to Jordan. The Appellant cannot be expected to suppress his political or religious views, in order to avoid detection. I have found that the Appellant is not perceived as a threat by the authorities. Having completed graduate studies in Jordan, the evidence fails to demonstrate an intent of becoming active in student initiatives if returned. No evidence was provided indicating that the Appellant has engaged in political or religious activism while in Canada. I note the Appellant's testimony that since 2014, he has not been in contact with the Muslim Brotherhood and is unaware of the current status of the organization.18 For all of these reasons, and in light of my findings, above, I find that the Appellant failed to credibly establish that he faces a serious possibility of persecution or, on a balance of probabilities, section 97 harm if returned. CONCLUSION [29] 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) Joseph W. Richards II Joseph W. Richards II December 7, 2020 Date 1 Exhibit P-2, Appellant's Record, at pp. 11-21. 2 Exhibit P-2, Appellant's Record, Memorandum, at pp. 11-21, 54. 3 Ibid., at p. 55, para. 9. 4 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, November 7, 2014, 2014 FC 799, at paras. 54-55; M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para. 103. 5 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at paras. 78, 103. See IRPA, s. 111. 6 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para. 78, 103. 7 Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145, at para. 105; M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para. 70. 8 Transcript of the RPD Hearing, April 4, 2019, at p. 48 (lines 47-50). 9 Ibid., at p. 53 (lines 25-26). 10 Ibid., p. 53 (line 28). 11 Ibid., p. 54 (lines 45-46). 12 Ibid., at p. 5 (lines 26-38). 13 Exhibit RPD-1, RPD Record, at pp. 40, 43. 14 Transcript of the RPD Hearing, April 4, 2019, at pp. 11-14. 15 Exhibit RPD-1, RPD Record, at p. 45. 16 Ibid., at pp. 126-135. 17 Transcript of the RPD Hearing, April 4, 2019, at p. 16 (lines 40-50), and p. 17 (lines 5-11). 18 Ibid., at p. 51 (line 49), at p. 52 (lines 7-16). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-12157 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