TB8-23937

RAD File / Dossier de la SAR : TB8-23937 TB8-23938 / TB8-23939 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal

XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 26, 2020 Date de la décision Panel D. Goff Tribunal Counsel for the persons who are the subject of the appeal Hagan Turan Conseil des personnes en cause Designated representative

XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister Conseil du ministre

REASONS FOR DECISION

OVERVIEW [1] XXXX XXXX XXXX XXXX (the principal appellant "PA"), his spouse, XXXX XXXX XXXX XXXX (the female appellant "FA"), and their daughter XXXX XXXX XXXX XXXX (the minor appellant "MA"), citizens of Azerbaijan, appeal a decision of the Refugee Protection Division (RPD) denying their claim for refugee protection. The appellants ask the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and either grant their claim for protection or, refer the matter back to the RPD for redetermination. They have submitted new evidence. They have not requested an oral hearing.

DETERMINATION [2] The appeal is allowed. The RAD sets aside the determination of the RPD and substitutes its own determination that the appellants are Convention refugees.

BACKGROUND [3] On XXXX XXXX, 2016, the appellants travelled to the United States. They did not seek asylum. [4] On XXXX XXXX XXXX 2016, the appellants entered Canada via an unofficial border crossing in Lacolle, Quebec. Upon questioning by authorities, they initiated a claim for refugee protection alleging a fear of persecution by authorities in Azerbaijan due to the PA's political activities as a member of the Azerbaijani Popular Front Party ("APFP"), as well as his work as a XXXX XXXX XXXX critical of the government. The PA alleged he had been detained and physically abused on account of his political opinion and his activism through XXXX XXXX. [5] The appellants' claim was heard by the RPD on February 12, 2018, and June 12, 2018. In a decision of September 5, 2018, the RPD rejected the claim finding it not to be credible. [6] The appellants argued that the RPD erred by making incorrect plausibility findings, focusing on peripheral matters, and by ignoring the totality of the evidence.

ANALYSIS The Role of the RAD [7] The RAD's role is to look at all the evidence and decide if the RPD made the correct decision.1 New Evidence [8] The appellants submitted new evidence to the RAD by way of Rule 29 Applications: a. On February 10, 2019, the appellants submitted an article allegedly written by the PA and published on XXXX XXXX XXXX XXXX XXXX XXXX XXXX. They submit that this article post-dates the rejection of their claim by the RPD. b. On March 21, 2019, the appellants submitted additional new evidence comprising of a letter from XXXX XXXX of XXXX XXXX XXXX XXXX XXXX dated March 7, 2019, along with his supporting identification, as well as a Summons Notice dated February 4, 2019. The appellants submit these documents are new and corroborate their claim. c. On July 9, 2020, the appellants submitted original copies of their previously submitted documents, including the PA's APFP membership card, support letter, press card, and medical report. They also submitted additional articles written by the PA and published on XXXX XXXX XXXX XXXX XXXX XXXX XXXX, as well as updated country documents from Human Rights Watch and Amnesty International. [9] Having carefully reviewed the proposed evidence and the appellants' accompanying submissions, the RAD has admitted the documents for the purposes of this appeal. The documents are new and relevant to the merits of the

appellants' claim for protection. [10] The appellants have not requested a hearing. The RPD's Findings [11] The RPD dismissed the appellants' claim finding it not to be credible. [12] The appellants argue the RPD erred, including by making incorrect plausibility findings without any references to the evidence; by "trying to unravel the credibility with minutia"; by failing to put any perceived discrepancies in the evidence to them; and by completely ignoring the "PA's existing activism in Canada [which] is very strong and unequivocal". [13] The RAD has independently assessed the evidence. While there were clearly inconsistencies or embellishments with parts of this claim, the RAD finds there was credible evidence remaining warranting consideration, as follows. PA's profile as a XXXX XXXX XXXX [14] The RAD finds the RPD erred in giving no weight to the appellants' evidence related to the PA's work as a XXXX XXXX XXXX XXXX anti-government articles, including the PA and FA's testimony provided over two days, a press card issued by XXXX XXXX XXXX on June 1, 2017, a published interview dated October 6, 2015, and a letter from XXXX XXXX XXXX XXXX XXXX. For example, the RPD found it was not plausible that the PA would be issued a press card given he was an XXXX XXXX. The RPD similarly gave no weight to the PA's published interview because the PA could not recall the name of the

interviewer and because the year was missing from the article. The RAD finds the RPD erred in doing so, as these were minor issues not warranting the entire documents and testimony to be dismissed. [15] The RAD further finds the RPD erred in finding the PA's continued political activity while in Canada not to be credible simply because he did not mention it in his Basis of Claim (BOC) form. The RAD finds this to be a minor omission, especially considering the appellants also provided documentary evidence of the PA's continued political commentary, particularly of social media posts criticizing Azerbaijan's political figures. The RAD finds the RPD erred in failing to adequately consider this evidence. [16] The RAD notes the RPD found the PA's medical report from Azerbaijan to be consistent with his allegations regarding the medical treatment he sought after his kidnapping and detention by authorities on June 30, 2016. Nevertheless, the RPD gave no weight to the medical report. The RAD does not agree with the RPD's finding. The panel must consider the appellants' evidence in evaluating their credibility and not the other way around. The RAD accordingly gives weight to the PA's medical note (of which no specific credibility concerns were identified by the RPD) in corroborating the allegations. [17] Finally, the RAD notes the appellants have submitted new evidence of which the RPD

did not have the benefit of considering. For example, the appellants have provided additional published articles written by the PA, which include the PA's name, the dates of the relevant events, and the source. The appellants have also provided an updated letter from XXXX XXXX of XXXX XXXX XXXX XXXX XXXX, along with supporting identification, corroborating the PA's political commentary. The RAD finds these documents to be credible in supporting the allegations. [18] Accordingly, having independently reviewed all the evidence, the RAD finds the appellants have established, on a balance of probabilities, the PA's profile as a XXXX XXXX XXXX XXXX articles critical of the government in Azerbaijan. Country Conditions Documents [19] Azerbaijan is a presidential republic accused of being authoritarian.2 Corruption is widespread. The country documents indicate that the right to freedom of expression remains suppressed as dissenting voices are silenced and imprisoned by authorities. Internet freedom is inhibited by state control. For example, the government frequently blocks websites that host unfavourable news coverage. Digital rights are not respected, and those who voice dissent online are prosecuted if they reside in the country or face various forms of intimidation if they live abroad. The country documents indicate that government critics are persecuted, including those forcibly

returned from abroad. For example, an article by Reporters Without Borders describes, "[a]rrest, torture and conviction on trumped-up charges has become the norm for independent journalists in Azerbaijan, one that is indicative of a desire on the part of the authorities to deliver the final blow to the country's remaining critics."3 Moreover, a very recent article by Human Rights Watch indicates that Azerbaijani authorities are abusing restrictions imposed due to COVID-19 to arrest opposition activists and silence government critics.4

CONCLUSION [20] Based on the findings noted above and after its own assessment of all the evidence, the RAD finds that the RPD's determination is wrong. The RAD finds the appellants have established, on a balance of probabilities, their allegations of persecution by the authorities in Azerbaijan. The country documents corroborate the government threatening and assaulting political opponents and critics, including bloggers and those living abroad. The RAD, therefore finds that the appellants' fear of persecution is well-founded, and that adequate state protection and viable internal flight alternatives are not available to them.

DECISION [21] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act, the RAD sets aside the determination of the RPD and substitutes its own determination that the appellants are Convention refugees. [22] The appeal is allowed. (signed) D. Goff D. Goff October 26, 2020 Date 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 Exhibit RPD-1, RPD Record, Exhibit 14, National Documentaatio Package (NDP), for Azerbaijan, (April 30, 2018) item 1.3, Azerbaijan: The World Factbook. July 19, 2017. United States. Central Intelligence Agency. 3 Exhibit RPD-1, RPD Record, Exhibit 14, National Documentation Package (NDP), for Azerbaijan, (April 30, 2018), item 11.7, Azerbaijan cracks down on remaining critical journalist June 22, 2017, at p. 3. 4 Exhibit P-3, Rule 29 Submission, Appellants' New Evidence, Submitted July 14, 2020, Azerbaijan: Crackdown on Critics Amid Pandemic, Human Rights Watch, April 16, 2020, unpaginated. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-23937 TB8-23938 / TB8-23939 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