TB9-02777

RAD File / Dossier de la SAR : TB9-02777 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 June 11, 2020 Date de la décision Panel H. Shepherd Tribunal Counsel for the person who is|are the subject of the appeal Anoosh Salahshoor Conseil de la|des personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I allow this appeal. [2] The Appellant, XXXX XXXX, is citizen of Iran who bases his claim on conversion from Islam to Christianity. He has not applied to file new evidence, nor has he requested an oral hearing. A digital audio recording of the hearing is available, but not a transcript. Summary of Basis of Claim (BOC) narrative [3] The Appellant became disillusioned with Islam after he was expelled from secondary school, for asking why converts to other religions must be punished. He began attending a home church on the invitation of one of the customers in his shop. After a religious service was held in his home in XXXX 2017, he was questioned by members of the religious police (the Basij) after neighbours informed them of a suspicious meeting. Although he was released after he described it as a get-together of friends to celebrate the revolution, they warned him that he would be watched. The home church was suspended for a while. The Appellant feared that he would be arrested if his Christian affiliation were discovered. This would lead to imprisonment and possible execution. His parents hired an agent to obtain a Canadian visa and to facilitate his travel to Canada in XXXX 2017. Since his arrival, he has regularly attended church meetings and he has been baptized. Refugee Protection Division Reasons for Decision [4] The Refugee Protection Division (RPD) rejected the claim on the basis of lack of credibility for the following reasons: i) The Appellant failed to establish why he felt resentment toward Islam, why he left this religion, and why he converted to Christianity; ii) The Appellant failed to establish that he participated in home church meetings in Iran because of inconsistencies; iii) The Appellant failed to establish that he is a genuine Christian convert; and iv) The pastor's oral testimony and supporting documents were found to be insufficient to establish the central allegations of the claim because they do not overcome credibility concerns. Grounds for the Appeal [5] Counsel submits that the RPD erred in the following ways: i) The RPD used the Appellant's failure to provide proof of his high school education to discredit the entire claim; ii) The RPD mischaracterized the evidence and speculated about the Appellant's resentment of Islam that led him to convert; iii) The RPD capriciously focused on the peripheral issue of payment to the agent; iv) The RPD failed to ask the Appellant to clarify the perceived inconsistency regarding home church plans in the event of a raid; v) The RPD failed to conduct an independent assessment of the pastor's testimony and of the supporting documents concerning the Appellant's religious identity; and vi) The RPD erred in its sur place assessment because it was based solely on negative credibility findings, not on the totality of the evidence. Summary of Refugee Appeal Division Assessment [6] The determinative issue for the appeal is whether the RPD's credibility analysis is correct. Although the RPD made a correct Rule 11 finding, the Appellant's testimony was otherwise credible. Supporting evidence from his church, including viva voce testimony from his pastor support the Appellant's credibility. Documentary evidence provides an objective basis for risk of imprisonment in adverse conditions and possible death because of his religious conversion. DECISION [7] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. ANALYSIS [8] My role is to look at all the evidence and decide if the RPD made the correct decision.1 The RPD did not err in drawing an adverse inference from the fact that he failed to provide evidence of high school attendance [9] Counsel submits that the RPD erred by drawing a negative inference from the fact that he failed to provide evidence of his high school educational history. This evidence is not material to any part of the claim. In addition, the RPD did not explain what evidence it expected. The panel was overzealous in an attempt to discredit the Appellant. [10] The RPD did not err, as submitted. Rule 11 of the RPD Rules requires that a claimant provide acceptable documents that establish identity and other elements of the claim.2 The RPD was entitled to take into consideration the failure to provide a reasonable explanation for their absence. The allegation that he was expelled from high school after two years is central to the reason why he developed resentment towards Islam and converted. As such, its importance could reasonably have been anticipated during preparation for the hearing. The RPD did not limit the type of proof that would be acceptable from the school, be it be a transcript or an attestation of attendance. The RPD correctly concluded that the Appellant did not provide a reasonable explanation for his failure to obtain and disclose a statement or records from the school. The RPD erred in its assessment of the Appellant's reason for leaving Islam [11] Counsel submits that the RPD erred in its conclusion that the Appellant's expulsion from school does not explain why he felt resentment towards Islam which led him to become interested in Christianity. The panel engaged in pure speculation in arriving at this conclusion. In addition, the RPD ignored other reasons that contributed to the Appellant's becoming disillusioned with Islam. Questions that he asked at school about Islam were ignored. He was beaten during his military service because he was reluctant to participate in prayer sessions. He did not testify that his expulsion from school was the only reason that led him to want to leave Islam. The RPD mischaracterized the evidence. [12] I agree with counsel on this issue. The Appellant provided a reasonable explanation for his growing alienation from Islam, which was dismissed by the RPD without providing adequate reasons. The RPD erred in drawing an adverse inference from the lack of proof that an agent was paid [13] Counsel submits that the RPD erred in concluding that the Appellant likely fabricated testimony about having paid an agent to facilitate travel to Canada because proof of payment was not provided. First, this is a peripheral issue that does not concern a central element of the claim. Second, his father made the arrangements with an agent who would not want to be identified. Third, it is an error in law to draw an adverse inference from the use of irregularly-obtained travel documents to flee persecution for the purpose of seeking asylum in another country. [14] I agree with these submissions. I would add that it is not common practice to require asylum-seekers to provide proof of payment to agents who facilitate travel to Canada. As a result, it is not reasonable to expect production of such a document pursuant to Rule 11. The RPD erred in its assessment of the Appellant's involvement with the home church [15] Counsel submits that the RPD erred by concluding that there is an inconsistency between information in the National Documentation Package (NDP)3 and the Appellant's account. Three issues were identified: i) The Appellant was able to join a house church immediately, whereas the NDP indicates that new members are first put under surveillance for a period of time before being allowed to join; ii) The NDP indicates that house churches frequently change locations, and iii) The Appellant provided inconsistent testimony about what should be done in the event of a raid. [16] Counsel submits that the Appellant provided a reasonable explanation why he was allowed to join a house church without first having been put under surveillance. He was introduced to the group by a regular customer, V.4, who became acquainted with him over time. Although she is an Armenian Orthodox who was not a member of the group, she accompanied him to the first meeting and vouched for him. This is not inconsistent with the information in the NDP about precautions taken before admitting a new member. [17] The RPD made a negative plausibility finding from information in the NDP which indicates that house churches frequently change locations, contrary to the Appellant's testimony. The documentary evidence indicates that house churches do not have a uniform structure and practices. He testified that services were held "most of the time"5 in one place. This implies that their group, in fact, changed locations. This is not inconsistent with the information contained in the NDP. [18] Counsel submits that the RPD erred by drawing an adverse credibility inference from the alleged inconsistent testimony, concerning what he was told to do if the meeting were raided by authorities. According to the RPD's reasons for decision, at one point he said that they were told to hide, but at another he said that they were to put out food to make it look like a social gathering. According to counsel, if his testimony was unclear, the RPD should have said so in order to have provided the Appellant with the opportunity to respond. Given that they met in different houses with different floor plans, there may have been different strategies to respond to a raid, depending on the premises. The Appellant's testimony was not necessarily inconsistent. The RPD erred by not putting this concern to the Appellant for his response. [19] I agree with counsel's submissions on these issues. The RPD erred in its assessment of the pastor's testimony [20] The Appellant's pastor testified that the Appellant has been regularly attending church services in Toronto and that he has been baptised. He is convinced that the Appellant is a genuine Christian based on his conduct. The RPD gave this testimony little weight because of previous adverse credibility findings. Counsel submits that the RPD failed to consider the totality of the evidence by engaging in circular reasoning that did not consider credibility finding in light of the pastor's testimony.6 The RPD quoted the pastor's comment that he cannot see into his heart, but failed to note his subsequent testimony. He believes that the Appellant is a genuine Christian because of his confession of faith, his attendance at Sunday worship, and his participation in Bible studies. He did not form this opinion on the basis of the Appellant's self-reporting, but on his observation of the Appellant's conduct. The RPD erred in rejecting the sur place claim [21] Counsel submits that the RPD erred by ignoring evidence which supports the Appellant's Christian identity in the form of his baptismal certificate, two photographs of his baptism, and a letter from his church which indicates that he has attended the church regularly since XXXX 2017, and he was baptised in XXXX 2018.7 The RPD did not doubt that the Appellant was baptised, attended church and had some knowledge of Christianity, but concluded that this does not overcome its adverse credibility findings. Counsel submits that the RPD erred by failing to make credibility findings in light of all of the evidence. I agree with this submission. [22] Although counsel submits that the RPD failed to assess the Appellant's knowledge of Christianity, it did not need to do so because the panel never questioned this and accepted that he was knowledgeable about Christianity. Country Conditions [23] Counsel notes the dire consequences to the Appellant should he be returned to Iran and accused of having converted from Islam to Christianity. Conversion is illegal and punishable by death.8 Religious minorities, including converts, "face arbitrary arrest, harassment and detention", and are often accused of national security crimes, such as "acting against the national security or 'propaganda against the state'". [24] Another document in the NDP indicates that Iran does not distinguish between those who convert outside the country from those who convert in Iran.9 "[A]ny convert who wishes to practice his or her faith upon return, would face serious risk." One source indicates that authorities may become aware of the conversion through informers or by intercepting telephone or internet communications. RAD Assessment [25] Although the RPD correctly drew an adverse inference from the Appellant's failure to provide proof of school attendance, this finding can only be used in conjunction with other adverse credibility findings to justify the rejection of a claim. It is not determinative in itself.10 [26] Having listened to the digital audio recording of the hearing, I do not agree with the RPD that the Appellant's testimony was evasive, vague and evolving. It was reasonable under the circumstances. If the panel wished to rely on these adverse observations, it should have provided reasons and given examples. It did not do so. The preceding analysis shows that the RPD made serious errors concerning why the Appellant was motivated to convert, why he was allowed to join a house church quickly, how frequently they changed locations, and what should be done in the event of a raid. The RPD erred in expecting that the Appellant file a receipt from the agent who arranged travel to Canada. The RPD had not had good reason to conclude that the Appellant is lacking in credibility in all of his testimony. [27] Secondly, even if the Appellant were found to lack overall credibility, this does not absolve the RPD of responsibility to consider the remaining third-party evidence on its own merits. This point is made clear in the Federal Court of Appeal's Sheikh decision which holds that the RPD can find a claimant so lacking in credibility that there is no credible evidence to support the claim, including all relevant evidence that emanates from that person's testimony.11 In Sellan, the Federal Court of Appeal held that a general finding that the claimant lacks credibility, is sufficient to dispose of the claim if there is no independent and credible evidence that is capable of supporting it.12 It is important to note that this extends to all evidence that is not independent of the claimant. This point is made clear by the Federal Court in the Dhaliwal decision.13 Justice Boswell asserts that the Sellan decision is not based on a legal principle, but rather on a logical inference. Unreliable evidence from a claimant does not negate independent evidence. An allegation is not proven to be false for the mere fact that some of the evidence is unreliable and could not alone establish it to be true. He illustrates that point by referring to one of Aesop's Fables: "distrusting the panicked yelps of the boy who cried wolf does not let one ignore security camera footage of a wolf chasing him." [28] The Appellant's response to questions about Christianity demonstrated knowledge that is reasonable for a person with his background. He arrived in Canada on XXXX XXXX, 2017 and began attending a Toronto church in the same month. His BOC form was signed on January 2, 2018 and filed on January 23, 2018. He found a church to attend promptly and well in advance of making his refugee claim. His pastor is convinced that he is a genuine Christian based on his demeanour, confession, and level of participation. The RPD had insufficient grounds to rebut the presumption that the Appellant was telling the truth about his attendance of a house church in Iran. [29] When all of the evidence is viewed together, I conclude that the Appellant is a credible and trustworthy witness. He is likely a genuine Christian for whom church attendance forms part of his fundamental values. The Appellant's subjective fear is substantiated by documentary evidence which establishes the serious risk which converts from Islam to Christianity face in Iran. Arrest, detention in life-threatening conditions, and possible execution are sufficient to constitute persecution. The current NDP does not indicate that the situation has improved since the hearing.14 Given that public authorities are the agents of persecution, State protection is not available, nor is an internal flight alternative viable. His situation has a nexus with the Refugee Convention on the basis of religion. Although the Appellant testified that he does not know whether authorities have become aware of his conversion, he does not want to run the risk of incurring serious consequences if they do. Given the documentary evidence that outlines the means used by Iranian authorities spy on nationals, this is possible. More significantly, the Appellant is entitled to practice his religious faith should he return to Iran as a human right. As a convert from Islam, he would not be entitled to do so legally or publicly. He is not required to renounce his religious convictions in order to be safe. The Appellant has a well-founded fear of persecution in Iran. CONCLUSION [30] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) "H. Shepherd" H. Shepherd June 11, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII). 2 Refugee Protection Division Rules, (SOR/2012-256) at section 11. 3 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Iran (April 20, 2018), item 12.18. ?Iran: House Churches; Situation of Practising Christians; Treatment by Authorities of Christian Converts' Family Members. 14 June 2017 . 4 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision. 5 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 9, para. 37. 6 Sterling v. Canada (Citizenship and Immigration), 2016 FC 329 (CanLII), at paras. 7-14. 7 Exhibit RPD-1, RPD Record, Exhibit 7, at pp. 194-197. 8 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Iran (April 20, 2018), item 1.9. Country Policy and Information Note: Iran: Christians and Christian Converts. Version 3.0. February 2017. 9 Ibid., item 12.10. Update on the Situation for Christian Converts in Iran. June 2014 at p. 16. 10 Amarapala v. Canada (Minister of Citizenship and Immigration), 2004 FC 12 (CanLII). 11 Sheikh v. Canada ( Minister of Employment and Immigration) 1990 CanLII 8017 (FCA), [1990] 3 FC 238 at 244. 12 Canada (Citizenship and Immigration) v. Sellan, 2008 FCA 381 (CanLII) at para. 3. 13 Dhaliwal v. Canada (Public Safety and Emergency Preparedness), 2015 FC 157 (CanLII) at paras. 85 and 86. 14 NDP for Iran, (March 29, 2019), item 1.9. Country Police and Information Note Iran: Christians and Christian Converts. Version 4.0. March 2018; see also item 12.10. Iran: House Churches and Converts. February 2018. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-02777 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