MB7-04338

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 : MB7-04338 Private Proceeding / Huis clos Reasons and decision  Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision June 10, 2019 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Stéphanie Valois Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The appellant, XXXX XXXX, a citizen of Cambodia, is appealing against the Refugee Protection Division (RPD) decision rejecting his refugee protection claim on the grounds that he did not establish a well-founded fear of persecution if he were to return. [2] The appellant maintains that the RPD's decision is wrong. He is not submitting any new evidence. He is asking that he be granted refugee protection. [3] After examining all the evidence, I find that the RPD erred in its assessment of the prospective risk. I allow the appeal and substitute the determination that should have been made. I conclude that the appellant established a serious possibility of persecution by reason of his imputed political opinion. Consequently, he is a Convention refugee. [4] The appeal is allowed. BACKGROUND [5] The appellant is a Buddhist monk. He has been the XXXX XXXX of the XXXX XXXX XXXX since April 2011. As part of his work, he helps people in XXXX XXXX. He states that he fears the authorities owing to the political opinion that has been imputed to him. [6] In his Basis of Claim Form (BOC Form), the appellant states that he travelled to Paris at the invitation of the Cambodian community between XXXX 2014 and XXXX 2015. He participated in several fundraising drives for the charity he is in charge of. At these events, photographs of him were taken with Sam Rainsy, Ken Soka and other senior leaders of the opposition party CNRP. [7] He alleges that, when he returned to Cambodia in XXXX 2015, he was questioned by the police, who wanted to know about his ties to the opposition. He had to provide his fingerprints on a document he was not able to read. On May 15, 2015, he was questioned once again. This interrogation lasted longer. The police officers who had the photographs that were taken in the company of CNRP leaders accused him of campaigning for the opposition. He was threatened with imprisonment and with being stripped of his monk status. [8] In XXXX 2015, the appellant came to Canada, to Edmonton, with a work visa. The renewal of his visa was refused. He claimed refugee protection in January 2017. Impugned decision [9] The RPD did not question the claim that the appellant was interrogated twice by the Cambodian authorities about his ties to the opposition. However, according to the RPD, these interrogations do not constitute persecution and do not make it possible to find that he would be persecuted in the future by reason of his real or imputed political opinion. [10] According to the RPD, the delay in claiming refugee protection is not consistent with the alleged subjective fear. This delay led to the finding that his claims that he was wanted by the authorities were not credible. [11] The RPD also noted that the documentary evidence states that the opposition leaders, specifically CNRP leaders, and individuals working in the field of human rights are the most likely to have problems. Appellant's arguments [12] The appellant submits that the decision is wrong because: * The panel neglected to consider his fear from the standpoint of the ground of imputed political opinion; * The panel neglected to consider that he worked defending human rights and that he is at risk of persecution owing to this fact; * The delay in claiming refugee protection should not be a determinative factor in this case because the facts demonstrate that he took the necessary steps not to return to Cambodia.1 ISSUE [13] The RAD must decide whether the RPD erred in its assessment of credibility owing to the appellant's delay in claiming refugee protection and of his prospective risk. SCOPE OF THE APPEAL [14] Except in cases where the credibility of oral testimony is at issue and the RPD has a meaningful advantage, the RAD must determine whether the RPD's decision is correct.2 If I have to show deference to the RPD because it has a meaningful advantage, I will indicate this in my analysis. ANALYSIS [15] The RPD decided that the appellant did not establish a serious possibility of persecution in the event of a return to Cambodia. [16] I am of the opinion that this finding is wrong. My reasons follow. [17] First, the RPD did not question that the appellant was interrogated on two occasions by Cambodian authorities after returning from Paris. The evidence shows that the authorities had photographs in which the appellant appears with members of the opposition. According to his statements, the photographs were posted on social media. The authorities questioned him about his ties to the opposition, more specifically to the CNRP. However, the RPD states: [16] The fact that the police had interrogated him in relation with his charitable activites to determine if he broke the law Cambodian law, which also happened to be the rules of is monkshood dit not amount, in our view, to political persecution. [18] In paragraph 18, the RPD noted that opposition leaders, specifically those belonging to the CNRP party, and human rights activists are on the authorities' radar and face serious problems. [19] In this case, it is important not to lose sight of the fact that, when the Cambodian authorities questioned him, they knew that he had been in contact with members of the opposition abroad, specifically senior CNRP leaders. The authorities wanted to determine whether the appellant had ties to them. In my opinion, this demonstrates that they were interested in the political aspect of his activities, charitable or otherwise. [20] In paragraph 31 of the decision, the RPD also states: [31] In our opinion, having his picture taken with the leader of the opposition party, Mr. Sam Rainsuy and Mr. Soka are insufficient to conclude that the claimant will be persecuted in the future because his imputed political opinions or imputed political activities for helping the poor. [emphasis added] [21] In my opinion, this RPD finding is problematic for two reasons. First, as the appellant's counsel argued, prospective risk must be examined by taking into account the agent of persecution's perception of the appellant's activities. In this case, the photographs taken with Sam Rainsay and Mr. Soka were sufficient to motivate the authorities to question the appellant on two occasions about his ties to the opposition. They took his fingerprints and threatened him with imprisonment. I find it difficult to conclude that the authorities did not impute a political opinion to him if they arrested him to question him about this matter. [22] Moreover, a refugee protection claim under section 96 of the IRPA requires that prospective risk be assessed according to the standard of a "serious possibility" of persecution. In writing that there is insufficient evidence "to conclude that the claimant will be persecuted in the future," I am not satisfied that the RPD adopted the appropriate test in assessing prospective risk. But there is more. [23] In paragraph 11 of the decision, the RPD also states: [11] Although the tribunal finds the claimant credible regarding his interrogation twice by the police in February and May 2015, he did not establish that his interrogations by the police amounts to persecution or he would be persecuted in the future because of his real or imputed political opinions. [emphasis added] [24] Again, the terms used by the decision-maker lead me to believe that the appropriate test was not applied. Delay in claiming refugee protection [25] The RPD also considered the two-year delay in claiming refugee protection. While this is a factor that may be considered, it is not determinative in and of itself. All the circumstances of the case must be examined. In this case, I am of the opinion that this finding of a lack of credibility cannot by itself support the rejection of the refugee protection claim. Prospective risk [26] The appellant established a serious possibility of persecution. For this decision, I have considered that the alleged facts were not questioned. The interrogations took place because the authorities have photographs of the appellant with senior members of the opposition. [27] The documentary evidence states: In recent years, monks have increasingly acted as human-rights activists, and many participated in the public protests that followed the 2013 parliamentary elections. Seeking to prevent such activity, Tep Vong, the supreme patriarch of Cambodia's Mohanikaya Buddhist sect, called in December 2014 for a law prohibiting monks from participation in elections. While the CNRP opposed this suggestion, the ruling CPP - which holds a majority in both legislative chambers - offered its support.3 [28] From this, I infer that the authorities do not take a benevolent view of monks interested in politics. There are also reasons to qualify the statements of the RPD, which writes in paragraph 13 of the decision that monks are authorized to vote. On that subject, the documentary evidence states: Buddhist monks have historically faced difficulties in registering to vote and have otherwise been excluded from full participation in the electoral process. The supreme patriarch of the country's Mohanikaya Buddhist sect called for monks to refrain from participating in the country's elections and urged the government to enact laws codifying such prohibitions. The NEC reported that, despite its support for the voting rights of the clergy, the Ministry of the Interior refused to issue voter identification cards to monks.4 [29] Given this political context, I am of the opinion that, in this case, the appellant established a serious possibility of persecution if he were to return. It would not be reasonable in the circumstances for him to relocate or seek state protection if he were to return, as his agents of persecution are the representatives of Cambodian law enforcement. CONCLUSION [30] For these reasons, I set aside the RPD's determination that the appellant, XXXX XXXX, is not a Convention refugee or a person in need of protection within the meaning of section 97 of the IRPA. Because the decision is wrong and the evidence makes it possible for me to substitute the determination that should have been made, I determine that the appellant, XXXX XXXX, is a Convention refugee. [31] The appeal is allowed. Maria De Andrade Me Maria De Andrade June 10, 2019 Date IRB translation Original language: French 1 Appellant's memorandum, page 9. 2 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 Refugee Protection Division record, page 25. 4 National Documentation Package on Cambodia, Tab 2.1, Country Reports on Human Rights Practices. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB7-04338 6 RAD.25.02 (February 7, 2014) Disponible en français