TB6-07568

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 : TB6-07568 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 September 16, 2016 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Amedeo Clivio 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) is a citizen of Iran. He appeals the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The RPD found that the Appellant had not provided sufficient credible or trustworthy evidence to establish that he would face a serious possibility of harm amounting to persecution for a Convention ground in Iran, or that, on a balance of probabilities, would be personally subjected to a risk to life or of cruel or unusual treatment or punishment or a danger of torture there. [2] The Appellant respectfully requests that the (Refugee Appeal Division) RAD set aside the decision of the RPD and find that the Appellant is a Convention refugee or, in the alternative, a person in need of protection. DETERMINATION [3] 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 a determination that, in its opinion, should have been made. [4] The RAD determines that the Appellant is a Convention refugee. Memorandum of Appeal [5] The issues in this appeal are: i. Should the RAD admit the proposed new evidence under s. 110 (4) of IRPA? ii. Should a hearing be held under s. 110(6) of IRPA? iii. What is the standard of intervention to be applied to the RPD's findings? iv. Did the Board Member err by failing to conduct an objective risk assessment under s. 97 of IRPA? v. Did the RAD [sic] [RPD] err in rejecting the claim on the basis that the Appellant lacked credibility?1 BACKGROUND [6] The Appellant states that he has a well-founded fear of persecution in Iran at the hands of state agents as well as members of the public due to the fact that he has converted from Islam to Christianity. [7] The Appellant outlines his family background and the fact that he was raised as a Muslim. The Appellant describes his schooling and several incidents that occurred during this period of time. Because of these incidents, he had no respect for Islam, and no longer considered himself a Muslim. [8] At University he met his future wife, XXXX, and on one occasion when traveling with her, he describes their negative treatment by authorities. The Appellant also describes a negative experience with the authorities when he and his friends were having a party. [9] After University while working as a XXXX XXXX XXXX XXXX XXXX, he was accosted by a XXXX XXXX because he was drinking water, and lost his car and paid a fine. [10] His wife's brother had an Armenian (Christian) fiancée, and he had many discussions with them regarding their difficulty of mixed religions, and the practice of Christianity. As result of these conversations he and his wife attended small house church gatherings. He was warned of the dangers but attended anyway. Having a positive experience, he began attending these meetings monthly. [11] In XXXX 2014, while attending the house church, Information and Security agents raided the house, arrested the inhabitants, gathered their personal information, fingerprinted them, and released them with the warning not to do this again. As a result, the Appellant stopped attending the house church meetings. [12] In XXXX 2014, the Appellant and his family travelled to XXXX and visited a few old churches. Upon return to Iran, he informed his friend of his travel, and began to seriously study Christianity. He began attending house churches at least once a month. In or around XXXX 2014, while attending a house church meeting, it was raided by agents, and he and his friend escaped. [13] The Appellant did not go home, and discovered that agents had gone to his place of work, and had also visited his home. He was later informed that some people have spray-painted threatening messages on the wall outside his residence saying, "Infidels must be executed." As a result, he saw the support of a friend, and fled to Turkey. After three days, he returned to Iran and went directly to the Cottage in XXXX where he had been hiding. [14] The Appellant took safety precautions until arrangements for travel were finalized and left Iran on XXXX XXXX, 2015. After leaving Iran, his wife was arrested for a XXXX XXXX related issue, and they questioned her about his whereabouts. After arriving in Canada, he called the consultant who put him in contact with an immigration lawyer whom he met for the first time on XXXX XXXX, 2015. [15] The Appellant began attending Church in XXXX shortly after his arrival, where services were conducted in Farsi. He attends church regularly and plans to be baptized. His wife and son are still being harassed in Iran and have received threatening phone calls from unknown people. [16] He fears that if he returns to Iran he will face detention, treatment, torture, and the risk to his life at the hands of Iranian authorities as a result of his conversion. [17] The Appellant's refugee hearings were held on February 18, 2016, and on March 3, 2016. In a decision of May 11, 2016, his claim for refugee protection was denied by the RPD. Admissibility of Evidence Submitted on Appeal [18] Section 110(4) of the IRPA provides that the Appellant "may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected2 in the circumstances to have presented, at the time of the rejection." [19] It is for the Appellant to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.3 Application of Section 110(4) [20] Section 110(4) establishes a disjunctive test.4 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claim. If it was not reasonably available at that time, it meets the requirements of Section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellant could reasonably have been expected, in their circumstance, to have presented the evidence to the RPD prior to the rejection of their claim. If they could not have been expected to do so, the evidence meets the requirements of the section. [21] If the evidence did not arise after the rejection of the claim, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claim, the evidence does not meet the test in Section 110(4). The RAD does not have discretion to admit such evidence.5 [22] As the RAD understands it, Section 110(4) provides the Appellant with an opportunity to present evidence that could not have been submitted to the RPD-either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellant could not have been expected to present it to the RPD. [23] Section 110(4) does not provide an opportunity for Appellant to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.6 [24] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.7 Old evidence remains old evidence, even if it is placed in a new document with a recent date. Assessment of Evidence that Meets the Requirements of Section 110(4) [25] Where a document meets the test in Section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While Section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, it would make little sense to admit such document even if it meets the test in Section 110(4). [26] In Singh,8 the Federal Court of Appeal held that there is no valid reason the RAD cannot apply the criteria set out in Raza9 to the assessment of new evidence. While Raza predates the introduction of the IRPA Section 110(4), it is based on the nearly-identical wording of Section 113(a). In that case, the Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.10 In Singh, the Court found that the criteria from Raza are necessarily implied in the wording of Section 110(4).11 [27] Where evidence meets the test in Section 110(4), the RAD will go on to assess it for credibility. While this is a factor set out in Raza, there are also other reasons to apply it. Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances." This provision makes it clear that, in addition to the factors in Section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [28] Relevance is a basic condition for the admissibility of any piece of evidence.12 RAD Rule (3)(3)(g)(iii) requires the Appellant's Memorandum to include full and detailed submissions about how any proposed new evidence "relates to the Appellant." It would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to Section 162(2) of the IRPA, which requires each division of the IRB to "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [29] In addition to credibility and relevance, the factors in Raza include "newness" and "materiality." Newness is implicitly incorporated into Section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in Section 110(6) of the IRPA, which describes when the RAD may hold an oral hearing.13 [30] For these reasons, the RAD will apply the following factors to considering the Appellant's proposed new evidence. It will first consider whether the evidence that passes the test in Section 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of Section 110(4), the RAD will assess its credibility and relevance in order to determine whether it is admissible. Exhibit A14 [31] The Appellant submitted a baptismal certificate from the XXXX XXXX XXXX XXXX, dated XXXX XXXX, 2016. This certificate meets the criteria of s. 110 (4) of the IRPA and has relevance in the Appellant's refugee claim. This document will be admitted as new evidence. Exhibit B15 [32] The Appellant submitted photographs of his baptism. These photographs meet the criteria of s. 110 (4) of the IRPA, and have relevance in that they provide confirmation of the certificate issued in Exhibit A. The RAD will admit these photographs as new evidence. Exhibit C and D16 [33] The Appellant submitted two alleged summonses allegedly issued by Division XXXX of the Prosecutor's Office (General and Revolutionary Court) XXXX Province. The first summons, dated XXXX XXXX, 2016, could reasonably have been presented prior to the writing of the RPD decision on May 11, 2016. The second summons dated XXXX XXXX, 2016, postdates the RPD's date of decision. According to IRPA Section 110(4), the first summons should reasonably have been presented to the RPD prior to the date of decision. The Appellant states, and swears in his affidavit, that he did not know he could present additional documents at that stage, i.e. after the RPD hearing. The RPD rejects this explanation in that the Appellant was represented by competent counsel, and had counsel been informed, it is reasonable that the necessary steps would have been taken to make the RPD aware that this document was available. The RAD rejects the first summons as new evidence. [34] According to National Documentation Package (NDP) documentation,17 ...[T]he police delivers the summons to the person in question his or her address or working place. If the person is present, it is handed over to the person in question. He or she is given the original summons and must sign the copy which goes back to the court. If the person in question is not present, a family member can receive the summons in his or her place. ...[T]he family member signs the copy which must go back to the court and keeps the original. ...[S]ources confirmed that the stated procedures were uniform throughout Iran.... [35] In addition, according to the documentation quoted, the original was kept by the family. The RAD questions the genuineness of the "original" summons which is submitted as new evidence. The reason for appearance listed on the summons is "Investigation of the immoral activities." There is no indication of what these immoral activities are. In that the Appellant alleges that he has converted to Christianity, it would be reasonable that the investigation would be more specific and list apostasy as the reason for investigation. On the first summons presented, dated XXXX XXXX, 2016, it states that failure to appear in court will result in incarceration. The second summons, dated XXXX XXXX, 2016, makes the same statement. The RAD finds that if the Appellant did not appear as ordered for the first summons, there would be some indication on the second summons to deal with the issue of incarceration, and failure to appear. [36] According to the recording of the RPD hearing, the Appellant testified that an original warrant had been issued. According to the documentation, if this warrant had been issued, it should have been sent to verify the Appellant's allegations. No such warrant was presented in new evidence. In addition, if the threat of incarceration was included on the alleged first warrant, it would be reasonable to expect some recognition of this fact on the succeeding summonses issued. The RAD finds, on a balance of probabilities, that the two summonses submitted are not genuine. The RAD will not admit either summons as new evidence for the above reasons. Exhibit E18 [37] The Appellant submitted a letter from, XXXX XXXX XXXX XXXX. that explained the final day of work, and the addition of XXXX additional days of accumulated annual vacation. Resulting in the final date of work with the company as XXXX XXXX, 2014, similar information to the letter provided for the RPD hearing.19 The letter,20 dated XXXX XXXX, 2016, postdates the RPD's date of decision and therefore is admissible under IRPA Section 110(4). However, as will be explained later in the decision, this letter is not relevant to the findings made by the RPD, nor does it alter the decision. This document will not be accepted as new evidence because of its lack of relevance. Exhibit F21 [38] The Appellant submitted an Iranian passport for XXXX XXXX. The Appellant submits that this item is being produced to affirm his relationship with XXXX and XXXX. The Appellant submits that this evidence is being produced in response to the RPD's decision. According to IRPA Section 110 (4) this item could reasonably have been presented to the RPD at the hearing. In addition, a passport, in its own right, does nothing to affirm the relationship that the Appellant alludes to. The RAD will not accept this document as new evidence. Exhibit G22 [39] The Appellant submitted Iranian passports in the name of XXXX XXXX XXXX and XXXX XXXX, along with pictures of these two people in Turkey. The Appellant submits that he would not know that he had to validate this relationship with documentation. In that the documents submitted could reasonably have been produced for the RPD hearing, the RAD rejects in part, these documents as new evidence, according to IRPA Section 110(4). In addition, the Appellant makes reference to the RPD's decision that questions why documentation could not be produced to validate that this couple was not living in Turkey. In reviewing this new evidence submitted, the RAD finds no indication that the couple pictured in documentation, are living in Turkey. The pictures show them in Turkey, but no evidence is submitted that they are actually living there. The RAD also rejects this documentation as new evidence because of it is not probative. Exhibit H23 [40] This documentation produced is related to Exhibit G above. It was submitted to prove that the couple named were in Turkey. The RAD rejected the above exhibit because it does not meet the time requirements of the IRPA, as well of its lack of probative relevance regarding the couple having fled Iran and living in Turkey. This document has no relevance. Exhibit I24 [41] This exhibit gives a breakdown of the surname, "XXXX" which deals with the RPD's statements regarding the cultural background of this name, i.e. Armenian, not Iranian. The RAD will accept this document as new evidence. Its relevance in relation to the RPD's decision will be explained in the RAD decision. Exhibit J25 [42] The Appellant submitted a medical document, dated XXXX XXXX, 2016, for a prescription for his wife. In the Memorandum of Appeal, the Appellant gave no explanation why this document was submitted. In reviewing the decision of the RPD, the issue of his wife receiving medication is not an issue in the decision. The RAD rejects this document as new evidence due to its lack of relevance in the decision. [43] The Appellant requests that a hearing be held under IRPA Section 110(6), as the documents raise serious issues as to the Appellant's credibility and are central to the decision with respect to the refugee protection claim. He submits that if these documents are accepted, it would justify allowing his claim. [44] The majority of the documents submitted have not been accepted as new evidence, and reasons have been given. The documents that were accepted will be dealt with in relation to the Appellant's Memorandum of Appeal and the RPD's decision. The RAD finds that the new evidence accepted does not merit holding a new hearing. The RAD, based on accepting the new evidence, and the NDP documentation, is able to make a decision without a hearing. [45] The Appellant submits that this new evidence is significant in that it shows that he has converted to Christianity. He also submits that this fact alone allows justifying the present appeal. This issue, including the submissions26 regarding the Government of Iran monitoring activities of Iranians in Canada, will be dealt with in the RAD decision. ROLE OF THE RAD [46] The decision of the Federal Court of Appeal in Huruglica27 provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD, to decisions of the first level administrative tribunal. [47] The Court stated that with respect to findings of fact (and mixed fact and law) which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions by applying the correctness standard. Pursuant to Section 111(2)(b) of the IRPA, the RAD may refer the matter back to the RPD for redetermination if it is "of the opinion" that it cannot make a decision confirming or setting aside the RPD decision without hearing the evidence presented before the RPD. This recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because those cases require an assessment of credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. [48] Accordingly, the RAD will conduct its assessment of the RPD's decision on the basis of the principles outlined above. Merits of the Appeal [49] Did the Board member err by failing to conduct an objective risk assessment under Section 97 of the IRPA? [50] The RPD in the course of its hearing and decision found, because of many credibility issues, that the Appellant had not converted to Christianity in Iran. He was unable to describe the differences between the practices of Christianity in Iran and in Canada. The RPD referred to documentation and attempted to separate Iranian tolerance of ethnic Christians as opposed to Christian converts. By referencing the Appellant's name, the RPD suggested that he would be perceived as an ethnic Christian because his name is Armenian. [51] The Appellant submits that the RPD accepted that the Appellant attended a church in Canada and failed to address whether the Appellant was at risk in Iran under Section 97 of the IRPA. In the Memorandum of Appeal, the Appellant references the NDP documentation28 that indicated that the Iranians that have gone abroad and were baptized; risk interrogation and repercussions if they return to Iran. Referring to NDP documentation,29 the Appellant submits that the Iranian Embassy actively monitors the activities and loyalties of Iranians, particularly students in Canada. The NDP documentation goes on to state that dissidents are also tracked and that families, in Iran, have been visited after they took part in anti-regime demonstration abroad. [52] Referring to NDP documentation,30 the Appellant submits that the Protestant community in Iran faces more aggressive government restrictions and human rights abuses and ethnic Christian groups. The documentation also states that: "Supreme Leader Seyyed Ali Khamenei and other Iranian officials consider Christian converts to be apostates and part of a broader foreign conspiracy aimed at undermining ideological support for the state [emphasis added]." [53] The same documentation references the Iranian government wrapping up its repression of Christian house churches, Persian-language Protestant churches, and converts. It also states that the "[I]ranian government, judiciary, security, and intelligence agencies have increasingly treated Protestant converts as a national security threat [emphasis added]." The document goes on to state that, "...since 2005 authorities have arrested and prosecuted Protestants most often for security crimes against the state [emphasis added]." The Appellant submits that all of this documentation indicates that Iran places a great deal of interest in preventing its nationals from converting to Protestantism. [54] The Appellant submits that he is a sincere convert to Christianity, and this fact alone places him at serious risk of persecution upon return to Iran. [55] The RAD has reviewed the country documentation and concurs with the Appellant's submissions. [56] The RPD made a compelling case that the Appellant is not a practicing Christian in Iran. The credibility issues were numerous, and the RPD's conclusions were sound. Given the evidence before it, the RPD was right to conclude that the Appellant had attended church in Canada for the purpose of submitting a refugee claim, and that he would not continue to practice Christianity should he return to Iran. [57] However, the evidence presented in Exhibit A, and Exhibit B are genuine and indicate that the Appellant has been baptized and converted to Christianity. The RAD is unable to ascertain the genuineness of his motivation for doing this. However, the documentation referenced by the Appellant is clear. It states that converts to Christianity would be persecuted in a number of ways should they return to Iran. Converts do not need to continue to practice Christianity in Iran in order to be persecuted. The fact that they converted to Christianity through baptism is enough to create an untenable situation for them should they return to Iran, even if they revert to Islam. [58] This piece of documentation was not before the RPD, and therefore the RPD had no reason to address the issue raised by the new evidence presented and his Memorandum of Appeal. As stated above, the RPD made a sound decision on the evidence presented at the hearing that indicated that he was not a genuine practicing Christian. [59] With respect to the new evidence presented regarding the origins of the name, "XXXX", the RAD finds that the RPD's finding that he is an ethnic Armenian are not valid. If the RPD's reasoning was sound regarding the origin and ethnicity of the name, the decision of the RPD would strand and the Appellant could return to Iran without difficulty, and practice his religion. Conclusion [60] The RAD finds, on a balance of probabilities, that the Appellant faces more than a mere possibility of persecution because of his Christian activities in Canada. According to the supreme leader, he would be viewed as an apostate, and may suffer consequences. Disposition [61] The RAD upholds the appeal, and according to Section 111(1)(b) of the IRPA substitutes a determination that, in its opinion, should have been made. (signed) "Robert S. Garner" Robert S. Garner September 16, 2016 Date 1 Exhibit P-2, Appellant's Record, at p. 68. 2 In the French version of IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh v. Canada (Citizenship and Immigration), 2014 FC 1022, at para 51. 3 Rule 3(3)(g)(iii), Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257. 4 Olowolaiyemo v. Canada (Citizenship and Immigration), 2015 FC 895, at para. 19. 5 Deri v. Canada (Citizenship and Immigration), 2015 FC 1042, at para. 55; Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96 [Singh]. 6 Singh, supra, footnote 5, at para. 54. 7 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R [Raza]. 8 Singh, supra, footnote 5, at para. 64. 9 Raza, supra, footnote 7. 10 Ibid, Raza, at paras. 13-15. 11 Singh, supra, footnote 5, at para. 64. 12 Singh, supra, footnote 5, at para. 45. Also: "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence:" Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, looseleaf ed. (Toronto: Carswell, 2004) at17-6.12; Re Bortolloti and Ministry of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33, at para. 64. 13 Singh, supra, footnote 5, at para. 48. 14 Exhibit P-2, Appellant's Record, at p. 24 15 Exhibit P-2, Appellant's Record, at pp. 26-31. 16 Exhibit P-2, Appellant's Record, at pp. 33-39. 17 Exhibit, RPD-1, RPD's Record, National Documentation Package (NDP) for Iran (29 January 2016), item 9.7, Responses to Information Requests (RIR), IRN104955.E. 18 Exhibit, RPD-1, RPD's Record, at pp. 41-42 19 Exhibit, RPD-1, RPD's Record, at pp. 473-474. 20 Exhibit P-2, Appellant's Record, at pp. 41-42. 21 Exhibit P-2, Appellant's Record, at p. 44. 22 Exhibit P-2, Appellant's Record, at pp. 46-50 23 Exhibit P-2, Appellant's Record, at pp. 52-57 24 Exhibit P-2, Appellant's Record, at pp. 58-59. 25 Exhibit P-2, Appellant's Record, at pp. 61-62. 26 Exhibit P-2, Appellant's Record, at pp. 74-77. 27 M.C.I. v. Huruglica, Bujar (F.C.A.., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 28 Exhibit, RPD-1, RPD's Record, NDP for Iran (29 January 2016), item 12.10 29 Exhibit, RPD-1, RPD's Record, NDP for Iran (29 January 2016), item 4.4, RIR, IRN104730.E. 30 Exhibit, RPD-1, RPD's Record, NDP for Iran (29 January 2016), item 12.2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-07568