TB8-04763

RAD File / Dossier de la SAR : TB8-04763 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, ON Appel instruit / entendu à Date of decision March 25, 2019 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are) the subject of the appeal Robert J. Kincaid Barrister and 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 OVERVIEW [1] XXXX XXXX XXXX (the "Appellant"), a citizen of Iraq, alleges that he is at risk of death from Muslim fundamentalists because the Appellant is an atheist dentist who assists non-Muslim internally displaced person in the Kurdistan Region of Iraq (KRI). [2] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) sets aside the determination of the Refugee Protection Division (RPD) and substitutes its determination that the Appellant is a Convention refugee. ANALYSIS Standard of Review [3] For questions of fact, law, and mixed fact and law, I have applied the standard of correctness, as per Huruglica.1 Admissibility of New Evidence [4] The Appellant has submitted new evidence for my consideration as follows: (a) A letter from the Tribunal member through the registry, dated July 13, 2017;2 (b) An updated certified/sworn letter February 6, 2018;3 photo ID of XXXX XXXX XXXX, XXXX XXXX XXXX XXXX; 4 a copy of an Iraqi citizenship card for XXXX XXXX XXXX;5 (c) A Facebook post entry of May 3, 2017;6 (d) A letter from XXXX XXXX XXXX XXXX dated February 11, 2018, former XXXX XXXX XXXX XXXX;7 and ... I was unaware of him prior to my hearing and only recently became aware of his existence when I was speaking to XXXX XXXX XXXX, post hearing and indicated to him that the member did not believe that non-governmental organizations were having their members/volunteers attacked in Kurdistan. He put me in touch with XXXX XXXX XXXX as someone who belonged to another Non-governmental organization that was having trouble in Kurdistan from Fundamentalists in Kurdistan.8 (e) A translation extract of the Appellant's hearing, at 1:17:26,9 by Lauren Zhandar, dated February 11, 2018, Kurdish/Arabic Interpreter/Translator in Vancouver. [5] In regard to the first item above, the letter from the Board, as this exists as part of the record, it is not new evidence and is therefore dismissed. [6] Subsection 110(4) does not provide an opportunity for appellants to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.10 In a recent Federal Court decision,11 the Hon. Justice Annis wrote: I agree with the RAD that the Applicant must put her best foot forward before the RPD, and present all the evidence that is available at the time, whether aware of it or not, unless there is an aspect of injustice arising from unexpected new facts, or old facts that no reasonable amount of due diligence could have turned up. It is not intended to be a tune-up procedure for the RAD that upon learning in [of] deficiencies in the Applicant's case, additional evidence that could have been presented to the RPD may be presented as new evidence before the RAD. [7] In another decision of the Federal Court12 on a request to appeal, the Hon. Justice Fothergill wrote that the applicant is an ethnic Tamil from northern Sri Lanka. The applicant claimed he was at risk because his father was a prominent member of the Liberation Tigers of Tamil Eelam [LTTE]. [8] The RPD rejected the claim finding the determinative issues were the applicant's credibility and whether his profile as a Tamil whose father was active in the LTTE more than twenty years ago would expose him to persecution today. [9] The RAD dismissed the appeal and found the applicant's new evidence was not admissible. The new evidence that the applicant sought to adduce consisted of affidavits and letters purporting to provide further details of the circumstances surrounding his parents' death and subsequent events occurring in 2009, 2010 and 2014. All of these events preceded the RPD's decision. The applicant says that the documents were relevant to the adverse credibility findings of the RPD, and he could not have produced them earlier because the RPD's rejection of his testimony was not foreseeable. Subsection 110(4) must be interpreted narrowly. Evidence that simply corroborates facts or contradicts the RPD's findings does not fall within the meaning of new evidence. [10] The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.13 [11] The RAD also rejected the new documents submitted because they were not material to the applicant's claim. Given the Federal Court of Appeal's insistence that subsection 110(4) be applied strictly, materiality is no longer a relevant threshold consideration.14 [12] While the RAD's consideration of the materiality of the new evidence was superfluous, this does not detract from the reasonableness that the evidence did not meet the requirements of subsection 110(4). [13] The RAD's consideration of the record was careful and cogent. There is no reviewable error in the RAD's assessment of the evidence nor in its conclusion that the treatment the applicant endured in Sri Lanka, while harsh, did not amount to state persecution. The application was dismissed. [14] Both of these decisions reflect the same or similar findings in regard to the acceptance of new evidence. [15] If an appellant was unaware of the existence of evidence or a witness at the time of the hearing or prior to the decision, although unfortunate, it is not a valid reason for that evidence to be accepted before the RAD. [16] If an appellant finds, post decision, that there was other evidence which may have supported the claim but that the appellant did not think was necessary, then, unfortunately, that is insufficient reason to accept such evidence as "new" before the RAD. [17] In other words, it is the sole responsibility of a claimant before the RPD to put forth the best possible evidence in support of the claim. [18] In this particular case, the panel gave the Appellant notice before the first hearing that the panel wanted to see certain documents. The panel caused a letter to be sent to the Appellant and counsel on July 13, 2017, two weeks before the first sitting of the hearing. I can accept that it may be difficult to obtain some letters or documents from Iraq to Canada in two weeks; however, the Appellant ended up having almost six months to adduce these documents requested in the panel's letter, as the second sitting of the hearing did not occur until December 19, 2017, and the decision was not rendered until January 9, 2018. [19] In spite of receiving notice from the panel as to what evidence the panel wanted to see, in July 2017, the Appellant did not bother to obtain some of the documents until after the decision was handed down. With this in mind, I will assess the remainder of the documents adduced as new evidence. [20] The second item (b) is an updated letter from the non-governmental organization for which the Appellant volunteered. It is submitted in response to the panel's concerns of the authenticity or "security" of the letters. The new submission is sworn and accompanied by photo identification. This document should have been adduced at the hearing, and, as it contains nothing new, I dismiss it as it fails the test of subsection 110(4). [21] The third item (c) is a printout of a Facebook entry which the Appellant had testified about in his hearing. Again, there is no reasonable explanation as to why it was not adduced for the hearing. [22] The Appellant argues that this page is verifying that he was in the USA, which was prior to the threat letter delivery to his father; that he testified as to this fact at his hearing, as he told the member that he had checked in that he was in America; his Facebook post is public, and anyone who was on his Facebook page would be aware that he was in America. He had deleted the 2016 post about his uncle in 2016, so there was no way for him to retrieve that post, which the member did not ask of him. [23] Unfortunately, this is not sufficient reason for failing to produce this evidence before the decision was made. As Justice Annis wrote, a claimant (Appellant) is expected to put his or her best foot forward to the RPD and not try to bolster a deficient claim on appeal. The Facebook evidence is dismissed, as it fails the test of subsection 110(4). [24] The next item (d) is a letter from a person whom the Appellant did not even know existed prior to the negative decision being rendered, causing the Appellant to attempt to fix a deficient claim. As the author was not known to the Appellant before the decision, it is reasonable to accept that there was no way that this evidence could have been adduced before the decision was rendered. [25] The letter speaks to the issue of volunteers for the organization in which the Appellant volunteered, being targeted by Fundamentalists. This confirms that aspect of the Appellant's story. The item passes the test of 110(4) and is relevant. I accept this document into evidence. [26] Item (e) is an independent translation of a portion of the audio record of the Appellant's hearing. The Appellant alleges a misunderstanding of language between the Appellant and the interpreter which led to a negative credibility finding against the Appellant. The Appellant argues that it was not until post-decision when he requested a copy of the hearing recording that he realized the error. I will allow this new translation into evidence. To not allow it would constitute a breach of natural justice if the original translations were incorrect. Oral Hearing [27] The Appellant is not requesting an oral hearing. ISSUES [28] The following are the issues on appeal: (1) the nature and weight of the new evidence on the claimant's link to XXXX and his risk profile; (2) the tribunal's rejection of the XXXX XXXX XXXX XXXX XXXX letters as "unsecure" and lacking identification information; (3) the failure of the Tribunal to consider relevant and material evidence that pointed to a different conclusion than those found by the Tribunal about the existence of other Islamic radicals within Kurdistan apart from ISIS; and (4) the mischaracterization by the Tribunal of the claimant's evidence and explanations to suggest contradictions where none existed or to suggest he stated something he did not state. Arguments [29] Counsel argues that the RAD should accept the new evidence as produced. This issue has been dealt with above under the heading "New Evidence". [30] In regard to the panel's dismissal of documents (support letters) because they were not accompanied with photo identification to verify the authors, that was an error on the Board's part. [31] Even if the panel had credibility concerns regarding the Appellant, that is insufficient reason to dismiss supporting evidence based only on a lack of identification being attached to such documents. It is an error to visit adverse credibility findings on independent documentary evidence based only on credibility concerns, which may be mitigated, with the Appellant. [32] The RPD has been given the freedom from the rules of evidence used in civil and criminal court, for a reason. That reason is, I believe, to be able to accept evidence such as letters of support understanding that not every culture thinks the same way that Canadians do. Perhaps the Appellant's culture is one which is more open to accepting things on face value. [33] The Federal Court has stated that the Tribunal (the RAD) is not bound by legal or technical rules of evidence, and it may base a decision on evidence adduced in the proceedings which it considers credible and trustworthy in the circumstances. The Federal Court has stated that the Tribunal is not to impose on itself or claimants evidentiary fetters of which Parliament has freed them, especially where there is no suggestion, during the course of the hearing, of that evidence being inadequate of somehow "unsecure". As the Appellant was never asked why he did not do more to obtain better or more documentary evidence, it is an error for the Tribunal to then reject the documents requested in its reasons. The Tribunal has placed fetters on its admission of evidence contrary to the directions of the Federal Court in Fajardo.15 In this particular case, the panel's dismissal of these support letters was unreasonable. The panel seems to have been seeking verification of both the authors of the letters and of the content of the letters. [34] The panel requested in writing16 certain support documents from the Appellant. The panel did not explain that the documents had to be somehow certified or notarized. If the panel required these documents to be notarised, then that requirement should have been in the letter of July 13, 2018. That information was not in the notice to the Appellant. It was unreasonable for the panel to impose these extra rules on the Appellant. I concur with the Appellant. The RPD erred in rejecting those documents. I, however, accept them into evidence and give them some weight. [35] Counsel argues that the panel ignored evidence which contradicted the panel's beliefs and which may have changed the decision if properly analyzed. The panel appears to have decided that only ISIS was active within Sulaimaniya and consequently rejected the claim because the panel believed that ISIS was not a threat to the Appellant. Counsel argues that the panel ignored country material which indicated, as claimed by the Appellant, that the agents of harm could be any number of other Islamist groups within his area. That country material did show that individuals were being targeted by Islamist groups or Salafists in Kurdistan and even within Sulaimaniya. Further, the evidence adduced shows how medical personnel were being specifically targeted by various groups including ISIS and other Fundamentalists and, at one point, even the Iraqi authorities.17 [36] I have read the documents referred to by counsel and am convinced that there are radical groups other than ISIS, but including ISIS, operating in Kurdistan. The documents referred to also confirm that medical personnel are specifically targeted throughout Iraq and including Iraqi Kurdistan. [37] The panel, in its decision, wrote that the documentary evidence indicates that the only Muslim fundamentalist group active in the Sulaimaniya governorate is ISIS. Although the panel is entitled to choose which evidence it prefers, in the case where evidence clearly contradicts the evidence preferred by the panel, the panel must at least indicate what the contradictory evidence is and why the panel prefers one over the other.18 The panel has failed to do this, and that failure is a serious error. [38] Counsel argues that the panel erred in its assessment of the Appellant's evidence. The Appellant did say in his BOC that ISIS was one of the groups he feared, and in his oral testimony, he clarified that it was one of several Islamist groups within Kurdistan that could be the source of the threat to him. Counsel argues that, contrary to the panel's writing, the Appellant never said that he "doesn't have a real fear of ISIS." [39] I have read the transcripts of the hearing and note the following excerpt: MEMBER: If you were to return to Iraq, who, if anyone would you fear? CLAIMANT: A group or a, the groups of extremists, those who have threatened me with killing. MEMBER: Okay. In some, in some point in your basis of claim form, you mentioned ISIS, is that particularly who you fear or, or what? CLAIMANT: No. I fear a group or groups those are extremists. They could be [M]uslims, they could be terrorists.19 [40] In reading the above part of the transcripts, I find that the Appellant's answer to the above question is somewhat ambiguous. That is, he appears to be testifying that ISIS is not the group in particular that he fears but that he fears groups of extremists: "They could be [M]uslims, they could be terrorists." [41] In my opinion, although somewhat ambiguous, the Appellant appears to be saying that he is unsure of which radical group he fears (as the writers of the threatening note did not identify themselves), but he knows that the threat comes from Muslim fundamentalists or from terrorists (ISIS). [42] The panel also seemed to concentrate on what relatives and colleagues of the Appellant were upset with the Appellant and were likely to inform on him regarding his atheism and his work in the camps. At one point, the panel even told the Appellant to "ignore the other people" in regard to who might have known of the Appellant's beliefs, work and his going to America. [43] Counsel argues that the panel should not have focused on the Appellant's family and colleagues who may have been against the Appellant but instead should have analysed the likelihood of that information leaking out through one or more of the many people who were aware of the Appellant's beliefs, etc., to any radical, fundamentalist who would then target the Appellant. [44] I have analysed the evidence from every perspective and find that the panel either misconstrued, misunderstood or ignored relevant evidence which supports the Appellant's claim. [45] The evidence adduced by the Appellant indicates that there are radical fundamentalist groups operating in Kurdistan and in the Sulaimaniya governorate, which is where the Appellant lived and practiced. The evidence also clearly indicates that medical personnel were specifically targeted by extremists from all sides. [46] The panel has written that there is no evidence that threatening letters from ISIS have been sent in Kurdistan (although there is evidence of such letters being sent in Iraq and elsewhere.) However, that is insufficient reason to dismiss this letter, as there is also no evidence that such letters have never been sent in Kurdistan. Perhaps this letter20 was the first or perhaps others have not been reported; however, it is an error to make a negative credibility finding based on a lack of documentary evidence in support of a particular premise. [47] The panel also referred to the Appellant's lack of a religious profile which would cause him to be persecuted such as are Christians and other minority religions. However, the panel is not taking into consideration the fact that having no religion (Atheism) in a predominantly Muslim region can be worse than being a member of a religious minority. Atheists are seen by Muslim Fundamentalists as apostates and are deemed to be devil worshipers. These facts definitely give a religious minority profile to the Appellant. [48] Although the panel wrote in its decision, at paragraphs 38-40, that there is little chance of ISIS infiltrating Kurdistan, the Appellant has submitted evidence21 to the contrary. Further, as seen in the transcript of the hearing and mentioned above, the Appellant has never claimed that the threat came from ISIS. The Appellant testified that he believed the threat came from "A group or a, the groups of extremists, those who have threatened me with killing." Further on in his testimony, the Appellant testified, "I fear a group or groups those are extremists. They could be [M]uslims, they could be terrorists." [49] So, although by referring to terrorists as a possible source of the threat, it can be presumed that the "terrorists" refers to ISIL. However, as we can see, the Appellant also testified that he fears "other groups of extremists" and that the agents of harm could also be "Muslims", which I take to be referring to radical extremists as stated in the earlier testimony. [50] I note that the panel has also written that he gives no weight to the letter written by the wife of XXXX XXXX XXXX XXXX simply because there was no identification document attached to the letter, and there was no documentary evidence on record that indicates that those Kurds, who support the Kurdistan government's huge humanitarian assistance to Syrian and Iraqi refugees, have faced a risk to their lives for assisting these IDPs. This is an error. It is settled law that a trier of fact cannot infer negative credibility on a claimant for what does not appear in a document. [51] The panel also gave no weight to the letters from the XXXX22 because the letters are unsecure documents that are not accompanied by any identification documents. In the first instant, I have no idea what the panel is saying when writing that these letters are "unsecure" and, secondly, as stated above, there is no requirement for identity papers to accompany such letters of support.23 [52] The panel inferred negative credibility when it found the threatening letter to have been not genuine. The reason behind this finding was that there were details in the letter that "no one could have known about, except for very few people whom the claimant does not suspect would be interested in harming him." This line of thought is in error. The Appellant testified that there were many colleagues and family members who knew of the possible upcoming trip to the USA. None of those people had to have intended to harm the Appellant; however, it is not implausible that one or more of those who knew, whether purposefully or accidentally, may have leaked the information to another, and so on. The panel gave no weight to the threatening letter and found it to be not genuine. [53] The panel then uses this negative credibility issue with the threatening letter as reason for dismissing the letter of support from the Appellant's father. This is an error on the part of the panel. There was no logical reason to dismiss the threatening letter and then, after dismissing that letter, using that finding to dismiss a letter of support from the Appellant's father. [54] The panel also cites various NDP items in support of the panel's contention that there are no other extremist groups operating in the KRI; yet, the NDP speaks to abuses all over Iraq, and in one document, it states the following: 6.2.12 Heartland International Alliance reported that Yezidis were targeted by various non-state groups and individuals. In June 2015, a Yezidi, Mousa Mirad Khidir Kirani, was shot dead and mutilated in Sulaymaniyah, KRI. It was speculated that he was killed because of his religion. [55] Further in that same document, it speaks about the discrimination and attacks against the Kak'ai religious groups in the KRI. And further: 7.2.3 Heartland Alliance International reported a lack of government action to investigate killings of Yezidis, including in the KRI. [56] All in all, these excerpts from the NDP show me that there are radical groups in the KRI, as there are throughout Iraq. Those radicals, whether ISIS related or not, are a threat to this Appellant. Summary [57] The Appellant has convinced me that he is at risk of persecution for a Convention reason, should he return to Iraq. Disposition [58] The RAD has found that the RPD's decision will not stand. CONCLUSION [59] Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "David Lowe" David Lowe March 25, 2019 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-2, Appellant's Record, at p. 48. 3 Exhibit P-2, Appellant's Record, at p. 49. 4 Exhibit P-2, Appellant's Record, at p. 50. 5 Exhibit P-2, Appellant's Record, at pp. 51-52. 6 Exhibit P-2, Appellant's Record, at p. 53. 7 Exhibit P-2, Appellant's Record, at pp. 54-55. 8 Exhibit P-2, Appellant's Record, Exhibit "A" of the Affidavit, Amended statement. 9 Exhibit P-2, Appellant's Record, at pp. 56-58. 10 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 54. 11 Abdullahi, Fadumo Sharif v. M.C.I. (F.C., no. IMM-3447-15), Annis, March 3, 2016, 2016 FC 260. 12 Vijayakumar, Vinushan v. M.C.I. (F.C., no. IMM-929-16), Fothergill, October 19, 2016, 2016 FC 1160. 13 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 54. 14 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 54. 15 Fajardo, Mercedes v. M.E.I. (F.C.A., no. A-1238-91), Mahoney, Robertson, McDonald, September 15, 1993; (1994), 21 Imm. L.R. (2d) 113 (F.C.A.). 16 Exhibit P-2, Appellant's Record, at p. 48. 17 National Documentation Package (NDP) for Iraq (March 31, 2017), item 1.18, Danish Immigration Service, "The Kurdistan Region of Iraq (KRI): Access, Possibility of Protection, Security and Humanitarian Situation, Report from Fact Finding Mission to Erbil, the Kurdistan Region of Iraq (KRI) and Beirut, Lebanon, 26 September to 6 October 2015", April 2016; item 2.22, Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) IRQ105447.E, March 3, 2016; item 12.4, IRB, RIR IRQ105624.E, September 2, 2016; and Exhibit RPD-1, RPD Record, Exhibit 3. 18 Cepeda-Gutierrez, Carlos Arturo v. M.C.I. (F.C.T.D., no. IMM-596-98), Evans, October 6, 1998; (1999) 1 F.C. 53. 19 Transcript of the RPD Hearing of VB7-03186, December 19, 2017, at p. 7. 20 Exhibit RPD-1, RPD Record, at p. 134. 21 Exhibit RPD-1, RPD Record, at p. 88. 22 Exhibit RPD-1, RPD Record, at p. 167, Exhibit 10, at p. 34. 23 Fajardo, supra footnote 12, at p. 113. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-04763 RAD.25.02 (September 18, 2018) Disponible en français 13 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 (September 18, 2018) Disponible en français