TB8-13925

RAD File / Dossier de la SAR : TB8-13925 TB8-13926 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 26, 2020 Date de la décision Panel D. Goff Tribunal Counsel for the persons who are the subject of the appeal N/A Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellants, XXXX XXXX (the "principal appellant") and XXXX XXXX (the "female appellant") citizens of Azerbaijan, appeal a decision of the Refugee Protection Division (RPD) denying their claim for protection. They 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. BACKGROUND [2] In September 2016, the appellants imitated an inland claim for refugee protection alleging a fear of persecution in their country on religious grounds. They alleged they had converted from the Muslim faith to the Pentecostal faith denomination of Christianity. They were subsequently persecuted by "hard line Muslims" and the police in Azerbaijan. [3] The appellants' claim was heard by the RPD on January 17, 2018 and February 20, 2018. In a decision dated, May 14, 2018, the RPD rejected the claim finding it not to be credible. [4] The appellants argue the RPD erred in its analysis and findings. They also argue their former counsel was negligent and failed to be diligent in representing them before the RPD. DECISION [5] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (the "Act"),1 the RAD refers the matter back to the RPD for redetermination. The appeal is allowed. ANALYSIS [6] My role is to look at all the evidence and decide if the RPD made the correct decision.2 New Evidence [7] The appellants have submitted new evidence, including by way of a Rule 29 Application. They submit the evidence is new and was not reasonably available to present to the RPD. [8] The appellants' proposed evidence includes a support letter from XXXX XXXX XXXX XXXX XXXX XXXX from the XXXX XXXX XXXX XXXX and medical reports for the female appellant, including: i. An Order dated XXXX XXXX, 2020 by Dr. XXXX XXXX XXXX pursuant to the Act of Application for Psychiatric Assessment; ii. A letter dated XXXX XXXX, 2020 by Dr. XXXX XXXX and XXXX XXXX, XXXX, XXXX from the XXXX XXXX XXXX; and, iii. A Letter dated XXXX XXXX, 2020 from Dr. XXXX XXXX, Psychiatrist. In his report, Dr. XXXX indicates the female appellant suffers from symptoms consistent with XXXX XXXX XXXX XXXX and XXXX. [9] The panel has carefully reviewed the documents and accepts the appellants' explanation as to why the documents could not be submitted earlier and to the RPD. The RAD further finds the evidence to be credible on its face, as well as relevant in corroborating the appellants' allegations. The documents have thus been admitted. As the new evidence is not determinative on its own, an oral hearing has not been held. The RPD's Findings [10] The determinative issue in the RPD's assessment of this claim was credibility. The RPD decided the presumption of truth was displaced in the circumstances of this claim. The RPD thus concluded the appellants "fabricated" their religious conversion to support the making of their refugee claims. [11] Having independently reviewed the evidence, the RAD cannot agree with the RPD's analysis, especially in light of the new evidence. The RAD cannot, however, fault the RPD as the appellants failed to provide the new evidence (nor any related submissions) to the RPD for its consideration. Nevertheless, as credibility was the determinative issue, the RAD finds the RPD's analysis cannot be sustained without due consideration of the female appellant's medical evidence, including from her psychiatrist. In this regard, it is also worth considering whether the female appellant should be designated as "vulnerable" in her proceedings before the RPD. Merits of the Claim [12] Upon its own review of the record, the RAD also has concerns with the appellants' credibility, including due to apparent problems in their evidence and the lack of subjective fear. However, without the benefit of hearing oral evidence on these issues, the RAD is of the opinion that it cannot provide a final determination of this claim. Accordingly, the matter is referred back to the RPD for redetermination. Allegations Against Former Counsel [13] The appellants have also made serious allegations against their former counsel. They have not however followed the Board's Practice Notice - Allegations Against Former Counsel. They are thus directed to follow the steps outlined in the Practice Notice, including providing their former counsel with a copy of their Appellants' Memorandum (or a written statement containing their allegations) accompanied by proof of service to be filed with the RPD's Registry forthwith. CONCLUSION [14] The appeal is allowed. I send this matter back to the RPD to be redetermined. (signed) "D. Goff" D. Goff November 26, 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-13925 TB8-13926 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