TB8-31716

RAD File / Dossier de la SAR : TB8-31716 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX(a.k.aXXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 5, 2019 Date de la décision Panel H. Shepherd Tribunal Counsel for the person who is the subject of the appeal Michael Romoff 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] XXXX XXXX (Principal Appellant), citizen of Azerbaijan, appeals a decision of the Refugee Protection Division (RPD), dated November 8, 2018, that rejected his claim for refugee protection. [2] The claim is based on imputed political opinion as a compelled witness against members of the Muslim Unity Movement (MUM) in Nardaran Village, Baku. [3] The Refugee Appeal Division (RAD) allows the appeal and substitutes its determination that the Appellant is a Convention refugee. [4] The Appellant did not apply to admit new evidence pursuant to either subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) or Rule 29 of the RAD Rules. No oral hearing was requested in accordance with subsection 110(6) of the IRPA. [5] A transcript and a digital audio recording of the hearing are available. [6] The July 31, 2018 version of the National Documentation Package (NDP) for Azerbaijan was used at the hearing. [7] The role of the RAD is to intervene when the RPD is wrong in law, in fact, or in fact and law. The applicable standard of review is correctness, unless deference should be shown to the RPD because it enjoyed a meaningful advantage over the RAD.1 No issue was identified to which deference should be shown on this basis. Allegations [8] The Appellant states that he worked as a XXXX in Nardaran Village, Baku, since 2009. He was detained for two days and beaten in December 2015 in order to obtain information about members of the Shia-affiliated to the MUM. He was seriously injured and required hospital treatment. He met with a prosecutor in April 2016 and told that he would be called as a witness at a trial for members of this group. He then obtained a United States (US) visa in May 2016 and travelled to the US in XXXX 2016. He made an asylum claim there, but later abandoned it when he came to Canada in XXXX 2017. Documents [9] The Appellants filed a number of documents, including the following: i) His US asylum application.2 ii) A medical report from the Casplan International Hospital dated December 27, 2015 that indicates that he was treated for a brain concussion, burns to the face and left foot, and hematomas on his face and abdomen.3 iii) An internship certificate that shows that he graduated from XXXX XXXX XXXX in 2009 and interned in Baku City in XXXX from 2009 to 2010.4 iv) A certificate that shows that he completed a one-year internship in XXXX at XXXX XXXX XXXX.5 v) Two visitors badges, one from 2008 and the other from 2010 that identify the Appellant as a XXXX XXXX XXXX XXXX XXXX XXXX.6 vi) A newspaper article names the Appellant as a XXXX XXXX.7 vii) A subpoena requiring that he appears as a witness on September 8, 2016 for a criminal trial.8 viii) A corroborating letter from his father.9 ix) A corroborating letter from his wife.10 x) A newspaper article dated September 17, 2012 that states that he graduated in 2009 and works as a XXXX.11 The RPD Decision [10] The RPD rejected the claim on the following grounds: i) There is a material inconsistency as between the Basis of Claim form (BOC) and the United States (US) visa application; ii) There is a material inconsistency as between the BOC and the US application for asylum; iii) The asylum application is too vague to corroborate the claim for refugee protection; iv) The Appellant did not present any document from the Ministry of Health or from any other state agency to show that he ever worked in Nardaran; v) The Appellant did not present a diploma as evidence that he is a XXXX (or XXXX XXXX XXXX); vi) There is a material omission from the narrative about the length of the claimant's detention/date of his release and his having sought medical assistance; vii) There is a material omission from the narrative about post-departure events occurring prior to the date of signing of the BOC Form; viii) The Appellant did not provide a reasonable explanation for not pursuing his asylum claim in the US; ix) The Appellant did not present any document regarding the status of his asylum claim; x) The Appellant travelled to Russia on XXXX XXXX XXXX 2016 and returned to Azerbaijan; xi) The country condition evidence concerning Nardaran and the MUM does not offset adverse credibility conclusions; xii) The media articles are not corroborative of the allegations. Reasons for the Appeal [11] Appeal counsel submits that the RPD erred in its assessment of the following issues: i) The RPD did not believe that the Appellant was a XXXX or that he worked in Nardaran because he did not indicate this in his US visa application; ii) The Appellant did not produce a document from the Ministry of Health or from any other state agency to show that he worked in Nardaran; iii) The two newspaper articles that refer to the Appellant; iv) The Appellant did not appear to know for sure whether the trial in which he was being coerced to testify had begun; v) There is a material omission from the Appellant's narrative as to the length of his detention; vi) The Appellant's one-day trip to Russia. ANALYSIS [12] The RPD identified credibility as being the determinative issue. The panel did not believe that the Appellant worked as a XXXX in the Nardaran village of Baku and was asked to testify against members of the MUM in that community. The RPD did not err in drawing an adverse inference from inconsistencies between the BOC and the US Visa Application, but erred in making this a determinative issue [13] The US visa application states that the Appellant is a XXXX XXXX XXXXnot a XXXX, who worked in Mingachevir, not in Nardaran. The RPD did not accept his explanation that the agent who helped him draft the US visa application told him that he needed to state his official employment in Mingachevir, not the private work that he did at Nardaran. The RPD noted that the BOC and Schedule A list Nardaran as being his place of work, with no mention of Mingachevir. The panel did not accept the explanation that the agent picked Mingachevir because one could reasonably expect that it would have been to his advantage to indicate in the application that he was a XXXX rather than a XXXX XXXX. The panel also noted that the Appellant testified that XXXX XXXX do not see patients, unlike XXXX. They are different occupations. The Appellant has not provided consistent statements about the nature of his employment. [14] Counsel submits that the RPD was engaging in speculation that a self-employed professional would be more likely to obtain a visa than a salaried employee. Second, the RPD speculated about why the agent would not have included both Nardaran and Mingachevir. Although the Appellant did not know the reason, the agent's actions are plausible. [15] Assuming that reference to Mingachevir only can be attributed to the agent who prepared the US visa application, the Appellant should have declared all of his employment in Schedule A. This provides good reason to draw an adverse inference that is not determinative of the claim. The mistake that the RPD made was to draw and adverse inference from these inconsistencies and then to proceed directly to the conclusion that he was not likely working as a XXXX in Nardaran without considering the other evidence. Although the RPD was correct that the explanations given are not adequate, this issue in itself, is not determinative of the claim. It is one factor that may be taken into account in light of all of the evidence. The RPD did not err in drawing an adverse inference from the inconsistency between the BOC and the US Asylum Applications with respect to his employment and where he worked [16] The Appellant did not indicate in his US asylum application that he worked as a XXXX in the village of Nardaran. Rather, he worked as a XXXX and XXXX XXXX in Mingachevir. The Appellant testified that he worked in Mingachevir in this capacity from 2014 and 2016 in addition to his work in Nardaran. He explained this to his US counsel, but was told that he could provide additional details later. [17] The information contained in the asylum claim corresponds to that presented in the visa application. The Appellant stated in his US asylum claim that he worked in Mingachevir with no mention of Nardaran, but stated that he worked in Nardaran with no mention of Mingachevir in his Canadian refugee. He was assisted by a lawyer when both applications were drafted. Counsel submits that use of true, consistent information from the visa application in the asylum application is understandable. Additional details could have been added when the narrative was prepared. [18] The RPD was correct in drawing an adverse inference from this, given that the Appellant's Canadian claim is based on risk in Nardaran. Failure to add this village to his US asylum application if this is the material to risk raises serious credibility concerns. Although this is one factor that can be taken into account, it is not a determinative factor and must be assessed in light of all of the evidence. The US Asylum application is too vague to corroborate the claim [19] The RPD noted that the US asylum application form does not include a narrative that outlines the nature of the risk. However, it contains inconsistent information about his profession and place of work. As a result, it does not corroborate his Canadian claim. [20] The RPD identifies two issues without clearly dealing with each separately. The fact that the US asylum application form does not include a narrative cannot be held against the Appellant, as inconsistencies can. Although it is true that the US asylum application does not corroborate the claim, the issue is whether the cumulative effect of adverse inferences rebuts the presumption that his sworn testimony is true. The Appellant does not need to prove that he is telling the truth. The RPD must assess all of the evidence in order to conclude whether or not the presumption of truth has been rebutted on the facts of the case. The RPD erred in its treatment of the issue of why the Appellant did not file any state documents that show that he worked in Nardaran and in its assessment of the Internship Certificate [21] The Appellant testified that all of his documents were seized when his office was raided. The RPD did not believe him because he was able to disclose some documents. In addition, he was able to return to work as a XXXX after this event. The panel then made comments about his internship. The Appellant testified that reference in his internship certificate to work in Baku City included work in Nardaran three days per week, two hours per day. The panel did not accept this because Nardaran is not mentioned in the certificate, nor did the Appellant indicated this in his US asylum application form. As a result, the RPD concluded that he likely did not work as an intern in Nardaran. [22] Counsel submits that the RPD ignored his explanation that the documents in his office were confiscated, not those in his home. The RPD made a factual error. In addition, the RPD speculated that authorities should have returned the documents after he had been recruited. Counsel also submits that the RPD failed to take into consideration the fact that Nardaran is a suburb of Baku City. It is not implausible to be engaged in part-time work in two locations in the area. [23] The RPD conflated two issues, the failure to provide official documents and the credibility of his explanation as to why Nardaran is not mentioned in his internship certificate. Rule 11 requires that a claimant obtain and disclose supporting documents, unless a reasonable explanation is provided that accounts for their absence. The Appellant provided an explanation. The RPD would only have been in a position to draw an adverse inference if the explanation were not reasonable. The RPD provided no reasons on this issue. The RPD erred in drawing an adverse inference from the failure to disclose documents without assessing his explanation. [24] The second issue concerns the Appellant's explanation of why no mention is made to Nardaran in his internship certificate.12 This document indicates that the Appellant graduated from XXXX XXXX XXXX in 2009 and then completed a one-year internship between 2009 and 2010 at Baku City in XXXX. Although he testified that he was able to work part-time in both Baku and Nardaran because he had a car, the RPD did not accept it because no reference to Nardaran was made in either the US asylum application or in the internship certificate. [25] Given the proximity of the two communities, the Appellant's explanation is reasonable. The Appellant's explanation can reasonably explain the omission in the internship certificate. The RPD erred in its assessment of the fact that the Appellant did not present a diploma as evidence that he is XXXX XXXX XXXX XXXX [26] The Appellant testified that he was unable to obtain a diploma in XXXX from XXXX XXXX XXXX because it was a privately owned institution that closed when its licence expired. The RPD did not accept this explanation because the documents filed by him indicate that he worked as a dental technician. This information is consistent with what is stated in his US asylum application. It is also consistent with his testimony that he had a XXXX XXXX in Baku and in Nardaran. Although some evidence supports the claim that he studied XXXX and interned as a XXXX, they do not establish that he was able to practice as a XXXX, as alleged. [27] Counsel submits that the RPD ignored the internship certificate which is an official document that shows that he worked as an intern in Baku as a XXXX. The RPD also speculated about the requirement that a diploma be produced in order to practice XXXX in Azerbaijan. More likely than not, the certificate issue by the Ministry of Health is the document required to practice. Furthermore, the Appellant operated two XXXX XXXX with which he is registered as a XXXX XXXX. The two are not inconsistent. [28] Counsel is correct that the Appellant filed an official document that substantiates his academic history and work as a XXXX. The RPD erred in its assessment of the two media articles that name him [29] Two articles from the Independent-Mustaqil-Azerbaijan were filed. The article dated September 17, 2012 was given no weight because the original was not presented. The original of another article was presented that refers to him as a XXXX XXXX XXXX, but does not mention Nardaran. [30] The RPD did not accept his explanation that the original copy of the September 17 article was seized during the raid because it is too convenient to be true. The RPD could not understand why his wife was able to obtain the original for one, but not the other. [31] Counsel submits that the RPD failed to provide adequate reasons to support its conclusion that the two articles have no weight. [32] The September 17, 2012 article from the Independent Republic states that the Appellant graduated from medical college in 2009 in the Faculty of XXXX with excellent marks. He has now been working as a XXXX for 5 years.13 A photocopy of the original was also filed.14 Another article from the Independent Republic dated December 12-31, 2012 congratulated the Appellant as an excellent XXXX XXXX XXXX. A photocopy of the article was filed.15 Although the original of one of the articles was not available, a photocopy was presented. The RPD made no adverse observations about the form of the publications. The information contained in them is consistent with an official document in the form of his internship certificate. The RPD failed to provide adequate reasons for giving them no weight. [33] In addition, a newspaper article shows that the trials began. The RPD drew and adverse inference from the fact that he did not know whether the trial had begun. Counsel submits that the RPD failed to give any reason why the Appellant should have a continuing interest in the trial. I agree. The RPD erred in drawing an adverse inference from the omission from BOC about length of detention, but not about medical treatment after release [34] The Appellant did not indicate in the BOC how long he was in detention before his release. He testified that it was two days. According to the RPD, he could have amended the BOC if the omission were the fault of the interpreter. The letter from his wife states that he spent seven days in hospital after his detention, but this is not mentioned in the BOC. As a result of these observations, the RPD gave no weight to the medical report concerning his injuries based on its view that it has been fabricated. It also gave no weight to the letters from his father and wife because they are unreliable. [35] Counsel submits that the IMM-0008 and Schedule 12 documents that pre-date the BOC specify that he was detained from December 18, 2015 to December 20, 2018. His failure to repeat it in the BOC is not a reasonable basis upon which to base a negative credibility finding. [36] I agree with counsel that the Appellant disclosed the length of his detention in both Schedule A and in testimony. The question of how long he was in detention is a detail that he could reasonably expect to specify at the hearing. On the other hand, the need to be hospitalized for seven days after the event is an important fact that should have been stated in the BOC. The RPD erred in drawing an adverse inference from a material omission from BOC about post-departure events occurring prior to BOC signing [37] The BOC was signed on August 30, 2017 and omits the information contained in his father's letter dated October 29, 2017. Although the letter states that he withheld information, the Appellant indicated that he was aware of it. The RPD gave no weight to the father's letter because the information was not in the BOC. The RPD also dismissed his wife's letter from the same reason. The RPD then proceeded to give no weight to the court notices on the basis that they were likely fabricated. [38] The information contained in his father's letter concerns events that happened to him after the Appellant's departure. The Appellant chose to bring this evidence to the attention of the RPD through filing a letter from her father. Although it would have been prudent to have included this in the BOC, this is not of sufficient significance to reject the two letters from his parents and the court notice. The RPD failed to provide adequate reasons for giving no weight to these documents. The Appellant did not provide a reasonable explanation for not pursuing his US asylum application [39] The Appellant explained that he abandoned his asylum claim and came to Canada because of the political situation in that country. The RPD faulted him for not remembering the names of the lawyers he consulted in the US and for not mentioning problems with the US police in the BOC. The Appellant provided an adequate reason why he came to Canada to pursue asylum. The RPD's assessment is microscopic and ignored the wider issues identified by the Appellant to support his decision to leave the US in favour of minor issues. The RPD erred in its assessment of the Appellant's failure to present documents concerning the status of the US asylum claim [40] The RPD faults the Appellant for not having filed a document that indicates the status of the US asylum claim. Given the fact that he submitted proof that the claim was made and that he abandoned it when he came to Canada, the RPD should have explained why an adverse inference should be drawn from the fact that has not enquired into the status of his US claim. The RPD erred in concluding that return from Russia in XXXX 2016 is indicative of a lack of subjective fear [41] The Appellant made a brief trip to Russia on XXXX XXXX, 2016 and then returned to Azerbaijan. Although he had received his US visa, he wanted to see if he would have any problems leaving the country. The RPD rejected this explanation and concluded that it shows that he does not have a subjective fear of persecution because it occurred after his alleged detention and when he could have gone directly to the US with his visa. [42] Counsel submits that the Appellant returned to Azerbaijan when he was not in immediate fear of persecution at that time. The risk would materialize if he refused to testify. Because the trip took place before the trial, he could return safely. [43] I agree that the Appellant's return to Azerbaijan under the circumstances at the time are not indicative of a lack of subjective fear. Country Conditions [44] Documents pertaining to country conditions outline the situation in Nardaran, including arrests and trial with respect to the activities of the MUM. However, given the Appellant's lack of credibility on other grounds, these documents do not substantiate his allegations. Assessment [45] The Appellant provided a number of documents in support of his claim, all of which were given no weight without adequate reasons. No mention was made of the photo identity passes that identified the Appellant as a XXXX. The medical report that indicates that he was treated for serious injuries was discounted because of insufficient reasons to doubt other documents. Attestations of professional status were given no weight. A state-issued internship certificate corroborates his education and professional status. Two newspaper articles attest to his status as a XXXX. Statements from his father and wife substantiate his allegations. A court summons was disclosed that confirms that he was being compelled to give testimony in court as alleged. The RPD properly identified areas of concern with respect to information stated in the US visa and asylum applications. The withholding of important details in the US forms is a factor that can legitimately be taken into account. However, when all of the elements of the claim are viewed together, the adverse inferences identified are insufficient to rebut the presumption that the Appellant is telling the truth. In addition, adequate reasons were not given to discount the supporting documents file. [46] Risk to the Appellant is related to a trial that began on August 4, 2016 in a Baku court concerning an extremist Shi'ite group, the MUM, which sought to provoke mass unrest in order to seize power. Taleh Bagirzade leads the MUM and is the deputy chairperson of the opposition Azerbaijan Popular Front Party (AHCP). He studied theology in Iran and has openly criticized the President of Azerbaijan. He and thirteen other men were arrested in late November 2015 in the village of Nardaran on the outskirts of Baku. This community has been a bastion of conservative Shi'ite Islam for years.16 As a professional who worked in Nardaran, the government detained and interrogated him for several days during which time he was seriously beaten in the belief that he has relevant information about the group. Afterwards, they required that he provide false testimony against the MUM at trial. He refuses to cooperate. Should he return to Azerbaijan, there is a serious possibility that his conduct would be interpreted politically as a sign of opposition and that he would face treatment similar to that which he experienced in the past. [47] The US Department of State human rights report outlines the serious nature of human rights violations in Azerbaijan. These include arbitrary arrest, lack of judicial independence, political prisoners, unlawful or arbitrary killings, torture, incarceration on questionable charges, and harsh physical abuse of activists.17 [48] There is a serious possibility that the Appellant would again be detained as a result of his failure to comply with the subpoena to testify. He has already been interrogated and beaten because of the suspicion that he has knowledge about the insurgency. Given the serious nature of the issue, his conduct could be interpreted as sympathy with the movement, or, as a minimum, disloyalty to the state. The documentary evidence indicates that those who are so accused have a good chance of being severely abused. [49] Given that the state is the agent of persecution, state protection is not available, and the risk extends throughout the country. [50] The Appellant has a well-founded fear of persecution. CONCLUSION [51] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) "H. Shepherd" H. Shepherd September 5, 2019 Date 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, at para. 78. 2 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 92-101. 3 Ibid., Exhibit 8, at pp. 211-212. 4 Ibid., at pp. 213-214. 5 Ibid., Exhibit 9, at p. 220. 6 Ibid., at p. 222. 7 Ibid., at p. 224. 8 Ibid., Exhibit 10, at p. 233. 9 Ibid., Exhibit 12, at p. 258. 10 Ibid., at p. 260. 11 Ibid., Exhibit 16, at p. 373. 12 Exhibit RPD-1, RPD Record, Exhibit 8, at pp. 213-214. 13 Ibid., Exhibit 16, at p. 373. 14 Ibid., at p. 374. 15 Ibid, Exhibit 9, at pp. 224-225. 16 Ibid., Exhibit 16, at p. 382. 17 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Azerbaijan, (31 Jul 2018), item 2.1. "Azerbaijan. Country Reports on Human Rights Practices for 2017", 20 April 2018. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-31716 RAD.25.02 (April 04, 2019) Disponible en français 14 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