TB8-27371

RAD File / Dossier de la SAR : TB8-27371 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 29, 2019 Date de la décision Panel S. Thompson Tribunal Counsel for the person who is the subject of the appeal Djawid A Taheri Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Qi Liu Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Minister of Public Safety (the Appellant) appeals a decision of the Refugee Protection Division (RPD) dated August 28, 2018 to grant Convention refugee status to XXXX XXXX XXXX (the Respondent), a citizen of Afghanistan. BACKGROUND AND OVERVIEW OF APPEAL The Respondent's claim, the RPD's decision, and the Appellant's arguments before the Refugee Appeal Division (RAD) [2] Before the RPD the Respondent alleged that he was at risk in Afghanistan from the Taliban on the grounds of imputed political opinion. The Respondent argued that his work as a XXXX XXXX XXXX XXXX in Afghanistan's XXXX XXXX XXXX had made him the target of threats from the Taliban, which threatened to kill him unless he left his job. [3] The RPD determined that the Respondent was a Convention refugee on the grounds of "perceived political opinion as the person who has worked for the government of Afghanistan." The RPD found that the Respondent had established his identity as a national of Afghanistan, and his personal identity as "a Pashto, a Sunni Muslim" who "worked from 2010 to 2017 with the XXXX XXXX XXXX under various [...] foreign donors as well as the [United Nations]" and US and German aid organizations and non-governmental organizations.1 [4] In written submissions the Appellant argues that the RPD "erred in discharging the respondent the burden of establishing the subjective component of a well-founded fear of persecution without a reasonable justification, particularly when the Panel itself raised significant concerns about the respondent's credibility and was not persuaded that the respondent was threatened."2 Specifically, the Appellant submits that the RPD "erred in law when it determined that the objective basis alone was sufficient to render a positive decision" even though it "identified multiple issues that seriously undermined the respondent's credibility and subjective fear." 3 [5] For his part the Respondent submits not only that the RPD did not find him not credible, but also: that "concerns raised in the Decision were overcome by other credible evidence that led to a positive determination by the Board"4; that the totality of the evidence established the credibility of the Respondent's subjective fear; and that the objective basis of his claim had been established because "[o]bjective documentary evidence and the respondent's profile puts him at risk of being targeted if were to return to Afghanistan today."5 DETERMINATION [6] The RAD dismisses the appeal and confirms the decision of the RPD that the Respondent is a Convention refugee, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). THE ROLE OF THE RAD [7] The role of the RAD is to review RPD decisions by applying the correctness standard of review after conducting its own analysis of the record with a view to determining whether, as the appellant submits, the RPD erred.6 The RAD will only show deference to RPD findings based on the assessment of the credibility or weight to be granted to the oral evidence given before it, in situations where it enjoys a particular advantage. If the RAD finds that the RPD had a particular advantage, the reasons will indicate as much. ANALYSIS The RPD's assessment of the Respondent's credibility [8] The RPD was "not convinced" by the Respondent's explanation for his failure to disclose to border services officials that he had a valid passport at his home in Afghanistan in addition to the service passport the Respondent used to travel to North America. The RPD attributed the Respondent's "challenging" oral testimony to his "nervousness".7 [9] The RPD placed "little weight" on both "letters from so called Taliban" disclosed by the Respondent, and on a letter from the Respondent's father. The former bore "different emblements" and were "put together" in a manner different from "other Taliban letters" included in the Board "objective documentary evidence", while the latter "lack[ed] any detail and it does not talk about when he was contacted by the Taliban."8 [10] The RPD also found that the Respondent failed to explain "major omissions" from his Basis of Claim (BOC) about "previous alleged persecution or being targeted". His testimony that he "told everything to [his] first lawyer" (not the same lawyer representing the Respondent before the RPD) did not account for why he had not "amended [his] Basis of Claim Form and dealt with the major omissions."9 [11] While the RPD did not believe that the Respondent "necessarily went to the police" to complain of the threats from the Taliban, it also found that he had "rebutted"10 the presumption of state protection, and made reference to "objective documentary evidence [which] states that there is inadequate and ineffective State protection for those who are being threatened."11 [12] The Appellant submits that the RPD erred in determining "that the respondent had a well-founded fear" when only the objective basis of his claim had been established because the relevant case law "stipulates that even if there were grounds for an objective fear, there must also be a subjective fear of persecution."12 The Appellant argues that the Respondent failed to establish the credibility of his subjective fear, in part because he "never made any efforts to deal with major omissions identified in the claim"13. The Appellant submits that the RPD "surprisingly" determined that the Respondent was a Convention refugee "even though it was not persuaded that the respondent was threatened." 14 [13] The Respondent does not dispute the RPD's weighing of the threat letters from the Taliban and from his (the Respondent's) father. According to the Respondent, "at no point in its Decision, does the [RPD] find [him] not credible"15, and that it ultimately attributed his "challenging" oral testimony to his nervousness16, rather than to any lack of credibility on his part17. [14] The Respondent also argues that "there is no evidence" that he "intentionally withheld [...] information" about his second valid passport "from Canada immigration"18: he not only provided a copy of the second valid passport and one expired passport to the RPD at its request19, but also gave the RPD a complete and reasonable explanation for why he held two valid passports at the same time20. Concerning other evidentiary omissions from his BOC narrative, the Respondent submits that the RPD "pointed out [the] omissions, but ultimately considered and assessed the totality of the evidence and made a positive determination on the basis of all the evidence before it."21 [15] I have independently assessed the evidence on record, including reviewing the transcript of the RPD hearing. I find that while the RPD did question certain aspects of the Respondent's evidence, it accepted that the Respondent "established [his] identity as someone who worked for the government of Afghanistan"22 in the role that he asserted, stating: You are well educated, you worked within the XXXX XXXX XXXX for seven years and I did find that to be credible, your oral testimony was credible when you were speaking about your work and since I am finding that you did work for the XXXX XXXX XXXX for all those years, I am going to give you the benefit of doubt with regards to some of the other problems you had in testifying today.23 [16] The record shows that the RPD's inquisitorial process, while not necessarily perfect, did test the credibility of Respondent's evidence. The RPD raised credibility concerns about some of the Respondent's evidence, but that found that he was credible about a key element of his claim, one that was central to his allegation that he faced a serious possibility of persecution by the Taliban in Afghanistan - that he was employed by Afghanistan's XXXX XXXX XXXX as a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [17] My independent assessment of the record shows that the RPD accepted as credible the Respondent's allegation that his professional profile placed him at risk because he was similarly situated to colleagues of his who had been first threatened and subsequently killed by the Taliban in targeted assassinations because they worked in Afghanistan's government: [...] [E]ven if am not persuaded on a balance of probability that you were threatened previously, I find that there is a reasonable chance of persecution based on your profile as well as similarly situated persons which you testified about a colleague which was killed in 2017 for working at the XXXX XXXX XXXX as well as I have mutual documentary evidence with regard to those in similarly situated person and those working for the government of Afghanistan. 24 [18] The RPD only made this finding because it accepted as credible the Respondent's testimony concerning those of his colleagues at the XXXX XXXX XXXX in Afghanistan who were assassinated by the Taliban25. Thus the RPD's finding that the Taliban would target the Respondent for being "westernized" was based in the fact that it accepted as credible his testimony that colleagues in his position had been killed by the Taliban in Afghanistan for working at the XXXX XXXX XXXX, and that the Respondent was similarly situated to those persons. [19] Although the RPD made some findings that called the Respondent's credibility into question, none of those findings was serious or weighty enough to displace the key positive credibility finding that informed its ultimate determination, a finding that concerned a matter at the very heart of the Respondent's claim. [20] The wording of the RPD's reasons for decision is somewhat awkward, as the reasons state only that the Respondent's fear of persecution was prospective - in other words, forward-looking. Having independently assessed the evidence before me, however, I find not only that the RPD did not err in its assessment of the Respondent's credibility, but also that the evidence before me is sufficient to credibly establish the Respondent's forward-looking subjective fear of persecution on a balance of probabilities. The RPD's findings concerning the objective basis of the Respondent's claim [21] In light of my findings above, there is no need for me to take up the Appellant's submission that the RPD "erred in law when it determined that the objective basis alone was sufficient to render a positive decision"26 in the Respondent's claim. Nor do I need to address the Appellant's arguments in support of this submission. [22] The Appellant is technically correct that a positive finding under section 96 of the IRPA requires both the subjective and objective components of the fear to be established27, but his arguments fail in the face of my finding above, that the Respondent's subjective fear of persecution is established, a finding based on my independent assessment of the evidence. [23] It remains for me to address the Appellant's argument that the "objective documentary evidence about the mistreatment of government employees by the Taliban does not automatically mean that the respondent would be persecuted, particularly when the Panel was not persuaded that the respondent was threatened."28 [24] These arguments too must fail in the face of my finding at paragraph 18 above, that the RPD acted correctly in finding that the Respondent was similarly situated to persons who had been targeted by the Taliban for doing precisely the same work that he was doing, in the service of the same employer, the government of Afghanistan. [25] Based on this, the fact that the RPD was not convinced that the Respondent had been threatened by the Taliban in Afghanistan in the past was only minimally relevant in the scope of its cumulative analysis of the evidence in order to assess the Respondent's forward-looking risk of persecution. [26] The Respondent's testimony and other supporting evidence established to the RPD's satisfaction that he would be targeted by the Taliban in the future if he returned to Afghanistan, based on his profile - a profile the RPD found he had established, having accepted as credible his testimony about the nature of the work that he did for Afghanistan's government and the documents he disclosed in support of his claim. [27] Having independently assessed the objective country conditions evidence in this matter, I find that the evidence cited by the RPD overwhelmingly supports a finding that the Respondent's profile would place him at risk of persecution in Afghanistan on a forward-looking basis. [28] I also consider that objective country conditions information in the most recent National Documentation Package compilation for Afghanistan indicates that "[t]here were major attacks on civilians by armed insurgent groups and targeted assassinations by armed insurgent groups of persons affiliated with the government"29, information that shows that the risk of violence and death to persons affiliated with Afghanistan's government at the hands of "[t]he Taliban and other insurgents" is present and ongoing. [29] In sum, having independently assessed the evidence I find that the RPD did not err in its ultimate determination of the Respondent's claim. Nor did it err in its assessment of the credibility of the Respondent's subjective fear, or in its assessment of the objective basis of his claim. CONCLUSION [30] The RAD dismisses the Appellant's appeal and confirms the decision of the RPD that the Respondent is a Convention refugee within the meaning of section 96 of the Immigration and Refugee Protection Act (IRPA), pursuant to 111(1)(a) of the IRPA. (signed) "S. Thompson" S. Thompson July 29, 2019 Date 1 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 4, at lines 32-35. 2 Exhibit M-2, Appellant's Record, Appellant's Memorandum, p. 2, at para. 4. 3 Exhibit M-2, Appellant's Record, Appellant's Memorandum, p. 3, at para. 10. 4 Exhibit P-1, Respondent's Record, Respondent's Memorandum, p. 223, at para. 43. 5 Exhibit P-1, Respondent's Record, Respondent's Memorandum, p. 226, at paras. 49(f) and 49(h). 6 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 7 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 5, at lines 17-24. 8 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 6, at lines 6-10. 9 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 6, at lines 12-17. 10 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 7, at line 12. 11 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 7, at lines 15-16. 12 Exhibit M-2, Appellant's Record, Appellant's Memorandum, p. 4 at para. 22. 13 Exhibit M-2, Appellant's Record, Appellant's Memorandum, p. 2 at para. 8. 14 Exhibit M-2, Appellant's Record, Appellant's Memorandum, p. 2 at para. 9. 15 Exhibit P-1, Respondent's Record, Respondent's Memorandum, p. 212, at para. 12. 16 Exhibit P-1, Respondent's Record, Respondent's Memorandum, p. 217, at para. 25. 17 Exhibit P-1, Respondent's Record, Respondent's Memorandum, p. 218, at para. 27. 18 Exhibit P-1, Respondent's Record, Respondent's Memorandum, p. 217, at para. 24. 19 Exhibit P-1, Respondent's Record, Respondent's Memorandum, p. 214, at para. 20. 20 Exhibit P-1, Respondent's Record, Respondent's Memorandum, p. 215, at paras. 22-23. 21 Exhibit P-1, Respondent's Record, Respondent's Memorandum, p. 221, at paras. 33. 22 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 5, at lines. 11-13. 23 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 5, at lines. 26-29 (emphasis added). 24 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 6, at lines. 19-24 (emphasis added). 25 Transcript of RPD hearing of August 28, 2018, pp. 46 (lines 27-49) to 47 (lines 5-20), 26 Exhibit M-2, Appellant's Record, Appellant's Memorandum, p. 5, at para. 10. 27 Mohebbi v Canada (Citizenship and Immigration), 2014 FC 182 at para. 3. 28 Exhibit M-2, Appellant's Record, Appellant's Memorandum, p. 4, at para. 20. 29 National Documentation Package (NDP) for Afghanistan (29 March 2019), item 2.1, Afghanistan. Country Reports on Human Rights Practices for 2018. United States. Department of State. 13 March 2019, at page 1/41. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-27371 RAD.25.02 (April 04, 2019) Disponible en français 9 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 (April 04, 2019) Disponible en français