MB8-21014

RAD File No. / No de dossier de la SAR : MB8-21014 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 Montréal, Quebec Appel instruit / entendu à Date of decision August 29, 2019 Date de la décision Panel Me Zofia Przybytkowski Tribunal Counsel for the person who is the subject of the appeal Me Meryam Haddad 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 OVERVIEW [1] The appellant, XXXX XXXX, is a citizen of Lebanon. He fears returning there because he alleges that he will be persecuted by Hezbollah since he refused to join it and fight in Syria. [2] The Refugee Protection Division (RPD) rejected his refugee protection claim because it found that his allegations were not credible. The RPD found that the claimant's account contains significant omissions and contradictions, which undermined his credibility. The RPD came to a negative conclusion because the appellant returned to Lebanon after initially staying in Canada. [3] The appellant is challenging the RPD's conclusions by arguing that he was identified as a vulnerable person and that the RPD lacked empathy and flexibility when it assessed his testimony and the explanations that he had given for the omissions and contradictions. He also criticizes the RPD for having found contradictions that do not actually exist. The appellant submits that the RPD failed to apply the guideline on vulnerable persons.1 [4] I conducted an independent analysis of the evidence by considering the records of the Refugee Appeal Division and the RPD, including the recording of the RPD hearing. DETERMINATION [5] I allow the appeal. I conclude that it was unnecessary for the RPD to make particular procedural accommodations. However, I am of the opinion that the RPD was overzealous in looking for contradictions and failed to consider the appellant's personal situation when it rejected his explanations. ANALYSIS Identifying the appellant as a vulnerable person [6] The appellant filed a detailed psychological assessment report,2 which indicates that he suffers from post-traumatic stress disorder. He also submitted a detailed résumé of the psychologist who had completed the assessment.3 Initially, the RPD did not question whether the appellant's diagnosis was valid and then noted its concurrence with the refugee protection claim process and the fact that the assessment had been completed during a single three-and-a-half-hour session. The RPD's reasons are therefore unclear about whether the RPD accepted the psychologist's diagnosis. [7] Having analyzed this report, in light of Guideline 8 mentioned above, I conclude that it contains all the information to be considered an expert report. I am of the opinion that it establishes that the appellant suffers from post-traumatic stress disorder. It also states that the appellant had previously repressed and refused to talk about some of his traumatic memories to avoid reliving his trauma. This affects the credibility assessment of the allegations that the appellant added to his account shortly before the hearing. I will address this in my analysis of the appellant's credibility. [8] The appellant submits that the RPD erred by refusing to hear the testimony of the psychologist as an expert witness. However, at the hearing, the appellant's counsel acknowledged that the psychologist's report and résumé were sufficiently detailed, and he ultimately abandoned the idea of having the psychologist testify, as he would have merely repeated the content of his report. For this reason, I conclude that the RPD did not err by refusing to hear the psychologist's testimony. [9] The appellant also criticizes the RPD for acknowledging at the hearing that the appellant is a vulnerable person, but for not including this observation in its decision or mentioning and applying the Guideline. It would have been preferable for the RPD to have added this information to its decision, but the mere mention of the Guideline does not demonstrate that the RPD applied it. [10] I conclude that the appellant can be identified as a vulnerable person because of his post-traumatic stress disorder, but that does not mean that he would have required a designated representative or other procedural accommodations. However, the RPD erred by questioning the diagnosis and the acceptability of the expert evidence and by failing to consider the appellant's specific circumstances when it analyzed the credibility of his testimony. Analysis of the appellant's credibility Late additions to the appellant's written account [11] When it assessed the late additions to the appellant's account and the evidence that he has psychological problems, the RPD made errors of fact and reached conclusions, but failed to explain how they affected the appellant's refugee protection claim. [12] The RPD criticized the appellant for waiting until shortly before his hearing to state that in the spring of 2015, he received a text message, which contained a photograph of his friend who had been decapitated while fighting against Hezbollah. In its reasons, the RPD states that the appellant alleges that he mentioned this incident to the psychologist who had assessed him in March 2018, but then contradicted himself by stating that his lawyer was aware of this incident in January 2018. The RPD therefore made an error of fact because the appellant never claimed that he had told his lawyer about this photograph in January 2018. He stated that he had a panic attack in January 2018 and that his lawyer then recommended that he undergo a psychological assessment. [13] The RPD questioned this last-minute addition to the appellant's written account, but did not reach a conclusion about whether it believed that this incident actually occurred. It then continues its analysis by stating that the post-traumatic stress diagnosis seemed to be precocious after just one three-and-a-half session with a psychologist, which contradicts its own conclusion that it did not challenge the psychologist's diagnosis. [14] I am of the opinion that the appellant clearly and adequately explained why he did not have the courage to talk about the photograph before March 2018. He clarified that it was a traumatic event and that it was difficult for him to discuss it because he did not want to remember it. He agreed to talk about it because he was with a psychologist who had to assess him. The same is true for his twin brother's disappearance in 2014, which is an incident that he had not spoken about before his session with the psychologist. I find that the appellant testified about it in a direct and consistent manner, without contradictions or inconsistencies that could have undermined his credibility. Errors in the immigration forms and the refugee protection claim form [15] The appellant's immigration forms contain several errors, specifically concerning his twin brother's date of birth and the addresses where he lived. The appellant explained that his former lawyer had completed the forms for him, without interpreting the content for him. The RPD did not accept his explanations because he was 18 years old when he signed it, and he was responsible for verifying the information before signing it. [16] A counsel's incompetency is often cited to account for errors in forms. In this particular case, given that this is about the appellant's twin brother, it seems implausible to me that the appellant provided the wrong date of birth to his former lawyer. It is possible that there could have been other errors in the form. Considering the circumstances, even though these errors undermine the appellant's credibility, it is not an element that, in itself, can justify a finding of a lack of credibility. Delay in claiming refugee protection in Canada and returning to Lebanon [17] The RPD found that the fact that the appellant returned to Lebanon after he had stayed in Canada for five months in 2016, but did not claim refugee protection, undermines the credibility of his subjective fear of persecution. The RPD made that finding because the problems alleged by the appellant began in 2014 and continued in 2015. I find that the appellant adequately accounted for his behaviour, considering his particular circumstances, and that returning to Lebanon does not undermine the credibility of his allegations. [18] The appellant acknowledged that he had acted recklessly when he stated that he had relied on information from his friend that Hezbollah was no longer looking for him. Although all his siblings are outside of Lebanon, he also invoked the fact that he was still a minor, 17 years old, and that he went back to his parents. [19] The RPD's finding was also reinforced by the fact that it did not believe that the appellant had been harassed shortly after he returned to Lebanon because he was supposedly vague and confusing when he testified about it. After listening to the recording of the hearing, I agree with the appellant's arguments that he was very direct in his testimony and that he explained that he had been confronted in the restaurant where he worked not long after he had returned to Lebanon. Although he gave an approximate date, around XXXX XXXX or XXXX XXXX, 2016, he was still consistent in his testimony when he stated that the incident occurred a few days after he had arrived, when he went back to work. I see no reason to question his testimony about this incident. [20] The RPD did not seem to believe the appellant's allegations that he had suffered a depressive episode when he returned to Lebanon in XXXX 2016, during which time he did not leave his home until he returned to Canada on XXXX XXXX, 2016. The RPD based its finding on the fact that the medical document4 submitted by the appellant is not very detailed. However, it indicates that the appellant was prescribed medication and that he was seen due to a depressive episode. I see no reason to question these facts, despite the lack of details in the document. [21] Considering the appellant's age and the fact that his parents live in Lebanon, that his psychological problems were not apparent prior to June 2016 and that he returned briefly to his country, I find that returning to Lebanon in the circumstances does not undermine the appellant's credibility. Analysis of the objective documentary evidence [22] The RPD relied on the objective documentary evidence, which states that Hezbollah does not engage in forced recruitment,5 to support its finding that the appellant's allegations of forced recruitment are not plausible. The appellant cites the same document to argue that some sources do report that forced recruitment occurs in rural areas where Hezbollah has a strong influence, such as southern Lebanon and the Beqaa valley. [23] Recent case law states that, even if the documentary evidence does not indicate that Hezbollah engages in forced recruitment, it does not necessarily mean that the appellant's testimony to the contrary is implausible.6 Given that I have found that the appellant's testimony and allegations are credible, I conclude that the objective documentary evidence does not contradict the appellant's allegations. State protection and internal flight alternative [24] The objective documentation states that government forces are usually unable to enforce the law in Hezbollah-controlled regions.7 The appellant testified that he had tried to obtain the help of military forces, who told him that they could not intervene. I conclude that the appellant could not obtain state protection against Hezbollah. [25] The same documentation states that Hezbollah has control in all Shia areas and substantial influence throughout the country through its penetration of the Lebanese security apparatus. The appellant also explained that, as a Shia, he would not be allowed to settle or work in an area that is predominantly Christian or Sunni. I conclude that the appellant does not have a reasonable internal flight alternative. CONCLUSION [26] For these reasons, I conclude that the appellant established that he would have a well-founded fear of persecution if he were to return to Lebanon by reason of his imputed political opinion after he refused to join Hezbollah. I therefore determine that he is a Convention refugee. I set aside the RPD's determination and substitute it with this determination. [27] The appeal is allowed. Zofia Przybytkowski Me Zofia Przybytkowski August 29, 2019 Date IRB translation Original language: French 1 Chairperson's Guideline 8: Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the IRB, effective December 15, 2006, amended December 15, 2012. 2 Refugee Protection Division (RPD) record, pp. 172-185. 3 RPD record, pp. 186-207. 4 RPD record, p. 210. 5 National Documentation Package (NDP), Lebanon, April 30, 2018, Tab 7.4: Recruitment practices of Hezbollah, including forced recruitment, such as Shi'ite youth; consequences for those that refuse to join; availability of state protection; regions controlled by Hezbollah, including ability to locate a person wanted by... Immigration and Refugee Board of Canada. October 29, 2015. LBN105332.E; NDP, Lebanon, April 30, 2018, Tab 7.8: Hezbollah, including areas of operation, political involvement, military activity, recruitment practices, mistreatment of citizens and state protection. Immigration and Refugee Board of Canada. November 16, 2011. LBN103846.E. 6 Zaiter v. Canada (Citizenship and Immigration), 2019 FC 908, para. 11. 7 Supra, endnote 5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-21014 RAD.25.02 (April 4, 2019) Disponible en français 7 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 4, 2019) Disponible en français