TB9-16937

RAD File / Dossier de la SAR : TB9-16937 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 18, 2020 Date de la décision Panel Christopher G. Harrison Tribunal Counsel for the person who is the subject of the appeal Daniel M. Fine 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] XXXX XXXX (the "Appellant") is a citizen of Iran. He appeals the decision of the Refugee Protection Division (the "RPD") dated May 15, 2019, whereby the RPD dismissed his claim for refugee protection pursuant to the Immigration and Refugee Protection Act1 (the "IRPA"). The Appellant asks the Refugee Appeal Division (the "RAD") to set aside the decision of the RPD and to substitute its own decision that the Appellant is a Convention refugee or a person in need of protection under the IRPA. In the alternative, the Appellant asks that the RAD refer the matter back to the RPD for redetermination, giving such directions to the RPD as the RAD deems appropriate. [2] The Appellant has not tendered new evidence under subsection 110(4) and has requested an oral hearing pursuant to subsection 110(6) of the IRPA2, if necessary. As there has been no new evidence tendered, there is no jurisdiction for the RAD to hold an oral hearing. DETERMINATION [3] I hereby confirm the RPD decision that the Appellant is neither a Convention refugee under section 96 of the IRPA, nor is he a person in need of protection within the meaning of paragraph 97(1)(b) of the IRPA. Accordingly, this appeal is denied.3 BACKGROUND [4] The Appellant claims that he fears persecution in Iran resulting from political opinion. He alleges that he participated in student protests at his university in Tehran, which resulted in his being arrested by the "Basij", a local paramilitary militia which reports to the Iranian Revolutionary Guard. He claims that following his arrest, he was held in custody for approximately a day and a half until his family raised funds to pay a bribe to secure his release. He claims that during this detention he was blindfolded, beaten and sexually assaulted by his captors. Following release, the Appellant alleges that he suffered from depression and that he and his family agreed that he needed to leave the country to prevent another such incident. Using a visa which had been previously obtained, the Appellant, his sister and his parents travelled to Canada on XXXX XXXX XXXX 2018, where his claim for refugee protection was commenced. His parents returned to Iran and his sister remains in Canada where she has commenced a separate claim for refugee status, independent of the circumstances of this appeal. ROLE OF THE RAD [5] My role is to review the RPD decision on a standard of correctness after having conducted an independent assessment of the evidence.4 The exception to this rule is where the RPD enjoyed a meaningful advantage in the assessment and weighing of oral testimony heard which may, in certain cases, allow me to defer to RPD findings. I do not believe that the RPD enjoyed any meaningful advantage in this appeal and all evidence from the RPD hearing has been taken into consideration in arriving at my determination. ANALYSIS OF MERITS OF APPEAL [6] The RPD found that the Appellant was not credible in aspects of his evidence that were central to his claim.5 The Appellant argues that the RPD erred by:6 (i) making unfounded and unreasonable plausibility inferences; (ii) ignoring key evidence and failing to assess the totality of the evidence; and (iii) denying procedural fairness by introducing an issue "not present" at the RPD hearing so that the Appellant did not have an opportunity to address same. Based upon my independent assessment of the evidence and for reasons which follow, I find that the Appellant's arguments are not persuasive and, as such, I confirm the essential findings of the RPD, particularly with respect to credibility. The Appellant was not credible Credibility, general principles [7] It is well established that the starting point of any credibility assessment lies with the presumption that when a party swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness.7 This presumption of truthfulness -sometimes referred to as the Maldonado presumption- is always rebuttable and may be displaced by an accumulation of contradictions, inconsistencies and omissions. Based upon the testimonial failings noted below, I find that the Maldonado presumption of truthfulness has been effectively rebutted. Specific credibility concerns [8] The RPD made a number of negative credibility findings based upon the Appellant's testimony, his documentation and the absence of certain original documents. While the Appellant frames the alleged error in the context of implausibility findings, upon my independent review, I find that the negative inferences of which the Appellant complains are part of the overall credibility assessment of the Appellant and his claim that was performed by the RPD. In addition, the Appellant argues that the RPD erred by, among other things, being microscopic in its analysis, showing overzealousness and "nitpicking" without regard for the psychological and other evidence, including the impact of detention and mistreatment on memory and the benefit of the doubt to which the Appellant was entitled.8 I am not persuaded by these arguments and, for reasons which follow, find that there were ample reasons in the RPD decision to doubt the veracity of the Appellant's testimony and which undermined the credibility of his claim. [9] By way of preliminary, I must comment on two aspects of the Appellant's arguments set out above which I find to be problematic. While the Appellant's memorandum does not specifically argue that his memory suffers as a result of the trauma which he claims to have suffered in Iran, it would appear to be implied.9 For absolute clarity, the transcript of the proceeding does not support the notion that the Appellant's memory has been adversely affected by the trauma he claims to have suffered. Particularly instructive on this issue is the following exchange: Q: Have you ever been diagnosed with any medical or psychological condition that's affecting your memory? A: Not for my memory. But different psychic problems I had. Q: What's that? A: Exactly not about memory but other psychic problems.10 Furthermore, having reviewed the psychologist's report, I note that it is completely silent on the issue of memory loss, in fact indicating that the Appellant "can recall memories of his experiences, given the intense fear of death or bodily harm that gives rise to overwhelming psychological arousals such as shock, numbness, disbelief and helplessness."11 As a result, I find that the Appellant has not suffered any memory loss as a result of his allegations of detention. [10] The Appellant also argues in his memorandum that he is entitled to the benefit of the doubt. Again, with respect to counsel, I disagree. [11] In its Handbook on Procedures and Criteria for Determining Refugee Status, the United Nations Refugee Agency (UNHCR) states as follows about the benefit of the doubt: 203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to "prove" every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt. 204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.12 [12] The preceding passage has been cited by Canadian courts on a number of occasions, in particular by the Supreme Court of Canada in Chan.13 Based upon this case, I am of the view that refugee claimants may be granted the benefit of the doubt of the evidentiary challenges associated with the determination process, but only in circumstances where there are no concerns as to the claimant's general credibility. Based upon the various credibility issues noted below, I find that the Appellant is not entitled to the benefit of the doubt in his claim. [13] The RPD made the following negative credibility determinations: (i) it noted inconsistencies in his evidence regarding his purported release from detention; (ii) the Appellant provided contradictory evidence regarding his mental state and whether he attended school following his detention; (iii) the Appellant's medical treatment in Iran was not reliable and unsupported by credible corroborative evidence; and (iv) it found that the psychologist's report was to be given little weight in the analysis. [14] As indicated previously, the Appellant argues that the RPD erred by being microscopic in its credibility assessment. I might add that the Appellant's memorandum places a great deal of significance upon the psychological report obtained in Canada and devotes significant time and argument in the memorandum to the importance of the report in rebutting the Appellant's evidentiary shortcomings or to overcome the RPD credibility findings. As discussed below, however, I find that the RPD was correct in finding that the psychologist's report was to be given little weight in the analysis and, hence, fails to overcome the various credibility concerns or to rehabilitate the Appellant's evidentiary shortcomings. [15] In his Basis of Claim ("BOC") form, the Appellant indicated that when released from detention, he was warned to expect further consequences.14 He testified however that he was released with a warning to stay away from such activities, no mention being made initially of the further consequences set out in the BOC.15 When confronted about this inconsistency, the Appellant advised that he did not feel he had to mention all of the details. He then went on to testify that he was told he should be waiting for the consequences of what he had done, then added that if he was seen in such activities again, his captors' behaviour would be "something else with you, not like this time.16 The RPD found the Appellant's explanation unacceptable. I agree with that finding. The BOC form is a pre-printed form which, in the section entitled "WHY YOU ARE CLAIMING REFUGEE PROTECTION," includes the following instruction: "INCLUDE EVERYTHING THAT IS IMPORTANT FOR YOUR CLAIM. INCLUDE DATES, NAMES AND PLACES WHERE POSSIBLE."17 Furthermore, the Appellant's BOC indicates that he was assisted by his counsel in preparation of the document18 and, as discussed above, the Appellant's memory is not an issue. If credible, one would reasonably expect the Appellant's written record and his testimony would align and they have not. In my view, the RPD's negative credibility finding on this issue was correct. [16] The Appellant testified that, following his release, he was so upset mentally that he could not leave his house19 and that he did not attend classes. That evidence conflicted with his BOC which indicated that he attended classes, though rarely.20 When this inconsistency was addressed by the RPD, his initial response was that he merely paid for his classes and did not attend school. That evidence ultimately evolved into him attending some classes to avoid military service. This inconsistent and evolving testimony was seen by the RPD as less than credible. The Appellant alleges that as a direct result of the persecution he claims to have suffered, he could not leave his house, yet the fact that his evidence is conflicting and evolving undermines both his credibility and the credibility of his claim. [17] Following the Appellant's testimony that he did not suffer from memory issues, the RPD entered into an investigation of the Appellant's claim to psychological issues which he alleges were the result of his detention. The Appellant's testimony was difficult to follow and somewhat confusing. When asked for a diagnosis, the Appellant responded by enumerating symptoms, such as "sleep problem, psychic problem, stress and shivering of my hands."21 When asked a second time for his diagnosis, the Appellant testified that he had been prescribed medications.22 From there, the Appellant testified that he had seen a psychiatrist (whose name he could not recall until prompted with it by the panel, nor could he recall the number of times he attended). Apart from the medications, the Appellant was somewhat vague about his treatment, indicating that, despite earlier evidence that he experienced no memory issues, he only had a vague memory about that time of his life.23 The RPD challenged the Appellant on his evidence that the psychiatrist had assured him "that it is not something that bad happened to you,"24 at which point, he immediately backtracked by saying that he did not mean what he said and that the doctor said he needed to "make with what happened. And also I had to leave the country."25 Following this explanation, counsel asked for clarification of the answer but the Appellant instead testified to the medication he alleges the psychiatrist prescribed for him. [18] I find other aspects of the Appellant's evidence troubling and undermining of his credibility. For example, the photocopy of a letter purporting to be authored by the psychiatrist and which the Appellant tenders as corroborative of not only his mental state but also the physical damage he claims to have suffered during detention is problematic. This purports to "certify" that the Appellant suffered from "direct damage to the anal canal and inflammation of the lining of the rectum (Proctitis)."26 Despite its "certification", the document makes no mention of the psychiatrist having actually confirmed this physical issue by his own examination and goes on to state that: "[T]his is reported by the specialist."27 [19] The Appellant's evidence with respect to the "specialist" is vague in that he claims to not remember the identity of the doctor and, while he claimed to have had a letter from the specialist at one point, he declared it cannot be located. I find this reason for not having this document unacceptable, particularly since the National Documentation Package ("NDP") for Iran establishes that the Appellant is able to retroactively obtain medical records, even from abroad.28 In my view, the absence of such document creates an evidentiary gap between the specialist and the psychiatrist. It is clear from the transcript that while the RPD failed to comment upon the Appellant's failure to provide this medical report, based upon his submissions, it was clearly within his counsel's contemplation that it might be required. Despite Appellant's counsel's arguments to the contrary in his submissions,29 absent credible testimony or corroboration, this gap cannot be bridged as it appears that the psychiatrist relied upon information from the specialist to establish the physical damage which the Appellant states is a direct result of the detention and forms a substantial component of his claim. As a result, I find that the psychiatrist's letter does not establish that the Appellant suffered the physical injuries as alleged in his claim. Moreover, I note that a critical component of the Appellant's claim is that during his detention he suffered certain physical injury and that, based upon the evidentiary record, he has not, on a balance of probabilities, been able to establish that fact. [20] Based upon the vagueness of his testimony, as well as the various inconsistencies noted and his abrupt reversal with respect to his testimony regarding the psychiatrist's assessment of the severity of the matter, I find that the Appellant's testimony on his mental state following his alleged abduction/detention is not credible and undermines the overall credibility of his claim. [21] Similarly, despite the fact that he testifies it was delivered to them, the Appellant has failed to produce the original of the subpoena that he claims was served upon his neighbour.30 It is clear from the Appellant's evidence regarding his attendance at the psychiatrist's office that flight from Iran was contemplated at a very early stage31 and I believe that it is reasonable that an important document such as the summons -being a cornerstone of the fear of persecution which he claims- would factor prominently into his preparations. This finding is discussed in greater detail below under the procedural fairness analysis. Psychologist's report does not overcome credibility concerns and is given little weight by RAD [22] The Appellant has tendered a report from a psychologist, XXXX XXXX XXXX XXXX XXXX, in support of his claim.32 The RPD found that the credibility concerns noted by the panel could not be explained or rehabilitated by the psychologist's opinion. While the RPD discounted the significance of the report, apart from that comment and finding, little by way of analysis (other than to say it was "self-reported") was offered. The Appellant argues at length in his memorandum that central to the Appellant's evidence was corroboration by psychological evidence that the RPD failed to assess and apply as required by the law. Furthermore, the Appellant argues that the RPD erred by making a negative inference and dismissing the psychologist's risk opinion based only on self-reporting by the Appellant and that the "best medical evidence"33 available is the Canadian psychologist's report. In addition, the Appellant submits that the psychological report was a "centrepiece" of the evidence that was ignored.34 With respect, I fail to be persuaded by this argument and agree with the RPD finding that the various credibility concerns are not resolved by this report which, for reasons set out below, is given little weight. [23] I will begin my analysis by stating the obvious: in reviewing the psychologist's report several times, it is clear that it is based upon the self-reporting of the Appellant which Dr. XXXX seems to have accepted as credible.35 In this regard, I find that the RPD was correct in identifying the fact that the report was based, in large part, upon the self-report of certain symptoms by the Appellant which he claimed to be the aftermath of the events which he alleges took place during his detention in Iran. [24] Based upon the psychological report, it appears that the psychologist met with the Appellant on only one occasion.36 The report is replete with examples of information that has been obtained from the Appellant and, while there is no doubt that, in a clinical setting, a certain amount of information must be obtained from the patient, I am troubled by the fact that none of the information appears to have been corroborated by any sort of clinical testing to establish the veracity of that information. For example, the report indicates that the Appellant "presents with Post-Traumatic Stress Disorder (309.81 in the DSM-5)"37 yet provides no information as to whether any sort of psychological testing was administered and upon which such clinical opinion was based and/or validated. [25] The Appellant references the Supreme Court of Canada in Kanthasamy,38 a case decided in the context of an application for relief from removal based upon humanitarian and compassionate grounds. The Appellant cites this case for the proposition that it matters not at all that reporting of facts to the professional is by the person concerned and that the professional does not have to be an expert on the country conditions to provide his or her opinion. [26] In Kanthasamy, the Supreme Court referred to the "unavoidable reality" that psychological reports would necessarily be based to some degree on hearsay.39 [emphasis added] Noteworthy is the fact that in Kanthasamy, the Immigration and Refugee Board ("IRB") officer accepted the psychological diagnosis, yet "inexplicably discounted" the report.40 [27] Based upon the foregoing, I see two immediate issues which distinguish this case from the current appeal. First of all, in Kanthasamy, the psychological report was clearly accepted by the IRB officer who then attempted to discount its effect by imposing a further requirement on the claimant to adduce additional evidence regarding his treatment. Such is clearly not the case in this matter as it is clear from the RPD judgment, as confirmed by my analysis herein that the psychological report of Dr. XXXX is not accepted as reliable evidentiary corroboration of the Appellant's story. Secondly, I have noted that the Supreme Court refers to the fact that hearsay "to some degree" forms a necessary part of such reports, however, in this particular report, it is difficult to locate any information which did not emanate directly from the Appellant and there appears to have been no objective testing undertaken which might validate the report's conclusions. As such, I find that the Kanthasamy case is distinguishable from this matter. [28] In coming to this finding, I have considered Kanthasamy alongside case law from the Federal Court, which cautions that prudence must be exercised by decision-makers when considering such reports, unless they are subject to some form of validation.41 In Czesak, the Court states as follows: I am of the view that decision-makers should be wary of reliance upon forensic expert evidence obtained for the purpose of litigation, unless it is subject to some form of validation. This remark would apply to the report of [Dr. XXXX] which went as far as to advocate on the applicant's behalf in the guise of an opinion on the very issue before the panel. I might add that the Federal Court went on to state that caution should be exercised in accepting such reports at face value, particularly when they propose to settle important issues to be resolved by the tribunal. [29] Furthermore, I note that the psychologist's report has made comments regarding the Appellant's credibility and has come to the conclusion that he was "genuine and credible in his distress."42 With the greatest of respect, the Appellant's credibility determination is one of the fundamental issues of this matter and, in the absence of the validation referenced in the Czesak case, the psychologist's opinion cannot be allowed to usurp the findings of the decision-maker. While the process by which refugee claims are determined is described as "inquisitorial," as opposed to the more rigorous adversarial setting of the criminal law it is, nonetheless, a system designed to allow for the evaluation of a claim by way of the decision-maker being afforded an opportunity to hear the claimant testify, to evaluate the testimony as well as the corroborating documents, ask questions and, where appropriate, to challenge the claimant on inconsistencies, errors and omissions. [30] Federal Court jurisprudence also cautions against such reports crossing the line between expert opinion and advocacy.43 In Molefe, the Court examined a psychologist's report where it concluded, among other things, that: (i) the applicant's condition would improve with appropriate care and "guaranteed freedom" the threat of removal from Canada; (ii) the applicant required continued counselling; and (iii) if refused permission to remain in Canada, the applicant's condition would deteriorate and it would be impossible for her to feel safe if returned to her country of origin.44 In this case, the Federal Court concluded that the psychologist had crossed the line between expert opinion and advocacy. [31] These findings are remarkably similar to the psychologist's report in the instant case where Dr. XXXX advises that: (i) it is impossible for the Appellant to foresee a safe and secure way of life in Iran; (ii) he would benefit from counselling; and (iii) if permitted to remain in Canada permanently, his chances for recovery appear more favourable.45 As in Molefe, based upon these comments, I conclude that with these conclusions, the psychologist has similarly crossed the line between expert opinion and advocacy. [32] The Appellant argues that the psychological report is the "centrepiece"46 of the evidence that was essentially ignored and, in his memorandum relies upon the contents of the report to explain away many of the credibility and other perceived deficiencies in his claim. I agree with counsel that the psychologist's report is the centrepiece of the evidence and find that it has been tendered as corroboration of the physical abuse the Appellant claims to have suffered, as well as the psychological aftermath. Both of these issues are fundamental to his claim. However, I am not persuaded by that argument and, in my independent assessment, believe that I have given the report the analysis and treatment that it warrants. Based on the foregoing, I give the Dr. XXXX report little weight based upon the following findings: (i) the report has not been subject to any form of validation; (ii) it is almost entirely founded upon the Appellant's self-report; (iii) it is unsupported by any form of independent testing upon which its conclusions may be based; and (iv) the report crosses the line between expert opinion and advocacy. NDP does not equate to persecution [33] The Appellant has argued that the country documentation supports "the abduction and severe mistreatment suffered by the appellant."47 I do not find this argument persuasive. Having reviewed the NDP for Iran on this appeal (and others), I note that Iran is a nation which has been described as an autocratic theocratic republic which has a poor record on human rights and includes forced disappearance and torture by government agents.48 Regardless of its harsh record, the crux of this matter is not whether such occurrences take place in Iran, it is whether or not the incident which forms the basis of this claim occurred to the Appellant and whether, on a forward-looking assessment, he has a well-founded fear of persecution or is a person in need of protection if returned to his country of origin. With this pleading, the Appellant has cast the net too wide and I find that the NDP, though supportive of the notion that Iran is a harsh and oppressive nation -one in which instances, such as that described by the Appellant have occurred- such does not establish that the Appellant was personally abducted, detained and mistreated or that he is at risk of persecution if returned to Iran. [34] For all of the foregoing reasons, I find that the Appellant has not established, on a balance of probabilities, that he was abducted, detained and abused by the Basij, nor has he established on a balance of probabilities that he suffers the psychological effects which he claim to be the direct result of that incident. Denial of procedural fairness not established [35] The Appellant pleads that "the issues raised in the Reasons, as described in Section A, that were not present at the RPD hearing denied him procedural fairness by denying him the opportunity to respond thereto."49 I find this pleading difficult to interpret as it does not specifically enumerate the aspect of the RPD decision by which the Appellant claims the RPD violated this fundamental principle and simply refers back to Section A of the Appellant's memorandum which primarily deals with allegations as to various credibility and plausibility errors. However, at paragraph 49 of the memorandum, I note that the Appellant argues that the RPD failed to make an issue of his failure to produce the original summons at the hearing, thereby violating the principle of procedural fairness by denying him an opportunity to respond. [36] The essential question to be determined in a matter of procedural fairness is whether or not the Appellant was taken by surprise by the inclusion of the issue in the RPD decision. On one hand, although the issue was clearly canvassed by the RPD and was the subject of testimony by the Appellant, the RPD's failure to comment on and/or challenge him as to the reason for not having the original may not have provided Appellant's counsel with a signal that it may be an issue upon which the RPD chose to base its decision. That being said, counsel had to be aware that the original was not going to be tendered and, presumably, aware of the RPD Rules which establish that a claimant must provide acceptable documents establishing identity and other elements of the claim.50 [emphasis added] Furthermore, following issuance of the RPD decision, through perfection of the appeal and, indeed, right up to the signing of these Reasons, the Appellant has had the opportunity, subject to the legislative requirements of the IRPA and the RAD Rules, to submit this document or to provide evidence as to why it is unavailable. The Appellant has failed to do so. [37] Regardless, I accept counsel's argument that the Appellant should have had an opportunity to address the issue of why the original arrest warrant was not submitted. However, in that acknowledgement, I am also cognizant of the fact that the negative credibility inference which the RPD drew as a result was but one of several such negative inferences and was, in and of itself, not determinative of the RPD decision. If that finding was excised from the RPD decision as a whole, I am of the opinion that it withstands RAD scrutiny and is correct. Consequently, I find that although the RPD erred by failing to afford the Appellant an opportunity to address this deficiency, such error was not determinative of the fundamental credibility issues, which resulted in the negative determination. In arriving at this finding, I am also mindful of the fact that the Appellant has placed enormous significance upon the psychologist's report (as evidenced by the proportion of argument in the memorandum that seeks to link the report with the deficiencies noted by the RPD) and its ability to act as a "cure-all" for those deficiencies. In finding that the report is of little weight (for reasons previously stated) I have found that it cannot overcome the credibility issues raised in this matter. [38] The only other instance where I see a possibility of a procedural fairness issue arising would be with respect to counsel's final submissions when discussing the implications of the Kanthasamy decision where he states: At paragraph 49 [referring to Kanthasamy], it matters not at all that the reporting effects of the professional is by the Person Concerned, and that the mental health professional is not a country expert. So it's not an issue that can be raised, I submit, in these reports that although the person told the psychologist and the psychologist is basing it on hearsay or something similar. 51 Otherwise, I am unable to discern any other occasions when counsel might have been concerned about a new issue arising. In these Reasons, I have reviewed the Kanthasamy case and indicate why I believe it is distinguishable from this set of facts. [39] By way of summary, the following essential findings form the basis of my decision: (i) the Appellant was not credible in his testimony and his documentary evidence, primarily the psychiatrist's letter and, most importantly, the psychologist's report fail to overcome the evidentiary shortcomings; (ii) the Appellant has not established, on a balance of probabilities, that the event which forms the basis of his claim ever occurred; (iii) the objective country evidence of the NDP for Iran does not support the notion that this incident occurred to the Appellant; (iv) the Appellant's right to procedural fairness was not violated. In the alternative, the finding on which the Appellant based this argument was not determinative. CONCLUSION [40] Pursuant to paragraph 111(1)(a) of the IRPA, I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Christopher G. Harrison Christopher G. Harrison December 18, 2020 Date 1 Immigration and Refugee Protection Act (S.C. 2001, c. 27), as amended. 2 Exhibit P-2, Appellant's Record, p. 34A. 3 IRPA (S.C. 2001, c. 27), as amended, at para. 111(1)(a). 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 5 Exhibit RPD-1, RPD Record, RPD Reasons, p. 4, lines 35-36. 6 Exhibit P-2, Appellant's Record, pp. 37-38. 7 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 8 Exhibit P-2, Appellant's Record, p. 35. 9 Ibid. See also p. 42, para. 24. 10 Transcript of April 26, 2019, RPD Hearing, p. 21, lines 45-50; p. 22, line 6. 11 Exhibit RPD-1, RPD Record, Exhibit 5, p. 138. 12 United Nations. Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status. Geneva: 1979. 13 Chan v. Canada (Minister of Employment and Immigration), 1995 CanLII 71 (SCC), [1995] 3 SCR 593. 14 Exhibit RPD-1, RPD Record, Exhibit 2, p. 19, para. 8. 15 Transcript, of April 26, 2019, RPD Hearing, p. 10, line 36 16 Ibid., p. 11, lines 23-26. 17 Exhibit RPD-1, RPD Record, Exhibit 2, p. 10. 18 Ibid., p. 17. 19 Transcript of April 26, 2019, RPD Hearing, p. 11, lines 35-36. 20 Exhibit P-2, Appellant's Record, p. 19, para. 9. 21 Transcript of April 26, 2019, RPD Hearing, p 22, line 10. 22 Ibid., line 14. 23 Ibid., p. 26, line 36. 24 Ibid., p. 24, lines 30-31. 25 Ibid, lines 40-41. 26 Exhibit RPD-1, RPD Record, Exhibit 6, p. 27. 27 Ibid. 28 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Iran (March 29, 2019), item 3.3, Response to Information Request IRN105090. 29 Transcript of April 26, 2019, RPD Hearing, p. 36, lines 31-34. 30 Ibid., p. 19, lines 11-14. I note that the Appellant has used the term subpoena throughout his testimony. The translated version of the document identifies it as a summons (RPD record, p. 25). I note that Appellant's counsel in fact refers to this document as a summons in the memorandum. 31 Transcript of April 26, 2019, RPD Hearing, p. 30, lines 5-14. 32 Exhibit RPD-1, RPD Record, Exhibit 5, pp. 135-139. 33 Exhibit P-2, Appellant's Record, p. 47, para. 45. 34 Ibid., para. 25. 35 Exhibit RPD-1, RPD Record, Exhibit 5, p. 138. See report where Dr. XXXX says "[the Appellant] impressed me as genuine and credible in his distress". 36 Ibid., p. 135. 37 Ibid., p. 138. 38 Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 (CanLII), [2015] 3 SCR 909. 39 Ibid., para. 49. 40 Ibid., para. 46. 41 Czesak v. Canada (Citizenship and Immigration), 2013 FC 1149 (CanLII), para. 37. 42 Exhibit RPD-1, RPD Record, Exhibit 5, p. 138. 43 Molefe v. Canada (Citizenship and Immigration), 2015 FC 317 (CanLII). 44 Ibid., para. 32. 45 Exhibit RPD-1, RPD Record, Exhibit 5, pp. 138-139. 46 Exhibit P-2, Appellant's Record, p. 42, para. 25. 47 Exhibit P-2, Appellant's Record, p. 39, para. 15. 48 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Iran (March 29, 2019), item 2.1. 49 Exhibit P-2, Appellant's Record, pp. 48-49, para. 52. 50 Refugee Protection Division Rules, SOR/2012-256, rule 11. 51 Transcript of April 26, 2019, RPD Hearing, p. 37, lines 19-22. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-16937 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