TB6-07980

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 : TB6-07980 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 26, 2016 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Fadi Yachoua Barrister and Solicitor 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 AND DECISION [1] XXXX XXXX XXXX(the Appellant), a citizen of Iraq, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and to either find him to be a Convention refugee or return the matter to the RPD for redetermination. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he is of Kurdish ethnicity and adheres to the Sunni sect of Islam. He does not subscribe to the extremist beliefs of the Islamic State of Iraq and Syria (ISIS), and fears harm at the hands of that organization. [4] The Appellant's application for refugee protection was heard on August 6, 2015. The RPD gave an oral decision at the conclusion of the hearing. The panel found that the Appellant was a credible witness. However, the RPD rejected his refugee claim, finding that the Appellant's city of Erbil was relatively secure and that its occupation by ISIS is unlikely. [5] The Appellant submits that the RPD erred by unreasonably concluding that he does not have a well-founded fear of persecution by ISIS upon return to Iraq. He has submitted a large volume of new evidence in support of his appeal. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected1 in the circumstances to have presented, at the time of the rejection. [7] It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellant.2 Application of Section 110(4) [8] Section 110(4) establishes a disjunctive test.3 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claim. If it was not reasonably available at that time, it meets the requirements of section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellant could reasonably have been expected, in his circumstances, to have presented the evidence to the RPD prior to the rejection of his claim. If he could not have been expected to do so, the evidence meets the requirements of the section. [9] The Appellant's proposed new evidence here consists of news articles and reports,4 all of which arose after the rejection of his refugee claim. As such, they meet the requirements of Section 110(4). They are also relevant to the key issue in this appeal, the situation in Erbil. The RAD has no reason to doubt the credibility of the documents. The Appellant's proposed new evidence is admitted. [10] The RAD also disclosed evidence to the Appellant, consisting of four documents which are more recent than the Appellant's new evidence. The Appellant was given an opportunity to make submissions in response to the disclosure of these documents.5 He did so; the RAD accepts those submissions, and admits the further new evidence filed by the Appellant with those submissions. That new evidence consists of relevant news articles which arose after the date of the rejection of the Appellant's refugee claim. The documents meet the test in section 110(4), and the RAD has no reason to doubt that they are credible or trustworthy. THE ROLE OF THE RAD [11] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [12] The Appellant submits that the RAD must conduct an independent assessment of the application and arrive at its own opinion. As the RPD's determination of the refugee claim was based on objective evidence, there is no reason for the RAD to show any deference. [13] It is settled law that the RAD is not to review decisions of the RPD in the manner of a judicial review.6 [14] The RAD is a creature of statute and so is the appeal before it; its role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.7 Such an appeal (i) is directed at the decision of the RPD, (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision, and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD.8 [15] According to the Federal Court of Appeal, the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. It is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.9 [16] With respect to findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness.10 When applying that standard, the RAD will not show deference to the RPD's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the RAD to decide whether it agrees with the determination of the RPD; if not, the RAD will substitute its own view and provide the correct answer.11 [17] There are cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because such findings require an assessment of the credibility or weight to be given to oral evidence heard by the RPD.12 This is not such a case. The RPD found the Appellant to be a credible witness. His refugee claim was determined on the basis of the RPD's analysis of objective evidence. The RPD had no particular advantage over the RAD in making such a determination, and the RAD will therefore show no deference to the findings of the RPD. [18] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. The RPD's Findings [19] The Appellant argues that the RPD erred by finding that there is no more than a mere possibility of his persecution upon return to Erbil. In his view, it was unreasonable for the RPD to reach this conclusion, as there was evidence of a new surge in violence in which numerous civilians have been injured or killed. He submits that the RPD erred by focusing only on whether ISIS could capture Erbil, when in fact he also faces risks from an ISIS infiltration of his city. He points to evidence of fighting near Erbil, and observes that the distance between that city and ISIS-occupied Mosul is less than one hundred kilometres. He also relies on new evidence of significant ISIS attacks near Erbil and of ISIS operatives being arrested in Kurdish territory. In his view, the RPD failed to appreciate the nature of the conflict in Iraq, where various entities are fighting on different fronts, rendering the situation highly volatile and fluid. He asks the RAD to find that there is more than a mere possibility that he would face persecution as a Kurdish man in northern Iraq. [20] The outcome of the Appellant's refugee claim, and this appeal, rests on the determination of the risk he faces in Erbil. There is a considerable amount of objective evidence here which addresses the determinative issue ? the RPD's own National Documentation Package, the Appellant's disclosure to the RPD, the Appellant's new evidence in this appeal, and the evidence disclosed by the RAD to the Appellant. For practical reasons, the RAD will not refer to each document in evidence; however, the panel has read and considered each piece of evidence. [21] Having reviewed the evidence, the RAD agrees with the RPD's conclusion that it is highly unlikely that ISIS will capture Erbil. The evidence, however, also reflects the fluidity of the situation in northern Iraq. For example, the UNHCR's October 2014 Position on Returns to Iraq described the security situation in Kurdistan as "relatively stable, with security forces remaining on high alert and imposing tightened security to prevent IS and associated groups from staging attacks."13 However, new evidence submitted to the RAD by the Appellant reported that, in December of 2015, ISIS launched a major offensive northwest of Erbil,14 suggesting that ISIS was gaining strength and territory. Even more recent evidence disclosed by the RAD describes ISIS as being on the defensive and losing territory, with Kurdish forces liberating villages on the road between Erbil and Mosul.15 [22] The RAD's new evidence, in fact, indicates that Kurdish and Iraqi forces are pushing toward Mosul, with plans to liberate that city from ISIS;16 another document reports that the current rate of progress is so swift that the ISIS caliphate is likely to be wiped off the map of Syrian and Iraq within a few years.17 While the RAD recognizes that the situation in northern Iraq is volatile and fluid, the most recent evidence in the record here indicates that ISIS is no longer advancing toward Erbil, and in fact is in danger of losing control of its major cities in Iraq, including Mosul. In the present circumstances, the RAD finds there is no more than a mere possibility that ISIS will occupy Erbil, and the Appellant's fear of this is not well-founded. [23] The Appellant points out that he does not only fear harm from an ISIS takeover of Erbil; he also fears that he might be harmed or killed by a terrorist attack, or caught in the cross-fire between combatants who target civilians. The RAD has disclosed a Response to Information Request (RIR), which post-dates the Appellant's new evidence and which describes the security situation in Erbil as "safe".18 A U.S. official quoted in the RIR stated that most people in Erbil enjoy a normal day, going to work, going shopping, and going out at night. The document reports that terrorist attacks occur less frequently in Kurdistan than in other parts of Iraq, and that few incidents occurred in 2015. Erbil is safe because of heavy security, and it is reported that the city never appears to be in danger as it is protected both by a large number of Kurdish troops and thousands of foreign soldiers. While there have been several high-profile terrorist attacks, violent crime rates have remained very low, and security forces have apparently thwarted planned attacks and dismantled terrorist cells. U.S. officials report that ISIS is the only group which poses a threat to Erbil; a Kurdish official states that ISIS does not pose a significant threat to the daily lives of the people of Erbil. [24] The RAD acknowledges the Appellant's new evidence, which reports on fighting near Erbil, on advances made by ISIS, and of that organization's infiltration of Kurdistan. However, the RAD also recognizes that more recent evidence reports that ISIS is being pushed away from Erbil, and is in fact losing control of territory near that city. Despite occasional terrorist attacks, Erbil is reported to be safe, with ISIS not posing a significant threat to its civilians. [25] The Appellant points to evidence that ISIS, Kurdish forces, and Iraqi forces all operate without regard for the safety of civilians, many of whom have been injured or killed.19 However, the evidence indicates that there is little, if any, combat happening or expected to happen in Erbil itself, and the RAD cannot accept the Appellant's argument that he is at risk for these reasons. [26] In response to the RAD's disclosure, the Appellant concedes that "several sources describe the security situation in Erbil as relatively safe," that there has not been a major terrorist attack inside Erbil since April of 2015, and that even ISIS has admitted that it is losing ground.20 However, he argues that ISIS is not yet defeated and remains interested in targeting Erbil. While the terrorists may not be able to directly attack and enter the city, this does not eliminate the threat from suicide bombs, car bombs, and small groups of attackers. He points to the recent massive bomb attack in Baghdad,21 which killed hundreds of people despite government security measures. He warns that similar actions by ISIS are likely to target Erbil. [27] As discussed above, the RAD recognizes that the situation in Iraq is fast-changing. It is for this reason that the RAD acted on its own initiative to disclose up-to-date evidence with respect to the Appellant's risk in Erbil. While the RAD has made an effort to assess the Appellant's risk based on current information, the panel is not prepared to speculate about possible ISIS attacks in Erbil. The evidence indicates that the city is heavily protected by Kurdish and foreign soldiers, and that there has not been a major terrorist attack there for more than a year. While the situation might change in the future, the latest evidence indicates that ISIS is suffering defeats and is being pushed farther and farther from Erbil. [28] The RAD must base its decision on the evidence in the record. Having considered of that evidence, the RAD finds that there is only a mere possibility that the Appellant will be persecuted in Erbil because of his ethnicity or religion. He does not have a well-founded fear of persecution, and does not face a risk to his life, or of cruel and unusual treatment or punishment, upon return to Iraq. CONCLUSION [29] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Edward Bosveld" Edward Bosveld July 26, 2016 Date 1 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para 51. 2 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 3 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, October 29, 2014, 2015 FC 895, para. 19. 4 Appellant's Record, Pages 7-90. 5 Exhibit P-3, Appellant's Submission of July 19, 2016, including submissions and new evidence. 6 See, for example, Akuffo, Edwin Yaw Sarfo v. M.C.I. (F.C., no. IMM-6640-13), Gagné, November 12, 2014, 2014 FC 1063, para. 33. 7 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, para. 14; M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 46. 8 Dhillon, paras. 14-18. 9 Huruglica, 2016 FCA 93, para. 103. 10 Ibid. 11 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, para. 50. 12 Huruglica, 2016 FCA 93, para. 70. 13 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Iraq (July 17, 2015), item 1.12, p. 6. 14 Exhibit P-2, Appellant's Record, p. 28. 15 Exhibit RAD-1, RAD Disclosure, The Guardian, May 30, 2016, "Iraqi troops seize control of districts of Falluja from Isis." 16 Exhibit RAD-1, RAD Disclosure, CNN Article, May 29, 2016, "Kurds: Peshmerga eye Mosul in advance on ISIS territory." 17 Exhibit RAD-1, RAD Disclosure, Al Masdar News, April 3, 2016, "ISIS capital in danger as Syrian Army and Kurdish fighters approach." 18 Ibid., RIR IRQ105417.E, February 10, 2016. 19 In assessing the Appellant's refugee claim, the RAD has considered and applied the Chairperson's Guidelines on Civilian Non-Combatants Fearing Persecution in Civil War Situations. 20 Exhibit P-3, Appellant's Submission of July 19, 2016, paras. 2, 3, and 5. 21 Ibid, Al Jazeera: ISIL claims deadly checkpoint attack near Baghdad. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-07980