TB5-00224

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 : TB5-00224 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX a.k.a. XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 19, 2015 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Elyse Korman Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause 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 (the Appellant), a citizen of Kenya, has appealed a negative decision of the Refugee Protection Division (RPD) issued on December 1, 2014. DETERMINATION [2] The Refugee Appeal Division (RAD) allows the appeal and returns the file to the RPD for redetermination with the directions cited below, as per s. 111(1)(c) of the Immigration and Refugee Protection Act (IRPA). BACKGROUND [3] The Appellant alleges that he fears returning to Kenya based on threats from Islamic extremists as a result of his evangelical activities as a XXXX pastor. The Appellant was accused of spreading Christianity among Muslim youth, which antagonized a local mosque. In XXXX of 2014, the Appellant was visited by XXXX, a member of the mosque who warned the Appellant against converting Islamic youth. If the Appellant did not stop, he would face serious consequences. The Appellant refused, and on XXXX, 2014, the church was attacked by Islamic militants; the assistant pastor was shot dead, and the church was burned. The Appellant went to the police station and made a report; however, the Appellant alleges that no one has been arrested in connection with the incident despite his attempts to follow-up with authorities. [4] The Appellant continued to receive anonymous threatening calls and letters. The Appellant was confronted by a group of men on XXXX, 2014 and was beaten. The Appellant abandoned the church. The Appellant also learned that Islamic militants had circulated leaflets with the Appellant's photo and which indicated that the Appellant was an infidel who should be destroyed. [5] The Appellant moved to XXXX where he continued to receive anonymous phone calls and death threats. The Appellant observed armed men outside his home on XXXX, 2014. The next day he found a note near the door that indicated that he could not escape Al Shabaab and that he would be killed. The Appellant reported the incident to police at XXXX. The Appellant went to his cousin's house in Nairobi on XXXX, 2014. The Appellant was introduced to an agent who helped him get a Canadian visa. [6] The Appellant left Kenya on XXXX, 2014 and arrived in Toronto the next day. The Appellant made his claim for protection on September 30, 2014. [7] The Appellant had a refugee determination hearing on December 1, 2014, at which time oral reasons were issued. In its reasons, the RPD decided the claim based on an accessible and reasonable internal flight alternative (IFA) in Nairobi. The RPD made the following findings: a) The Appellant and his allegations were found to be generally credible. b) The RPD found that it was unlikely that the Appellant would be tracked down in Nairobi based on the Appellant's failure to provide evidence that Al Shabaab operates everywhere in Kenya. c) The RPD found that there was no evidence of targeted attacks other than in coastal regions of Kenya. d) The RPD found that the Appellant did not provide any credible or trustworthy evidence to demonstrate that he would be pursued if he sought refuge in Nairobi. e) The RPD did not find that there was more than a mere possibility that Islamist extremists would have an ongoing motivation to pursue the Appellant to Nairobi, given that Christians are the majority there, and there is no evidence of Islamic extremists from the coastal region operating against specific targets in Nairobi. [8] The RAD received the appeal pleadings on January 27, 2015. In the appeal, counsel argued that the RPD erred in its IFA finding. Specific errors included: a) The RPD accepted the Appellant's credibility and allegations. b) The RPD erred in finding there was not a serious possibility of persecution in Nairobi as its findings were not sustainable. The Appellant mischaracterized the Appellant's explanations for why he would not be safe in Nairobi as vague or insufficient. The RPD failed to consider the documentary evidence which substantiates the Appellant's testimony about Al Shabaab's operations. The RPD relied on a selective review of the evidence before it. c) The RPD erred by failing to consider that, even when the Appellant relocated in Kenya, he was discovered by the agents of persecution. d) The RPD's findings that Al Shabaab would not try to locate the Appellant in Nairobi as it is a daunting task was speculative and naïve. e) The RPD erred on the reasonableness prong of the IFA, as the Appellant would have to establish a parish in Nairobi and therefore would be easier to locate by the agents of persecution. f) The RPD erred in finding that it was reasonable for the Appellant to relocate in Kenya given the persecution which he suffered. [9] The Appellant did not submit any new evidence and did not request a hearing. The Appellant asked that the RAD substitute the RPD's negative determination with its own positive determination. In the alternative, the Appellant asked that the matter be referred back to the RPD for redetermination. Analytical Approach [10] Appeal counsel argued that no deference is owed to the RPD's findings. In assessing the appeal, the RAD is directed by the Huruglica1 decision in which Justice Phelan directed the RAD to conduct a hybrid appeal based on a review of all aspects of the RPD's decision and to come to an independent assessment of whether the Respondent is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD's determination that, in its opinion, should have been made, as per s. 111(1)(b) of the IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusion; however, the RAD has equal or greater expertise than the RPD in the interpretation of country condition evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. Analysis [11] In analyzing the appeal, the RAD focused one determinative issue: Did the RPD adequately support its IFA findings? [12] The RPD found that it would be unlikely that the Appellant would be tracked down by his persecutors (Al Shabaab) in Nairobi based on the size of Nairobi and the fact that no evidence was presented to support the fact that Al Shabaab operates everywhere in Kenya. In addition, the RPD found that there was no evidence of targeted attacks outside of the coastal regions of Kenya. [13] The RAD finds that the RPD's reason failed to assess the Appellant's particular profile as a pastor who had converted 200 Muslim youth and the fact that he had reported the local mosque to police as reasons why the Appellant would be individually targeted by Al Shabaab. The RAD concurs with counsel that the RPD failed to take into consideration the fact that the Appellant had been tracked down by telephone and in person outside of XXXX by the agents of persecution. The RPD also failed to assess the impact of the accepted testimony that the Appellant's wife continued to receive threats after the Appellant left Nairobi. The evidence that was found to be credible by the RPD seems to indicate that the agents of persecution have a continued interest in locating the Appellant and have been able to locate the Appellant outside his home area of XXXX. The RAD also concurs with counsel that the RPD failed to address the evidence (cited by counsel) before it in the National Documentation package (NDP)2 that indicted that Al Shabaab has been active in Nairobi. For these reasons, the RAD finds that the evidence on the record does not support the RPD's finding that the Appellant would not be tracked down in the IFA location. [14] With respect to the second prong in the IFA analysis, the RAD noted that the RPD's decision was devoid of analysis of whether it was reasonable to expect the Appellant to relocate in Nairobi other than a blanket statement that the Appellant cited no impediments to living in Nairobi. The RAD noted that there was evidence on the record of the Appellant's evangelical activities. The RAD finds that further questioning and analysis was required regarding the reasonableness of the IFA, especially as it relates to the Appellant's profession as a pastor and his history of evangelization. [15] For the reasons highlighted above, the RAD finds that the RPD failed to support its findings of an accessible and reasonable IFA in Nairobi for the Appellant. Substitution [16] The Appellant asks that the RAD substitute the negative determination with a positive determination. The RAD has the ability to substitute a negative determination based on s. 110(1)(b) of the IRPA. The RAD noted that s. 171(a.3) directs the RAD to receive and base a decision on evidence that is adduced in the proceeding and is considered credible or trustworthy in the circumstances. The RAD also is cognizant of the Federal Court's direction in Huruglica3 for the RAD to review the evidence on the record and to come to an independent assessment of whether the Respondent is a Convention refugee or a person in need of protection. [17] The RAD noted that the RPD spent approximately 2/3 of the questioning time on issues which related to the Appellant's credibility and the credibility of his allegations. The RPD questioning uncovered several significant omissions and explored the Appellant's explanations for the omissions; however, the RPD accepted the Appellant's testimony as being generally credible "for the purposes of this decision". The RAD questions the logic of accepting that a claimant is credible "for the purposes of the decision". This decision-making strategy somewhat short sighted as the outcome in this appeal may have been different based on if the RPD had chosen not to find the Appellant credible and to focus solely on the IFA. [18] Given the potential credibility concerns cited below, given that the RPD accepted the Appellant as being generally credible, given that the issue of credibility was not raised in the appeal, and given the principles of natural justice and fairness in refugee determination proceedings, the RAD finds that it cannot substitute the negative determination with a positive determination as requested by the Appellant. [19] Despite this, and given that Huruglica directs the RAD to assess the totality of the evidence, the RAD will comment on what appears to be several potential credibility issues raised through its assessment of the recording and evidence. 1. The Appellant submitted a Basis of Claim (BoC) narrative amendment4 which includes two key allegations which were not included in the original BoC narrative. These include the fact that the Appellant and the assistant pastor began receiving threats as early as XXXX of 2013 after the assistant pastor reported to police and police failure to follow-up despite reporting five times, and the fact that the threat the Appellant received in XXXX of 2014 was the result of the report to the police. The Appellant also omitted the name of the mosque in the original BoC narrative. The omission of key events and the rationale for the Appellant to receive threats by a member of the mosque may be a significant issue in assessing the credibility of the Appellant's allegations. The RAD also noted that the BoC amendment was received on the same date as the documentary evidence in Exhibit 5 (November 21, 2014), which included an article5 which indicated that XXXX XXXX had alerted authorities to security threats. The article, however, does not mention that the church had been burned down as the Appellant alleged, nor does it mention that other parishioners had been injured in the fire as alleged. 2. The Appellant omitted from his BoC and his BoC amendment the fact that his wife had continued to receive threats and had to change her telephone number. The Appellant was unable to provide a reasonable explanation for this omission other than indicating that he knew he could explain this at the hearing, and he was confused and not in a stable mind when he arrived in Canada. 3. The Appellant testified and indicated in his revised BoC narrative that the threats started in XXXX of 2013; however, this was not consistent with the allegations of the first threats (XXXX of 2014) in the original BoC narrative. 4. In oral testimony, the Appellant indicated that he received a death threat when he was visited by XXXX. When asked why this was not included in his BoC, the Appellant explained that he indicated in his BoC that "I would face serious consequences". The RPD may assess whether this is a reasonable explanation. 5. The letter from the Kenya Pastors Fellowship6 may need to be further explored for its probative value. The letter has grammatical errors. The letter goes on to misquote 2 Corinthians 13:14 at the bottom; the web address on the document XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX cannot be displayed when typed into a search engine, and the writer of the document does not state how he came to know of the alleged persecution by the Appellant. 6. The Appellant failed to indicate in his BoC his denomination and did not have an explanation for this despite his faith being one of the bases of his claim, and at the hearing, he was only able to indicate that his denomination was evangelical. 7. The Appellant's BoC narrative indicated that, after he moved into his cousin's house in Nairobi on XXXX 2014, he was advised to leave the country by his cousin, and he obtained the assistance of an agent. The Appellant's passport was issued on XXXX, 2014, before his home allegedly was visited by members of Al Shabaab. The issuance of the Appellant's passport before he decided to leave Kenya may require an explanation. 8. The certificate from XXXX Bible College lacks security features and appears as if it could have been printed by a home computer. 9. The photos of a burned church7 do not identify the Appellant or the name of the church. 10. The Appellant failed to provide independent evidence attesting to his continued reports of threats and persecution to police. The RPD may reflect on the plausibility of the Appellant's explanation that his wife was asked to pay 25,000 Kenyan Shillings for a document given that this number amounts to CAD$342.00. 11. The sworn statement by the Appellant's wife8 fails to mention that the Appellant had been beaten unconscious and hospitalized; the statement fails to mention that the church had been burned down; the statement indicates that the home was attacked at night in XXXX; however, the Appellant indicated that people only left a threatening note; the statement fails to indicate that the writer continues to be threatened, and the statement does not provide specific details or dates regarding the events contained in the document. [20] Given the potential credibility concerns highlighted above, the RAD finds that it cannot substitute the negative determination with a positive determination. Directions 1. The Minister intervene in the file and verify with officials in Kenya the following: existence of XXXX Bible College; the existence of Kenya Pastors Fellowship and Pastor XXXX XXXX; the burning of the XXXX XXXX XXXX Church in XXXX on or about XXXX 2014; and any additional media coverage concerning the events surrounding the killing of Pastor XXXX XXXX XXXX. If the Minister is unable to participate, the RPD is directed to request that SIRU engage in verifying the information. 2. The RPD request the disclosure by the Minister and consider the Appellant's CVV application, including all supporting documents to be compared with the BoC and the Appellant's testimony at the first hearing. 3. The probative value and weight to be placed on the psychiatric report by Dr. XXXX9 should be assessed bearing in mind the reasoning in paragraphs 28-34 of the recent Molefe10 decision. Summary [21] After a review of the totality of the evidence, the RAD finds that the IFA findings were not adequately supported by the evidence on the record. DISPOSITION [22] Based on the analysis above, the RAD allows the appeal and returns the matter to the RPD for redetermination with the directions cited above, as per s. 111(1)(c) of the IRPA. [23] The appeal is allowed. (signed) "Daniel McSweeney" Daniel McSweeney April 19, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Kenya (14 March 2014). 3 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 4 Exhibit RPD-1, RPD's Record, Exhibit 2, BoC narrative amendment, pp. 22 - 24. 5 Exhibit RPD-1, RPD's Record, Exhibit 5, xxxxxx, pp. 92 - 93. 6 Exhibit RPD-1, RPD's Record, Exhibit 5, Letter from Kenya Pastors Fellowship, p. 87. 7 Exhibit RPD-1, RPD's Record, Exhibit 5, 2 photos, p. 88. 8 Exhibit RPD-1, RPD's Record, Exhibit 5, Statutory Declaration, p. 90. 9 Exhibit RPD-1, RPD's Record, Exhibit 4, Psychiatric Report, pp. 81 - 82. 10 Molefe, Nana Joy v. M.C.I. (F.C., no. IMM-8071-13), Mosley, March 12, 2015; 2015 FC 317. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-00224