TB6-17975

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 : TB6-17975 TB6-17976 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 21, 2017 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Hart A. Kaminker Barrister and Solicitor 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 "Principal Appellant" or "PA") and her son XXXX XXXX, citizens of Iran, appeal a decision of the Refugee Protection Division (RPD) denying their claim for refugee protection. They have submitted new evidence in support of this appeal under Rule 29. The Appellants are not requesting an oral hearing. The Appellants ask the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellants are Convention refugees or persons in need of protection. In the alternative, the Appellants request that the matter be returned to the RPD for a new hearing under a differently constituted panel. Background [2] The Appellants alleged before the RPD that they have a well-founded fear of persecution at the hands of the Iranian government due to the Appellants' religious beliefs. Greater details may be found in the Appellants' Basis of Claim (BOC) form1 and in the audio recording of the hearing. [3] The Appellants' application for refugee protection was heard on August 12, 2016 and November 8, 2016. A negative decision was rendered in writing on November 23, 2016. The RPD found that the Appellants were not credible with respect to material aspects of their claims. [4] 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 determination that the Appellants are Convention refugees. Appellants' Issues [5] The Appellants submit that the RPD erred: 1) When the panel misconstrued evidence; 2) When the panel failed to provide reasons for rejecting sworn testimony of the Appellants; 3) When the panel failed to provide reasons for doubting and giving little or no weight to the marriage documents disclosed; and 4) When the panel, in general, inferred negative credibility regarding much of the Appellants' testimony and evidence without giving adequate reasons for disbelieving that testimony or evidence. ANALYSIS Rule 29 Application [6] The RAD Rules allow an applicant to seek leave to submit documentary evidence after the date of perfection of an appeal under certain circumstances, as below: 29 (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. [7] In the case at hand, the document presented is a letter from the PA's Iranian counsel. This letter, addressed to the Appellants and dated January 26, 2017 speaks to the multiple attempts by legal counsel to obtain records of the Revolutionary Court in XXXX which would validate the claim by the Appellants that the Iranian state was looking for them for the crime of apostasy. [8] I find that this document is very relevant and probative and does bring new evidence to the appeal, specifically evidence of failed attempts by legal counsel to obtain documents on behalf of and in support of the Appellants' claim. The letter explains why the Appellants would have been unable to provide the proof requested by the panel. [9] The Appellants argue that they could not have possibly provided this document earlier as they were waiting for Iranian counsel to obtain the court documents counsel was unable to get. [10] I find this to be a reasonable argument and will allow the Rule 29 application. The Role of the RAD [11] The RAD is an Appellate body governed by specific legislation2 and guided by the jurisprudence3 of the Federal Courts. The RAD's role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.4 Such an appeal "(i) is directed at the decision of the RPD; (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision; and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD." [12] The Federal Court of Appeal in its decision clearly states, that the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred in its decision. The RAD is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.5 [13] When the RAD is dealing with the findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness,6 with no deference accorded to the RPD.7 [14] The RAD will show deference to the RPD's findings on credibility where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony from those individuals. [15] Where the RAD is to show deference to findings of the RPD, those findings must still be the result of an intelligible reasoning process. The RAD must be able to read the RPD's decision and comprehend how the RPD's conclusions were reached. [16] Additionally, the outcome of that process must be a product that is based on and supported by the evidence that was before the RPD. It is for this reason, that it is principally important that the RAD employ its own review of the evidence in the RPD's record, in order to conclude whether the RPD's outcome is supported by that evidence. [17] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [18] However, the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from an intelligible reasoning process whose premises are embedded in such advantages. If either the process or the conclusion does not meet these requirements, the RAD may determine the findings to be in error. [19] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. [20] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The Arguments [21] The Appellants argue that the RPD misconstrued evidence, specifically evidence dealing with a wedding attended in the USA by the Appellants. The evidence is the sworn testimony of the PA that the Appellants attended a Jewish wedding in the USA, during which time a friend of the PA's brother-in-law was also in attendance and that friend took photographs which included the PA. It would appear that the panel took this attendance at the wedding to be the point which precipitated the brother-in-law's reporting of the Appellants to the Iranian authorities. The panel wrote8 that the Appellants were not credible in this instance because there is no reason that the brother-in-law would hold onto the wedding photos he received in 2014 just to give them to the Revolutionary Guard in 2016. The Appellants argue that this is where the panel has misconstrued the evidence. The evidence was that the photos were given to the Guard to bolster the case against the Appellants after they were caught practicing Judaism in their home, in secret in XXXX 2015. Taken in the correct context, this makes perfectly good sense and is reasonable. I do find that the panel erred when it misconstrued this piece of evidence. [22] The Appellants also argue that the panel's negative credibility inference is based on a lack of supporting evidence to prove that the Appellants attended a wedding in 2014. As argued by the Appellants, there would be no logical reason for them to expect that they would someday require proof that they attended a wedding while in the USA and consequently, have none. However, they do have their sworn testimony and without good reason,9 which the panel must make clear, that sworn testimony is taken to be truthful. In this regard, all the panel writes is "Further, apart from their oral testimony, which I do not believe, the claimants presented no evidence showing their attendance at this wedding."10 [23] It is trite law that the sworn testimony of a claimant/appellant is taken as truthful unless there be reason to doubt it.11 If there is reason to doubt that the sworn testimony is truthful, the onus is on the panel to show clearly why the testimony should not be believed. The panel has failed to do that and consequently, I find the panel erred in this issue. [24] The panel gave little weight to the PA's marriage records apparently because the copy presented did not have a date affixed to the copy to show when the copy was made. This is an odd finding by the panel. The actual photocopy clearly shows a serial number (XXXX XXXX XXXX XXXX XXXX). The panel acknowledges that the document indicates that the PA is Muslim and that the marriage took place between the PA and her husband on XXXX XXXX, 1972. The panel writes that he/she does not find this document persuasive that the PA is considered Muslim by the Iranian authorities. [25] I do not understand the panel's reasoning on this issue. The panel accepts that the PA "...might have declared on some form of official document that she is Muslim..."12 The panel then turns 180 degrees and says that there is no persuasive evidence that the PA is considered a Muslim. This is not logical. Either one accepts that she has declared on an official document that she is Muslim, which would therefore have the state considering her as Muslim, or one does not accept that. The panel accepted it and therefore cannot turn around and say there is no persuasive evidence to support what the panel has already accepted as probable. [26] I find that on a balance of probabilities, the PA is known by Iranian authorities, correctly or not, as a Muslim woman. [27] The core of this claim/appeal is whether or not the Appellants are considered apostates by the government of Iran. If they are considered apostates, then according to the laws of Iran, they face a maximum penalty of death. [28] The facts are as follows: 1) The Appellants are practicing Jews who were hiding as Muslims in Iran. The PA has legally, on "some official document", declared herself to be Muslim and is so considered as Muslim by the State of Iran. The male Appellant, in accordance to Sharia law, is considered Muslim because his father is Muslim. Because legally, both of these Appellants are considered to be Muslims, to be found practicing any other religion would make them apostates in the eye of the state. That is a crime punishable by death. 2) The PA's brother-in-law was made aware of the Appellants' attendance at a Jewish wedding in 2014 and held photographs of that event. In 2015, the brother-in-law found the Appellants practicing Jewish rituals, secretly, in their home. According to testimony, this so offended the PA's brother-in-law, that he reported the Appellants to the Revolutionary Guard. 3) These facts are consistent in testimony, in the BOC and in the evidence. The Appellants provided supporting documents including a letter from the PA's daughter telling of a visit to the PA's home by plain clothes intelligence officers who were looking for the Appellants and who searched the home, removing many pieces of Jewish materials. The panel rejected this letter because it was not "sworn" and the author was not available for examination (I find that to be unreasonable as the author is in Iran so would not be safely available to testify). [29] After a fulsome and independent analysis of the evidence adduced, I find that the Appellants are known by the Iranian authorities as Muslims committing apostasy, a crime in Iran carrying the death penalty. I further find that the Iranian authorities are actively seeking the Appellants for their "crime". I find that the letter from the Appellants' Iranian counsel tells me exactly what I would expect to hear under these circumstances, that is, no court documents are obtainable as is the case in most Iranian court issues in which religion is involved. I find that the Appellants, on a balance of probabilities, are at risk in Iran. Disposition [30] The RAD has found that the RPD decision will not stand. CONCLUSION [31] Pursuant to Section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellants are Convention refugees. (signed) "David Lowe" David Lowe April 21, 2017 Date 1 Exhibit P-2, Appellants' Record, Basis of Claim Forms at pages 21 - 46. 2 Immigration and Refugee Protection Act (IRPA). 3 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, para. 14, M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 46. 4 Dhillon, paras. 14 - 18. 5 Huruglica, para. 103. 6 Ibid. 7 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, para. 50. 8 Exhibit P-2, Appellants' Record, RPD Reasons and Decision, pages 6 & 7. 9 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 10 Exhibit P-2, Appellants' Record, RPD Reasons and Decision, page 7, para. 18. 11 Maldonado v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 220 (F.C.T.D.) 12 Exhibit P-2, Appellants' Record, RPD Reasons and Decision, page 8, para. 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-17975 TB6-17976