TB8-14047

RAD File / Dossier de la SAR : TB8-14047 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal

XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 6, 2020 Date de la décision Panel James Sloan Tribunal Counsel for the person who is the subject of the appeal Tatyana Shevchenko Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION [1] The Appellant, a citizen of Azerbaijan, claims that if he returns to Azerbaijan, he will be persecuted or otherwise harmed due to his political opinions. He claims that he joined the Azerbaijani Popular Front Party (APFP) in 2012 and took an active role in the Party: he attended meetings, designed banners and leaflets, planned and attended protests, and recruited new members. By late 2013, he claims he attended three or four party activities per week. He claims he was detained, interrogated, and severely beaten by the police on XXXX XXXX XXXX 2015, XXXX XXXX, 2015, and XXXX XXXX XXXX 2016 due to his political activities. He also claims that he was under surveillance and received anonymous telephone calls threatening him with arrest if he continued being politically active. He left Azerbaijan on XXXXon XXXX XXXX XXXX 2016 and arrived in Canada the same day. [2] While living in Canada, he claims to have posted criticism of the government of Azerbaijan on his Facebook page. He claims that, in late XXXX 2016, his parents were questioned by the police in relation to his political activities, including his posts on Facebook. Upon learning this, he claims that he deleted his Facebook account and ceased making posts. [3] In a May 16, 2018 decision, the Refugee Protection Division (RPD) rejected the Appellant's claim. For the reasons that follow, I dismiss this appeal.

REQUEST FOR THE ADMISSION OF NEW EVIDENCE AT APPEAL [4] The Appellant requests the admission of: a) a letter from his father dated XXXX XXXX XXXX 2018 and his parents' identity documents; b) a letter from the APFP, dated XXXX XXXX XXXX 2018, explaining the problems with an XXXX XXXX XXXX 2016 letter from the APFP, which the Appellant had relied upon at the hearing; and, c) a psychotherapist's report, dated XXXX XXXX XXXX 2019. [5] Documents provided as part of an Appellant's Record, must meet the requirements of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), S.C., 2001, c.

27. That subsection limits the admission of evidence in an appeal before the Refugee Appeal Division (RAD) to evidence that: 1) arose after the RPD's rejection of the claim; 2) was not reasonably available at the time of the RPD's rejection of the claim; or 3) an appellant could not reasonably have been expected in the circumstances to have presented at the time of the RPD's rejection of the claim. If I find that the new evidence meets the requirements of subsection 110(4), I must then consider whether the evidence meets the factors elaborated by the Federal Court of Appeal in the Singh case, i.e. newness, credibility and relevance.1 I will follow this procedure with items a) and b) above, each of which were provided as part of the Appellant's Record. [6] Documents that are provided after an Appellant's Record has been perfected, must also meet the requirements of subsection 110(4).2 If I find that they meet the requirements, I must then consider a number of additional factors-the relevance and probative value of the evidence; the value the evidence brings to the appeal; and whether the Appellant, with reasonable effort, could have provided the evidence with his or her Appellant's record-in deciding whether to allow the evidence.3 Item c) above, was provided after the Appellant's Record was filed. a) Letter from the Appellant's father and his parents' identity documents [7] The

Appellant (then claimant) submitted an undated supporting letter from his parents to the RPD.4 In assessing the letter, the RPD noted its lack of detail and noted that it was not accompanied by his parents' identity documents (and, as such, it was unable to compare the signatures on the letter with the signatures on the identity cards). The Appellant argues that his counsel did not advise him to attach his parents' identity cards to their letter or "in regard to the context in terms of which the parent's [sic] might be fully understood and assessed."5 He requests that the identity documents and his father's letter (which is somewhat more detailed than the previous letter) be admitted "as he had not been expected to provide such evidence at the time of the rejection."6 [8] If the Appellant's point is that his counsel was negligent for not advising him of the importance of a detailed letter or including his parents' identity documents, this argument must be rejected. It does not comport with the Board's practice direction, which provides the procedure for allegations by appellants that former counsel was incompetent.7 [9] If his point is that he could not reasonably have been expected to provide a detailed letter or included his parents' identity documents, this is unconvincing. First, as noted, he was represented and so would have relied on his counsel's expertise. Moreover,

this is the sort of information that would normally be required in proving a claim. As noted by the Federal Court of Appeal in Singh: "The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD...".8 As the Federal Court held in the Mohamed case: The policy underlying subsection 110(4) and related provisions is to require parties to put their best case forward before the RPD to prevent wasting valuable decision-making resources by thwarting claimants from rearguing the same issues before the RAD based on evidence that was available before the RPD rendered its decision.9 I find the Appellant has not met the requirements of subsection 110(4). The documents are inadmissible. b) Second letter from the APFP [10] Once again, the Appellant is requesting the admission of this letter to address concerns the RPD expressed regarding the original letter that was presented to it.10 The RPD faulted the original letter because the APFP activities it described the Appellant as having participated in differed from those he outlined in his evidence. It also has misgivings about the letter (as well as an APFP membership card submitted to the RPD11) because the name of the Party was misspelled. The new letter12 attempts to meet the RPD's concerns, providing more details of his activities (and details which better correspond to his evidence) and

stating that the mistakes in the letter and membership card were due to insufficient technical equipment, not because the documents were fabricated. [11] The Appellant offers no argument as to how the letter meets the requirements of subsection 110(4) and I can see none. If his claim is that he did could not reasonably have been expected to have known that the RPD would express misgivings about the letter, this is not persuasive. First, he was represented before the RPD. Second, the letter was his own evidence. Consequently, he ought to have been aware of its content-including its shortcomings. Third, it fell to him to prove his case and, as discussed above, he ought to have put his best case forward before the RPD. The letter is inadmissible. c) Psychotherapist's report [12] The report, dated XXXX XXXX XXXX 2019, describes the treatment of the Appellant over ten psychotherapeutic sessions. It describes the Appellant as having anxiety, depression, and panic attacks and notes that his depression and anxiety symptoms will get worse if he returns to Azerbaijan. The Appellant notes that the report was not available at the time he submitted his appeal; nor was it available at the time the RPD rejected his claim. He also argues that it addresses the concern expressed by the RPD in relation to a previous psychotherapist's report that he submitted to the RPD. [13] While it is true that

the document was dated after the rejection of the Appellant's claim by the RPD, the date is not necessarily determinative of whether the document "arose" after the rejection, as per subsection 110(4). In determining whether it arose after the rejection, I must consider whether the information contained in it arose after the rejection. While the current report's author is silent on the issue, it is clear that the symptoms described in the current report do not post-date the rejection of the Appellant's claim. After all, similar symptoms were also described in the Appellant's previous psychotherapist's report. Once again, the purpose of the report is to address the misgivings expressed by the RPD about the previous report. Once again, this is not a sound basis for reliance on subsection 110(4), especially where, as here, the evidence the Appellant wants to improve upon was submitted by him and where he was represented before the RPD. The report is inadmissible.

HEARING [14] Because no new evidence has been admitted, the request for a hearing pursuant to subsection 110(6) of the IRPA must be denied.

DETERMINATIVE ISSUE [15] The determinative issue in this case is credibility.

STANDARD OF REVIEW [16] In my review of the RPD's decision, I will apply a standard of correctness.13 This is not a case where the RPD enjoyed a meaningful advantage in making its findings.14

ANALYSIS [17] The RPD found the Appellant to lack credibility on the following bases: a) his testimony that none (or almost none) of his family members were members of APFP contradicted his Basis of Claim (BOC) narrative; b) his testimony that he had no friends who were APFP members prior to joining the party contradicted his BOC narrative; c) given his education and the role he claimed to have in the APFP (his evidence was that he attended over 100 meetings between 2012 and 2015 and prepared brochures for the party, organized protests, and recruited new members) he was not sufficiently knowledgeable about the workings of the APFP, in particular: * he was, initially, unable to name any but one of his friends in the APFP and, at the second session of his hearing, he was only able to recall one APFP friend's full name and another friend's first name; * his knowledge of the political objectives of the APFP was limited; * his testimony about the APFP was extremely vague and lacking in spontaneity; * he did not know the address of his local APFP office (or even the name of the street it was on); * with one exception, he did not know the names of the people that ran his local APFP office; and, * he was unable to provide even general information about the party leaders. d) his testimony about his detention after the XXXX 2015 protest (he claimed that he was detained, punched, and

kicked by four officials, three in plainclothes and one in a police uniform) was at variance with his BOC narrative (he claimed to have been detained, pushed, swore at, and hit with a baton by three plainclothes officers); e) his testimony about the rank of the police officer who interrogated him during the XXXX 2015 detention was contradictory (first, he testified that he was a police chief and, later, he testified that he could not recall his rank); f) his testimony about his XXXX 2015 interrogation was not forthcoming and lacked detail; g) his testimony that he did not seek medical attention after the XXXX 2015 attack was at variance with his BOC narrative (in which he claimed to have stayed a full day at hospital); h) his testimony about his abuse during his XXXX 2015 detention (he claimed he had been interrogated by two police officers, with no mention of having been burnt) differed from his evidence in his BOC narrative (he said he had been interrogated by "various" police officers and burnt by them); i) his medical report in relation to the XXXX 2015 attack is particularly brief and it does not mention that he had been burned, concussed, or bruised or the treatment prescribed (based in part on this, the RPD held that the medical report was fabricated); j) his testimony regarding whether, aside from the two detentions in 2015, he had experienced problems with the

authorities changed: first he testified that he did not have any additional problems; then he testified that he had had a phone call; and, only when asked why he did not mention the XXXX 2016 detention, did he mention it (claiming to have misunderstood the question); k) his testimony about the XXXX 2016 attack and detention was at variance with his BOC narrative (in his testimony he spoke of three men attacking him, while in his BOC narrative, he spoke of four); l) his testimony about the nature of his injuries after the XXXX 2016 detention (injuries on his head, nose, and bruises from being kicked) did not jibe with the description of his injuries in his BOC narrative (head trauma, injuries on his body and hands, and high blood pressure) or with the medical report ("hematomas on his forehead and a nose injury"15); m) his testimony regarding the length of his hospitalization (two days and outpatient care for a week) did not align with that in his BOC narrative (remained in hospital for about one week) and the medical report did not indicate that he had been admitted to the hospital for any length of time; n) because the medical report in relation to the XXXX 2016 attack was particularly brief and listed injuries that were not consistent with the Appellant's evidence, the RPD found it to be lacking in credibility; o) the lack of adequate documentation supporting his claim was

not plausible; p) his testimony that he had lost contact with his friends in the APFP was contradicted by a supporting letter from a friend from the Party; q) his testimony about why he had not sought documentation from his friend was evasive and unintelligible; and, r) his claim to have no evidence of his Facebook postings, undertaken while in Canada, was implausible. [18] The RPD also considered the Appellant's supporting documentation and made the following findings: i) APFP membership card.16 The RPD found that it was obviously not in conformity with the example provided by the Board's Research Directorate in the National Documentation Package (NDP)17 (the Appellant's version lacked a crescent moon and star in the seal; misspelled the Party's name; featured a signature in a different place; featured a different signature). Consequently, it gave it no weight and found it not to be trustworthy evidence of his APFP membership. ii) Supporting letter from APFP.18 The RPD noted that it misspelled the name of the Party and referred to his having undertaken activities that he did not claim to have engaged in (collecting signatures and working for the election campaign in relation to the XXXX XXXX XXXX 2013 elections), rather than the activities he described in his evidence (preparing brochures, recruiting members, organizing protests). Consequently, it gave it no weight and found

it not to be trustworthy evidence of his involvement with the APFP. iii) Letter from his parents.19 The RPD found that the letter did not describe the Appellant's political activity in any detail; indeed, it does not even indicate that he was a member of the APFP. Moreover, it does not describe the alleged harm suffered by him (other than to say he "was subject to multiple physical persecution"). In addition, it noted that, due to the lack of identity documentation, it was unable to examine the signatures of letter's authors. It held, in light of its credibility concerns, the document was insufficient to establish the allegations in the claim. iv) Letter from a friend.20 The RPD found that the letter did not describe the Appellant's political activity, did not indicate that he was a member of the APFP, and did not describe the alleged harm suffered by him (other than to say he had "some political problems" and both "were persecuted by the government"). In addition, it noted the lack of attached identity documentation and the unavailability of the author of the letter. It held, in light of its credibility concerns, the document was insufficient to establish the allegations in the claim. v) Report by a psychotherapist.21 The RPD made a number of observations in relation to the report: the report referred to psychological and emotional problems that were not apparent at the

hearing; it called for accommodation but the Appellant did not take up the RPD's offer in this regard (other than for a 15-minute break); its author spent a very short period with the Appellant and based her opinion on his claims (accepting them uncritically); its author, not being a licenced physician, was not qualified to provide a diagnosis; its author did not attend the hearing for examination; its author appeared to make findings regarding the truthfulness of the Appellant's allegations of what happened in Azerbaijan; even it if the report's diagnosis could be relevant to the Appellant's problems recalling matters in his testimony, it offers no explanation for his conflicting testimony; etc. [19] The Appellant argues that the RPD erred in relation to certain of its credibility findings labelled c), d), e), h), i), j), k), and o) above. In addition, he contests the RPD's assessment of the documents labelled ii), iii), and v). Finally, he puts forward a cluster of general statements or arguments. Credibility [20] As noted, the Appellant does not contest all of the RPD's credibility findings. In particular, he does not take issue with findings labelled a), b), f), g), l), m), n), p), q), and r). Because these findings have not been contested, I do not need to provide analysis of them herein; however, I note that I have reviewed them and I agree with the RPD's analysis. [21]

Because, as will be discussed below, when I weigh these uncontested findings against the Appellant's supporting documentation, I find that he is, overall, lacking in credibility, I do not need to examine the Appellant's arguments as to why the RPD's findings that he does contest are in error. For the purposes of this appeal, I will assume, without deciding, that the Appellant's arguments are all correct and that each of the contested findings is in error. Documentary evidence [22] The Appellant does not contest the RPD's findings that his APFP membership card (item i) above) is not trustworthy evidence or its finding in relation to the letter from his friend (item iv) above).22 Regarding the letter from the APFP (item ii) above), the letter from his parents (item iii) above), and the psychotherapist's report (item v) above), he attempts to overcome some of the RPD's findings through the admission of new evidence. For the reasons described above, I have found the requested new evidence inadmissible. The APFP letter (item ii) above) [23] He makes arguments not related to the requested new evidence in relation to the RPD's findings in respect of the APFP letter. He argues that the RPD erred in faulting the APFP for referring to activity-collecting signatures and working for the election campaign in relation to the XXXX XXXX XXXX 2013 elections-that he had not discussed in his

evidence, while omitting mention of the activities he did discuss in his evidence. He argues that he did not include the collection of signatures and the work on the election in his BOC narrative because, as a single instance of supporting the Party that did not lead to his detention, it lacked significance. In addition, he argues that, given the large number of APFP activists, it would be unreasonable to expect that that Deputy Chair of the Party would recall the duties of all of its members. [24] It is certainly understandable that the Appellant would not have included the discussion of his role in the 2013 elections in his BOC narrative. I agree with him that, in the circumstances of his claim, it was not of particular significance. However, the RPD was not faulting him for omitting this from his BOC narrative. Its point was a different one. It was noting that the letter's author was limited to this relatively insignificant involvement of the Appellant in the APFP; he appeared to be unaware of the important role the Appellant claims he had in the organization. As to the Appellant's argument that the Deputy Chair cannot be expected to recall the duties of all APFP activists, this is also true. However, here the Appellant has portrayed himself as more than the average activist-he describes himself as someone who was particularly active in the Party and someone who was detained

and beaten for that role no fewer than three times. I agree that the Deputy Chair's apparent lack of awareness of the activities the Appellant alleges to have been involved with for the Party undermines the letter's probative value. Psychotherapist's report (item v) above) [25] Finally, he makes arguments not related to the requested new evidence in relation to the RPD's assessment of the psychotherapist's report. He argues that, according to the regulations of the Ontario College of Psychotherapists, the report's author was entitled to assess him based on a therapeutic relationship and verbal and non-verbal communication. In addition, the author's description of him as "genuine" and "forthcoming," while "beyond the physiotherapist's [sic] vocabulary,"23 in no way undermined her professional assessment and diagnostic skills. [26] I accept that the psychotherapist was entitled to assess him. I also find that the usage of wording such as "genuine" and "forthcoming" are not an adequate basis to find that the psychotherapist in ceased being a neutral expert and became an advocate for the Appellant. Having said that, I agree with many of the RPD's uncontested findings in relation to the report, including that its value is undermined by virtue of its author only spending sixty minutes with the Appellant and her basing her assessment on the Appellant's factual narrative and his BOC

narrative, apparently without regard to the possibility that he may not be telling the truth. Finally, I note that the psychotherapist is not in a position to make a determination regarding the Appellant's credibility-nor does she purport to be. [27] While these factors impact negatively on the probative value of the report, I will, nevertheless consider it when I assess the Appellant's overall credibility below. General arguments [28] The Appellant, in his "Summary," provides extracts from several cases-though he does not link the case extracts to the facts of the instant case. He also sets out a number of blanket statements criticizing the RPD's reasoning. He argues that the decision was in error because: a) the RPD failed to appreciate the importance of the duty of fairness, as per the Baker case24 from the Supreme Court of Canada; b) the decision was "merely predicated upon RPD's own subjective standard of what and who" someone who is under emotional stress can recall; c) the RPD failed to recognise that some people just have "vague and evasive" syntax; d) the RPD failed to apply the Maldonado25 presumption; e) there was no objective documentation that would demonstrate that there had been any serious contradictions in his evidence; f) the RPD erred in its application of the law in relation to implausibility; g) the RPD failed to follow a process of critical analysis; h)

the RPD failed to apply the correct standard of proof; i) the RPD erred by basing its decision on a subjective notion of what the Appellant should have recalled; and, j) the RPD erred in not affording the Appellant the benefit of the doubt in the circumstances. [29] To the extent that arguments are made at all, they are made in a general way, without any submissions detailing the basis on which they are made and without setting out where in the RPD decision the alleged errors are to be found, as required by RAD Rule 3(3)(g).26 In the absence of any guidance in this regard, I have reviewed the record; however, I am unable to see that any of the general arguments are supported. As such, I will not address them further. Conclusion on credibility [30] When I weigh the RPD's uncontested credibility findings against the supporting documents (including, importantly, the RPD's uncontested finding that the APFP membership card submitted by the Appellant is not trustworthy evidence and the lack of other documentary evidence linking him to the APFP, with the sole exception of the letter from the APFP), I find that the Appellant is, overall, lacking in credibility. I find, on a balance of probabilities, that he was not a member of the APFP and did not participate in its activities, that he was not detained or beaten by the Azerbaijani authorities on any of the occasions he claims he was,

and that he was not threatened by telephone or otherwise. I find that the Azerbaijani authorities are not aware of the Appellant due to any political opinions he may hold or may be perceived to hold, whether based upon activities in Azerbaijan or in Canada, because he has not engaged in any such activities. I find that he is neither a Convention refugee nor a person in need of protection, whether in relation to his claim based on his alleged activities in Azerbaijan or based on his sur place claim.

CONCLUSION [31] I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) James Sloan James Sloan August 6, 2020 Date 1 M.C.I. v. Singh, Parminder, 2016 FCA 96, at para 64. 2 Refugee Appeal Division Rules (SOR/2012-257), Rule 29(1) and (3). 3 Ibid., Rule 29(4). 4 Exhibit RPD-1, RPD Record, Exhibit 7, at p. 188 (translation). 5 Exhibit P-2, Appellant's Record, at p. 103, para 15. 6 Ibid. 7 Immigration and Refugee Board, Practice Notice-Allegations Against Former Counsel (https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/allegations-former-counsel.aspx). 8 Singh, supra endnote 1, at para 54. 9 Mohamed v. Canada (Citizenship and Immigration), 2019 FC 1537 (CanLII), at para 52. 10 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 111. 11 Ibid., at pp. 107-109. 12 Exhibit P-2, Appellant's Record, at p. 45. 13 Canada (Minister of Citizenship and Immigration) v. Huruglica, Bujar, 2016 FCA 93, at para 103. 14 Ibid., at paras 69-74. See also Rosas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras 124-125, relying on Guo v. Canada (Citizenship and Immigration), 2017 FC 317, at paras 15-19 and Jeyaseelan v. Canada (Citizenship and Immigration), 2017 FC 278, at paras 19-21. 15 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 114. 16 Ibid., at p. 107 (translation). 17 NDP for

Azerbaijan (July 31, 2017), item 4.10. Because this was the version of the NDP relied upon by the Appellant before the RPD, my references are to this version of the NDP. I note, however, that I have also considered the current NDP (June 30, 2020) in assessing forward-looking risk in accordance with the Board's Policy on National Documentation Packages in Refugee Determination Proceedings, June 5, 2019 (https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx), at s. 5(II). I note further that item 4.10 in the July 31, 2017 NDP on Azerbaijan is the same document that is featured as item 4.10 in the June 30, 2020 NDP on Azerbaijan. 18 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 111. 19 Ibid., Exhibit 7, at p. 188. 20 Ibid., Exhibit 10, p. 214. 21 Ibid., Exhibit 7, at p. 193-196. 22 While it is not entirely clear, he may be arguing that, because of his counsel's failure to notify him of the importance of his friend's identity documents, he ought not be faulted for not including it. If so, my reasoning in relation to this argument as it is made in the context of the letter from his parents is applicable. 23 Exhibit P-2, Appellant's Record, at p. 104, para 17. 24 Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, at para 23. 25 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2

F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 26 Rule 3(3)(g) obliges an Appellant to provide "full and detailed submissions regarding ... the errors that are the grounds of the appeal [and] where the errors are located in the written reasons of the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing." (Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257.) The Federal Court, in addressing the application Rule 3(3)(g), held: "appellants before the RAD that fail to specify where and how the RPD erred do so at their own peril." (Ghauri v Canada (Citizenship and Immigration), 2016 FC 548 at para 34). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-14047 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français