TB5-08483

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 : TB5-08483 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal 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 October 27, 2015 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal John Savaglio 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 FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of Pakistan, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has not submitted new evidence in support of his claim and he has not requested an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and substitute a decision that he is a Convention refugee or a person in need of protection. Alternatively, the Appellant requests that the matter be remitted to the RPD for reconsideration by a differently-constituted panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA) the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. Background [3] The Appellant alleged he is unable to return to Pakistan because of his membership in the Awami League Party. He further alleged he worked under the party banner for NGOs XXXX XXXX and assisting XXXX XXXX. As a result, he received threatening calls in XXXX 2013. [4] The Appellant made a refugee claim in the United Kingdom (UK) in 1996 based on his membership in the Jamaat-e-Islami Party. His claim was rejected and he was deported back to Pakistan. The Appellant alleged he never resumed support for that party. [5] The Appellant alleged he reported the telephone calls to the police and he lowered his profile but on XXXX XXXX, 2014, a caller threatened to kill him. He moved to Karachi in XXXX 2014 and he was shot at while shopping. [6] The Appellant alleged he was advised to leave Pakistan and he is unable to return because he fears being killed by the Taliban. The Issues [7] The panel indicated that the determinative issues in this case are the Appellant's identity, credibility, the subjective component of his well-founded fear of persecution, his delay in making his claim, the objective component of his fear and the internal flight alternative. [8] The Appellant submits the issues in this appeal are the following: a. What is the appropriate standard of review? b. Did the RPD err in its findings regarding the Appellant's identity, and/or were its findings on the issue of the Appellant's identity unreasonable? c. Did the RPD err in its credibility findings, and/or was its assessment of the Appellant's credibility, including the credibility of evidence adduced in support of his claim, as well as the well-foundedness of his claim, unreasonable? The Role of the RAD [9] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [10] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [11] In this regard, the Court, in Huruglica, considered the appropriate relationship between the RAD and the RPD.1 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [12] The Court determined that, in conducting its assessment, the RAD 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. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error". [13] The RAD will review all of the evidence in the RPD's record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. [14] The RAD notes that the Appellant makes a submission in regard to the appropriate standard of review. The RAD further notes that it is in agreement with the Appellant's submission in this regard and the RAD indicates above its view of its role in this appeal. The Minister's intervention [15] The Minister intervened in the RPD's hearing and submitted evidence as to credibility issues and program integrity.2 [16] The Minister submitted a Five Country Conference Report (FCC)3 that indicated the Appellant was fingerprinted on XXXX XXXX, 2007, in conjunction with an application for a U.S. visa under the name XXXX XXXX. The document notes in addition to name and fingerprints, Pakistani nationality, passport number and employment as a crew member on a ship in transit. [17] The Minister further submitted that in 1999, the Appellant was deported back to Pakistan from the UK. The Minister submitted as well that the Appellant did not identify any difficulties between 1999 and November 2013 and as such, had no reason to misrepresent himself to U.S. authorities. The Minister therefore submitted that the Appellant's real name is XXXX XXXX and he is now misrepresenting himself to Canadian authorities to substantiate a refugee claim. [18] In the alternative, the Minister submitted that for the Appellant, having been presented with this evidence, to now declare that he misrepresented himself to U.S. authorities in 2007 but is telling the truth at this time, would be disingenuous. The Minister further submitted that the Appellant made no mention of deceiving U.S. officials up to this point and would only be admitting such deceit in the face of the evidence presented to him. The Appellant would be asking the Board to believe that he was completely willing to misrepresent himself to U.S. officials in order to obtain a visa despite not fearing persecution, but is now being truthful. The Minister submits that given this information, there is a serious reason to doubt the Appellant's evidence with regard to his personal identity and the basis for this claim. Credibility [19] The panel stated that credibility was a key issue in this case. The panel further stated it had credibility concerns with the Appellant's material evidence and found much of the Appellant's testimony to be implausible. The panel found there was sufficient reason to rebut the presumption of truthfulness on his part. Identity [20] The panel cited the Minister's evidence noted above, indicating the Appellant arrived in the United States in 2007 with a valid passport under the name of XXXX XXXX. The panel noted the Appellant arrived in Canada without identity documents. He testified that he used the services of a smuggler and threw his documents away on his arrival. [21] The Appellant testified in the RPD's hearing that his real name is XXXX XXXX and on the advice of a smuggler he used a false name for his unsuccessful attempt to obtain a U.S. visa. He explained he received this advice because he had used his real name in 1996 for his residence and failed attempt to obtain refugee status in the UK. [22] The panel noted that the Appellant provided a number of documents to support his identity.4 In regard to the National Identity Card (NIC) disclosed by the Appellant, the panel referred to the Minister's additional information5 which cast further doubt on the Appellant's identity.6 The panel further noted a Document Analysis Report found that the card was probably genuine but it had been altered. There were signs of photo alteration and the quality of laminate on the front of the card was indicative of a counterfeit. [23] The Appellant responded that the card had been used frequently and this repeated use likely caused the card to look altered. The panel rejected this explanation and found it reasonable that trained and knowledgeable persons analyzing the document would know the difference between wear and one that had been altered. [24] The Appellant provided a letter from the Consulate General of Pakistan verifying the particulars of XXXX XXXX birth date, birth place and parents' names. The panel noted that although the Card's statistics may be in the National Data Base of Pakistan, the Consulate was not privy to the Minister's finding of evidence that the card had been altered. The panel found that the un-tampered card does not belong to the Appellant. [25] The panel found that the NIC was produced by the Appellant in order to establish his identity as XXXX XXXX. The panel further found that the card's alterations cast doubt on some or all other identity documents provided by the Appellant.7 The panel cited in this regard, country documentary evidence which notes the prevalence of obtaining fraudulent documents in Pakistan.8 The panel stated that the evidence indicates the Appellant presented one identity to United States authorities in 2007 and another to Canadian authorities in 2014. The panel found, in the context of this evidence, there is no clear and convincing evidence as to the Appellant's true identity or his route to Canada. [26] The Appellant submits that the panel erred in its finding regarding his identity. The Appellant further submits that the Document Analysis Report, relied upon by the panel, indicated that the NIC was "probably genuine". [27] The Appellant submits as well, that in addition to his testimony under oath, he tendered a number of other identity documents and/or identity-related documents, including copies of his Pakistani passport pages, his Pakistani Domicile Certificate, driver's license, marriage registration certificate, school certificates and birth certificates for his children bearing his name. [28] The Appellant also submits that he provided a plausible explanation as to why his NIC appeared to be tampered with; as a result of wear and tear. [29] The Appellant submits that the Document Analysis Report does not conclusively state that the photograph had been altered but rather that the anomalies noted may indicate the document had been altered. [30] The Appellant also submits that the Consulate General of Pakistan confirmed his identity as XXXX XXXX and the fact that the Consulate was unaware of the Minister's finding regarding suggested photo alterations, was not a reasonable basis on which to dismiss the probative value of the confirmation of his identity. [31] The Appellant submits that the panel failed to make a determinative finding as to the other identity documents tendered by the Appellant. [32] The RAD has reviewed all of the evidence concerning the Appellant's personal and national identity. The RAD notes that the issue of the Appellant's identity is complicated by the misrepresentations made by the Appellant to U.S. authorities, and as well by misrepresentations made to Canadian authorities. The RAD further notes that the Appellant explained his use of a false identity in applying for a U.S. visa resulted from his effort to hide an extended residence in the UK and possibly his failed refugee claim in that country. [33] The RAD notes that the authenticity of the Appellant's Pakistan National Identity Card concerns the determinative nature of the Document Analysis Report noted above. The question asked was noted, whether the additional identity documents disclosed by the Appellant are sufficient to confirm his identity. There appears to be agreement that the National Identity Card is authentic and that the Appellant is a Pakistani national. The question is whether it belongs to the Appellant and whether the Appellant is XXXX XXXX. [34] The RAD notes, as did the Appellant, that the Document Analysis Report, in addition to indicating that the NIC is probably genuine, also indicates that the concerns about the physical look of the document may indicate the document has been altered. It does not say that it does indicate the document has been altered. The RAD has also reviewed and assessed 10 additional identity documents disclosed by the Appellant.9 The RAD finds, in the context of the likely genuineness of the NIC and as well the likely genuineness of the additional identity documents, the plausibility of the Appellant's explanation that he misrepresented his identity to U.S. authorities because he believed that knowledge of his failed claim in the UK would prevent him from receiving a U.S. visa, and the acceptance of his identity as a Pakistani national, that on a balance of probabilities, the Appellant is XXXX XXXX, a Pakistani national. Objective basis for a well-founded fear of persecution [35] The Appellant testified that he feared the Taliban who targeted him in Swat because he joined the National Awami Party in 2000 and performed humanitarian work through NGOs. The Appellant further testified that he received threatening telephone calls in XXXX 2013 and received more calls in XXXX and XXXX 2014. In XXXX 2014 he moved to Karachi because of threats to his life. [36] The Appellant was asked how many persons work in the same capacity with the three NGOs and he responded there were 15 full time and 9 to 10 volunteers. The Appellant did not know if the full time workers were threatened. He further testified that a couple of volunteers received threats but others were not as active as he was. [37] The panel noted the Appellant's vague response regarding threats to others in similar circumstances and drew a negative inference from his lack of knowledge. The panel found that it was reasonable to expect that the Appellant would have discussed the threats to him with others and that he would have established whether there were threats to the other NGO workers. The panel further found the Appellant's evidence was untrustworthy and not credible. [38] The Appellant testified that he reported the telephone calls to the police and expected personal protection, but since he could not identify the callers, the police did nothing. The panel noted the Appellant's testimony indicated that he was unaware of the source of the calls but he suspected it was the Taliban. The panel indicated there was nothing before it that suggested, given the particular circumstances, that the police did not act in accordance with the evidence they had before them, that is, only un-sourced telephone calls. The panel found the Appellant had not provided clear and convincing evidence of Pakistan's inability to protect its citizens. [39] The Appellant testified that he moved to Karachi just after XXXX XXXX, 2014, and he was shot at in a local bazaar by the Taliban who intended to kill him. The Appellant was asked about the circumstances of this incident and the panel indicated his response was confusing. The Appellant testified that he was unaware how many Taliban were involved because he did not see them. He further testified that he was the only one on the street. He heard the shots, fell to the ground and the bullets landed beside him and he heard them running away. [40] The panel found this story neither credible nor trustworthy. The panel found it reasonable to expect that if more than one Taliban member had been pursuing the Appellant with the intention of killing him, they would not likely have missed their target, nor would they have run away if their target was in front of them on an empty street. The panel noted it was unclear from the Appellant's testimony how he was aware they were Taliban if his pursuers were behind him and he did not see them. [41] The Appellant testified that the Taliban approached his brother in Swat and told him the Appellant was lucky to escape the attack in Karachi. They further stated that the next time they would make certain they killed him and that his name was on their hit list. The panel found it was not credible that regardless of the Taliban's wide network, a few days after the Appellant's arrival in Karachi, more than 2500 km from Swat, Taliban members could manage to locate him in a city of approximately 15 million persons. [42] The Appellant provided newspaper articles and letters in support of the attack.10 In the context of the negative credibility findings noted above, the panel placed no weight on this evidence and finds this evidence was manufactured in order to establish this claim. [43] The panel found the evidence in this claim is totally untrustworthy and lacking any credibility. The panel further found the incidents, as described, never occurred and did not believe the Appellant's allegations in this claim. The panel cited in this regard, the Federal Court decision in Orelien,11 in which the Court held that one cannot be satisfied that the evidence is credible and trustworthy, unless satisfied that it is probably so, not just possibly so. [44] The Appellant submits that the panel's credibility findings were unreasonable. [45] The Appellant further submits the panel's findings regarding material aspects of his claim were largely based on speculative and/or unsubstantiated plausibility considerations. The Appellant notes in particular in this regard, the panel's finding that the Taliban would not have missed its target had they intended to kill him. [46] The Appellant also submits that the evidence adduced in the RPD's hearing ought to have led to a finding that he had provided clear and convincing evidence of the Pakistani State's inability to protect him. The Appellant notes he made several attempts to seek police protection and they were summarily dismissed. The Appellant further notes that the documentary evidence on the record in the RPD's hearing is evidence of the Pakistani State's unwillingness and/or inability to adequately deal with terrorist organizations such as the Taliban. [47] The Appellant submits that the panel's refusal to assign probative weight to other documentation, including a written statement to a Station House Officer in Pakistan, two press items referencing the Appellant specifically, an affidavit from the Appellant's brother and photographs depicting the Appellant's activities in support of XXXX XXXX in Pakistan, was unreasonable. The Appellant submits the panel did not provide valid or substantive reasons for dismissing the probative value of these documents and its finding that the documents were manufactured. [48] The RAD has reviewed all of the evidence, including the CD recording of the RPD's hearing. The RAD notes that the documentary evidence concerning the Appellant's alleged work with NGOs is a hand written letter from OMEED, dated August 3, 2014,12 which seems clearly to be a response to a self-report by the Appellant. The RAD notes in this regard that the Appellant testified he had no direct contact with the full-time NGO workers and that he was unaware if any of these workers had received threatening calls. The RAD concurs with the panel's finding that it was reasonable to expect that the Appellant would have discussed the alleged threatening calls with full time workers, other volunteers and at minimum, with those who were responsible for administering this work. The RAD notes that the Appellant did not disclose any corroborating documentation concerning his association with the three NGOs, other than the document noted above from OMEED, some pictures and a letter from his brother. The RAD finds the Appellant has provided insufficient credible evidence that he was personally threatened by the Taliban in Swat. [49] The RAD finds, in the context of the analysis above concerning the alleged threatening calls, that in regard to the issue of state protection, it is doubtful that the Appellant required police protection. The RAD also finds, in regard to the Appellant's evidence concerning the police response to his complaint, that it was open to the panel to find the police response to be reasonable in the circumstances, and that the Appellant had failed to rebut the presumption of state protection. [50] The RAD notes that the panel failed to consider the documentary evidence provided by the Appellant concerning the alleged shooting in Karachi. The RAD finds, while it strains credulity that the Taliban, in spite of its alleged network, would be able to track down the Appellant in Karachi, a city 2500 km away from Swat and with a population of 15 million people, the documentary evidence should have been considered. [51] The RAD has reviewed and assessed the newspaper articles provided by the Appellant. The RAD notes that the Appellant testified that he was alone on a road when the shots were allegedly fired. The RAD further notes that the newspaper reports were clearly the result of the Appellant's interview with reporters. The RAD notes as well, since the Appellant testified he was alone when the alleged shooting took place, he would have had to seek out these reporters and their stories were based only on the Appellant's evidence. The RAD finds, in the context of the analysis above concerning the implausibility of the Taliban finding the Appellant 2500 km away from Swat and in a city of 15 million people, and also the lack of evidence regarding the Karachi shooting other than the Appellant's self-reported story that appeared in two newspapers, it was open to the panel to find the Appellant's story concerning the alleged shooting to be neither credible nor trustworthy. The RAD concurs with this finding. [52] The RAD has also reviewed the evidence concerning the Appellant's pursuit of safety in the United Kingdom and the United States before coming to Canada to make a claim for protection. The RAD finds that this history is significant as it relates to the Appellant's general credibility. [53] In regard to the Appellant's residence and claim in the UK, the RAD notes that the Appellant testified he had problems with the Jamaat-e-Islami and went to the UK in 1993. The RAD further notes the Appellant did not make a claim for protection in the UK until 1996; his claim was rejected and he was deported in 1999. The RAD also notes that the Appellant testified that his claim lacked the support of corroborating evidence that he was in fact at risk of persecution in Pakistan. The RAD notes as well, the Appellant testified that the alleged difficulties between the Appellant and the Jamaat were subsequently resolved in a conversation between the head of the Jamaat and the Appellant's father. The RAD finds it strains credulity that the Appellant was fleeing persecution in 2003 when he waited approximately three years to make a claim in the UK, when his claim was rejected for lack of corroboration and when the trouble with the alleged agent of persecution was resolved in a conversation with the Appellant's father. [54] In regard to the application for a U.S. visa in 2007, the RAD notes that the Appellant testified that he made the application because he feared the Taliban. The RAD further notes that the Appellant made no mention in his Basis of Claim (BOC) of any risk from the Taliban that would cause him to leave the country at that time. In fact, there is no mention of any personal trouble from the Taliban until 2013, six years after his failed effort to obtain a U.S. visa, allegedly because of his fear of Taliban persecution, and six years in which he testified he continued with his work regarding women's education in his area. [55] The RAD notes as well that in addition to his misrepresentation to U.S. authorities, he also misrepresented himself to Canadian authorities. In his Port of Entry interview, cited in the Minister's evidence,13 he stated that he had never used any other name. He also stated he had never been refused refugee status by any other country. In addition, he indicated that his activity from XXXX 2004 to XXXX 2014 was "...working for my own business, related to XXXX." The RAD notes as well, that he stated under oath that his BOC was complete, true and correct, but failed to mention his U.S. visa application using a false identity. The RAD notes, while the Appellant may have felt compelled to hide his UK residence and claim because he wished to go to the United States, there was no reason not to answer the questions of Canadian authorities truthfully or to fail to provide the complete truth to the RPD. [56] The RAD finds that cumulatively, the Appellant's actions and written and oral testimony noted above raise a serious doubt as to his general credibility; and further, finds there is insufficient credible and trustworthy evidence to find that the Appellant would be at risk of persecution or a risk to his life if he were to return to Pakistan. Disposition [57] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Milton Israel" Milton Israel October 27, 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, pp. 177-187. 3 Exhibit RPD-1, RPD's Record, pp. 173-176. 4 Exhibit RPD-1, RPD's Record, pp. 188-254. 5 Exhibit RPD-1, RPD's Record, p. 180. 6 Exhibit RPD-1, RPD's Record, pp.185-187. 7 Exhibit RPD-1, RPD's Record, pp. 185-187. 8 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Pakistan (30 January 2015), item 3.6. 9 Exhibit RPD-1, RPD's Record, pp. 190-228. 10 Exhibit RPD-1, RPD's Record, pp. 239-250. 11 Orelien v. M.E.I. [1992] 1 F.C. 592 (C.A.); (1991), 15 IMM. L.R. (2d) 1 (F.C.A.). 12 Exhibit RPD-1, RPD's Record, pp. 225-226. 13 Exhibit RPD-1. RPD's Record, pp. 169-170. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08483