TB8-33688

RAD File / Dossier de la SAR : TB8-33688 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 Toronto, ON Appel instruit / entendu à Date of decision October 21, 2020 Date de la décision Panel Kimberley Foreman Tribunal Counsel for the person who is the subject of the appeal Jared Will Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX, a citizen of Iran, appealed a decision of the Refugee Protection Division (RPD), dated December 7, 2018, rejecting his claim for refugee protection. [2] The Appellant submits that the RPD's assessment of the Appellant's religious beliefs was unreasonable, and that the panel made microscopic credibility findings. The Appellant requests that the Refugee Appeal Division (RAD) overturn the RPD's decision and allow the appeal, or in the alternative, send the matter back to the RPD for re-determination by a differently constituted panel. DETERMINATION OF THE APPEAL [3] The appeal is allowed. 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 own determination that the Appellant is a Convention refugee. Background of the Claim [4] The Appellant is a XXXX driver from Iran. He grew up in an Armenian neighbourhood in Tehran. He was frequently asked by his friends to deliver religious books and notes and drive individuals to underground churches. [5] In 2014, his XXXX was checked during an inspection, and Christian materials were found in his trunk. He was questioned and denied any connections with underground churches. He was questioned again and stopped delivering any materials, but in April 2015, he began to attend the church himself. [6] In July of 2016, the Appellant went to renew his XXXX license, but was denied by the Harasat. The Appellant made the decision to leave the country and came to Canada in XXXX 2016. After a month in Montreal, his son began experiencing mental health issues and he made the decision to return to Iran. [7] The Appellant was able to get his license renewed upon return, but two months later his car was searched again, materials were found and he was then arrested and his XXXX seized. A close relative who was a member of the Sepah (Iranian Revolutionary Guard) assisted in getting the Appellant released. He once again decided to leave and left Iran in XXXX 2017. [8] Upon arrival in Canada, the Appellant began to attend the Spirit of Truth Church. His wife has informed him that the XXXX XXXX was looking for him. The Appellant alleges that he fears the Iranian government, and that if he was to return to his home country, he would be wanted for apostasy. Role of the RAD [9] When reviewing the RPD decision, the panel is required to independently assess all the evidence and determine whether the RPD erred in law, fact or mixed fact and law. For this assessment, the panel has applied the standard of correctness as per the Federal Court of Appeal decision in Huruglica.1 Appellant's Argument on Appeal [10] The Appellant submits that the RPD erred in its credibility assessment. Specifically, the Appellant argues that the RPD erred in: * Finding that the alleged Basis of Claim (BOC) omission undermines the Appellant's credibility; * Finding that there was a contradiction regarding when the Appellant's fear of living in Iran arose; * Rejecting the Appellant's explanation for the non-availability of a letter from the counsel he consulted in Montreal in 2016; * Erred in rejecting the Appellant's explanations for his failure to produce written statements from his wife, his brother, XXXX and XXXX; and * Erred in failing to consider the corroborative evidence that the Appellant did tender for its own merit and perversely relied on the failure to adduce other corroborative evidence as grounds for its rejection. New Evidence [11] The Appellant submits three pieces of new evidence: 1) A letter from his wife dated January 7, 2019; 2) A letter from the Appellant's brother, XXXX XXXX XXXX, dated January 2, 2019; and 3) An affidavit from the Appellant dated January 11, 2019, which contains allegations against former counsel. This affidavit is accompanied by a letter from Jared Will, current counsel to XXXX XXXX, former counsel of Record, regarding the RAD's Practice Notice-Allegations Against Former Counsel. [12] Subsection 110(4) of the IRPA provides that Appellant may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [13] The second step in the analysis for new evidence is to consider it in relation to the adapted Raza factors endorsed in Singh.2 In Singh, the Federal Court of Appeal (FCA) held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. The RAD will apply the Raza factors, minus the "materiality" factor, as this is to be assessed in light of subsection 110(6) only. [14] In my view all of the pieces of new evidence meet the statutory and jurisprudential tests. In relation to the first two pieces of evidence, the letters from the wife and brother of the Appellant, were written post-rejection. After a review of item 3, I find that a credible rationale is provided for why these items were not reasonably available at the time of rejection of the claim and were unavailable for the RPD panel. [15] Item 3 outlines the Appellant's complaints against former counsel. The affidavit outlines the following issues: that the Appellant was not advised in advance of his hearings to obtain written statements from his wife or his brother to corroborate his claim, and despite this issue being raised by the Member at the hearing in November 2018, and the fact that the Appellant offered to produce them if required, he was not advised of the ability that he could present post-hearing evidence. [16] After a review of the transcript of the hearing, I find the Appellant's allegations regarding the lack of documentation credible. Not only did he make numerous statements that he was told by his counsel of record that he did not need to produce statements from his wife and brother, but the counsel who appeared at the hearing also failed to request to provide the evidence despite knowing the reality that the lack of documentation was clearly an issue for the RPD panel. Furthermore, former counsel failed to respond to these allegations. [17] In light of the new evidence found in the affidavit at item 3, and the fact that I find the Appellant was credible in relation to his allegations against former counsel, I find that items 1 and 2 could not reasonably been expected at the time of rejection. I also find that the new evidence is credible, consistent, relevant and new. The new evidence is relevant to the central allegations of his claim, that he was engaged in Christian activities and was given financial assistance by his brother to leave Iran. I accept all three pieces of new evidence. [18] The Appellant submitted a Rule 29 application on May 14, 2019. The documents include an affidavit from the Appellant, as well as a letter from XXXX XXXX dated April 24, 2019. The evidence arose after the rejection of the claim, and therefore meets the requirements of s. 110(4). After review of the material, it is credible, relevant and new. I find that the documents are relevant and probative and were not available at the time of perfection. I therefore allow the documents. [19] I do not find that the new evidence raises a serious concern regarding the credibility of the Appellant, and therefore I do not find it necessary to conduct a hearing under section 110(6). RAD Analysis of the Merits of the Appeal [20] In reviewing the RPD decision, I find there are a number of instances where the RPD erred in its credibility findings and failed to address the testimony of the Appellant as a whole. The RPD also failed to properly weigh the testimony of the Appellant as it related to his religious affiliation. [21] The RPD found that the Appellant's testimony was evasive, vague and did not provide straightforward or detailed answers in a number of key areas of his claim for protection. Furthermore, the RPD found on a balance of probabilities that the Appellant was not credible in relation to his testimony about the events in Iran and that he failed to establish his Christian faith. The panel also found that the supporting documentary evidence was not sufficient to overcome the general credibility issues. BOC Omissions [22] I have reviewed the record in its entirety, as well as the new corroborating evidence, and find that the Appellant was credible on a balance of probabilities. I will address the following credibility concerns of the RPD. [23] The RPD questioned the Appellant about why he converted to Christianity. He testified that he became interested in the religion in about 2012 or 2014 because he was touched by the healthy behaviour and relationships of the people around him. He stated he decided to get baptized to be saved from darkness and that he has been stressed and depressed. The panel asked the Appellant why these details were not provided in his BOC narrative. In response, the Appellant testified "well back then my lawyer did not really ask me details what it was exactly and even in my previous hearing I talked about these again." [24] I have reviewed the Appellant's testimony and find that his responses on a balance of probabilities were credible, especially considering the evidence provided in item 3. Furthermore, I find that the RPD's assessment of this omission to be microscopic. I find that the Appellant's explanation as to why he did not provide every intimate detail as to why he converted to Christianity in his narrative was reasonable and that it does not detract from his overall credibility. Accordingly, this credibility finding by the RPD is incorrect. Lack of Corroborative Evidence [25] The RPD found that the Appellant failed to provided corroborating documentary evidence from his cousin who was a member of the Sepah, his wife about his religious affiliation, as well as from his brother in Japan regarding the money he gave him to assist in his exit from Iran. [26] In relation to the Appellant's lack of documents from his cousin, he explained that he was no longer in contact with him, as his cousin had cut off contact with the family after he assisted in his departure. He noted that a member of the Sepah sending such a letter would put his cousin at risk. In relation to the letters from his wife and brother, the Appellant noted that he would have provided these letters if he had been told to by his lawyer. The Member found the Appellant's testimony to not be credible, and noted that he was sophisticated and was represented by counsel. She made a further finding that his explanation on why he failed to provide the evidence was unreasonable. [27] I have reviewed the testimony and RPD Record relating to the Appellant's failure to provide these corroborating documents. The Appellant testified consistently that he could provide the documents, but was not told by counsel that this type of supporting evidence would be required. In light of his testimony, and the new documentary evidence supplied by the Appellant relating to the complaints made about his former counsel of Record, I find the explanation provided about the lack of corroborating evidence to be reasonable and credible. Religious affiliation [28] The RPD found the Appellant to not be credible in relation to the central allegations of his claim. She also found that his supporting documentary evidence relating to his religious affiliation was insufficient to overcome her credibility concerns. I have reviewed the Appellant's testimony and supporting documentary evidence about his religious conversion and his Christian faith, and I disagree. [29] The Appellant provided a detailed explanation as to why he was interested in the Christian faith. He spoke extensively about why he chose baptism, and quoted a number of different pieces of scripture and noted that the only way form him to "reach the real God" was to become a Christian. He gave a credible and detailed explanation about the significance of baptism. The Appellant was also able to note the significant days in the Christian calendar. I note that reciting scripture and knowing holidays in and of itself is not sufficient to establish conversion to the Christian religion; however, the Appellant was also able to provide detailed and credible testimony about communion, what his faith meant to him and why he risked his safety in Iran by converting to it. [30] The Appellant also provided a letter from his pastor3 and his fellow parishoners at the Spirit of Truth Church in Toronto.4 I find that these documents are credible and assist in establishing the Appellant's Christian practice here in Canada. I find that the Appellant has established that he has converted to the Chrisitan faith and is in fact, a Christian. I therefore find that he has established the central allegation of his claim that he is wanted in Iran for apostasy. [31] I have also considered whether or not state protection is available to the Appellant in Iran. Considering that the agent of persecution is the state itself, the Appellant will not be able to access state protection or have a viable internal flight alternative. He will be at risk throughout the country of Iran for apostasy, a crime which is punishable by death. CONCLUSION [32] The appeal is allowed. 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 own determination that the Appellants is a Convention refugee. (signed) Kimberley Foreman Kimberley Foreman October 21, 2020 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 3 Exhibit RPD-1, RPD Record, Exhibit 6, p. 244. 4 Ibid., p. 246. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-33688 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français