TB7-10923

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 : TB7-10923 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 31, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Adela Crossley Conseil(s) du (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 FOR DECISION [1] XXXX XXXX (the Appellant) a citizen Of Turkey appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of this appeal. The Appellant is requesting an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. Determination [2] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA),1 the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. BACKGROUND [3] The Appellant is a young man of Kurdish ethnicity, university educated and a member of the People's Democratic Party- Halklann Demokratik Partisi (HDP) political party. The Appellant alleged that he faced persecution in Turkey as a Kurd and for his political opinions. RPD's Reasons [4] In its reasons, the RPD found that that the claim was not credible even though the panel accepted as true certain details about the Appellant including that he is Kurdish, that he was involved with the HDP party since 2013 and prior to the HDP, was involved with the Peace and Democracy Party (BDP) party since 2011. However, the panel rejected the claim that he would be persecuted should he return to Turkey on the basis of his alleged political profile. Appellant's Issues [5] The Appellant raises five issues at the RAD: * Standard of review * The Board engaged in a microscopic analysis of the record, selectively relied on evidence or otherwise misconstrued evidence resulting in a serious error. * The Board impeached the Appellant's credibility based on perceived omissions in his Basic of Claim (BOC) form and in his HDP letter and those credibility findings are unreasonable and not supported by the evidence * New evidence * Oral hearing ANALYSIS Determinative Issue [6] The determinative issue in this appeal is the Appellant's profile as a young, well-educated Kurdish supporter of the HDP party and how that may result in his persecution in Turkey. Standard of Review [7] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.2 Admissibility of New Evidence [8] The Appellant submitted new evidence with his Appeal Record. [9] Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim (not after the end of the hearing) or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented at the time of the rejection of their refugee claim. [10] If the proposed new evidence does meet the requirements of subsection 110(4), I must then apply the analysis set out in the Federal Court of Appeal's decision in Raza3 as subsequently modified by the same court's decision in Singh;4 effectively I will assess the credibility and relevance of the evidence in order to determine whether it is admissible. [11] The Appellant submits the following as new evidence: Letter of XXXX XXXX to IRB, dated May 29, 2017 and all documents enclosed in that correspondence.5 [12] The Appellant argues that the new evidence is all dated after the Appellant's refugee claim that was last heard on December 28th, 2016. However, that is not relevant. Subsection 110(4) of the IRPA clearly states that new evidence is only new if it arises after the date of the rejection of the claim (May 19, 2017). The Appellant argues that he provided the documents to the IRB in good faith prior to him being aware of the decision. Counsel argues for the Appellant that on the date that her further evidence was submitted (May 29, 2017) no notice of a decision had been received by her office. As such she was unable to know that a decision had been issued and was acting reasonably in sending in further submissions. [13] Unfortunately, counsel fails to explain how each of these documents relates to the Appellant and in fact barely speaks to them in her Memorandum of Argument. [14] The first of these documents is an article dated February 21, 2017.6 It does not meet the test of subsection 110(4) as it was published three months before the decision. No reasonable explanation has been given as to why this was not presented before the RPD decision. It is dismissed. [15] The second article is dated February 14, 20177 and for the same reason as above, is dismissed. [16] The third article is dated May 29, 2017.8 It does comply with the test of subsection 110(4) as it was published post-decision. Although much of this article relates to Kurdish rebels, the article also speaks to the ongoing fears of members of the HDP party amongst others. This document is relevant and is from a credible source (New York Times) and is therefore accepted into evidence. [17] I will now assess the documents being disclosed under RAD Rule 29: Documents or Written Submissions not previously provided - person 29. (1) A person who is the subject of an appeal who does not provide a document or written submissions with the appellant's record, respondent's record or reply record must not use the document or provide the written submissions in the appeal unless allowed to do so by the Division. Application (2) If a person who is the subject of an appeal wants to use a document or provide written submissions that were not previously provided, the person must make an application to the Division in accordance with rule 37. Documents - new evidence (3) The person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsection 110(4) of the Act and how that evidence relates to the person, unless the document is being presented in response to evidence presented by the Minister. Factors (4) In deciding whether to allow an application, the Division must consider any relevant factors, including (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. Documents or written submissions not previously provided - Minister (5) If, at any time before the Division makes a decision, the Minister, in accordance with paragraph 171(a.5) of the Act, submits documentary evidence or written submissions in support of the Minister's appeal or intervention that were not previously provided, the Minister must provide the documentary evidence or written submissions first to the person who is the subject of the appeal and then to the Division. Proof documents or written submissions provided (6) The additional documents or written submissions provided to the Division under subrule (5) must be accompanied by proof that they were provided to the person who is the subject of the appeal. Reply to Minister's documents or written submissions (7) The person who is the subject of the appeal may reply to the additional documents or written submissions in accordance with rule 5 with any modifications that the circumstances require [18] The documents being disclosed in accordance to Rule 299 include the following: * Affidavit of XXXX XXXX10 * IRB "Expedited Processing of Refugee Claims by the Refugee Protection Division" December 22, 201711 * "'License to Kill' Given By Turkish Gov't To Its Fanatics With Latest Decree Draws Ire" dated December 25, 201712 * "No Changes necessary in 'vigilante decree'-Turkish PM" dated December 27, 201713 [19] The first item, the Appellant's affidavit takes 10 paragraphs declaring that the panel from his hearing was rude, asked unintelligible questions, was rushing the Appellant and counsel and tried to confuse and intimidate the Appellant. The RAD is not in the place to lodge complaints into the behaviour of an RPD member except in instances where bias or breach of natural justice is claimed or alleged. Neither is the case here. For this reason, I am inclined to dismiss this affidavit altogether. Although paragraphs 13 and 14 speak to the new evidence, they say nothing that is not evident in that evidence itself. Therefore I am dismissing this affidavit as new evidence. [20] The second item is also not considered new evidence. This item is akin to a new version of the National Documentation Package (NDP) being submitted as new evidence. I am obliged by jurisprudence to consider the most recent version of the NDP. As stated in Saalim14 in regards to the necessity of the RAD using the most up to date NDP, I must consider such documentation. In my mind the IRB "Expedited Processing" document falls within the same jurisprudence as the new NDP would. I take note that the court in the same decision made it clear that the new NDP is not considered as "new evidence" requiring submissions on admissibility. It is simply accepted. Therefore, I find that I will be considering the Expedited Processing document in my assessment; however it is not considered as new evidence and consequently is not accepted as such. [21] The next two documents are news articles regarding the Turkish government's Decree, The Article 121 of Decree Law No. 696 in Article 1. This is an extremely relevant document which has passed the test of subsection 110(4) as it certainly has arisen long after the decision of the RPD. The articles are from credible sources and could not possibly have been disclosed earlier than they have been. They are probative and extremely important to this appeal. They will be allowed into evidence. Arguments [22] Counsel argues that the panel accepted certain facts about the Appellant as true. Those were that he is Kurdish, that he was involved with the HDP part since 2013 and prior to that he was involved with the BDP party (precursor to the HDP) since 2011. [23] Counsel further argues that, in deciding that the Appellant does not have a profile which would cause him problems in Turkey, the panel did not consider that the Appellant is a young male, educated Kurd and a member of the HDP who marched in Turkey and who has continued his political activity even while in Canada by attending political rallies in front of the Turkish Embassy in Toronto. [24] Counsel argues that the panel was selective in her choices of documentary quotes. For instance, the panel stated that it preferred the evidence in the United States Department of State (US DOS) Report in the NDP over Mr. XXXX documentary evidence and cited it many times.15 What the panel quotes was indeed accurate however, the panel failed to consider the many things in the same document that supported the Appellant's claim. [25] For example, Arbitrary Arrest or Detention: Although the law prohibits holding a suspect arbitrarily or secretly, there were numerous reports that the government did not observe these prohibitions, especially following the July 15 coup attempt. Human rights groups alleged that in certain areas under curfew or in "special security zones", security forces detained citizens without official record, leaving detainees at greater risk of arbitrary abuse alleged that in areas under curfew or in "special security zones," security forces.16 [26] Counsel argues that this section of the preferred US DOS report directly contradicts the panel's finding that the Appellant would not face arbitrary detention at the hands of Turkish police officers and that these police officers often refrain from making records of these detentions, or delete records. Counsel argues that this omission suggests that the panel was "cherry-picking" the record. [27] Counsel refers to another document17 at the Board: 2. Violence Against HDP Members Sources report that there were "hundreds of attacks" on HDP offices surrounding the 2015 elections (Human Rights Watch 2016; Freedom House 2016). In a November 2015 report submitted to the UN Committee on the Elimination of Racial Discrimination (CERD), the Association for Monitoring Equal Rights (AMER), an Istanbul-based NGO that monitors discrimination and promotes human rights (AMER n.d.), recorded 12 attacks against HDP stands and HDP offices between May 2015 and September 2015, which occurred in Istanbul, Canakkale, Antalya, Mersin, Adana, Kocaeli, Alanya, Tekirdag, and Ankara (AMER and Istanbul-GöcDer 2 Nov. 2015, Annex 3, 5-8). According to the same source, the attacks included bombings, assaults, mob attacks, vandalism, a lynching attempt, and arson (ibid.). In the majority of cases, there were no records of anyone being indicted for the violence (ibid.). According a report by the Organization for Security and Co-operation in Europe (OSCE)'s Office for Democratic Institutions and Human Rights (ODIHR), the HDP indicated that there were 129 attacks on HDP offices between 6 September and 9 October 2015 (OSCE 23 Oct. 2015, 5). [28] Counsel sets out argument after argument as to why and how the panel misconstrued or misapprehended or simply ignored evidence which contradicted her findings. However, the one thing that that counsel appears to have not argued on, but I find as extremely relevant to the appeal is that refugee law is prospective not retrospective. [29] I must look at the evidence in a prospective view. What is likely to occur to the Appellant under his particular circumstance should he return to Turkey in the future (near future)? In looking at the evidence18 presented under Rule 29, which I have accepted, it is obvious that the Turkish government is letting lose onto those who politically disagree with the government, the wrath of every extremist in Turkey and with that, impunity for anything they may do to those who oppose. [30] When the Turkish Prime Minister was questioned about the clause 121 of Decree 696, the Prime Minister said that the decree would remain in its present form, with no clarification added to ensure that the courts do not consider the Decree binding on events following the July 15, 2016 coup attempt. The Decree appears to give a carte-blanche to anti-terrorist vigilantism, much of that will be vetted against members of HDP and other opposition groups. [31] In my forward looking, independent and fulsome analysis of the Turkish country conditions to date and the record of this appeal. I must consider that the panel has already found, directly or otherwise, that the Appellant is a young, educated, male Kurd who is politically active. The documentation which both counsel and I have cites above strongly indicates that there is a serious possibility that any person fitting the similar profile of this Appellant would certainly be at risk of persecution for a Convention ground, in Turkey. [32] For these reasons, I must conclude that the RPD erred in its findings, overall. Summary [33] The Appellant has convinced me that his profile is one which would place him at risk of persecution for a Convention ground, should he return to Turkey. As this is determinative, there is no need for me to continue on. Disposition [34] The RAD has found that the RPD decision will not stand. CONCLUSION [35] Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "David Lowe" David Lowe January 31, 2018 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Raza v. Canada (M.C.I.), 2007 FCA 385. 4 Singh v. Canada (M.C.I.), 2016 FCA 96, at paras 44, 49, 74. 5 Exhibit P-2, Appellant's Record, at p. 42. 6 Ibid., at pp. 44-45. 7 Ibid., at pp. 46-47. 8 Ibid., at pp. 48-51. 9 Exhibit P-3, Rule 29. 10 Ibid., at pp. 144-147. 11 Ibid., at pp. 149-150. 12 Ibid., at pp. 152-155 13 Ibid., at pp. 157-158. 14 Saalim v. Canada (MCI), 2015 FC 841. 15 Exhibit RPD-1, RPD's Record, Reasons and Decision, at pp. 22, 24, 38, at paras 87-90, 96, 168-169. 16 Ibid., National Documentation Package (NDP) for Turkey (30 June 2016), item 2.1. 17 Ibid., at item 4.5, Responses to Information Requests (RIR), TUR105537.E. 18 Exhibit P-3, Rule 29, at pp. 152-158. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-10923