TB5-10829

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 No. / N° de dossier de la SAR : TB5-10829 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 XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 19 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Shepherd Moss Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of Ukraine, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. No new evidence has been submitted in support of this appeal, nor has the Appellant requested that the Refugee Appeal Division (RAD) conduct an oral hearing. However, the Appellant is asking the RAD to overturn the decision and remit the matter to a newly-constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to sections 111(1)(c) and 111(2) of the IRPA, the RAD refers this matter back to the RPD for re-determination by a differently-constituted panel. This appeal is allowed. BACKGROUND [3] The Appellant participated in a demonstration on XXXX XXXX, 2004 in favour of Ukrainian nationalism. The Appellant left the demonstration at around XXXX XXXX XXXX pm and while walking home he was attacked by three pro-Russian agitators. He was beaten and stabbed to the point where he required medical intervention. He required extensive surgery for two stab wounds on his back, and he remained in the hospital for two weeks. The police visited the Appellant in the hospital and the Appellant signed a hand-written report. However, he did not hear anything else from the police. [4] In the XXXX of 2010, the Appellant was walking home when he was smashed and kicked with full force in the head. The perpetrators also stole the Appellant's cell phone. An individual intervened and called the police, however, they did not offer any medical assistance. The police drove the Appellant around the neighbourhood in search of the perpetrators. Subsequently, the Appellant gave a report to the police station. [5] In this instance, the Appellant was able to recover at home. He purchased a new cell phone approximately one month later. However, he discovered messages on his old phone, which contained death threats and things like "Hello you cannot hide from XXXX", which the Appellant discovered was a pro-Russian organization. [6] A few months later, the Appellant was near his apartment in XXXX XXXX XXXX, when he realized that four or five individuals were staring at him. He was able to escape. However, as a result of this, the Appellant decided to move to the town of XXXX, approximately 20 km away. Meanwhile, he met XXXX XXXX, who eventually became his wife and they moved to XXXX together. However, the Appellant's wife lost her job at the end of XXXX 2014 and has moved back to her home city of XXXX with her family. The Appellant learned that the XXXX organization has agents and connections in all parts of Ukraine, and as a result, he began looking for a way to leave Ukraine. [7] In XXXX 2012, the Appellant decided to leave. He spent time with his cousin in Italy and France, however his cousin was unable to sponsor him. The Appellant's mother had moved to Canada approximately nine years ago and she invited the Appellant to visit. He obtained a visitor's visa and travelled to Canada on XXXX XXXX, 2012. He successfully renewed his visitor's visa three times, however his last request was refused. The Appellant believes that since the XXXX group stole his cell phone in 2010, they have all of his personal data and he will be targeted if he returns to Ukraine. ROLE OF THE RAD [8] Counsel has made no submissions in this regard. However, a recent Federal Court decision in Huruglica1 has provided the RAD with guidance, which the RAD will follow. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision. 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." SUBMISSIONS BY THE APPELLANT * Did the RPD incorrectly fail to analyse the issue of the Appellant's political profile from the perspective of his persecutors? Political profile [9] The RPD found that the Appellant had no political profile, and therefore denied the claim under section 96 of the IRPA. In reaching its conclusion, the RPD found that in the specific circumstances of this claim, the risk of the Appellant being targeted due to his political views was speculative in nature. [10] With respect to examining the claim under section 97, the RPD found that the Appellant's risk was a generalized risk in that his risk was not differentiated from the general population in Western Ukraine. [11] The RPD addressed the submission by the Appellant's counsel that the XXXX organization has targeted individuals (RPD exhibit 4, page 4) However, it found that the persons targeted were extremely prominent individuals who were involved politically, eg. the leader of the anti-government movement known as Auto-Maidan, or at the very least an opposition activist. [12] The RPD considered the fact that the Appellant had not been involved in a demonstration since 2004, nor had the Appellant encountered any problems since XXXX 2011, yet he remained in the Ukraine. Moreover, the RPD noted that the documentary evidence indicates that this XXXX group is centred in XXXX Ukraine, and that its recent clashes are with activist members of pro-Ukrainian opinion or groups. [13] Furthermore, the RPD considered the DOSS report2 in which it indicates in its executive summary, that the risk of persecution or of harm does not refer to individuals with the profile of the Appellant. [14] The Appellant argues that the RPD's Chairperson's Guideline 1 - Civilian Non-Combatants Fearing Persecution in Civil War Situations was not properly applied. It is submitted that targeting should be considered from the perspective of the agent of persecution. The Appellant cites Ward3 wherein it states that the link to a Convention ground may be inferred from the effect that the actions of the agent of persecution have on the claimant or her group. [15] The Appellant further submits that natural justice and procedural fairness requires the RPD to consider the argument put forward that he was the subject of persecution because of a perception that he was a member of a particular social group. (emphasis added). The Appellant also cites the Federal court in Elbaker4 in support of his argument that a nexus has been established. [16] The Appellant argues that when the RPD stated that the Appellant had not participated in a demonstration or rally or other form of public expression of his political opinion since 2004, this was erroneous. It was erroneous as the RPD failed to consider that the Appellant's perpetrators explicitly told him in the incident in 2010, that they attacked him in 2004 for taking part in a pro-nationalist demonstration. RAD'S FINDINGS [17] The RAD does not concur with the RPD that the Appellant has not established that he would be perceived to have a political opinion which would cause him to be a target of the XXXX organization or any other pro-Russian group. [18] The RAD notes that the RPD made no adverse findings of credibility. That being the case, the RAD accepts that the incidents as described by the Appellant must be considered. [19] After listening to the audio recording of the proceedings, the RAD finds that the Appellant himself testified that it was only friends, relatives, and close work colleagues who would be aware of his political opinion. He also stated that he did not support politicians or policies of the Kremlin or President Putin in their treatment of Ukraine. In totality, the RAD concurs with the RPD that the Appellant's own testimony did not reveal any overt political opinion, other than his personal information. [20] The issue, however, is the perception by the perpetrators, which would constitute imputed political opinion. It is therefore necessary to analyse imputed political opinion from the viewpoint of the XXXX group. [21] The RAD finds that the Appellant has sustained repeated attacks and threats at the hands of this group. Moreover, the second incident which appears to have targeted the Appellant, heightened the Appellant's risk, thereby taking it out of the "generalized" risk category. [22] After reviewing the audio recording of the transcript, there remain many unanswered questions. For example, why are these perpetrators still in pursuit of the Appellant, how they knew the Appellant, and what is their perception of him. [23] The RAD concludes that unless and until the aforementioned questions are answered, the perception of the perpetrators cannot be answered. CONCLUSION [24] After conducting an independent assessment of the entire record, the RAD finds that the RPD's decision is not fulsome and the RAD finds it unable to substitute its own decision without responses to the unanswered questions noted above, particularly when the RPD by its silence, found the Appellant's testimony to be credible. [25] Accordingly, pursuant to sections 111(1)(c) and 111(2) of the IRPA, the RAD refers this matter back to the RPD for re-determination by a differently-constituted panel. This appeal is allowed. (signed) "Roslyn Ahara" Roslyn Ahara November 19 2015 Date 1Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799). 2 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Ukraine, February 12, 2015, item 2.1. 3 Canada (Attorney General) v. Ward (1993) 2 SCR 689 at p. 747. 4 Elbaker v. Canada (Citizenship and Immigration), 2014 FC 759 CanL.II). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-10829