RPD Decision and New Evidence

Your client received the written decision on April 18, 2024.

RPD Decision Noor.pdf:-

INTRODUCTION

[1] The claimant, Faizal Noor, is a citizen of Afghanistan. He claims refugee protection under ss 96 and 97 of the Immigration and Refugee Protection Act (the "Act" or "IRPA").1 ALLEGATIONS2

[2] The claimant's allegations are fully set out in his Basis of Claim (BOC) narrative.

[3] The claimant is an interpreter from Afghanistan. He alleges a fear for his life because he is being threatened by the Taliban for working with the UNIDO.

[4] The claimant studied English at Kabul University. After graduation, he worked as a teacher at a high-school in Herat.

[5] Beginning in 2009, he worked as an interpreter for UNIDO - a UN organization promoting economic development in Afghanistan. As a requirement of his job, he had to relocate to Kabul. He also worked as an interpreter for the U.S. officials. In September 2020, he travelled to Qatar for two weeks to act as an interpreter in the peace talks between the Taliban and the Afghan government.

[6] In August 2021, when the Taliban took over Kabul, the claimant became fearful. He hid in a friend's apartment in another part of Kabul. He alleges that the borders were closed and he could not leave Afghanistan.

[7] On August 31, 2021, he alleges that some Taliban members came to his home where his wife and children were residing. The Taliban members called him a traitor for working with the infidels. They told the claimant's wife that he deserved death. [8] On September 15, 2021, the claimant fled to Pakistan with his family. He registered as a refugee there with the UNHCR. However, he alleges that he did not have any right to work or study. His daughters could not attend school.

[9] On September 30, 2023, he received a U.S. visa. A few days later, he was also granted a Canadian visitor's visa.

[10] On October 5, 2023 he travelled to the U.S. He then came to Canada on October 15, 2023.

[11] The claimant made a refugee claim on December 30, 2023. DETERMINATION 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Exhibit 1 - Basis of Claim Narrative.

[12] For the reasons below, the panel finds the claimant is neither a Convention refugee under section 96 of the Act nor a person in need of protection under section 97. IDENTITY

[13] The claimant's identity was established by means of his testimony and his Afghani passport. ANALYSIS

[14] The determinative issue in this claim is subjective fear. Subjective Fear

[15] The subjective fear relates to the existence of a fear of harm in the mind of the claimant. The objective basis requires there be a valid basis for the fear.3 Both subjective fear and an objective basis for it are crucial elements for a claim to succeed. In Kamana, 4 Madam Justice Tremblay-Lamer held that the panel's finding that the claimant had not credibly established the subjective fear element was reasonable and: The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition - subjective and objective - must be met.

[16] In this case, I find that the claimant has failed to establish that he has a subjective fear of harm. Failure to claim in the United States

[17] The claimant travelled to the U.S. on October 5, 2023 and stayed there for 10 days.

[18] When the panel asked the claimant why he did not make a claim in the U.S., he replied that he had never been to the U.S. before and that he did not know anyone there. The claimant said that his plan was always to come to Canada to join his brother. He also explained that he had heard that it was more difficult to be accepted as a refugee in the U.S.

[19] I find the claimant's explanation unreasonable. The claimant worked with the U.S. government as an interpreter in Afghanistan. He was also granted a visitor's visa to the U.S. - presumably as a reward for previous work as an interpreter. Due to his professional connections to the U.S., it made more sense to this panel that the claimant should claim asylum in the U.S. than Canada. 3 Rajudeen, Zahirdeen v. M.E.I. [F.C.A., no. A-1779-83], July 4, 1984 4 Kamana, Jimmy v. M.C.I. (F.C.T.D., IMM-5998-98, September 24, 1999

[20] Further, the claimant has submitted no evidence that an Afghan interpreter who worked with the U.S. government would have a lower chance of success in the U.S. than Canada.

[21] While it is true that he has a brother in Canada, I dO not find this to be a strong enough reason to rebut the expectation that a refugee claimant is expected to seek asylum in the first safe country that he arrives at. I find that this is a classic case of asylum shopping.

[22] In Madoui, 5 an Algerian claimant failed to claim during 19 months in Italy. He had been told by friends that he had little, if any, chance of obtaining refugee status in Italy. Despite statistics in evidence showing that similar claims were rarely accepted, the Board was not satisfied that the subjective component had been met and the Court saw no error in the Board's assessment.

[23] In Mekideche, 6 when the Board asked why the claimant did not claim refugee status during his two years in Italy, he testified that it was because he believed that Algerian refugees would be denied and returned to Algeria. This belief was based on news reports that other European countries were not receptive to Algerian refugees. Noting that he travelled throughout Europe with false documentation before arriving in Canada, the Board stated that this was a risk that a person who feared persecution would not take. The Court found no error in the Board's conclusion that these two issues showed an absence of a subjective fear of persecution.

[24] In Leul7 at paragraphs 7 and 12, Mr. Justice Muldoon writes the following: One might observe that he passed through Amsterdam and that The Netherlands is a convention refugee signatory, but apparently he did not think to claim refugee status there. ...Just as I would not wish to send back to his country a person who stood in jeopardy of a reasonable chance of persecution, so I just do not wish to leave in Canada a person who isn't entitled to be here; a person who passed through a country which was a signatory to the convention and did not think to claim refugee status there.

[25] For the same reasons as Justice Muldoon in Leul, I find that the claimant's failure to claim in the U.S. demonstrates a lack of subjective fear. Delay in Claiming 5 Madoui, Nidhal Abderrah v. M.C.I. (F.C.T.D., no. IMM-660-96), Denault, October 25, 1996 6 Mekideche, Anouar v. M.C.I. (F.C.T.D., no. IMM-2269-96), Wetston, December 9, 1996 7 Leul v. Canada (Secretary of State), [1994] FCJ No. 833 (QL) as quoted in Gilgorri, 2006 FC 559 (CanLII) and Martinez Zapata, 2011 FC 156 (CanLII)

[26] The claimant arrived in Canada on October 15, 2023. However, he did not make a claim until December 30, 2023. In fact, when he came to Canada, he told the Canada Border Services Agency officers that he was a genuine visitor here to see his brother.

[27] When the panel asked why he did not claim refugee status at the border, the claimant explained that he was not sure of the refugee process. He testified that he was scared that if he made a refugee claim, he would not be allowed into Canada. He wanted to find counsel and seek legal advice before making a refugee claim.

[28] I find this explanation questionable given that he is well-educated, has previous experience travelling abroad, speaks English and could have easily conducted research into making a refugee claim at the Canadian border.

[29] When asked why he waited over two months after arriving in Canada to make a refugee claim, the claimant testified that he was not in a hurry to do so because he had a valid visitor's status in Canada. He testified that he was sick for a while after arriving in Canada and that he took time to find counsel that he could trust with his refugee claim.

[30] As pointed out in James C. Hathaway. The Law of Refugee Status (Toronto: Butterworths, 1991), at page 53, "the Convention establishes [in Article 31(1)] an obligation on refugees to 'present themselves without delay to the authorities and show good cause for their illegal entry or presence.' It seems right, therefore, to inquire into the circumstances of any protracted postponement of a refugee claim as a means of evaluating the sincerity of the claimant's need for protection. ... Where there is no reasonable excuse for the delay, an inference of evasion going to credibility is often warranted."

[31] Accordingly, I find that his actions demonstrate a lack of subjective fear. It is a well-established principle that a refugee claimant must claim asylum at the first available opportunity. I find that his failure to claim at the border and the two and a half month delay unreasonable.

CONCLUSION

[32] For the foregoing reasons, the panel determines that the claimant is neither a Convention refugee under section 96 of the IRPA nor a person in need of protection under paragraph 97(1)(a). The panel therefore rejects his claim for refugee protection

On April 22, 2024, your client tells you that his sister was approached by the Taliban in Herat. Your client gave you a letter written by his sister with a copy of her ID.

New Evidence

April 22, 2024

Dear Faizal Noor,

This is your sister, Marian. I hope you and your family are well. I wanted to inform you that yesterday, some Taliban members came to my home in Herat. They demanded that I tell them about your whereabouts. They called you a traitor and that you should be killed for helping the infidels. My husband told them that we did not know where you were. Thankfully, they did not cause any more trouble and left. I am afraid that if you return to Afghanistan, they will find you and kill you. Please do not return.

Sincerely,

[signature] Marian Noor

****The letter arrived in a courier envelope from Afghanistan, Kabul. The letter was accompanied with a copy of Marian Noor's Tezkira (ID document)

Questions :-

As you put together the assignment, be sure to review the applicable Refugee Appeal Division Rules. You may also find it useful to review the Immigration and Refugee Board's Appellant's Guide,as well as other information on the Board's website. The formatting and all other technicalities of the documents you submit should comply with those rules, as well as any other applicable regulations or policy instruments.

Your submissions must include:

• The Notice of Appeal,which can can be found on the IRB website titled "Notice of Appeal Form"
• The written statement should be a brief, 100- to 0150-word document. The contents of the statement are found in Rule 3(3)(d) of the RAD Rules.
  • Be sure to consider whether to seek to admit new evidence under subsection 110(4) or whether to request an oral hearing under subsection 110(6) of the Immigration and Refugee Protection Act. If you are submitting new evidence and/or requesting an oral hearing, you should make submissions in the memorandum on why the RAD should admit new evidence and/or grant an oral hearing.
  • To assist your instructor in grading this assignment, if you decide not to include new evidence or request an oral hearing, please provide your reasoning on a separate page attached to the end of your memo. (In practice, this would not be a part of an Appeal Record.)
• A persuasive RAD Memo should refer to evidence (new evidence, evidence entered at the RPD hearing, NDP, etc.) as well as case law to support their arguments about why the RPD erred.