TB4-04573

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 : TB4-04573 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXXX (a.k.a. XXXXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 10, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane 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 FOR DECISION [1] XXXXXX, a citizen of Georgia, is appealing his decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has not submitted any new evidence in support of his appeal and is not requesting an oral hearing. He is, however, requesting that the Refugee Appeal Division (RAD) allow the appeal. DECISION [2] This appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. Background: [3] The Appellant submitted his original Basis of Claim form (BOC), based on sexual orientation, which he subsequently admitted was fraudulent. The Appellant then submitted an amended BOC. [4] The Minister had submitted a "Notice of Intent to Intervene" by filing evidence only. The Minister alleged that the Appellant withheld his real travel route, travel dates, as well as the actual date of arrival in Canada. The Minister also had concerns with the credibility of the Appellant's BOC narrative concerning an incident where he and his partner were sexually involved at the seaside, and were discovered by a member of his wife's family. [5] The Appellant submitted an amended BOC,1 in which he admitted that he had lied as individuals in the Georgian community had advised him it would be easier to be accepted if he claimed to be gay or bisexual. Amended BOC [6] After admitting that the original BOC was fraudulent, the Appellant alleges that he is being targeted by "government members/supporters." He alleges that, as a Military Officer, he had to fire a lieutenant named XXXXX because he was inebriated. The lieutenant's relative, XXXX XXX, who was XXXX an opposition party in Georgia, asked the Appellant t o join his party, pay him money and rehire his relative. The Appellant refused, which then lead to attacks and threats. The Appellant and his family went into hiding on XXXX, 2013 and the Appellant left on XXX, 2013. ROLE OF THE RAD: [7] Although counsel has made submissions in this regard, a recent Federal Court decision in Huruglica2 has provided 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". COUNSEL'S SUBMISSIONS * What is the appropriate Standard of Review? * The RPD should have considered section 97 of IRPA. * The RPD erred by rejecting the wife's affidavit because it reiterates what is in the BOC. * Is it unreasonable that the Appellant could not find proof of friendship of two officials?. * Did the RPD make an unreasonable finding with respect to the Appellant's failure to claim in Copenhagen * Did the RPD make an unreasonable finding with respect to day? [8] The Appellant challenges the credibility findings of the RPD. FINDINGS OF THE RPD BEING CHALLENGED [9] The RPD found that the affidavit from the Appellant's wife essentially repeats the allegations set out in the amended BOC. (paragraph 34 of its Reasons). [10] Counsel submits that it is unreasonable not to retain evidence that corroborates the claim. [11] The RAD finds that the RPD's finding in this regard did not undermine the credibility of the Appellant. It simply did not add anything to support the allegations. Proof of friendship of two officials: [12] The Appellant submits that he was good friends with his XXX and also the XXX. Counsel further argues that it was unreasonable for the RPD to expect proof of the Appellant's friendship with these two officials and, moreover, the RPD does not state what proof this could be. [13] However, the RPD had questioned the Appellant if he had any documentation to corroborate these friendships. When the Appellant indicated that he might have photographs at home, the RPD quite properly allowed time for the Appellant to submit post-hearing evidence in this regard. However, in the absence of any corroborative evidence being forthcoming, the RAD finds that the RPD quite properly drew a negative inference, particularly after providing the Appellant the opportunity to submit this documentation. The RAD further finds that the RPD applied Rule 11 of the Refugee Protection Division Rules when, in the absence of such corroborative evidence, it made a negative credibility finding that the Appellant was not connected to these high profile individuals. The burden of proof rests with the Appellant and, if these individuals were high profile as alleged, it is reasonable to expect some form of corroboration. Claim in Copenhagen [14] The RPD made a negative credibility finding with respect to the Appellant's travel route, dates and his six-day stay in Copenhagen. The Appellant's explanation that he did not pay much attention to exact dates initially but then realized he needed to correct them was not accepted by the RPD. The RPD asked the Appellant why he didn't make a refugee claim in Copenhagen. When the Appellant indicated that he had not thought about it, and he already had knowledge of Canada, the RPD made a finding that the Appellant lacked subjective fear. [15] Counsel submits that there is no obligation to make a claim in the first country of refuge. Moreover, he submits that the Appellant was already booked to come to Canada. [16] The RAD finds that this short sojourn in Copenhagen does not constitute a lack of subjective fear and the RPD erred in this regard. The Appellant never had any intentions of claiming refugee status there, but rather it was a transit route. However, the RAD finds that the credibility findings, with respect to misrepresenting his travel route when he first completed his IMM008 (Exhibit 1) were taken into consideration. Delay in Claiming [17] The RPD considered the fact that the Appellant entered Canada illegally with a Lithuanian passport and did not make a refugee claim at the first opportunity. He arrived in Montreal on March 25, 2013 and filed his claim in Toronto on May 8, 2013. The RPD did not accept the explanation proffered by the Appellant that he knew nothing of the refugee process and it took time to enquire about the process. [18] The RAD finds that the RPD properly considered the fact that the Appellant has 14 years of formal education and he had told the RPD that he already knew about Canada, hence he chose this country as opposed to Copenhagen. The RAD further finds that the RPD's findings in this regard were not considered in isolation, but on a cumulative basis; the Appellant's misrepresentation of his travel to Copenhagen, and his delay in claiming in Canada. Omissions with Respect to Attacks: [19] Counsel makes no submissions with respect to the RPD's findings on the issue of attacks on the Appellant. However, the RPD found that in the absence of critical information, i.e. the phone call to the police, the Appellant's credibility was called into question. [20] The RAD concurs with the RPD that a negative inference must be drawn, given four subsequent attacks which were not included in the Appellant's amended BOC, in the absence of a reasonable explanation for this omission. The RAD also finds, in the absence of any corroborative evidence, a negative inference must be drawn with respect to the Appellant's credibility. OVERALL CREDIBILITY [21] Although Counsel makes no submissions in this regard, the RAD finds the following. The RPD quite properly considered the fact that the Appellant only filed an amended BOC after the Minister had intervened. The RAD finds that it is questionable if the basis of the claim would have changed had the Minister not intervened. Moreover, it is noted by the RAD that the Appellant maintained this fabricated story of sexual orientation allegations for a period of ten months and only disclosed the new allegations two days prior to his scheduled hearing date. [22] The RPD considered all the evidence, including the medical reports. However, in the absence of credible testimony, it found that the Appellant was not being threatened and attacked by XXX of the opposition party, XXX, and his representatives. The RAD concurs with this finding. The RAD notes also that the RPD allowed time for post-hearing documents, however they were not forthcoming. The RAD finds that the RPD also quite properly considered the three extracts from the Ministry of Affairs,3 but, in the absence of more detailed information and the overall credibility concerns, these documents did not corroborate the Appellant's allegations of having been attached by XXX. [23] In totality, the RAD concurs with the RPD in its consideration of the Appellant's credibility. Section 97 of the IRPA: [24] The Appellant argues that the RPD erred in failing to assess his s. 97 claim. While the RPD did make credibility findings with respect to his subjective fear which only goes to the s. 96 portion of his claim, the RPD also made other credibility findings that sufficient extend to s. 97 of his claim. [25] For the foregoing reasons, this appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. (signed) 'Roslyn Ahara' Roslyn Ahara September 10, 2014 Date 1 Exhibit 7 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 3 Exhibit 10 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-04573