TB5-13300

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 : TB5-13300 Private Proceeding / Huis clos Redetermination of the Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered at Toronto, Ontario Appel instruit à Date of decision June 8, 2017 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Daniel Nashid Barriter and Solicitor Conseil(s) de la (des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION [1] XXXX XXXX(the Appellant), a citizen of Kyrgyzstan, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He states that he has submitted no new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and either find him to be a Convention refugee or refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the negative determination of the RPD and substitutes its own finding that the Appellant is a Convention refugee. This appeal is allowed. Background [3] The Appellant alleges that he was and will be persecuted in Kyrgyzstan because he belongs to the Uyghur ethnic minority and is perceived as a dissident. [4] The Appellant traveled to Canada with a man whom he met while in detention. They made separate refugee claims in Canada, but those claims were joined by the RPD and heard together on September 17, 2015. By a decision of November 10, 2015, the RPD rejected both claims. [5] The Appellant's co-claimant was found to have submitted a fraudulent identity card, and his appeal was rejected as being manifestly unfounded. The Appellant was found to be lacking in credibility for a number of reasons, and the RPD also concluded that he did not face persecution in his country on account of his ethnicity. [6] The Appellant and co-claimant appealed to the RAD. The appeal of the co-claimant was dismissed, as the RAD does not have jurisdiction to hear the appeal with respect to a refugee claim determined to be manifestly unfounded.1 The RAD considered the Appellant's appeal. It found that the RPD had erred in a number of its findings, but nevertheless confirmed the RPD's conclusion that the Appellant is neither a Convention refugee nor a person in need of protection. [7] The Appellant sought and was granted leave to commence an application for judicial review. By a judgment and reasons of October 17, 2016, the Honourable Mr. Justice Campbell found the RAD's decision to be unreasonable and referred the matter back to the RAD for redetermination.2 [8] The Appellant submits on appeal that the RPD erred in its credibility findings, and further in its assessment of the risk he faces on account of his Uyghur ethnicity. ANALYSIS The Role of the RAD [9] The Appellant makes no specific submissions with respect to the standard of review to be applied here; however, he does argue that the RPD's decision as a whole is not reasonable, implying a deferential standard.3 [10] The standard of intervention to be applied by the RAD to findings of the RPD was recently set out by a three-member panel of the RAD: (a) The RAD will normally apply a standard of correctness to all findings of the RPD. (b) Where the RPD enjoys a meaningful advantage in making a particular finding, the RAD may assess that finding using a standard of reasonableness, modified to apply to the RAD context. (c) Where the RAD finds that deference is warranted, it is obligated to explain how the RPD enjoyed a meaningful advantage with respect to the finding in question. (d) Where the RAD shows deference to a finding, it will nevertheless consider both the process and the outcome. The finding must be the result of a comprehensible reasoning process - the RAD must be able to read the RPD's decision and understand how the RPD's conclusion was reached. In considering the outcome, the RAD must assess whether the finding is based on the evidence in the record; in order to do so, the RAD must undertake an independent assessment of that evidence, which may include re-weighing the evidence as necessary. (e) The RAD will consider the refugee determination on a standard of correctness, even where it has deferred to some or all of the findings upon which that determination is based. 4 The RPD's Findings [11] The Appellant challenges the following findings of the RPD. Identity of co-claimant [12] The RPD found that the Appellant's co-claimant had submitted a false identity card and therefore had not proved his claimed Uyghur ethnicity. The RPD found that this also tainted the Appellant's credibility, as he ought to have known that his co-claimant was not Uyghur.5 The Appellant argues that this finding was unreasonable, as his refugee claim was made independently and the joined claimant's identity is of no consequence to the Appellant's claim. [13] The RPD had no meaningful advantage in making this finding, and it therefore attracts no deference from the RAD. [14] Having reviewed the evidence, the RAD finds that the RPD erred here. There is no evidence to show that the Appellant knew of the deficiencies in his co-claimant's identity card. It is not clear why the RPD concluded that the Appellant should have known that his co-claimant was fraudulently assuming a Uyghur identity. The RPD's finding here was speculative, not based on the evidence, and therefore wrong. Corroborating documents [15] The RPD noted that the Appellant has no documents to corroborate his claim. Although he alleges that he was required to regularly report to the authorities, he could not provide a document corroborating this requirement. The RPD did not accept his explanation that the authorities would not put anything in writing. It observed that the Appellant did not seek a police clearance certificate. [16] The Appellant submits on appeal that it is illogical to assume that a person who has been illegally detained, beaten, and extorted would be able to obtain corroborating documents. He also points to objective evidence of police corruption, including illegal detentions and extortion. [17] The RPD's finding here is one of plausibility: the RPD apparently found it implausible that the authorities in Kyrgyzstan would not have provided corroborating documents to the Appellant. The RPD has no meaningful advantage in making implausibility findings, which therefore attract no deference. [18] Findings of implausibility should be made only in the clearest of cases. They should be made with regard for the evidence, and must take into consideration cultural factors. [19] This is not the clearest of cases. In the RAD's view, expecting the Kyrgyz police to issue corroborating documents is problematic for two reasons. First, it imposes western policing or government standards where there is no basis in evidence to do so. Second, it ignores objective evidence about the way in which the police in Kyrgyzstan operate. According to that evidence, working for the police guarantees a stable income in the form of bribes and extortion.6 There is systematic, police-driven extortion of minority groups.7 There are numerous reports of torture by police and other law enforcement officials, and prosecutors are unwilling to prosecute police.8 Police frequently use false charges to make arrests and then solicit bribes for release.9 They are accused of using non-existent search warrants to enter homes, and then planting evidence to justify an arrest.10 Detention without warrant is common.11 In this context, it is difficult to understand why the RPD expected the police to provide the Appellant with paperwork relating to his arrest or his reporting requirements, even as they were requiring him to pay bribes. It is even more difficult to understand why the RPD expected the Appellant to get a police clearance certificate from the agents of persecution. [20] The RPD erred in faulting the Appellant for failing to provide such corroborating documents. Education [21] The RPD found that the Appellant embellished his evidence with respect to his education by claiming that he was not able to study, when in fact he attended university for four years.12 [22] In fact, the Appellant's evidence was consistent with respect to his education. His Basis of Claim (BOC) narrative explains that he had to bribe his way into university, where he was discriminated against and then expelled.13 He did not claim, as the RPD alleges, that he was never able to attend university. He gave consistent evidence with respect to his education and it was an error for the RPD to conclude otherwise. The Appellant's credibility [23] Each of the RPD's credibility findings, as discussed above, was wrong. The Appellant is entitled to the presumption of truthfulness. While the RPD was in a better position than is the RAD to judge the Appellant's credibility, the RPD's findings are either not based on the evidence or do not reveal a comprehensible reasoning process. The presumption of truthfulness therefore stands, and the RAD finds that the Appellant is credible. He has therefore established not only that he is Uyghur - as the RPD found - but that he was threatened, discriminated against, detained, and beaten because of his ethnicity and his real and perceived political opinion. The Appellant's refugee claim [24] The Convention refugee definition is forward-looking. The Appellant's evidence of past harm does not in itself establish a well-founded fear of future persecution, and the RAD has therefore assessed the Appellant's evidence in conjunction with the objective evidence about the situation of ethnic minorities, including Uyghurs, in Kyrgyzstan. There is discrimination and violence against ethnic minorities.14 All minority ethnic groups are politically marginalized.15 Statutes prohibiting the incitement of inter-ethnic hatred are used for the most part against minorities themselves.16 Minorities are excluded from public employment.17 As discussed above, there is systematic, police-driven extortion of vulnerable minority groups.18 [25] When the Appellant's personal evidence - that he has been targeted by the authorities because of his ethnicity and perceived political opinion - is considered together with the objective evidence about the treatment of ethnic minorities in Kyrgyzstan, it leads the RAD to conclude that the Appellant faces a reasonable chance or serious possibility of persecution. [26] The Appellant cannot expect adequate state protection, as the state is in fact an agent of persecution. He cannot available himself of a viable internal flight alternative, as the RAD has no reason to conclude that he will be safe in any particular part of the country. [27] Having reviewed the evidence, the RAD finds that the Appellant has a well-founded fear of persecution because of his ethnicity and his real or perceived political views. He is therefore a Convention refugee. CONCLUSION [28] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the negative determination of the RPD and substitutes its own finding that the Appellant is a Convention refugee. This appeal is allowed. (signed) "Edward Bosveld" Edward Bosveld June 8, 2017 Date 1 IRPA, section 110(2)(c). 2 Khamdamov, Rustem v. M.C.I. (F.C., no. IMM-1089-16), Campbell, October 17, 2016, 2016 FC 1148. 3 Exhibit P-2, Appellant's Record, p. 63, Memorandum, para. 6. 4 RAD TB6-03419, Edward Bosveld, Ken Atkinson, Maria De Andrade, May 17, 2017. 5 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 29. 6 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Kyrgyzstan, July 17, 2015, item 10.1, para. 23. 7 Ibid., item 2.1, p. 1. 8 Ibid.,, item 2.1, pp. 2-3. 9 Ibid., item 2.1, p. 7. 10 Ibid., item 2.1, p. 9. 11 Ibid., p. 8. 12 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 33. 13 Exhibit RPD-1, RPD's Record, pp. 34-35. 14 Exhibit RPD-1, RPD's Record, NDP for Kyrgyzstan (July 17, 2015), item 2.1, p. 1. 15 Ibid., item 13.3., p. 1. 16 Ibid., item 13.3, p. 3. 17 Ibid., item 13.2, p. 44. 18 Ibid., item 2.1, p. 1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June, 2015) RAD File No. / N° de dossier de la SAR : TB5-13300 RAD.28.07 (June 2, 2015) RAD File No. / N° de dossier de la SAR : TB5-13300