TB7-19009

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 File / Dossier de la SAR : TB7-19009 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 10, 2018 Date de la décision Panel James Sloan Tribunal Counsel for the person(s) who is(are) the subject of the appeal John W. Grice Barrister & Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX seeks refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA). He claims that if returned to Azerbaijan, his country of nationality, he will be persecuted based on political opinion. His claim for refugee protection was rejected by the Refugee Protection Division (RPD) on August 25, 2017. He now appeals to the Refugee Appeal Division (RAD). DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the IRPA, I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. FACTS AS ALLEGED BY THE APPELLANT [3] The Appellant is a member or a representative of the Azerbaijani Popular Front Party (APFP). Due to his political activities, he was targeted for bribes and falsely accused of selling expired products in his food business. He was detained in July 2104 on false charges relating to a car accident and assault and was forced to pay a fine. [4] In January 2016, members of the youth wing of the APFP were arrested for organizing a demonstration. In February, the Appellant, who was thought to be supporting the youth wing, was taken to the police station where he was kept overnight, interrogated, beaten and threatened with long-term imprisonment. [5] After attending a government-sanctioned demonstration on September 12, 2016, the Appellant was taken to the police station where he was beaten. The next day he was given an eight day sentence on charges of violating the peace. During his detention, he was interrogated and mistreated. [6] After his release from detention, while he was visiting a friend, the police came to his home and told his wife that he had to report to the police. As a result, the Appellant obtained a US visa and fled to New York on XXXX XXXX XXXX XXXX, with a view to coming to Canada where he has a relative. [7] He crossed into Canada on foot on the evening of XXXX XXXX XXXX XXXX. DETERMINATIVE ISSUE [8] The determinative issue in this case is credibility. STANDARD OF REVIEW [9] The standard of review is correctness,1 except where the RPD enjoys a meaningful advantage in the assessment of the oral testimony. If such an advantage exists, I will apply a standard of reasonableness.2 Where I do so, I will so indicate. ANALYSIS [10] The RPD found that the Appellant was not credible and did not accept his allegations on a balance of probabilities. In particular, it noted: a) he was inconsistent regarding his position and role in the APFP; b) he was inconsistent in relation to the arrest of members of the youth wing; c) he omitted material information from his Basis of Claim (BOC) regarding his role in the youth wing of the APFP; and d) there was an inconsistency between his BOC narrative and a Court document regarding the date of his September 2016 arrest. The RPD also found his supporting documentation was of limited probative value. [11] The Appellant argues that the RPD erred in its credibility findings and in its treatment of the supporting documentation. In addition, he argues that even though the RPD found him to lack credibility overall, it was obliged to consider the evidence to determine if he would, nevertheless, be subject to persecution or to mistreatment as per section 97 of the IRPA. 1. Credibility a) Discrepancies concerning the Appellant's membership in the APFP [12] The RPD found that the Appellant's testimony regarding his role in the APFP was confusing and inconsistent. It noted that he stated that he became an official party member in 1992 and ceased to be a member in 2000-instead becoming a "representative". However, a supporting letter from the APFP indicated that at the time he was assaulted-i.e. in 2016-he was an "active member".3 When he was asked about this ostensible contradiction, the Appellant said that the letter only meant that he was active within the party; it did not mean he was a formal member. During the second sitting, the Appellant testified that he was both a representative of the party and member: in 2000, he had simply become less active. When the RPD confronted the Appellant with this contradiction, he said that he had not lost his status as a member, because one never loses this status. The RPD rejected the Appellant's explanation and found that his inconsistent evidence undermined his claim to be involved with the APFP. [13] The Appellant argues that the concern of the RPD was largely one of semantics. He faults the RPD for not seeking further clarification from him regarding what he meant by using the words "representative" and "member". He notes that the material aspect of the testimony was that he was "involved with"4 or "associated with"5 the APFP from its inception and that, in this regard, his testimony was consistent. He argues further that the "perceived inconsistencies" are not "material to the heart of" his claim.6 Whether he was a representative or a member, the fact remains that he was associated in some capacity with the APFP, as confirmed by a letter from the APFP Chairman. [14] I agree that the Appellant's testimony was inconsistent. A review of the recording indicates that the RPD worked very hard to arrive at an understanding of the Appellant's testimony. Had counsel for the Appellant wanted the Appellant to further elaborate on the differences between the words "representative" and "member", he had the opportunity to put questions to the Appellant. As to the Appellant's argument that the main point was that he was associated with the party, I disagree. Given that the Appellant's claimed association with the APFP is the basis of his claim for refugee protection, I would expect him to be consistent in recounting whether or not he was a member and for how long. Such an inconsistency is in my view material and I find that it seriously undermines the Appellant's claim to have been persecuted based on his membership in the APFP. b) Inconsistencies regarding the arrest of the youth members [15] The RPD noted that the Appellant indicated that the youth wing of the APFP consisted of 20 people. When he was asked why he had indicated that there were seven members in his BOC narrative ("In January 2016, all seven members of the Popular Front Youth group in Zaqatala were detained..."),7 he said that there were 20 members but only seven were detained. The RPD drew a negative inference based on this unexplained inconsistency. [16] The Appellant argues that his statement in his BOC narrative that "all seven" members were arrested was ambiguous. It could "also have been understood to mean all seven members who were involved in planning the protest, or all seven members who had been using social media in this regard, or all seven members who were actually active at that time, or myriad other entirely reasonable explanations."8 He states that he did not give inconsistent evidence; instead, he stated that there were 20 in the group of which seven were arrested. To find an inconsistency was "microscopic nitpicking".9 [17] I disagree with the Appellant that the statement in his BOC narrative that "all seven members...were detained" can mean anything other than that there were seven members of the youth wing, all of whom had been detained. His testimony that there were 20 members and that seven were detained is inconsistent with his BOC narrative. Given that the arrest of the seven members of the youth wing led directly to the Appellant being kept in jail overnight, interrogated, beaten and threatened with long-term imprisonment, I find the Appellant's inconsistency to be significant-not microscopic. I find that the inconsistency undermines the Appellant's claim to have been persecuted based on his affiliation with the APFP. c) Omissions regarding the Appellant's role in organizing the January 2016 protest [18] The RPD noted that in his BOC narrative the Appellant indicated that the police detained him in February 2016 as they believed he had had a significant role in the work of the youth wing. In his testimony, the Appellant outlined his central role in leading and mentoring the youth in preparing for the demonstration. When asked why his involvement in the planning of the demonstration was not included in his BOC narrative, the Appellant offered no explanation. The RPD noted that there was an important distinction between being suspected of having a role in the youth protest and actually having such a role. It noted that the Appellant's role in mentoring the youth was highly material and drew a negative inference in relation to the difference between his testimony and his BOC narrative as regards his involvement with the youth wing. [19] The Appellant concedes that this "omission is one that is material to his claim".10 He argues, however, that given that the RPD held that his "testimony was vague and general and required prompting for specifics",11 the RPD should have had lower expectations as regards the content of his BOC narrative; it should have been lenient where it found that the BOC narrative was vague and general. He also notes that he has submitted into evidence a letter from a Canadian doctor indicating that his mood was unstable and that he has been referred to a psychiatrist. [20] Given that the Appellant has conceded that this omission from the BOC narrative is material, I need not address the issue. As to the argument that the Appellant's vague testimony should result in him being granted "leniency" when he is vague in his BOC narrative, this is absurd. Claimants are instructed to provide all relevant details in their BOC forms; similarly, they are expected to answer questions put to them by the RPD honestly, completely and without undue prompting. Not testifying in the expected manner at one's hearing may not be relied upon as a justification for omitting material elements from one's BOC narrative. As to the doctor's note, it did not in any way provide a medical reason why the Appellant would have left material information out of his BOC. I find that this omission undermines the Appellant's credibility. d) Inconsistency about the date of the Appellant's arrest and detention in September 2016 [21] The RPD noted that in his BOC narrative the Appellant claimed that he was arrested on September 12, 2016, after leaving a demonstration, and convicted the next day of breach of the peace. However, the Court document that the Appellant provided as supporting evidence shows that he was detained on September 11, 2016. When he was asked about the inconsistency, the Appellant indicated that he was depressed and had problems with his memory. The RPD, while not placing a great deal of weight on the inconsistency, noted that it detracted from his evidence regarding his September 2016 detention. [22] The Appellant argues that in making this finding the RPD seemed to be seeking out ways to impeach his credibility. He notes that he had amended his BOC narrative, as he was entitled to do. He argues that he should have been afforded the benefit of the doubt on this point. Strangely, he goes on to highlight that there is another error in his BOC narrative that the RPD neglected to fault him for;12 why, he argues, if the RPD afforded him leniency with that mistake should it not do so with the mistake relating to the date on which he was arrested? [23] I find that the minor discrepancy in dates does not undermine the Appellant's credibility. As such, I need not consider the merits of the Appellant's arguments. Supporting documents [24] The RPD considered two documents: the APFP support letter (touched upon above) and a Court document in relation to the Appellant's September 2016 arrest. When the claimant was asked why the two documents were submitted late, he said that they were sent by mail from Azerbaijan and that he had received them late. Later, the Appellant testified that he had personally brought the two documents with him when he entered Canada on XXXX XXXX XXXX XXXX. The RPD found the Appellant's explanations were inconsistent. Noting that the origins of the documents and how they came to Canada were relevant to their authenticity, the RPD found that the Appellant's inconsistency undermined the weight to be given to the two documents. It then considered each document. [25] The APFP document stated, among other things, that the Appellant had been assaulted several times by the authorities for being an active member of the APFP. When the Appellant was asked how the Chairman of the APFP, who wrote the letter, would have known of the assaults, the Appellant said that a party representative would have given the Chairman the information; subsequently, he said he did not know how the Chairman would have known. Noting that the Appellant did not claim to have a personal relationship with the Chairman and that there was no evidence that other representatives had knowledge of the assaults, the RPD held that the letter was deserving only of moderate weight in terms of establishing the Appellant's membership in the APFP. As to the Court document relating to the Appellant's September 2016 detention, the RPD, noting the earlier-identified inconsistency regarding how the document came into Canada, gave it only moderate weight. [26] The Appellant argues that it is nonsensical to give the letter from the APFP Chairman moderate weight; he argues that it either establishes that he is a member or it does not. Alternatively, he argues that even if it is granted moderate weight, it, along with his testimony, should establish that he is indeed a member of the APFP. As regards the Court document, he argues that it is unclear how it can only be accorded moderate weight; whether the document was mailed to him or accompanied him is not relevant to the authenticity of the document. The RPD indicated that it was unable to identify any discrepancies on the face of the document; as such, he argues, it had no concerns with its authenticity and the document is "very probative" of his having been arrested. [27] In addition, the Appellant makes the following arguments regarding both documents: 1) the RPD could have availed itself of an Acquisition of Information Form to determine the authenticity of the documents but did not; 2) the RPD relied on its general finding that the Appellant was not credible as a basis to dismiss the documentary evidence; and 3) that, given that the RPD assigned the two documents "moderate weight", it erred by not considering the objective documentation regarding the persecution of political dissidents in Azerbaijan and, in particular, members of the APFP. [28] First, I reject the argument that the APFP document either establishes that the Appellant was a member of the APFP or it does not. While it certainly purports to show that the Appellant was a member, the persuasiveness of the letter is limited. This is so, first, because the letter states that the Appellant was a member of the APFP when, as discussed at item a) above, the Appellant testified that he was not. Second, it is not clear how the Chairman of the APFP knew that the Appellant had been assaulted several times. If this information was based solely on information given to the Chairman by the Appellant, then its inclusion in the letter would not strengthen the Appellant's testimony. I agree that the letter is deserving of a moderate amount of weight. [29] Second, I agree that the RPD was correct to accept the Court document as not being entirely persuasive. Its provenance is a relevant factor in deciding whether it is authentic, and consequently, whether it is probative. The inconsistency of the Appellant on this point-and his lack of a reasonable explanation therefor-leaves the RPD in the position of not having a clear answer as to where the letter came from. That the RPD was unable to identify any discrepancies on the face of the document is not tantamount-as the Appellant appears to believe-to it finding that it had no concerns with its authenticity. I agree with the RPD's analysis and assign the letter a moderate amount of weight. [30] Finally, I will address the Appellant's arguments regarding both documents. 1) It falls to the Appellant to provide acceptable documents establishing the elements of his claim or an explanation why he did not provide such documents;13 taking measures to determine the authenticity of a claimant's documents is not an obligation of the RPD. 2) The RPD arrived at its decision regarding the amount of weight that was to be attributed to the letter from the APFP Chairman and the Court document based on an analysis of those documents, including their content and provenance. It did not find the documents to be wanting due to the Appellant's credibility problems. 3) The fact that the RPD gave the documents moderate weight does not, somehow, oblige it to have regard to the objective documentation regarding the persecution of political dissidents in Azerbaijan generally or members of the APFP in particular. The purpose of the assessment of the documents by the RPD was not to determine whether or not such persecution takes place in Azerbaijan; instead, the assessment formed a part of the RPD's global credibility assessment of the Appellant. Cumulative credibility assessment [31] Based on the foregoing credibility concerns, and having regard to the supporting documentation, I find that the Appellant, overall, lacks credibility. As such, I find, on a balance of probabilities, that he has not been a member of the APFP since 2000 and that he has not been persecuted based on this membership. 2. Was the RPD obliged to assess the situation for political dissidents generally? [32] The Appellant claims that, even if he is found not to be credible, the RPD was bound to examine the objective documentation in order to assess the treatment of political dissidents by Azerbaijan. The Appellant relied, inter alia, on the case of Mylvaganam14 where the Federal Court found that the Board, which did not accept a claimant's testimony but did accept his identity as a young Tamil male, erred by not considering the objective evidence pertaining to Sri Lanka's treatment of young Tamil males in general. The situation here is distinct from that in Mylvaganam. Here, owing to the Appellant's overall lack of credibility, the RPD found, on a balance of probabilities, that he was not involved with the APFP and had not been arrested or detained for political activities.15 In light of this finding, the RPD had no obligation to consider how the government of Azerbaijan treated political dissidents or members of the APFP as it was not relevant. 3. Was the RPD obliged to consider the evidence in relation to a section 97 claim? [33] The Appellant argues that the RPD erred in not conducting an assessment of the Appellant's claim under section 97 of the IRPA. He relies on the Sellan case,16 where Federal Court of Appeal held: ...where the Board makes a general finding that the claimant lacks credibility, that determination is sufficient to dispose of the claim unless there is independent and credible documentary evidence in the record capable of supporting a positive disposition of the claim. The claimant bears the onus of demonstrating that there was such evidence.17 The Appellant argues that "there was significant and credible country condition documentary evidence and personal documentary evidence the Appellant faces serious risk upon his return...".18 [34] Even if the Appellant is correct that the evidence relation to the persecution or mistreatment of political dissidents generally is significant and credible, because the RPD found that the Appellant was not involved with the APFP and was not arrested or detained for political activities, this information is not relevant to this claim. To use the wording of the Federal Court of Appeal, the RPD's "general finding that [the Appellant] lacks credibility is ... sufficient to dispose of the claim". CONCLUSION [35] I agree with the decision of the RPD and find that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "James Sloan" James Sloan August 10, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 2 Ibid., at paras 69-74, and X (Re), 2017 CanLII 33034 (CA IRB). 3 Exhibit RPD-1, RPD Record, pp. 221-222, Support letter from the APFP, October 16, 2016. 4 Exhibit P-2, Appellant's Record, at p. 87, Legal Memorandum, at para 16. 5 Ibid. 6 Exhibit P-2, Appellant's Record, at p. 91, Legal Memorandum, at para 21. 7 Exhibit RPD-1, RPD Record, p. 19, BOC narrative, at para 10. 8 Exhibit P-2, Appellant's Record, at p. 88, Legal Memorandum, at para 18. 9 Exhibit P-2, Appellant's Record, at p. 89, Legal Memorandum, at para 19. 10 Exhibit P-2, Appellant's Record, at p. 92, Legal Memorandum, at para 22. 11 Ibid. 12 Note the BOC narrative at para 18 says he entered Canada on December 5, 2006 instead of 2016. (Exhibit RPD-1, RPD Record, p. 21). 13 See RPD Rule 11. 14 Mylvaganam, Thayaparan v. M.C.I. (F.C.T.D., no. IMM-3457-99), Gibson, July 24, 2000. 15 Exhibit P-2, Appellant's Record, at p. 12, Reasons and Decision, at para 51. 16 M.C.I. v. Sellan, Theyaseelan (F.C.A., no. A-116-08), Desjardins, Nadon, Blais, December 3, 2008, 2008 FCA 381. 17 Sellan, ibid., at para 3. 18 Exhibit P-2, Appellant's Record, at p. 103, Legal Memorandum, at para 34. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-19009 13 RAD.25.02 (July 05, 2018) Disponible en français