TB6-06766

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 : TB6-06766 TB6-06767 TB6-06768 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 28, 2016 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Elyse Korman Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the "Appellant"), his wife, XXXX XXXX XXXX (A-2) and their minor daughter, XXXX XXXX (A-3) (collectively "the Appellants"), appeal the determination of the Refugee Protection Division (the "RPD") dated April 28, 2016 that the Appellants are neither Convention1 refugees nor persons in need of protection, pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the "Act").2 DETERMINATION [2] Pursuant to section 111(1)(a) of the Act, the Refugee Appeal Division (the "RAD") confirms the determination of the RPD that the Appellants are neither Convention refugees pursuant to section 96 of the Act nor persons in need of protection pursuant to section 97 of the Act. These appeals are dismissed. BACKGROUND [3] The Appellants alleged before the RPD that the Appellant joined the Nepalese Congress (NC) Party in 2003 and soon after he came to the attention of anti-monarchist Maoist extremists. Maoists attacked the Appellant and his older brother on suspicion that the brothers were informants for the Nepalese army. The Appellants fled and relocated to a city near Kathmandu. However, his brother fled Nepal, arrived in Canada and made a successful claim for protection. [4] The Appellant worked in Saudi Arabia from 2008 and upon his return to Nepal he opened a convenience store and became active in the NC Party. His store was regularly targeted for extortion by the Maoists and he complied with their demands. [5] In August 2013 he received an anonymous telephone call warning him against criticising the Maoist movement. He actively campaigned during the 2013 Nepalese general elections. In January 2014, he received a demand for a donation to the Maoists, which he paid. He received another demand in August 2014, which he refused on the advice of his party leader. In February 2015, he tried to reclaim his family's property, following which he started receiving threats, but received no assistance from police. In April 2015, he spoke out against Maoist "terrorism" during an interview which resulted in more threatening letters and calls. Armed Maoists assaulted the Appellant in XXXX XXXX, 2015 at his house and stole their money and valuables. They also threatened to kill them if the Appellant did not abandon his party and join the Maoists. The Appellants obtained visas to Canada and claimed protection in October 2015, one month after their arrival. [6] They are afraid to return to Nepal and fear harm from Maoists because of the Appellant's political opinion and his efforts to reclaim his family lands. [7] On appeal, they did not submit documents to be considered as new evidence pursuant to subsection 110(4) of the Act, and did not seek a hearing. Issues: [8] Did the RPD make "unsustainable credibility findings". REMEDY SOUGHT [9] The Appellants request that the RAD set aside the decision of the RPD and find that they are Convention refugees or persons in need of protection. In the alternative, they request the RAD refer the matter back to the RPD for re-determination. ROLE OF THE RAD [10] The Appellants did not make any submissions regarding the standard of review that should be applied for this RAD appeal. [11] [12] The Federal Court of Appeal in Huruglica stated the following regarding the role of the RAD:3 [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [13] In this appeal, and taking guidance from Huruglica (above), I will review the evidence and conduct my own independent assessment of the evidence to determine whether the Appellants are Convention refugees or persons in need of protection. [14] Since the only issue raised by the Appellants is regarding the credibility findings of the RPD, I note that very recently the Federal Court in Cortes4 stated the following: [17] The RPD's credibility findings are owed the highest degree of deference.... [22] Credibility findings are the "heartland" of the RPD's jurisdiction.... Its credibility findings are owed significant deference. (emphasis added) Merits of the Appeal: [15] The RPD found that the Appellant was not credible and stated that it noted "discrepancies, inconsistencies, and other problems with the principal claimant's testimony" and cited several including: his involvement in Nepalese Congress Party, and his alleged interview by with a local Nepalese newspaper about his role as a District Member in the NC party. The RPD also considered the alleged extortion letters and the threatening calls and found that the Appellant's testimony was not credible on any of these issues. [16] The Appellant submits that "the RPD conducted an overly microscopic assessment of the Principal Appellant's evidence" and based on that, the RPD Member made adverse credibility findings. The Appellant submitted that the RPD used a minor omission in his testimony regarding Maoists suspecting him to be an informant as an example. I am not persuaded that it is a minor omission. The Appellant alleged that he has been an active member of the NC political party since 2003 and was suspected as an informant for the army, but his testimony was not consistent with his narrative. These are two issues that arise out of this. First, if he was suspected as an informer as he declared in his Basis of Claim form (BOC), it was reasonable for the RPD to expect him to be able to state so when asked. Second, if he has been an active member of the NC party and recruiting people, it is not unreasonable to expect him to provide some meaningful information about the NC party. He was not able to explain the omission reasonably nor was he able to describe how his party differs from other parties. [17] The only nexus to the Convention in these claims is the Appellant's alleged political activities and resulting fear from the Maoists. The RPD was not satisfied that he was as politically active as he wants the Board to believe. The RAD is not satisfied either, after a thorough review of the evidence including listing to the audio recording of the hearing. [18] Selected extracts of the hearing were transcribed and were provided by counsel on Appeal. After a review of these and listening to the audio recording of the hearing, I find that the Appellant did not demonstrate by his answers that he is an active member who recruits others for the NC party. He also provided a shallow description of the NC party and how it was different from other parties, as explained further in the following sections. [19] The RPD asked a clear question - "what makes the Nepal Congress different from other political groups." The Appellant's answer was that NC is a party for democracy and humanity that can be trusted.5 The RPD stated that every political group would say so about itself and asked the Appellant to explain what he would tell people. First he was evasive and when prompted again, stated, "that NC party "would never harm anybody" or "cause any problems to anybody."6 [20] When asked to explain how the party would support the people and "what would you tell people about the principles" of the party, his answers were meaningless, as shown on the Appellant's Record on page 85 where it states, "People would have questions about what sort of meetings would you organize and minutes that you would have and I have to let them know in detail what kind of meetings would take place and what were the minutes we would have for the meetings. These are the kinds of things that I would have to explain." [21] The Appellant also submitted that the "RPD erroneously impugned the Principal Appellant's credibility based on his inability to recall all of the details of his answers to the interviewer's inquiries." Counsel argues that the Appellant's response that he could only recall some of the answers he gave was a reasonable explanation for the shortcomings in his testimony. I am not persuaded. The RPD was understandably not satisfied with his inability to explain what he meant by his statements. It was not a test of his memory of the interview. A person who is alleging to have such a profile that newspapers would interview him can reasonably be expected to explain what he meant by his statements. The RPD provided cogent and detailed reasons in paragraphs 24 to 32 of its reasons dealing with the alleged interview. I am not persuaded by the Appellant's repeat accusation that the RPD's analysis was "onerous and microscopic". It is far too easy to make such allegations without providing sound arguments in support. [22] The Appellants also take exception to the RPD's finding regarding alleged letters from the Maoists the Appellant provided in support of his claim. The Appellant testified that extortion demands were made by letters but physical threats were made by phone. The letter of April 18, 2015 threatens the Appellant with "hard punishment" if he informed anyone about the letters. It is not unreasonable for the RPD to ask him why he thinks the Maoists would threaten physical violence over the phone. It is true that the Appellant is not expected to explain the activities of the alleged agent(s) of persecution, but asking for his opinion is not an error. Moreover, this is not the only issue on which the RPD based its determination. It is trite law that the RPD's reasons have to read as a whole. [23] In Jakariya7 the Federal Court stated: For purposes of judicial review, however, it is my view that a Refugee Board's decision must be interpreted as a whole. One might approach it with a pathologist's scalpel, subject it to a microscopic examination or perform a kind of semantic autopsy on particular statements found in the decision. But mostly, in my view, the decision must be analyzed in the context of the evidence itself. I believe it is an effective way to decide if the conclusions reached were reasonable or patently unreasonable. [24] Based on the foregoing, I find that the Appellant does not have the profile or the political acumen that he may be a target for the Maoists, either as a threat due to his work for the NC party or an attractive catch to become a member of the Maoist party. [25] Documentary evidence shows that 120 political parties participated in the 19 November, 2013 election and the 30 parties were elected to serve in the Constituent Assembly.8 The U.S. Department of State characterized them as credible, free and fair.9 Sushil Koirala of the Nepali Congress Party was appointed as Prime Minister on February 11, 2014.10 [26] The Appellant alleges to be a member of a party that is the ruling party in the country. It is described as Nepal's "largest and oldest surviving political party".11 The Maoist insurgency ended in 2006 after a decade long period of abuses by the Maoists and the government. They are now a part of the normal political fabric and are represented in the Constituent Assembly, holding the third largest number of seats. [27] The Appellant also alleged that his effort to reclaim his family property captured by the Maoists is another factor for his fears. The Appellant did not provide sufficient credible evidence to support that or make that an issue on Appeal. Regardless, the RAD notes that the Victims Common Platform on Transitional Justice presented the 'Kathmandu Declaration' and plan of action regarding 13 victims' associations and groups around the country representing victims of both the State as well as the Maoists. Moreover, he did not provide any evidence to support that he sought any help from any of the organizations set up to assist victims. [28] Therefore these appeals are dismissed. [29] Having considered the totality of the evidence, I find that the Appellant did not provide sufficient credible evidence for the RPD or the RAD to find on a balance of probabilities that there is a serious chance of persecution in Nepal due to the Appellant's political opinion or profile. Therefore, I confirm the RPD determination that the Appellants are neither Convention refugees nor persons in need of protection. Conclusion: [30] For the foregoing reasons, I confirm the determination of the RPD in accordance with section 111(1)(a) of the Act, namely, that the Appellants are neither Convention refugees nor persons in need of protection. These appeals are therefore dismissed. (signed) "Atam Uppal" Atam Uppal July 28, 2016 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act (the "Act"), S.C. 2001, c. 27. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 4 Orozco Cortes, Luz Nelly v. M.C.I. (F.C., no. IMM-5156-15), Fothergill, June 20, 2016; 2016 FC 684. 5 Exhibit P-2, Appellants' Record, p. 84. 6 Exhibit P-2, Appellants' Record, p. 85. 7 Jakariya, Sikkandar v. M.C.I. (F.C.T.D., no. IMM-3550-98), Pinard, July 8 1999. 8 Exhibit RPD-1, RPD's Record, exhibit 5, National Documentation Package (NDP) for Nepal (July 17, 2015), item 1.3. 9 Ibid., item 2.1. 10 Ibid., item 2.2. 11 Ibid., item 4.6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-06766 TB6-06767 TB6-06768