TB9-11863

RAD File / Dossier de la SAR : TB9-11863 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 July 8, 2020 Date de la décision Panel Linda Krajcovic Tribunal Counsel for the person who is the subject of the appeal Jacqueline M. Lewis 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 (Appellant) is a citizen of Iran. She appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. DECISION [2] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. BACKGROUND [3] The Appellant's allegations are as follows. The Appellant fears authorities in Iran because she converted from Islam to Christianity. The Appellant was raised in a Muslim family, where discussions of other religions were common. The Appellant had a close relationship with her aunt XXXX. Starting in 2002, the Appellant resided with XXXX while attending university. During this time, the Appellant became interested in Christianity. In 2007, the Appellant was accepted into a master's program and moved out of XXXX home. She continued to study Christianity. [4] In 2008, XXXX was arrested and tortured by authorities. She fled Iran to XXXX where she was granted asylum. XXXX later introduced the Appellant to a Christian friend, XXXX, who held house church meetings at his home, which the Appellant began attending. In XXXX 2013, XXXX house church was raided, at which time the Appellant was not in attendance. On XXXX XXXX, 2013, the Appellant officially converted to Christianity over the phone with XXXX. On XXXX XXXX, 2018, the Appellant's cousin was arrested and interrogated regarding the Appellant and XXXX. The Appellant feared being arrested and hired an agent to obtain a Canadian visa. The Appellant was informed that authorities were asking about her and that three of her Christian friends were arrested at the house church. On XXXX XXXX XXXX 2018, the Appellant left for Canada. XXXX days after she arrived in Canada, XXXX advised her that XXXX uncle and the rest of the house church members were arrested. [5] The Appellant's refugee claim hearing was held on March 29, 2019. On April 9, 2019, the RPD rejected the Appellant's claim on the basis of credibility. The Appellant submits that the RPD erred in its credibility and sur place assessments. [6] The determinative issue on appeal is whether the RPD erred in its credibility assessment. ROLE OF THE REFUGEE APPEAL DIVISION [7] The Refugee Appeal Division (RAD) applies a standard of correctness for questions of fact, mixed fact and law, and law. The RAD may defer to the RPD in assessing findings involving the credibility of oral testimony if it finds that it had a meaningful advantage in the circumstances.1 In this appeal, I find that the RPD did not have a meaningful advantage. GUIDELINES [8] In assessing this appeal, I have considered the Chairperson's Gender Guideline.2 NEW EVIDENCE Some of the evidence presented by the Appellant is accepted [9] In support of this appeal, the Appellant proposes seven documents as new evidence: (a) Pastor's letter, dated XXXX XXXX XXXX 2019;3 (b) Interpreter's affidavit, dated XXXX XXXX XXXXj 2019;4 (c) Appellant's birth certificate;5 (d) Appellant's Father's birth certificate;6 (e) Appellant's Aunt's birth certificate;7 (f) Paralegal's affidavit, dated XXXX XXXX, 2019;8 and (g) Appellant's affidavit, dated May 14, 2019.9 [10] New evidence will only be admitted where that evidence: (1) arose after the rejection of the claim by the RPD; (2) was not reasonably available; or (3) was reasonably available, but that the claimant could not reasonably have been expected in the circumstances to have presented the evidence, at the time of the rejection.10 If one of these conditions is met, I will then consider if the evidence is credible, relevant and new.11 [11] For the following reasons, I find all of the documents submitted as new evidence admissible, except for documents (f) and (g). The Pastor's letter is admissible [12] I accept the Pastor's letter as new evidence. The Pastor's letter outlines the Baptist interpretation of baptism. The Appellant submits that the Pastor's letter is new because it was not reasonably available prior to the RPD decision as there was no way to know that the RPD would take issue with the Appellant's testimony regarding baptism and posit her own subjective understanding. The Appellant submits that the Pastor's letter is relevant because the Appellant's interpretation of baptism is substantially different from that of the RPD and the RPD's incorrect finding regarding baptism informed much of its decision on the Appellant's religious identity. [13] I accept that the Pastor's letter is new and relevant for the reasons submitted by the Appellant. I have no reason to doubt the letter's credibility. As a result, the letter is admitted into evidence. The interpreter's affidavit is admissible [14] I accept the interpreter's affidavit as new evidence. The interpreter's affidavit refers to an interpretation error at the hearing. The Appellant submits that the interpreter's affidavit is new because it was not reasonably available prior to the RPD decision as there was no way to know at the hearing that there was an interpretation error, because the RPD counsel does not speak Farsi and the Appellant does not speak English. The Appellant submits that they only had the opportunity to address the interpretation error after the hearing. The Appellant submits that the interpreter's affidavit is relevant because it demonstrates that a key question was misinterpreted, which resulted in an erroneous assessment by the RPD regarding the Appellant's religious identity and personal connection with the faith. [15] I accept that the interpreter's affidavit is new and relevant for the reasons submitted by the Appellant. I accept that the affidavit is credible as it is a sworn document. As a result, the interpreter's affidavit is admitted into evidence. The birth certificates of the Appellant, the Appellant's father and XXXX are admissible [16] I accept the birth certificates as new evidence. The birth certificates serve to demonstrate the relationship between the Appellant, her father and XXXX, her aunt. [17] The Appellant submits that the birth certificates are new because they were not reasonably available prior to the RPD decision as there was no way to know that the RPD would take issue with the Appellant's relationship with her father and XXXX. The Appellant submits that the birth certificates are relevant as they establish the relationships between the Appellant and key players in her conversion. [18] I accept that the birth certificates are new and relevant for the reasons submitted by the Appellant. I have no reason to doubt their credibility. As a result, the birth certificates are admitted into evidence. The paralegal's affidavit is not admissible [19] I reject the paralegal's affidavit as new evidence. The paralegal's affidavit refers to the above-noted birth certificates and includes a transcript of the Pastor's testimony at the RPD hearing. [20] The birth certificates are dealt with above. Although the transcript of the Pastor's testimony was not available prior to the RPD decision and therefore is new pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), the audio recording of the RPD hearing, which contains the Pastor's testimony, already forms part of the record. As a result, the paralegal's affidavit is not admitted into evidence. The Appellant's affidavit is not admissible [21] I reject the Appellant's affidavit as new evidence. The Appellant's affidavit explains issues regarding her testimony at the hearing. [22] Subsection 110(4) of the IRPA limits admissible evidence to new evidence or evidence that was not reasonably available or obtainable at the time of the RPD decision. The Appellant's explanations are inadmissible as they are arguments, which belong in the Appellant's memorandum. I will consider the arguments addressed in the memorandum. I find that the Appellant's affidavit does not meet the requirements of subsection 110(4). It is not admitted into evidence. ANALYSIS The RPD erred regarding the significance of baptism [23] The RPD found that the Appellant failed to mention that the cleansing of sins is one of the most significant aspects of baptism. The RPD found that the Appellant demonstrated a lack of a personal connection with the faith as she gave general and seemingly rehearsed information about what baptism is, rather than explaining why it was important to her. [24] The Appellant submits that the RPD erred in its finding that she did not mention a significant aspect of baptism, namely the cleansing of sins. The Appellant submits that the Pastor's letter makes it clear that the Appellant's answer was correct, in accordance with the Baptist perspective on baptism and demonstrated a fulsome understanding. The Appellant submits that the RPD employed this alleged error to discredit the Appellant's religious identity and personal connection with the faith and found that it tainted her religious practice in Canada. [25] I agree with the Appellant's submissions and find that the RPD erred for the following reasons. I have reviewed the record including the audio recording of the hearing. The following is the portion of the hearing that dealt with baptism: RPD Member: Why did you decide to get baptized? Appellant: Because I wanted to [inaudible] announce that I am a Christian. RPD Member: Wanted to truly announce? Appellant: Announce that I am a Christian. RPD Member: Any other reason? Appellant: To be baptized is a part of the fact that you are announcing to everyone to publicizing to everyone that you are a Christian. RPD Member: What is the significance of baptism or is there any significance other than announcing to everyone? Appellant: Means to die and be buried with Christ and also rise up and live with Christ. RPD Member: Anything else that is important about baptism? Appellant: You would confess verbally that you have accepted Jesus Christ who is the son of god, who died and after three days he resurrected and suffered for all our sins.12 [26] The Pastor's letter states that, in his view, the Appellant's responses "displayed a very full understanding of baptism from a Baptist perspective."13 The Pastor states that, in each baptism service he conducts, he reads from A Manual for Worship and Service, published by the Canadian Baptist Ministries, which outlines what baptism is for the believer and what it symbolizes. The Pastor states that the Appellant's responses are consistent with the Baptist belief that baptism is a public confession or testimony and with what baptism symbolizes. The Pastor also states that "it is not true that, from a Baptist perspective, 'one of the most significant aspects of baptism is that it symbolizes the cleansing of sins.'"14 The Pastor concludes that "[i]t is my view as a Baptist pastor that ... [the Appellant] has a very complete understanding of the meaning of baptism, and this is strong evidence of the sincerity and depth of her Christian faith."15 [27] I have reviewed the excerpt in the Pastor's letter from A Manual for Worship and Service and agree that the cleansing of sins is not included in what it states baptism is for the believer and what baptism symbolizes for Baptists. The Appellant's responses are consistent with what the document states regarding Baptist beliefs and what baptism symbolizes. I find that the Appellant's responses demonstrate a thorough understanding of the Baptist meaning of baptism. As a result, I find that the RPD erred in finding that the Appellant failed to mention a significant aspect of baptism and demonstrated a lack of a personal connection with the faith. An interpretation error led to an erroneous credibility finding [28] The RPD found that the Appellant failed to answer a question regarding how she incorporates Christianity into her daily life. The RPD found that the Appellant's testimony demonstrated a lack of personal connection with the faith. [29] The Appellant submits that there was an error in interpretation that led to an erroneous credibility finding. The Appellant submits that the interpreter's affidavit demonstrates that the question of "how she incorporates Christianity into her daily life" was incorrectly interpreted as "how does Christianity 'interfere' with" her daily life.16 The Appellant submits that she did not get to answer the question and that her response led to the finding that the Appellant lacked a personal connection with the faith. [30] I agree with the Appellant's submission and find that the interpretation error led to an erroneous credibility finding. I have reviewed the record including the audio recording of the hearing. At the hearing, the RPD Member asked the Appellant how she incorporates Christianity into her daily life, to which she responded, "I got acquaintances with the products of the holy spirit's work and this gave me peace."17 The RPD Member sought to clarify the Appellant's response by reciting it back to her, to which she responded "Yes, this gave me peace in life and became the cause of me to live in Christ."18 The RPD Member found that the Appellant failed to answer the question and that her response demonstrated a lack of personal connection with the faith. [31] I accept the interpreter's affidavit that the word "incorporate" was translated incorrectly and that the question asked was "how does Christianity 'interfere' with your daily life."19 As a result of this error in interpretation, the RPD finding that the Appellant failed to answer the question and that her response demonstrated a lack of personal connection with the faith cannot stand. The authorities' actions after the Appellant left Iran are not implausible [32] The RPD found that the allegations regarding the authorities pursuing the Appellant after she left Iran were not credible. The RPD states that it simply does not make sense that the authorities in Iran would look for the Appellant considering she exited the country on her own biometric passport which contained an exit visa and the strict security procedures at the airport. [33] The Appellant submits that this is a groundless implausibility finding and that the RPD Member does not cite any evidence regarding why the authorities would not pursue the Appellant in her absence. The Appellant submits that her father's letter states that the authorities raided the Appellant's room and confiscated her laptop, cell phone and pictures of Jesus. The Appellant submits that it is clear that the police were looking to further their investigation and obtain evidence rather than simply find someone who was not there. The Appellant points out that the National Documentation Package refers to authorities monitoring the activities of Christians and collecting evidence to try and establish connections.20 [34] I agree with the Appellant's submissions and find that the RPD erred. The finding that it is not credible that the authorities would attend the Appellant's home after she left Iran is a plausibility finding. In Valtchev, the Federal Court states: A tribunal may make adverse findings of credibility based on the implausibility of an applicant's story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant.21 [35] I find that the authorities attending the Appellant's home after she left Iran is not outside the realm of what could reasonably be expected and that the documentary evidence does not demonstrate that the events could not have happened in this manner. At the hearing, when the RPD Member asked the Appellant why the authorities would attend her home considering she had exited Iran on her own passport, she stated she did not know the reason but that they may have been looking for something in the house.22 This is consistent with her father's letter, which refers to authorities confiscating some of the Appellant's items, and the objective documentary evidence, which indicates that authorities monitor Christians and collect evidence to establish connections. I find that the authorities attending the Appellant's home after she left Iran does not fall within the clearest of cases and, as a result, this implausibility finding cannot stand. The remaining findings are insufficient to maintain the determination [36] The remaining findings of the RPD are that the Appellant's testimony regarding precautions taken by the house churches in Iran is inconsistent with the documentary evidence and that the Appellant failed to answer a question about her positive expression of Christianity in XXXX 2005. I note that, at the hearing, the Appellant testified that the XXXX 2005 event merely involved her requesting that the group pray for her.23 This event is not of major significance and occurred 14 years before the hearing. This finding, coupled with the finding regarding the house church precautions, are insufficient to maintain the determination that the Appellant did not establish, on a balance of probabilities, her religious identity and the allegations that form the basis of her claim. [37] Although I have some concerns regarding the Appellant's credibility, when I weigh these concerns against the testimony of the Appellant and her Pastor, in addition to the corroborating documents submitted, I find that she has established her allegations and religious identity on a balance of probabilities. There is no state protection or internal flight alternative [38] As the state is the agent of persecution, no state protection or internal flight alternative is available to the Appellant. It is unnecessary to address the remaining submissions [39] As a result of my findings above, I find it unnecessary to address the Appellant's remaining submissions. CONCLUSION [40] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee.24 (signed) Linda Krajcovic Linda Krajcovic July 8, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157, at paras. 70 and 103. 2 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines issued by the Chairperson pursuant to section 65(3) of the Immigration Act, Immigration and Refugee Board of Canada, Ottawa, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act, Effective Date: November 13, 1996. 3 Exhibit P-2, Appellant's Record, at pp. 23-24. 4 Exhibit P-2, Appellant's Record, at p. 21. 5 Exhibit P-2, Appellant's Record, at p. 41. 6 Exhibit P-2, Appellant's Record, at p. 31. 7 Exhibit P-2, Appellant's Record, at p. 37. 8 Exhibit P-2, Appellant's Record, at pp. 26-28. 9 Exhibit P-2, Appellant's Record, at pp. 17-19. 10 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, subsection 110(4). 11 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII), [2016] 4 FCR 230. 12 RPD Hearing Recording, March 29, 2019, at approximately 24:00. 13 Exhibit P-2, Appellant's Record, at p. 23. 14 Ibid., at p. 24. 15 Ibid., at p. 24. 16 Exhibit P-2, Appellant's Record, at pp. 65-66. 17 RPD Hearing Recording, March 29, 2019, at approximately 25:45. 18 Ibid., at 26:40. 19 Exhibit P-2, Appellant's Record, at p. 21. 20 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for Iran (31 January 2019), item 1.9, at s. 5.2.4. 21 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776 (CanLII), at para. 7. 22 RPD Hearing Recording, March 29, 2019, at approximately 1:15:30. 23 RPD Hearing Recording, March 29, 2019, at approximately 43:01. 24 Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-11863 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