TB4-10373

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 : TB4-10373 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 4, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Benjamin J. Liston 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 AND DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of Egypt, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to allow the new evidence disclosed, grant the appeal, set aside the RPD decision and substitute that decision that the Appellant is a Convention refugee. Should the RAD be unable to do so, then the Appellant requests the RAD to hold an oral hearing on the basis of the new evidence submitted and failing that solution, requests that the RAD refer the matter back to the RPD for re-determination. DETERMINATION [2] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. Background [3] The Appellant alleged before the RPD that he is a political activist who has been blacklisted by the military regime in Egypt. He alleged that his life is at risk should he be returned to Egypt. The details of his allegations can be found in his Basis of Claim (BOC) narrative and in his statement accompanying the Memorandum. [4] The Appellant's application for refugee protection was heard on September 18, 2014 at which time an oral decision was given by the RPD. The RPD found that the Appellant lacked credibility and consequently denied his application. [5] The Appellant submits that the RPD erred in its credibility finding when the panel took a microscopic approach to the evidence. The Appellant submits that the panel also erred by making adverse findings on peripheral issues and by making unreasonable plausibility findings. [6] The Appellant submits that the panel ignored or dismissed relevant evidence capable of corroborating the claim. [7] The Appellant submits that the panel misapprehended the Appellant's risk profile and ignored relevant objective evidence that contradicted the panel's findings. ANALYSIS Admissibility of Evidence Submitted on Appeal [8] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [9] Even where a document meets the test in Section 110(4), this does not require the RAD to admit it into evidence without any further consideration. In Raza,1 the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA Section 110(4), it is based on the very similar wording of Section 113(a). The Court held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.2 In Iyamuremye, the Federal Court accepted the RAD's application of the factors in Raza to new evidence submitted on an appeal under IRPA.3 [10] It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.4 [11] In Raza, para. 16, the Federal Court of Appeal endorsed the principle that a document's "newness" cannot be tested solely by its date of creation; what is important is the event or circumstance sought to be proved by the evidence. [12] The Appellant has disclosed four documents in his Memorandum. They are listed in his index as : 4. Translation and Copy of Arrest List, including Appellant's name 5. Canadian Council for Refugees and Sojourn House, "Welcome to Canada: The Experience of Refugee Claimant at POE Interviews", dated November 2010 6. Human Rights Watch, Egypt: UN Should Condemn Worsening Abuses, 4 November 2014 7. Amnesty International, Egypt: New leader faces rights crisis, 10 June 2014 [13] Item 7 clearly pre-dates the hearing which occurred on September 18, 2014. It is incumbent upon the Appellant to show how this document meets the requirements of Section 110(4) in order for the RAD to accept it. The Appellant has not shown how this document meets the standards of Section 110(4) for admissibility. The Appellant cites case law5 which speaks to the flexibility required of the RAD on admissibility of new evidence. However, the RAD finds that this evidence was such that the Appellant should have reasonably had at his hearing. It was reasonably obtainable and could be expected to be helpful to him at that time. The RAD sees no evidence to substantiate the Appellant's claim that this evidence could not be obtained within the strict RPD disclosure guidelines as suggested in paragraph 36 of the Memorandum. This document was available to the general public on the website of Amnesty International on or about June 10, 2014. There is no submission before the RAD to explain how this document was not readily obtainable and reasonably expected to be helpful in time for the hearing of September 18, 2014. The RAD rejects this document. [14] Item 6 is a document from "refworld" dated November 4, 2014 and as such was not available before the hearing. It will be accepted as it does meet the basic criteria of Section 110(4) of the IRPA. [15] Item 5 is a 2010 document entitled "Welcome to Canada: The Experience of Refugee Claimants at Port of Entry Interviews." This document was co-authored by "Sojourn House" and the "Canadian Council for Refugees" and is one often seen in RPD hearings. It has been around for years. The Appellant argues that he "could not have predicted or anticipated that the Board would reject his reasonable explanations for perceived discrepancies between Port of Entry (POE) notes and his testimony." He therefore could not reasonably have been expected to have presented this report at the time of the hearing. The RAD respectfully disagrees as the Appellant should have had all of the benefits of counsel at his hearing. It is counsel's duty to ensure such documentary evidence is disclosed if it is available and this document certainly was available, accessible and reasonably obtainable. As credibility is always an issue, and discrepancies between oral testimony, the BOC and POE notes is one way of accessing credibility, the Appellant's counsel should have been aware of the importance of this issue. The RAD finds that the explanation given for failing to provide this document at the hearing is not acceptable and therefore excludes this document as new evidence. [16] Item 4 is the translation of an Egyptian arrest list issued by the Egyptian Ministry of the Interior on April 2, 2014. Although the evidence was clearly produced prior to the hearing, the explanation given for late disclosure is reasonable. Here, the Appellant argues that such a document is difficult to obtain and he was certainly not able to obtain it in time for the hearing; however, with help from his father-in-law, he was only recently able to obtain the document. The RAD considers this to be reasonable as the Appellant is dealing with what amounts to a police state at the time. The document is relevant and material to this claim as it speaks loudly on the issue of the credibility of the claim. The document appears to the RAD to be a document issued by the government of Egypt and consequently should be considered credible. The RAD will allow this document as new evidence. Role of the RAD [17] Counsel has made some submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent Federal Court decision, in Huruglica,6 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 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." [18] 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. The RAD will recognize and respect the credibility findings of the RPD or other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [19] The Appellant argues that the RPD erred in its credibility finding when the panel took a microscopic approach to the evidence. The Appellant submits that the panel also erred by making adverse findings on peripheral issues. [20] The RAD must agree with the Appellant. The first issue of credibility was the perceived inconsistencies between POE notes, BOC narrative and testimony. This was specifically in response to an answer at the POE to the question of what the Appellant fears. His response was that if he spoke up in Egypt, he would be arrested or killed or kidnapped. In his BOC and in testimony, the Appellant elaborated on this by explaining how he was an active protestor and that he had been blacklisted by authorities. When the RPD advised that this appeared to be inconsistent with his POE response to the fear question, the Appellant testified that when he first arrived at the POE, he was told by the Canadian Border Services Agency (CBSA) that he would be on the next flight back to Egypt in two hours time. This made the Appellant very frightened as to what CBSA would tell Egyptian officials when they deport the Appellant, so the Appellant was very guarded and general about his explanations. The Appellant has, in his affidavit, elaborated further that he had been held overnight by CBSA in a small room with a line of chairs and without a bed, where he became frightened and anxious. He had a sleepless night fearing deportation in the morning. The RPD found the explanation at the hearing to be not credible and inconsistent with the other evidence. The RAD respectfully disagrees with the RPD and finds that the explanation for this minor issue was reasonable. The Appellant did tell the CBSA what he feared without elaborating. He provided a reasonable explanation at the hearing for this so-called discrepancy which in fact was not really a discrepancy. The Appellant was merely vague on this issue but has provided more details. The RAD accepts this explanation as credible. [21] The RPD made negative credibility findings on at least one peripheral issue, that being the date at which time the Appellant ceased working. The Appellant, when asked, gave a reasonable explanation for the perceived difference, that being that as he had earlier written and testified to, the nature of his work was inconsistent. He would work a few months and then not work for a few months. What his explanation basically said to the RPD is that he quit working in XXXX 2014 when he came to Canada. The RAD accepts that the April date given was likely the last actual date that he worked but that he was out of the job market for certain on XXXX XXXX, 2014 upon his departure from Egypt. [22] The RPD found negative credibility because the Appellant, after the demonstration in which his friends were killed, remained at home even though he believed he would be on a list of those to be arrested. The Appellant testified that it was expected that such mass arrests as expected by the demonstrators would not occur until the holiday period when the police would expect to find everyone home. The RPD found that to be incredible because it would be implausible for one to predict when the police would serve their warrants. Counsel for the Appellant argues that the RPD's position is placing a western perspective on how the police would or would not operate. The Appellant had testified that he had nowhere else to go in Egypt and as he did not expect the "crackdown" to occur before the holiday, he remained at home until arrangement was made to get him out of Egypt. It would appear to be plausible to the RAD that if the Egyptian government wished to arrest a large number of protestors, that government would pick a time to do it when there would be the best opportunity to arrest many without alerting others. A holiday period when one would expect more to be home than perhaps other periods would seem logical and plausible. It might be more effective for the Egyptian police to organize mass raids and arrests on a particular day when it is more likely than not that the targets of arrest would all be home, thereby preventing one from warning another and so on. The RAD does not find this to be a credibility issue and therefore accepts it at face value. [23] The Appellant submits that the panel misapprehended the Appellant's risk profile and ignored relevant objective evidence that contradicted the panel's findings. Specifically, a letter from the Appellant's wife which supported the Appellant's allegation. The letter stated that Egyptian Security forces had raided their home after the Appellant had fled Egypt. The RPD found that the letter carried no weight because of its credibility findings against the Appellant (most of which the RAD has disagreed with) and because the wife of the Appellant is not a disinterested party. As mentioned, the RAD disagrees with much of the RPD's credibility analysis and further, finds that the simple fact that an author of a document is an interested party in a proceeding does not dismiss the probative value of that document. In light of the RAD's positive credibility findings and the new evidence accepted by the RAD, the RAD finds that the document in question (letter from wife) does carry weight and should be considered as material. [24] The Appellant argues that the panel misapprehended the Appellant's risk profile and ignored relevant objective evidence that contradicted the panel's findings. Again, the RAD must agree with the Appellant. The Appellant submitted the death records of his two cohorts who were killed in the demonstration which was the deciding factor for the Appellant's flight from Egypt. The RPD gave them little weight because they do not speak to the Appellant personally. However, these documents do corroborate the Appellant's story about that demonstration and also speak to "similar circumstances" which should always be considered. The RAD will give these documents more weight and when viewed with the new evidence indicating the Appellant being on the "list," the RAD finds that the risk assessment for this Appellant was misapprehended by the RPD. The RAD finds that this Appellant does have a profile which is, on a balance of probabilities, one which would put him at risk of persecution in Egypt. Disposition [25] The RAD has found that the RPD decision cannot stand. The RAD finds that the Appellant is credible, that he has nexus (political opinion) and that he has a well-founded fear of persecution. State Protection and Internal Flight Alternative (IFA) [26] The RAD has found that the Appellant does have a well-founded fear of persecution, so it must now assess the availability of state protection in this case. State Protection [27] The RAD has considered the issue of state protection. The RAD, in assessing the issue of state protection, is guided by the jurisprudence from the Supreme Court of Canada, the Federal Court of Appeal and the Federal Court. The courts have established a number of principles relating to state protection and the RAD has applied those principles to the case at hand. [28] There is a presumption that, except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. The presumption that a state is capable of protecting its citizens underscores the principle that international protection comes into play only when a refugee claimant has no other recourse available. Having canvassed the country conditions documents,7 the RAD finds that Egypt is a democracy in effective control of its territory and has in place a functioning security force to uphold the laws and constitution of the country. [29] A claimant is required to approach the state for protection if protection might reasonably be forthcoming or, alternatively, if it is objectively reasonable for the claimant to have sought protection (Ward8). However, a claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness (Ward9). [30] In the absence of a compelling explanation, where the state is a functioning democracy with willingness and the apparatus necessary to provide a measure of protection to its citizens, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim (Camacho10). This is so even where the protective services of the state have gaps or deficiencies (Salazar Santos11). It is not sufficient to rely solely on documentary evidence listing certain flaws or weaknesses in the country's justice system (Marquez Alvarez,12 Romero Castaneda13). [31] The Appellant has disclosed new evidence which is compelling in that it does in fact list him as one of a number of persons on an arrest list opened on April 2, 2014. On the list, the Appellant is identified by name and as a "Political Activist" and noted by the interpreter as meaning "serious and of significant influence". As this document clearly sets out the fact that it is the government agency Ministry of the Interior Public Prosecutions Office which is the persecutor in this case, the RAD finds that no state protection will be forthcoming for this Appellant. [32] With the same logic above, the RAD finds that there would be no IFA for the Appellant either as the RAD has already found that Egypt is in effective control of its state and its borders. CONCLUSION [33] Pursuant to Section 111(1) (b) of IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "David Lowe" David Lowe February 4, 2015 Date 1 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385, [2008] 1 F.C.R. 2 Ibid., Raza, paras. 13-15. 3 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 45. 4 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 5 Sing v. Canada (MCI), 2014 FC 1022 at paras 55,57 6 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 7 RPD's Record, National Documentation Package (NDP) for Egypt, 31 July 2014, Item 1.2, The Europa World Year Book 2010; Item 2.1, United States Department of State, Country Reports on Human Rights Practices for 2010; Item 4.6, Political Handbook of the World 2011, pp. 287-296. 8 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at 724. 9 Ibid. 10 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007; 2007 FC 830. 11 Salazar Santos, Marco Antonio v. M.C.I. (F.C., no. IMM-4602-06), Barnes, July 30, 2007; 2007 FC 793. 12 Marquez Alvarez, Guillermo v. M.C.I. (F.C., no. IMM-2477-09), Boivin, February 23, 2010; 2010 FC 197. 13 Romero Castaneda, Manuel Alejandro v. M.C.I. (F.C., no. IMM-4838-09), Boivin, April 13, 2010; 2010 FC 393. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-10373