TB7-12735

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 : TB7-12735 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 22, 2018 Date de la décision Panel G. Erauw Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dean D. Pietrantonio 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 Kamal Gill Conseil du ministre REASONS FOR DECISION [1] The Minister of Immigration, Refugees, and Citizenship (the "Appellant" or "the Minister") appeals a decision of the Refugee Protection Division (RPD) accepting the claim for refugee protection made by XXXX XXXX XXXX XXXX XXXX XXXX (the "Respondent"), a citizen of Iraq. The Appellant relies on documentary evidence referred to in subsection 110(3) of the Immigration and Refugee Protection Act (IRPA). The Appellant nor the Respondent request an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and find that the Respondent is not a Convention refugee or person in need of protection. The Respondent asks the RAD to dismiss the appeal and confirm the RPD decision. DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD accepts the appeal and refers the matter back to the RPD for redetermination by a differently constituted panel.1 Background [3] The Respondent alleges that she is at risk in Iraq because her husband is a former XXXX XXXX under the regime of Saddam Hussein, and because she is a Sunni woman. Further details are provided in her Basis of Claim (BOC) Form, and her testimony at the RPD hearing.2 Procedural History [4] The Respondent had her first RPD hearing on June 19, 2015 and she was accepted as a Convention refugee. The RPD found that the Respondent was credible and concluded she had a well-founded fear of persecution on the basis of imputed political opinion and religion. The Minister appealed that decision to the RAD arguing the RPD's decision lacked clarity and sufficient analysis with respect to the issue of subjective fear. In a written decision issued on November 20, 2015, the RAD accepted the appeal and referred it back to the RPD for redetermination. [5] On February 23, 2017, the RPD re-determined the Respondent's refugee claim. In a decision issued on April 18, 2017, the RPD again accepted the Respondent as a Convention refugee on the basis of her religion (Sunni), imputed political opinion (her husband's connection to the Hussein government) and membership in a particular social group (woman). The Minister appeals this decision, and it is the decision currently under review in this appeal. The Minister argues that the RPD made unreasonable findings that the Respondent has subjective fear, as it made findings without consideration and analysis of the evidence before it. The Respondent in reply submits that the RPD did not err, and it turned its mind to all the elements of the claim including her explanations for her returns to Iraq, not seeking protection in other countries and not seeking protection in Canada immediately and it concluded that the Respondent "is clearly afraid." ROLE OF THE RAD [6] For questions of fact, mixed fact and law, and law, the RAD applies the standard of correctness in accordance with the Federal Court of Appeal's decision in Huruglica.3 In assessing findings involving the credibility of oral testimony, the RAD may apply the modified standard of reasonableness in situations where the RPD enjoys a meaningful advantage.4 Unless otherwise stated in the reasons, the RAD uses the correctness standard on all findings and will consider the overall refugee determination on a standard of correctness, even where the RAD has deferred on some or all findings. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL The Minister's New Evidence [7] The Minister seeks to present new evidence in support of this appeal. The documents disclosed include the Respondent's TRV application for Canada, and an interview that the Respondent's husband conducted with the Canada Border Services Agency (CBSA), which the Minister suggests shows that her husband returned to Iraq on several occasions without incident.5 The Minister provides no submissions about why this evidence should be accepted as new evidence in this appeal. [8] The Respondent provides no reply submissions on the admissibility of the evidence, but argues elsewhere in her memorandum that the Minister cannot attribute the Respondent's husband's lack of subjective fear to her with respect to the CBSA interview.6 The RAD's Assessment of the Minister's Evidence [9] While the IRPA contains restrictions on the nature of evidence submitted to the RAD by a person who is the subject of an appeal,7 such restrictions do not apply to the Minister (the Appellant in this case),8 nor do they apply to the Respondent's evidence submitted in response to the Minister.9 The key consideration in such situations is whether the evidence can be considered credible or trustworthy in the circumstances.10 [10] The Minister's new evidence appears on its face to be credible and trustworthy, as they are a TRV application and interview notes of the Respondent's husband with a CBSA officer. In addition, the CBSA interview notes are accompanied by a sworn declaration of a CBSA officer. While I am curious why the Minister has sat on this evidence for nearly four years, and could only provide them at this fourth proceeding, this is not relevant to whether the evidence is admissible. Therefore, I accept the evidence of the TRV application and the CBSA's interview with the Respondent's husband as new evidence, since it is on its face credible and trustworthy. ISSUES IN APPEAL [11] The Minister argues the following issues in this appeal: 1) The RPD erred in finding the Respondent has a subjective fear; and therefore, would be at risk due to her membership in a particular social group, imputed political opinion, and religion.11 ANALYSIS The Minister's Argument Subjective Fear [12] The Minister argues that the RPD failed to consider key elements of the evidence related to subjective fear, and at the very least, failed to indicate why it discounted the key elements of evidence related to subjective fear. Even though the RPD cites the facts and concludes the Respondent has subjective fear, it does not explain how her action of re-availment or failure to make a claim in France or Sweden do not undermine her subjective fear.12 The Minister states there is no meaningful assessment of the evidence in the record about the multiple re-availments, and her failure to make a claim elsewhere, as well as the treatment of similarly situated persons.13 [13] The Minister submits that the Respondent has no subjective fear based on her religion, gender, or imputed political opinion. This is because the Respondent: failed to claim protection in France and Sweden; she and her husband returned to Iraq several times on their own passports after 2006 without incident; they lived in Bahrain from 2006 to 2013 and took no steps to deal with their risk upon return to Iraq considering they had temporary status in Bahrain; and, they failed to state any fear of return or persecution in Iraq on their TRV application.14 The Minister also argues that there is no objective basis to support her fear that she will be at risk because of her husband's former XXXX XXXX under Saddam Hussein, as the RPD fails to reconcile the Respondent's evidence that many XXXX XXXX XXXX and their families have been killed with the objective documentary evidence in the National Documentation Package (NDP) saying they are not collectively persecuted, and her circumstances do not indicate she is likely to be attacked on an individual basis. The Minister further observes that the Respondent's former area of residence is a Sunni area, thereby mitigating her risk on religious grounds.15 The Respondent's Arguments Subjective Fear [14] The Respondent submits that the RPD did not err and that the Minister's arguments are flawed. The Respondent notes that there were no adverse credibility findings made against her and therefore, the RPD accepted the credibility of her evidence. She further submits that looking at the RPD decision as a whole, it is clear that it considered all of the evidence on file, as well as the submissions of the Minister and counsel for the Respondent to conclude that she met her evidentiary burden.16 [15] In specific response to the Minister's arguments, the Respondent submits that where there is no general negative credibility finding, it is not reasonable to make a lack of subjective fear finding. In addition, in regard to her travel back to Iraq, the Respondent refers to her testimony at the first and the second RPD hearing to show that she explained that when she went back it was for a short time and she would change locations and that she was fearful when she went. Since the RPD found her to be a credible witness, she argues her explanation of her returns are to be believed. She also argues that the Minister's argument that her contact with the Iraqi Embassy and the Baghdad airport undermines her subjective fear is without merit, as she does not fear state officials, but segments of the state and of society. [16] The Respondent argues that her failure to claim in France was because she transited the country and she was only in Sweden for three weeks as a visitor. Moreover, at that time, she had a residency permit in Bahrain and an ongoing permanent residence application for Canada. She was also hopeful that things in Iraq would improve at that time. In regard to the Minister's argument that the RPD did not consider the time lapse since the 2005 threat against her daughter, she submits that the RPD did assess this by considering her testimony and the objective evidence about the situation of risk for Sunni residents in Iraq in general and in Baghdad.17 [17] With respect to the Minister's argument that she took no steps to deal with the risk to her life while she was in Bahrain, she argues this is not correct, as she had a permanent residence application to Canada at the time, and her status in Bahrain was stable as long as her daughter continued to work there. It was not until her permit was cancelled and her daughter lost her job in 2013 that she got a "super visa" to Canada, so she did take steps to mitigate her risk. The Respondent further argues that it has been rejected by the Federal Court that she should have noted her fear of returning to Iraq when she applied for her TRV to Canada. Regarding the Minister's argument about the Appellant's four month delay in making a refugee claim, the Respondent notes that she possessed a super visa and was allowed to stay for 2 years, so she was not out of status when she applied. She notes that the RPD rejected the Minister's argument that this delay pointed to a lack of subjective fear because it was explained and reasonable in the circumstances. Finally, the Respondent argues that objective evidence referred to by the Minister that former XXXX XXXX are not at risk, is not as clear as he submits. Rather, the Respondent argues that item 1.7 of the NDP indicates that former Ba'ath Party or XXXX XXXX XXXX are targeted, which corroborates her evidence of danger for XXXX XXXX XXXX XXXX and those associated with them.18 The RAD's Assessment [18] In general, I agree with the Minister's submissions and I find the RPD's decision cannot stand for the following reasons. Credibility [19] Importantly, I note that the RPD failed to make a credibility finding with respect to the Respondent's allegations. While the Respondent argues that "the RPD accepted the credibility of the Respondent and of the evidence,"19 this is not correct. Moreover, even though subjective fear and credibility are intertwined, for the reasons discussed below, I am unable to assume that the RPD found the Respondent credible in her allegations. In order to do so, I would have to speculate and ignore the RPD's lack of reasoned analysis with respect to several aspects of her claim, including subjective fear. De Novo Hearing & RPD's Reasons in General [20] In addition, although the RPD states in its reasons that it treated the claim as a hearing de novo, the RPD reiterates facts, and appears to rely on them, to conclude that the Respondent has a subjective fear. As a result of this reference, as well as the lack of credibility findings, I am unsure if the RPD did consider this claim afresh. In this regard, I note that the Respondent's submissions refer to several passages of her testimony from her first hearing, in hopes that this establishes her subjective fear. However, I am unable to consider this evidence from the first hearing or the RPD's first decision, as this is an appeal of the RPD's decision made on February 23, 2017. This is not a review of both RPD hearings and decisions. [21] Furthermore, the Respondent argues that based on the decision as a whole, it is clear that it considered all of the evidence on file, as well as the submissions of counsel. However, I do not agree. Simply saying that it considered all of the evidence is not itself sufficient. It needs to be demonstrated. In general, the RPD's decision lacks significant analysis and clear findings. I have found the reasons to mostly be a summary of evidence, followed by a conclusion without much meaningful analysis of the facts and arguments presented by both parties. Also, when it cites testimony and objective evidence I am unclear whether the RPD has accepted them as credible. Therefore, as a whole I do not find the RPD's reasons to be clear, intelligible or transparent in explaining how it was able to conclude that the Respondent is a Convention refugee. Subjective Fear [22] Delay in Claiming: First, I note that the Minister did not specifically attack the RPD's finding with respect to the Respondent's delay in claiming in Canada. In fact, I find this was the only aspect of the RPD's subjective fear assessment, which was comprehensible. The RPD clearly explained that the Respondent's delay in claiming in Canada was not indicative of a lack of subjective fear. The RPD found that because she had a "super-visa", which allowed her to stay in Canada for two years and she was not out of status or facing imminent return to Iraq, her delay of four months was reasonable in the circumstances. The RPD makes a clear finding with respect to the delay in claiming, and I find it is based on the evidence and the result of an intelligible reasoning process. [23] Multiple Returns to Iraq: However, I agree with the Minister that the RPD erred in its assessment about the Respondent's travel back to Iraq. The RPD simply provides a summary of the Minister's argument and then summarizes the Respondent's testimony before concluding, "I find that she has established a subjective [sic] of return to Iraq." The RPD's assessment on this point is devoid of any clear and transparent reasoning process about why it makes the conclusion it did. Especially considering the RPD failed to make any credibility findings in its decision about the Appellant's allegations, I cannot assume that the RPD's summary of the Respondent's testimony is accepted as true. Therefore, the RPD erred. [24] Also, there was evidence in the record about her travelling to Iraq through the Baghdad airport on her own passport multiple times between 2006 and 2013. However, before reaching a conclusion on the Respondent's subjective fear, the RPD did not analyze or provide reasons why these facts about her re-availment did not undermine her subjective fear. Contrary to the Respondent's submissions, I do not agree that the fact that she obtained a passport, travelled through the Baghdad Airport, or obtained a certificate of no conviction from Iraqi authorities is irrelevant to her subjective fear and her returns to Iraq because she does not fear state officialdom, but segments of the state and of society. Considering the Respondent's allegations that government officials have been active and complicit in the mistreatment of former XXXX XXXX under the Hussein regime (similarly situated persons), such as her husband, and for which she fears returning to Iraq on the ground of imputed political opinion, this is relevant to her subjective fear and nexus. Therefore, I find the RPD's failure to consider this evidence to have been an error. [25] Failure to Claim Elsewhere: The RPD also did not assess whether the Respondent's failure to claim in France and Sweden was indicative of a lack of subjective fear. There was evidence that the Respondent travelled through France and Sweden for a short period. While this may have been acceptable given she possessed a stable permit in Bahrain at the time, the RPD does not consider these facts that could undermine her subjective fear. Instead, the RPD simply states a conclusion that she has subjective fear. Therefore, I find the RPD erred by failing to consider evidence that was contrary to its bald assertion that the Respondent possesses subjective fear. [26] Objective Basis: I also agree with the Minister that the objective evidence of the treatment of former XXXX XXXX, as well as the husband's interview with CBSA that he returned to Iraq several times without being targeted could undermine her subjective fear, as well as her nexus of imputed political opinion. While I agree with the Respondent's argument that the husband's subjective fear cannot be imputed to her subjective fear, the fact that he returned to Iraq without being targeted or having any issue, is relevant to the well-foundedness of her claim. Since this is being returned to the RPD, this evidence can be put to the Respondent for explanation upon re-determination. [27] I also note that in its decision, the RPD states "[g]iven the perilous situation of Sunni in Iraq, and of women alone, and given the profile of the, [sic] the panel finds that it is not objectively reasonable in all of the circumstances for the claimant to return to Iraq." However, the RPD cites no specific objective evidence upon which it relied to arrive at this conclusion, which could be assessed against contrary evidence that she was from a largely Sunni neighbourhood. Therefore, I find the RPD erred in not considering such evidence and clearly explaining how it concluded there was an objective basis for her risk as a Sunni in Iraq. [28] TRV Application: The Minister makes other arguments regarding the Respondent's subjective fear, such as the Respondent's failure to state on her TRV that she feared returning to Iraq. I agree with the Respondent that this is an absurd argument, and the case law cited in rebuttal is directly on point. [29] For the above reasons, I find the RPD's decision must be set aside. It is deficient for several reasons, such as the lack of credibility assessment and the lack of comprehensible reasoning with respect to its subjective fear findings. I am unable to question the Respondent with respect to her credibility or her subjective fear; and therefore, I cannot make a determination on these issues. The RPD found the Respondent had a fear of persecution, but it did not explain whether it found her credible, and did not explain why she had a subjective fear despite her re-availment and failure to claim elsewhere. There is also new evidence from the Minister that questions the Respondent's subjective fear and the objective basis of her fear based on imputed political opinion. These are critical assessments that must be made in order to determine that the Respondent is a Convention refugee. CONCLUSION [30] After conducting its own analysis of the entire record, the RAD finds that the RPD's findings are insufficient to maintain the determination that the Respondent is a Convention refugee or a person in need of protection. The RPD's determination stems from failing to make credibility findings, consider key evidence and make conclusions based on a clear and transparent reasoning process. [31] Accordingly, pursuant to paragraph 111(1)(c) of the IRPA, the RAD allows the appeal and refers the matter to the RPD for re-determination by a differently constituted panel. (signed) "G. Erauw" G. Erauw February 22, 2018 Date 1 Paragraph 111(1)(c), Immigration and Refugee Protection Act, S.C. 2001, c.27. [IRPA] 2 Exhibit RPD-1, RPD's Record, Respondent's BOC, at pp. 26-36; and Exhibit RPD-1, RPD's Record, Audio Recording. 3 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 4 X (Re), 2017 CanLII 33034 (CA IRB). 5 Exhibit M-2, Appellant's Record, Exhibit 4, TRV Application, at pp. 1-15; and CBSA Interview, at pp. 72-96. 6 Exhibit P-1, Respondent's Record, Respondent's Memorandum, at p. 7, at para. 19. 7 Subsection 110(4), IRPA, S.C. 2001, c.27. 8 Subsection 171(a.5), IRPA, S.C. 2001, c.27. However, Rule 9(2)(d)(i) of the Refugee Appeal Division Rules adds that the Minister's written statement submitted with the appeal record should contain reference to the "relevance of that evidence". 9 Subsection 110(5), IRPA, S.C. 2001, c.27. 10 Subsection 171(a.3), IRPA, S.C. 2001, c.27. 11 Exhibit M-2, Appellant's Record, Appellant's Memorandum, at p. 8, at para. 2. 12 Exhibit M-2, Appellant's Record, Appellant's Memorandum, at p. 8, at para. 4. 13 Exhibit M-2, Appellant's Record, Appellant's Memorandum, at p. 9, at paras. 5-7. 14 Exhibit M-2, Appellant's Record, Appellant's Memorandum, at pp. 9-13, at paras. 8-22. 15 Exhibit M-2, Appellant's Record, Appellant's Memorandum, at pp. 13-14, at paras. 21-22. 16 Exhibit P-1, Respondent's Record, Respondent's Memorandum, at pp. 3-5, at paras. 2-8. 17 Exhibit P-1, Respondent's Record, Respondent's Memorandum, at pp. 5-8, at paras. 11-22. 18 Exhibit P-1, Respondent's Record, Respondent's Memorandum, at pp. 9-12, at paras. 23-30. 19 Exhibit P-1, Respondent's Record, Respondent's Memorandum, at p. 4, at para. 3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-12735