TB9-23856

RAD File / Dossier de la SAR : TB9-23856 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 December 13, 2019 Date de la décision Panel D. Goff Tribunal Counsel for the person who is the subject of the appeal Alia C Rosenstock 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 OVERVIEW [1] The appellant, XXXX XXXX, a citizen of Azerbaijan, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. [2] The appellant alleged before the RPD that he fled Azerbaijan to escape forced conscription. Azerbaijan forcibly conscripts men under the age of thirty-five. The appellant is twenty-nine. He previously avoided military service as a student in university. He also paid bribes to officials and maintained an extreme diet and exercise regime to keep his weight below 48 kilograms (approximately 105 pounds), as Azeri Military Law states that individuals under that weight are exempt from service. The appellant alleges he is conscientious objector and fears he will be imprisoned and/or forced to serve in the military against his will if returned to Azerbaijan. [3] In a decision signed August 7, 2019, the RPD rejected the appellant's claim. The determinative issue was credibility. [4] The appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and either grant his claim for protection, or refer the matter back to the RPD for redetermination. He argues the RPD made "several crucial and determinative errors of law" in its assessment of credibility, including engaging in conduct which raises a reasonable apprehension of bias (such as by laughing and making insensitive comments about his weight), by failing to consider his risk as a conscientious objector, and in unduly focusing on his weight and military booklet in dismissing his allegations.1 He argues the panel member's conduct at the hearing was "profoundly disturbing" and an "embarrassment to the entire RPD that a member would behave so disrespectfully toward a claimant by laughing and making comments in an offhand manner to him and his counsel, regardless of opinion with regards to credibility".2 DETERMINATION [5] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (the "Act"),3 the RAD refers the matter back to the RPD for redetermination. The appeal is allowed. ANALYSIS [6] The RAD is to review RPD findings of law, fact (and mixed fact and law), which raised no issue of credibility of oral evidence, applying the correctness standard.4 The RPD Findings [7] Having independently reviewed the evidence, the RAD finds the RPD erred by failing to adequately assess the merits of the appellant's claim as a conscientious objector. [8] For example, the RPD concluded, "[h]ad you provided evidence that you were deferred [from the military] because of your weight and that your weight was above 48 kg before you started your diet, I would have taken in to consideration your objection to military service."5 The RPD's analysis was unreasonable. Moreover, the RPD was required to take into consideration the appellant's objection to military service. In this regard, the RPD erred by failing to consider the appellant's evidence outlining his various reasons for his objection to military service, including the death of his cousin and his objection to fighting. [9] The RPD further concluded the appellant's medical note was "irrelevant"6 and that his medical issues were simply "due to intestine problems".7 The RAD does not agree. The appellant's medical note corroborated his health issues including, "XXXX XXXX XXXX XXXX (XXXX XXXX, XXXX and XXXX)".8 In this regard, the RPD also erred by failing to consider the appellant's evidence, including his Basis of Claim form,9 which describe the different diagnosis from various doctors about the appellant's health problems caused by his severe diet and low weight. [10] Based primarily upon these findings on peripheral issues, the RPD gave no weight to the appellant's documents, including statements from his family and a police warrant. The RPD erred in doing so, specifically by not assessing the documentary evidence and providing inadequate reasons why it did not consider it relevant or trustworthy, or why it chose to disregard it.10 The RAD notes the RPD is not required to refer to each and every piece of documentary evidence. However, the more important the evidence not specifically mentioned and analyzed in the Board's reasons, the more willing the Federal Court is to find that the RPD made an erroneous finding of fact without regard to the evidence,11 and the same reasoning is applicable to the RAD's review of the RPD's reasons. [11] Upon its own review of the record, the RAD has its own concerns with credibility of the appellant and his allegations, including the apparent lack of subjective fear. However, without the benefit of hearing oral evidence on the central elements of the claim and without the appellant's documents being tested by the RPD, the RAD is of the opinion that it cannot provide a final determination of this claim. CONCLUSION [12] Pursuant to paragraph 111(1)(c) of the Act, the RAD sets aside the determination of the RPD and refers this matter back to the RPD for redetermination. [13] This appeal is allowed. (signed) "D. Goff" D. Goff December 13, 2019 Date 1 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 16. 2 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 26, paras. 17-18. 3 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 4 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 5 Exhibit RPD-1, RPD's Record, RPD Reasons, at p. 7, para. 22. 6 Exhibit RPD-1, RPD's Record, RPD Reasons, at p. 8, para. 23. 7 Exhibit RPD-1, RPD's Record, RPD Reasons, at p. 6, 7, paras. 17 and 22. 8 Exhibit RPD-1, RPD's Record, Exhibit 5, at p. 15. 9 Exhibit RPD-1, RPD's Record, Exhibit 2, at pp. 9-22. 10 Nasufi, Udi v. M.C.I. (F.C., no. IMM-5925-10), Scott, May 19, 2011, 2011 FC 586; Khan Mostafa v. M.C.I. (F.C, no. IMM-5685-02), Tremblay-Lamer, September 17, 2003, 2003 FC 1076; Cepeda-Gutierrez, Carlos Arturo v. M.C.I. (F.C.T.D., no. IMM-596-98), Evans, October 6, 1998. 11 Dessie, Worku v. M.C.I. (F.C., no. IMM-3927-11), Mactavish, December 19, 2011, 2011 FC 1497, at paras. 7-8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-23856 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français