TB8-28041

RAD File / Dossier de la SAR : TB8-28041 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 3, 2019 Date de la décision Panel S. Thompson Tribunal Counsel for the person who is the subject of the appeal Paul Dineen 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 XXXX (the Appellant), a citizen of Afghanistan, appeals a decision of the Refugee Protection Division (RPD) dated October 17, 2018 rejecting his claim for refugee protection. BACKGROUND AND OVERVIEW OF APPEAL The Appellant's claim, the RPD's decision, and the Appellant's arguments before the Refugee Appeal Division (RAD) [2] The Appellant worked for many XXXX and XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Afghanistan.1 From XXXX 2014 until XXXX 2015 the Appellant worked for "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, which works under the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX."2 Before the RPD the Appellant alleged that he faced a forward-looking risk of persecution in Afghanistan after being threatened with death by the Taliban on account of his imputed pro-Western political opinion, unless he agreed to support the Taliban's insurgency. [3] The RPD refused the Appellant's claim on the grounds of credibility and plausibility. The RPD did not find it "credible or plausible" that "a terrorist group specializing in mass murder would invite [...] an avowed and contaminated pro-Western individual like the [Appellant] to help them implement hardline Sharia law in Afghanistan." 3 The RPD also found it "implausible that the Taliban would invite the [Appellant] to hand himself in knowing full well such a person out of terror would never appear in the first place since he would in effect be appearing at his own execution and beheading." 4 [4] Before the RAD the Appellant argues that the RPD: failed to advise the Appellant of its credibility and plausibility concerns; erred in its assessment of the evidence; and erred in its assessment of the credibility of the Appellant's subjective fear of persecution. [5] The Appellant has not requested the admission of new evidence in these proceedings in accordance with either subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) or Rule 29 of the Refugee Appeal Division Rules ("RAD Rules")5. Nor has the Appellant requested an oral hearing in accordance with subsection 110(6) of the IRPA. DETERMINATION [6] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the appellant is a Convention refugee. THE ROLE OF THE RAD [7] The role of the RAD is to review RPD decisions by applying the correctness standard of review after conducting its own analysis of the record with a view to determining whether, as the appellant submits, the RPD erred.6 The RAD will only show deference to RPD findings based on the assessment of the credibility or weight to be granted to the oral evidence given before it, in situations where it enjoys a particular advantage. If the RAD finds that the RPD had a particular advantage, the reasons will indicate as much. ANALYSIS [8] My appellate review includes an independent assessment of the evidence on the record, including the materials in the RPD's record, and a comprehensive review of the Appellant's record and his written submissions. I have also independently assessed a transcript of the Appellant's RPD hearing on August 20, 2018. The RPD's assessment of the Appellant's claim [9] The Appellant submits that the RPD erred in characterizing his case as "one of the clearest cases of implausibility" because its reasons make "no reference to having considered the information on Taliban Threat Letters [...] that are contained in the NDP."7 The Appellant refers to excerpts from items 1.16 and 1.18 of the April 30, 2018 version of the National Documentation Package (NDP) for Afghanistan in support of his argument. 8 [10] Paragraph 13 of the RPD's Reasons for Decision briefly cite item 1.5 in the April 30, 2018 NDP, the [United Nations High Commissioner for Refugees] UNHCR's Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, but there is no indication in the text of the reasons that the RPD actually engaged with the substance of this document - or indeed, with any of the material in the NDP for Afghanistan. [11] The RPD's failure to engage with the country conditions evidence from Afghanistan appears to be a function of its dismissal of the Appellant's subjective fear of persecution as not credible. Based on my independent assessment of the record, however, I find that the RPD erred in doing so because it failed to properly test the credibility of the Appellant's alleged risk of persecution. [12] I will explain my finding in the following paragraphs, with reference to the most relevant arguments in the Appellant's memorandum. [13] First, I turn first to the Appellant's argument that the RPD failed in its duty of fairness to him, because it did not confront him with its finding that the alleged threat from the Taliban was implausible. According to the Appellant if he "had been told by [the RPD] Panel that the panel found it implausible that the Taliban would have sent a threat letter" to him, the Appellant "could have explained his understanding of why the Taliban send letters to people like him."9 [14] Having read the relevant part of the RPD's Reasons for Decision I find that they fail to articulate an evidentiary basis for the panel's plausibility finding. Although the RPD states briefly why it does not find the Appellant's alleged risk plausible, it fails to refer to any evidentiary sources - whether objective country conditions evidence in the NDP for Afghanistan10, or country conditions documents submitted by the Appellant11, or the Appellant's own evidence (for example, his oral testimony or Basis of Claim [BOC] narrative account). [15] In short, the RPD's Reasons fail to clearly disclose what circumstances, if any, place its plausibility finding amongst the "clearest of cases" as directed by the Federal Court of Canada in Valtchev12 and subsequent cases. From my reading of the RPD's Reasons, it is not clear that the allegations made by the Appellant before the RPD were "outside the realm of what could reasonably be expected" 13 or that "the documentary evidence demonstrates that the events could not have happened in the manner" 14 he alleged. [16] I note that the RPD's Reasons do not express any concerns about the genuineness or reliability of this document. I have independently assessed the Taliban threat letter15 disclosed by the Appellant in light of the Appellant's testimony in the RPD hearing that he was threatened by the Taliban on two separate occasions in XXXX 201316 and again in XXXX 201517. I accept the document as genuine, and I note that the RPD does not appear to have expressed any concerns during the hearing with the genuineness and reliability of this document. [17] Second, I turn to the Appellant's argument that the RPD erred in finding that his failure to claim asylum in Romania and the USA undermined the credibility of his subjective fear of persecution in Afghanistan. The Appellant's memorandum cites Federal Court case law to support his contention that the RPD should have more carefully considered the Appellant's reasons for failing to claim in those two countries.18 [18] During the RPD hearing, the Appellant testified that he did not apply for asylum in Romania because he feared losing his student visa19, having earlier testified that he travelled to Romania from Afghanistan on a student visa to take up an academic scholarship shortly after receiving the threat letter from the Taliban.20 The Appellant testified further that while in Romania he volunteered as an XXXX with the XXXX XXXX XXXX XXXX XXXX XXXX XXXX and that it was through this work that he learned that the Romanian government's policies on refugee resettlement prioritized the protection needs of Syrians and Iraqis, limiting the in-country resettlement in Romania to approximately 6000 persons.21 [19] The RPD's Reasons for Decision observed that Romania had accepted "6,205 applicants for international protection for relocation from other EU member states" and had granted protection to all such relocated persons as of September 2017. 22 It concluded that the Appellant's failure to claim asylum in Romania "was not reasonable or credible" given that country's status as a signatory to the UN Refugee Convention and the fact that Romania "cooperated with [the UNHCR] and other humanitarian organizations in providing protection and assistance to refugees." 23 [20] The RPD's Reasons state simply that the Appellant failed to claim in Romania "based on perceived deficiencies in the refugee system" and because he "did not feel comfortable as a Muslim." The Reasons fail, however, to fully consider the Appellant's testimony that his student status in Romania would have put at risk by a refugee claim: MEMBER: XXXX 2017. Did you apply for asylum in Romania? CLAIMANT: No, I didn't. MEMBER: Why not? CLAIMANT: I was afraid if I applied for asylum I will lose my student visa and since I was working with XXXX there, I cannot at Romania. It's very hard to get asylums and to the guys that I have seen, some guys from Afghanistan who had previously made asylums were pending, like, almost seven to eight years and they were not able to complete their education and then they could not received their status as well. MEMBER: So they couldn't complete their education? CLAIMANT: They didn't. MEMBER: They didn't complete their education? CLAIMANT: Yeah, because they lost their educational visa. MEMBER: Okay. Lost once they applied? CLAIMANT: Excuse me? MEMBER: They lost their educational visa while they were applying for status in Romania? CLAIMANT: Yeah. Like, for example, if you have educational visa with you in hand, so if you are applying for asylum, your category changes. MEMBER: Oh, the category changes? CLAIMANT: Yeah, because you receive a scholarship, it's one department who is going to give you a scholarship accommodation and that and when you apply to Immigration, it's a totally different organization.24 [21] In short, while the Appellant was in Romania he enjoyed valid immigration status that allowed him to continue in his academic program and to benefit from his scholarship. According to him, had he claimed asylum in Romania he would have been forced to forgo his academic pursuits in order to request surrogate protection in an asylum process that, as he perceived it, had frustrated the ability of his fellow Afghan nationals to move on with their lives in Romania, effectively leaving them in limbo. [22] I have considered the Appellant's explanation in light of the following excerpts from the 2017 US Department of State's Country Report on Human Rights Practices for Romania (2017 US DOS Report for Romania) which lend some credence to the Appellant's explanation for his failure to seek protection in Romania during the RPD hearing: Applicants for international protection had limited options for meaningful activities, such as language classes, cultural orientation, and skills training. Romanian language classes were no longer available for adults. [...] Beneficiaries of international protection continued to face problems with local integration, including access to vocational training adapted to their specific needs, counseling programs, and citizenship information.25 [23] While the Appellant's BOC may not have mentioned his perception that the discrimination he experienced was symptomatic of widespread anti-Roma discrimination in Romania, his BOC narrative did address the broader issue of his failure to seek protection in Romania, the same reasons he gave during the RPD hearing: I looked into making an asylum claim in Romania and from my research I learned that it was almost impossible to obtain refugee status in Romania at this time as a consequence of the massive influx of refugees at the time. I feared that if I claimed asylum the Romanian government would terminate my Visa and send me back to Afghanistan.26 [24] Of concern for the purposes of this appeal is that the RPD's Reasons for Decision fail to mention this part of the Appellant's explanation for failing to seek protection in Romania. During the hearing the RPD expressed the concern (rather obliquely) that the Appellant's BOC failed to mention his "feeling that [he was] linked to the Roma or [...] other problems".27 Despite the Appellant's testimony that he feared claiming in Romania would negatively impact his student visa, the RPD's Reasons for Decision fail to mention this part of the Appellant's explanation for failing to seek protection in Romania. I find that the RPD erred in failing to consider this part of the Appellant's explanation in its Reasons for Decision. [25] Moreover, the RPD's Reasons for Decision appear to gloss over the "other problems" 28 cited by the Appellant for failing to seek asylum in Romania. The Appellant testified that his dark skin made him a target of discrimination in Romania, a symptom of widespread anti-Roma discrimination already prevalent in that country, and that his Muslim identity exacerbated challenges he faced in integrating in Romania as a foreign national, even with his valid study permit.29 [26] The failure of the RPD's Reasons to fully engage with this part of the Appellant's explanation for not seeking protection in Romania is an error, given the statements in the following excerpt from the 2017 US DOS Report for Romania, part of which was referenced by the Appellant's counsel in the second of two sets of post-hearing written submissions30 to the RPD panel: Anti-refugee sentiment continued to be widespread during the year at all levels of society. Public perception of the regional refugee and migrant crisis switched from initial empathy and a lukewarm reception to growing hostility and increasing anti-migrant rhetoric in the public sphere. According to UNHCR, there were some street incidents involving harassment and xenophobic speech during the year. Several mainstream media outlets depicted refugees and asylum seekers as invaders, while conspiracy theories and hate speech against migrants were frequent on social networks. In August, during a World Cup qualification match between Romania and Armenia, Romanian supporters displayed a banner reading "No to Islamization" that observers considered directed against Muslim migrants.31 [27] In light of the foregoing I find that the RPD erred in failing to properly consider the explanations given by the Appellant for failing to seek asylum in Romania. I also make a further separate finding that the Appellant's explanations for failing to seek asylum were reasonable in the circumstances. [28] I have also considered the RPD's treatment of the Appellant's failure to seek asylum in the USA, a country that he testified he travelled in early XXXX 2017 to as the recipient of a J-1 visa.32 Based on my independent assessment of the evidence before me, I find that the RPD erred in its assessment of the Appellant's explanation for his failure to claim in the USA. [29] The RPD's Reasons for Decision focus on the fact that the Appellant's testimony that he had consulted a lawyer in the USA about seeking asylum in that country33 was not reflected in his BOC narrative.34 The RPD characterized his answers to its questions as "evasive" and rejected his explanations for failing to seek asylum in the USA as "not credible", prompting it to conclude that the Appellant was "asylum shopping".35 [30] When the RPD questioned the Appellant about the timing of his departure for Canada, and why he felt he could not seek asylum in the USA, he testified that frequently changing asylum policies in the USA made him apprehensive about seeking protection in that country upon the expiry of his J-1 visa on XXXX XXXX, 2017, and that the US president "was not in the favour of refugees overall, including Afghanistan"36, an explanation stated (albeit briefly) in his BOC narrative37: MEMBER: Why didn't you make an asylum claim in the U.S.? CLAIMANT: I was trying to make asylum claim in the U.S. as well, but since it was the President Trump administration newly elected and President Trump put the ban on seven countries and he was not in the favour of accepting refugees; rather, he was talking about deportation and all these things. And from my research from the fellow Afghans in U.S.A., they have suggested me it's not the right time to make a claim in the U.S.A. MEMBER: Now, Afghanistan was not one of the countries that was banned from --- CLAIMANT: Yeah, it was not banned, but still, Immigration, the U.S. -- sorry, President Trump, he was not in the favour of refugees overall, including Afghanistan. And recently, U.S.A. have like, deported a number of Afghans as well, 2013. MEMBER: Then why didn't you leave the U.S. earlier to come to Canada? CLAIMANT: I was searching for -- I was trying to make asylum there and since I was working there, I said, "I have to -- I need to search here well enough and to make asylum claim." So I was waiting for that. And I finally come to the conclusion that it's not the right place to make an asylum at this point of time.38 [31] The Appellant testified that he entered Canada on XXXX XXXX XXXX 2017 in the belief that he "was left with the only option to come to Canada" to "seek protection"39: MEMBER: So you know, you talk about President Trump. Now, you're from Afghanistan. They accepted your visa, Work and Travel program. They let you go into the U.S. As far as I know, they're not stopping people from claiming asylum in the United States. Why couldn't you claim there? CLAIMANT: I'm not saying they are stopping. They are not stopping, but they are -- it's unlikely to get the status. It's very difficult because of the policies they are changing, and I was -- like, he was changing every day. He was making it very harsh and very difficult every day for refugees. There was like, rumours all the refugees were running here and there and it was kind of chaos in the refugee world. MEMBER: And then so your J-1 visa was going to expire in --- CLAIMANT: End of XXXX. MEMBER: --- XXXX 2017, yeah. And so --- CLAIMANT: Excuse me, sir, not XXXX. It's XXXX, I believe, sir. MEMBER: XXXX XXXX XXXX CLAIMANT: Yeah. MEMBER: It was from XXXX 'til XXXX XXXX, 2017, yeah. So then what happened? What did you do? CLAIMANT: Then I finally decided to -- I was left with the only option to come to Canada and I decided to come and seek protection in Canada and sneak the border. MEMBER: And do what? CLAIMANT: And I sneak the border. MEMBER: Did you say the word "sneak"? CLAIMANT: I mean, like, came to Canada border and crossed the border and get into Canada.40 [32] The Appellant's counsel made oral submissions about the Appellant's failure to seek asylum in Romania and the USA just before the end of the hearing41, inviting the RPD to focus on the reasonableness of the Appellant's explanations for his failure to claim. [33] This was also the subject of the first of the Appellant's two sets of post-hearing submissions to the RPD, which concluded (with reference to Federal Court case law) that "[t]he explanations given by [the Appellant] for not claiming Refugee Status [...] are 'not so irrational as to support outright rejection', to quote Mr. Justice Gibson in [EI-Naem v Canada (MCI), (1997) 37 Imm LR (2d)]."42 [34] I find that the RPD erred by focusing inordinately on the fact that the Appellant "did not claim at the first opportunity", but ignored the fact that he had a valid J-1 work permit and so was not in imminent danger of being detained and deported between XXXX and XXXX 2017.43 [35] The RPD also erred by characterizing the Appellant's testimony on this matter as "evasive". In my independent assessment, the transcript of the hearing appears to show that the Appellant responded to the RPD's questions to the best of his ability and in a straightforward and candid manner. He explained that he sought information from a lawyer in the USA and other Afghan nationals, who counseled him that the timing and political climate in the USA at that time were not opportune for making a refugee claim. [36] Although the Appellant could not recall the name of the lawyer whom he spoke with, he recalled that the lawyer was based in Ohio and that he visited him on XXXX XXXX, 2017 - approximately one month before the expiry of his J-1 visa.44 My reading of the transcript does not indicate that the Appellant was trying to avoid answering questions put to him by the RPD panel and his own counsel. [37] In sum, the RPD's finding that the Appellant's subjective fear of persecution in Afghanistan was undermined by his failure to claim in Romania and the USA was in error. [38] Third, I turn to the Appellant's argument that the RPD did not ask his counsel to make submissions about the plausibility of the Taliban threat letter that he disclosed. Based on my own examination of the Reasons for Decision in light of the RPD hearing transcript and the country conditions evidence, I find that the RPD erred by failing to adequately consider evidence concerning the nature and targeting of Taliban threats contained in the April 30, 2018 NDP compilation and in the country conditions documents disclosed by the Appellant. In essence, I agree with the arguments at paragraphs 19 to 22 inclusive of the Appellant's memorandum. [39] When the RPD asked the Appellant why he did not report the threat letter to the Afghan authorities, he testified that it was because the police were "not capable" of responding to the threat. In the Appellant's words: [...] it's not just a single person receiving [such threats]. There's a number of people in -- it's out of their capacity. And those, from my experience, is that I have heard -- I was hearing there, people who have had such problems and they would report it to the police and the police would say, "You have to be responsible for yourself and we are not able to provide you any kind of individual security."45 [40] From my examination of the transcript, the RPD does not appear to have taken issue with the Appellant's explanation. If it did it did not raise its concerns the Appellant, nor did it articulate them in its Reasons for Decision. Rather, the RPD went on to question the Appellant further about the XXXX XXXX, 2015 Taliban threat letter: MEMBER: Just regarding this Taliban letter, so do you know anyone else who received a letter like this? CLAIMANT: Like, I personally? MEMBER: Yeah, do you know -- have you ever seen such a letter before or do you know any friend of yours who received such a letter? CLAIMANT: I have heard about it but I have not seen [it] myself. MEMBER: And it's from XXXX --- CLAIMANT: Province. MEMBER: --- Province? CLAIMANT: Yeah. MEMBER: And it says, "XXXX District". Where is that? CLAIMANT: It's in XXXX. MEMBER: And the letter wanted you to appear in person? CLAIMANT: Yes. They have asked me to come to XXXX. XXXX is -- it should be -- this is in XXXX District and that's a place where they invite people in making decision on them. MEMBER: And it says that -- so they would want you to go in person and to do what? CLAIMANT: To join them and to leave my work with Afghan government. Taliban are trying to recruit people, especially the youngster. They are trying to --- MEMBER: Especially young people? CLAIMANT: Yeah, youngster. MEMBER: How old are you again? CLAIMANT: I'm 28. MEMBER: Twenty-eight (28), yeah. So they're trying to recruit, you're saying, young persons to join them? CLAIMANT: Yeah. 46 [41] The RPD does not appear to have taken issue with the Appellant's explanation of the nature and intent of the Taliban's threat letter. [42] Within the NDP compilation the following excerpt from the Norwegian Country of Origin Information Centre (Landinfo)'s June 29, 2017 report entitled Afghanistan: Recruitment to Taliban attempts to address the question of "whether the Taliban recruits by using threat and coercion"47: Landinfo's understanding of coercion when it comes to recruitment, is that a person who resists mobilisation may be subjected to specific coercive measures and abuse (usually physical punishment) by the person who is recruiting. The coercive measures and abuse may also involve other serious measures and be directed against others, such as family members of the target. There may be a gradual transition between direct, concrete and structural coercion, and within this range it may only make limited sense to talk about voluntariness, precisely because the alternative options for the individual are most limited. Even if individuals are not subjected to threats or physical abuse, factors such as poverty, cultural conditions and marginalisation may obscure the distinction between voluntary and forced participation. [...] The allegations of coercion are substantiated by references to documentation from both UNHCR itself, news media, the Afghan authorities and other international organisations such as Human Rights Watch (HRW) and International Crisis Group. [...]48 [43] The Appellant's contention that the letter was intended to recruit is supported by the Landinfo report's finding that "a person who resists mobilisation may be subjected to specific coercive measures and abuse". 49 I note that the XXXX 2015 Taliban letter threatened to punish the Appellant by "cut[ting] [his] head off" if he did not comply with the Taliban's direction to "stop serving the government of infidels and Americans and appear in person at the XXXX XXXX of XXXX District".50 [44] During the hearing the Appellant's counsel's oral submissions also referred to an excerpt from item 1.5 in the April 30, 2018 NDP for Afghanistan (the UNHCR's Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan)51. According to the Appellant's counsel, this document shows that Afghans "associated with or perceived as supportive of the government" were at risk from "Anti-Government Elements" who "are reported to kill civilians deliberately to punish them for supporting the government. And these killings are intended to act as a warning to others."52 [45] The country conditions documents, including the excerpts from items 1.16 and 1.18 of the April 30, 2018 NDP compilation cited in the Appellant's memorandum, paints a more nuanced picture of the nature of the threat constituted by the Taliban letter the Appellant received in XXXX 2015. I find that these submissions tend to support the Appellant's testimony that the Taliban were willing to kill him if he did not "join them and [...] leave [his] work with [the] Afghan government".53 In light of my independent assessment of the Appellant's testimony and supporting documents in light of the country conditions evidence, I find that the RPD erred in its assessment of the credibility and plausibility of the threat made by the Taliban against the Appellant. [46] On the issue of state protection, the Appellant's counsel explained further in his oral submissions that recent country evidence from August 2018 corroborated the Appellant's testimony that Afghan state authorities would not be able to help him.54 This is relevant because when the RPD had earlier questioned the Appellant about the security situation in Afghanistan more generally the Appellant testified about a then-recent incident in which members of Afghanistan's army "surrendered to the Taliban" in that country's Faryab province and that the province of Ghazni had been lost to the Taliban.55 [47] When prompted by the RPD panel, the Appellant verbally offered to disclose a then-recent news article he had printed out which addressed his testimony concerning events in Afghanistan's Ghazni province56: MEMBER: And you said -- let's see here -- and I see you have some -- you have a series of articles relating to the situation in Afghanistan, starting on page -- that section, its own separate section. There's 75 pages of articles on Afghanistan. You said recently, however, the situation -- do you have more recent articles? CLAIMANT: I have. MEMBER: From 2018? CLAIMANT: From last week, actually, and some from 2018, yes. MEMBER: I see. Because Mr. Dineen, these would have been submitted with the original COUNSEL: Yes. MEMBER: Yeah. COUNSEL: These are back in October of 2017. MEMBER: Yeah, yeah. COUNSEL: And --- MEMBER: I see why. COUNSEL: Mr. XXXX told me he had a bunch of articles, but you know, it's late to be submitting a bunch of stuff. But last week was a very active week in Afghanistan. Yeah. MEMBER: No question.57 [48] Even though the RPD accepted the Appellant's oral application to admit the new evidence58, it does not appear to have referred to this evidence in its Reasons for Decision. I have reviewed this document which indicates that as of August 14, 2018 - one week before the RPD hearing - the Taliban attacked the city of Ghazni in Afghanistan, killing 400 people. According to the article, "[t]he fall of Ghazni, a key route linking Kabul to the southern provinces, demonstrated the Taliban's strength [...]."59 The article continues: Meanwhile, the Taliban overran a military base known as Camp Chinaya in northern Faryab province on Monday, killing 17 soldiers and wounding 19 others. The base housed 140 Afghan troops who resisted the Taliban attack but failed when they didn't receive any reinforcements. Taliban spokesman Zabihullah Mujahid said 57 Afghan soldiers surrendered and eight military Humvees were also seized.60 [49] The documents I have referenced in these reasons are only some of the documents that refer to threats made by the Taliban against those it perceives to be working in support of Afghanistan's government. Once again, I note that the RPD did not dispute the Appellant's testimony that he worked for Afghanistan's government, either during the RPD hearing61 or in its Reasons for Decision.62 [50] In light of the foregoing I find that the RPD erred in failing to consider relevant country conditions evidence concerning the threat posed by the Taliban and other anti-government elements in Afghanistan to persons like the Appellant who were affiliated with Afghanistan's government through their work. [51] I also consider that objective country conditions information in the most recent National Documentation Package compilation for Afghanistan indicates that "[t]here were major attacks on civilians by armed insurgent groups and targeted assassinations by armed insurgent groups of persons affiliated with the government"63, information that shows that the risk of violence and death to persons affiliated with Afghanistan's government at the hands of "[t]he Taliban and other insurgents" is present and ongoing. This evidence supports a finding that the Respondent's pro-Afghan government profile would place him at risk of persecution in Afghanistan on a forward-looking basis. [52] Having found that the Appellant's credible subjective fear of persecution is objectively well-founded in the evidence, and that adequate state protection is not available for persons with (or perceived to have) pro-government affiliations in Afghanistan, I find that the Appellant is a Convention refugee within the meaning of section 96 of the IRPA. CONCLUSION [53] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) "S. Thompson" S. Thompson September 3, 2019 Date 1 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 4 at paras. 1-2. 2 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 4 at para. 3. 3 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 6 at para. 12. 4 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 6 at para. 12. 5 Refugee Appeal Division Rules, SOR/2012-257. 6 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 7 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 15-16 at para. 19. 8 Exhibit P-2,Appellant's Record, Appellant's Memorandum, p. 16 at paras. 20-21. 9 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 15 at para. 17. 10 Exhibit RPD-1, RPD Record, Exhibit 3, at p. 54. 11 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 105-188. 12 Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCT 776 at para. 7 (Muldoon J.). 13 Ibid. 14 Ibid. 15 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 102-104. 16 Transcript of RPD Hearing of August 20, 2018, pp. 7 (lines 15-50) to 8 (lines 5-20) inclusive. 17 Transcript of RPD Hearing of August 20, 2018, p. 10 at lines 5-32, 39-49. 18 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 17-18, at para. 25. 19 Transcript of RPD Hearing of August 20, 2018, pp. 11 (lines 43-50) to 12 (lines 5-31). 20 Transcript of RPD Hearing of August 20, 2018, p. 10 at lines 34-37. 21 Transcript of RPD Hearing of August 20, 2018, pp. 13 (lines 29-50) to 14 (lines 5-19). 22 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 7, at para. 16. 23 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 7, at para. 17. 24 Transcript of RPD Hearing of August 20, 2018, pp.11 (lines 46-50) to 12 (lines 5-31), emphasis added. 25 Exhibit RPD-1, RPD Record, at p. 194 26 RPD Record, Exhibit 2, p. 14 at lines 59-64. 27 Transcript of RPD Hearing of August 20, 2018, p.14 at lines 47-48. 28 Transcript of RPD Hearing of August 20, 2018, p.14 at lines 47-48. 29 Transcript of RPD Hearing of August 20, 2018, p.14 at lines 25-42. 30 Exhibit RPD-1, RPD Record, Exhibit 6, at pp. 233-234. 31 Exhibit RPD-1, RPD Record, Exhibit 5, at p. 190. 32 Transcript of RPD Hearing of August 20, 2018, p.16 at lines 31-47. 33 Transcript of RPD Hearing of August 20, 2018, pp. 27 (lines 49-50) to 28 (lines 5-48). 34 Exhibit RPD-1, RPD Record, Exhibit 2, p. 14 at lines 65-67. 35 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 8, at para. 19. 36 Transcript of RPD Hearing of August 20, 2018, p. 17 at lines 11-30. 37 Exhibit RPD-1, RPD Record, Exhibit 2, p. 14 at lines 65-67. 38 Transcript of RPD Hearing of August 20, 2018, p. 17 at lines 11-30. 39 Transcript of RPD Hearing of August 20, 2018, p. 18 at lines 15-50. 40 Transcript of RPD Hearing of August 20, 2018, pp. 18 (lines 15-50) to 19 (line 5). 41 Transcript of RPD Hearing of August 20, 2018, pp. 30 (lines 32-50) to 32 (lines 5-11). 42 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 234. See also RPD Record, Exhibit 6, pp. 207-215 for a copy of the case submitted by the Appellant's counsel to the RPD. 43 See e.g. Salomon v Canada (Citizenship and Immigration), 2017 FC 888 at para. 13 (Locke J.): "With respect to the Applicants' decision to travel through the US to Canada before claiming asylum, the RPD concluded that the Applicants' explanation that they did not have relatives in the US (as they do in Canada) was not reasonable. Considering that the Applicants were in the US legally on a valid visa (and therefore not in imminent danger of being deported), it is my view that the RPD's expectation that persons who are genuinely at risk would necessarily seek asylum at the first opportunity [...] is not adequately justified, transparent and intelligible. I do not understand why the RPD was not satisfied that people in the position that the Applicants alleged they were in might want to come to Canada to seek asylum." 44 Transcript of RPD Hearing of August 20, 2018, pp. 28-29. 45 Transcript of RPD Hearing of August 20, 2018, p. 23 at lines 38-42. 46 Transcript of RPD Hearing of August 20, 2018, pp. 25 (lines 39-49) to 26 (lines 5-37). 47 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Afghanistan (30 April 2018), item 7.6, Afghanistan: Recruitment to Taliban. Norway. Norwegian Country of Origin Information Centre, Landinfo. 29 June 2017, at p. 5. 48 NDP for Afghanistan (30 April 2018), item 7.6, at pp. 17-18. 49 NDP for Afghanistan (30 April 2018), item 7.6, at p. 17. 50 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 104. 51 Transcript of RPD Hearing of August 20, 2018, pp. 33 (lines 32-50) to 34 (lines 5-20). 52 Transcript of RPD Hearing of August 20, 2018, pp. 33 (lines 32-37), 34 (lines 5-8). 53 Transcript of RPD Hearing of August 20, 2018, p. 26, at line 23. 54 Transcript of RPD Hearing of August 20, 2018, p. 32, at lines 13-17. 55 Transcript of RPD Hearing of August 20, 2018, p. 23 at lines 44-49. 56 Transcript of RPD Hearing of August 20, 2018, p. 24 at lines 5-17. 57 Transcript of RPD Hearing of August 20, 2018, pp. 24 (lines 49-50) to 25 (lines 5-32), emphasis added. 58 Transcript of RPD Hearing of August 20, 2018, pp. 32 (lines 25-49) to 33 (lines 5-18). 59 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 205. 60 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 206, emphasis added. 61 Transcript of RPD Hearing of August 20, 2018, p. 21 at lines 12-30. 62 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 4 at para. 3. 63 National Documentation Package (NDP) for Afghanistan (29 March 2019), item 2.1, Afghanistan. Country Reports on Human Rights Practices for 2018. United States. Department of State. 13 March 2019, at page 1/41. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-28041 RAD.25.02 (April 04, 2019) Disponible en français 18 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