VB4-00709

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 : VB4-00709 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered / heard at Vancouver, BC Appel instruit à Date of decision June 4, 2014 Date de la décision Panel Philip MacAulay Tribunal Counsel for the person(s) who is(are) Shane Molyneaux Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the "appellant"), a national of Iraq, appeals the February 11, 2014 determination of the Refugee Protection Division (the "RPD"), rejecting his claim for refugee protection. The claim was heard by the RPD on January 15, 2014 and a written decision was rendered on February 3, 2014. The RPD found that the appellant is neither a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act ("IRPA" or the "Act")1 nor a person in need of protection pursuant to section 97 of that Act. DETERMINATION [2] Pursuant to subsection 111(1)(c) of IRPA, the Refugee Appeal Division (the "RAD") sets aside the determination of the RPD and refers the matter to the RPD for redetermination by a different Member of that Division, with the directions set out at the end of these reasons. BACKGROUND [3] Counsel before the RAD is the same counsel who represented the appellant at the RPD. The Minister intervened at the RPD "by documents only" but has not intervened at the RAD. [4] No transcript of the proceedings before the RPD has been included in the Appellant's Record (AR).2 The appellant has not made any specific references to portions of the RPD testimony or submissions by way of time-code references to the compact disc (CD) of the RPD hearing which forms part of the RPD Record (RPDR)3 and is found at the back of that Exhibit. [5] The appellant does not seek to present "new" evidence to the RPD pursuant to subsection 110(4) of IRPA nor does he seek a hearing before the RPD under subsection 110(6) of the Act. Basis of Claim [6] There are two primary bases for the appellant's claim. The first concerns his allegation of fear arising from the targeting of both he and his family by the terrorist group, Islamic State of Iraq ("ISIS"). The second arises from his allegation of a well-founded fear of persecution in Iraq due to his ethnicity as a Turkmen. [7] As is summarized in the AR,4 the appellant is a 35-year-old citizen of Iraq from XXXX XXXX located near the larger northern Iraqi city of Mosul. He is ethnic Turkmen. [8] With respect to his first claim, the appellant's brother was kidnapped in Iraq in XXXX 2009. A ransom was demanded from the appellant's family. The kidnappers were associated with the terrorist organization, ISIS. Iraqi Security Forces rescued the brother. The brother then helped the security forces identify the kidnappers and secure convictions against them. Nonetheless, threats continued thereafter against the brother and the appellant including threatening telephone calls demanding that the brother recant his evidence about who had kidnapped him. Specific demands were made of the appellant to convince his brother to change his evidence about the identity of the kidnappers. [9] In XXXX 2010, the brother participated in a press conference organized by the Iraqi Criminal Investigation Bureau where various terrorists were publicly exposed. The brother moved to a different city located in Iraqi Kurdistan where he took up residence. The brother's home in XXXXwas later destroyed by a bomb. [10] The appellant continued to receive threats by phone from people both inside and outside of the prison where the terrorist kidnappers were jailed. The appellant relocated to XXXX XXXX, XXXX, in early 2011, but had to abandon his employment and the city in early 2013 due to unrelated threats made against his then employer. The appellant then went to XXXX in early 2013 seeking employment. However, he was approached there by an individual who said he knew the appellant and that the appellant should be careful. The appellant left Iraq shortly after this event and made his way to Canada where he arrived in XXXX 2013. He commenced a claim for refugee protection soon thereafter. [11] In XXXX 2013, several of the terrorists who had been convicted in the kidnapping, escaped from prison and additional threatening phone calls began to be received by the appellant's family. [12] The second basis for the appellant's claim arises from his allegation of having a well-founded fear of persecution in Iraq on the ground of his ethnicity, being Turkmen. RPD Decision [13] The RPD concluded that the appellant had established that he was a national of Iraq and was a member of the Turkmen ethnic minority group in that country. [14] With respect to the first basis upon which the appellant claimed protection, i.e., the alleged threats from ISIS connected with the appellant's brother's kidnapping, the RPD Member made no negative credibility findings with respect to the appellant's factual narrative about what had occurred. However, the Member concluded, inter alia, that, since ISIS has known of the whereabouts of both the brother and the appellant's family over the last XXXX XXXX since the kidnapping, without any meaningful attempts being made against the appellant or the family "the panel was left to consider whether these threats are anything more than idle."5 [15] The RPD concluded:6 [17] Considering the foregoing, the panel finds that there is insufficient evidence to conclude that there is more than a mere possibility of persecution from this group. The family has continued to reside in their home, in an area of control of this illegal group. The claimant moved to XXXX without issue and returned to his home of XXXX without anything happening to him. The claimant himself resided in this location without issue and although was approached and told to be careful, it is merely speculating what was meant by that. The claimant's own brother has continued to reside there even though these persons know his whereabouts and have had opportunity to seek harm to him if they chose to do so. Finally, and of significance to the panel is that this group is a known violent, motivated and coordinated group. It is unlikely that if they had any continued interest in harming the family of the brother or the brother himself, they would have attempted or done so. For these reasons, the panel finds there is insufficient evidence to conclude that there is more than a mere possibility of persecution nor is it more likely than not, that these persons would continue to target the claimant. [16] The appellant has not raised any allegations of error by the RPD in coming to its findings with respect to the ISIS related aspect of his claim. I find this RPD determination reasonable. [17] With respect to the appellant's broader claim of a well-founded fear of persecution arising from his ethnicity as Turkmen, the RPD's determination with respect to that issue is set out in two paragraphs of the RPD reasons:7 [18] What remains before this panel is to determine whether discrimination against this ethnic minority amounts to persecution for the claimant if he were to return to Iraq. The claimant alleges that as a member of the Turkmen ethnicity, he would face ongoing discrimination amounting to persecution. The objective evidence before me is that Turkmen are third largest ethnic group in Iraq. They mainly reside in the region stretching from XXXX XXXX XXXX XXXX XXXX XXXX, to Badra and Al-Azizyah, South East of Baghdad. There population is estimated at approximately two and half to three million persons in Iraq while some sources place the number at approximately 500,000 to 600,000. The evidence is that Turkmen civilians can be targeted from armed groups on the religious or ethnic identity as well as imputed political opinion. The evidence is that ongoing insecurity and attacks on members of the community in Kirkuk abstained from Eid celebrations.8 [19] The evidence before this panel is the claimant holds a XXXX XXXX XXXX. Although not in his field, the claimant was able to work within XXXX and was able to find and maintain work, without undue hardship, while residing in Iraq. There is little to no evidence on the claimant's personal situation in being unable to practice his faith or having been targeted for harassment or ill treatment due to his ethnicity. In testimony the claimant had said that in the South of Iraq there is no acceptance of persons being from his ethnic group. But considering that the claimant comes from XXXX, that this region has a large proportion of Turkmen and that his family and he have had little to no issue in residing in XXXX, the panel is alive to the objective evidence which does indicate that religious minorities can be targeted in Iraq. However, the panel is not satisfied that this is sufficient to establish the claimant faces more than a mere possibility of risk of persecution if he were to return to Iraq. [18] It is within the above cited two paragraphs that the appellant submits the errors of the RPD in its analysis of the second basis of the appellant's claim are revealed.9 [19] In the final result, the RPD found that there was not more than a mere possibility that the appellant would be persecuted should he return to Iraq and, on a balance of probabilities; he would not face section 97, IRPA risks or danger in that country. GROUNDS OF APPEAL [20] The appellant lists one issue regarding this appeal:10 Did the tribunal err in law or misapprehend the facts and evidence in failing to assess all elements of the appellant's refugee claim? REMEDY SOUGHT [21] The appellant seeks an order from the RAD that:11 a) the decision of the RPD be set aside and substituted with a determination that, in the opinion of the RAD, should have been made; or alternatively b) the matter be referred to the RPD for redetermination with directions to the RPD that the RAD considers appropriate. STANDARD OF REVIEW [22] The appellant submits12 that the proper standard of review to be applied by the RAD to the determinations of the RPD with regard to errors of law is correctness.13 The appellant also submits that, with respect to this appeal, "the failure to consider the claim as put forward by the appellant constitutes a misapprehension of the facts and evidence, which is reviewable on the standard of reasonableness."14 [23] When considering such standards with regard to the judicial review of administrative tribunal determinations, the Supreme Court of Canada in Dunsmuir15 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a specific issue before a review court is settled by past jurisprudence, a reviewing court may adopt that standard of review. It is when that search proves fruitless that a reviewing court must undertake a consideration of factors comprising the standard of review analysis. [24] In what is, to my knowledge, the first Federal Court review of a RAD decision regarding what is the appropriate standard of review to be applied by the RAD, Justice Shore on May 26, 2014 in Iyamuremye c. Canada (Citoyenneté et Immigration)16 confirmed that, with respect to findings of fact and of mixed fact and law, the standard of review to be applied by the RAD in assessing the determinations of the RPD is reasonableness. The standard regarding matters of law is correctness. [25] As alleged by this appellant, the principle basis for the appeal is the allegation of a misapprehension by the RPD of the facts and evidence, a matter which the appellant submits should be assessed on the standard of reasonableness. Reasonableness is concerned with the justification, transparency and intelligibility of the decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes defensible in respect of the facts and law.17 In my opinion, there is no substantive reason why the RAD should not apply a similar definition of reasonableness. As will be discussed in the Analysis portion of this decision, in my opinion, at least a portion of the appellant's ground for appeal also involves an assessment of law which attracts a standard of correctness. ANALYSIS OF THE MERITS OF THE APPEAL [26] The appellant submits that the RPD failed to adequately consider the appellant's ethnicity and/or particular social group (i.e., Turkmen Iraqis) and to conduct a correct legal analysis on that issue in the context of the claim of persecution. It is also submitted that the appellant's particular social group falls within the enumerated particular social groups as enunciated in Ward18 (i.e., innate or unchangeable characteristic). [27] There is also the view that Convention claims based on ethnicity may also be considered on the basis of the Convention grounds of nationality and race. As discussed by Lorne Waldman:19 8.315 There is authority for the proposition that the concept of nationality in the present context extends beyond even an expanded notion of citizenship to encompass ethno-cultural and linguistic groups. Hyndman states that: The term "nationality" generally receives a broad interpretation and can overlap with some of the other grounds. It is usually taken to include, as well as citizenship, members of specific ethnic or linguistic groups and may occasionally overlap with the term "race". [Footnote omitted] The UNHCR handbook argues that: "The term 'nationality' in this context is not to be understood only as 'citizenship'. It refers also to membership of an ethnic or linguistic group...." [Footnote omitted] It may be argued that nationality as a ground for refugee status may overlap significantly with both race and, conceivably, particular social group. [28] The appellant notes that the RPD Member was aware of the second basis of the appellant's claim by stating, "The claimant also submits that he fears persecution as a member of the Turkmen ethnic minority group in Iraq,"20 and "Further, that he would face more than a mere possibility of persecution as a member of the Turkmen ethnic minority in Iraq."21 [29] The appellant submits22 that the RPD Member's analysis of the claim based on ethnicity is fundamentally flawed and that the RPD's error arises from the Member improperly framing the question she must answer in paragraph 18 of the RPD reasons as follows: What remains before this panel is to determine whether discrimination against this ethnic minority amounts to persecution for the claimant...the claimant alleges that as a member of the Turkmen ethnicity, he would face ongoing discrimination amounting to persecution. (appellant's emphasis) [30] In summarizing paragraph 19 of the RPD reasons, the appellant notes that:23 In paragraph 19 of the RPD decision, the RPD went on to assess the Appellant's ability to find work in Iraq without undue hardship, his ability to practice his religion, the fact that the Appellant was not personally targeted for harassment or ill-treatment due to his ethnicity while living in Iraq and the fact that he and his family have had no issue in residing in XXXX. The RPD then goes on to state that it is alive to the objective evidence which indicates that religious minorities can be targeted in Iraq, but is not satisfied that this is sufficient to establish that the Appellant faces more than a mere possibility of risk of persecution [sic]. (appellant's underlining) [31] Given the above, the appellant submits24 that the RPD had asked itself the wrong question and imposed a test of discrimination amounting to persecution, something the appellant himself had never advanced. As he had set out in his Basis of Claim , the appellant states: I am also Turkmen ethnicity and persons of my ethnic background have been victims of sectarian violence from both Arab and Kurdish extremists. In Iraq it is easy to tell I am Turkmen based on XXXX being on my Iraqi identity card. [32] The appellant submits that the basis of this aspect of his claim is not an argument of discrimination amounting to persecution but, rather, persecution based in the appellant's ethnicity and/or particular social group. In its approach on the question, the appellant submits that the RPD was confused about the basis of the claim and, as a result, "failed to provide a lawful analysis of the appellant's prospective risks on this ground."25 [33] The appellant submits that the RPD's substantive analysis of this part of his claim is as set out in paragraph 19 of the RPD decision. The issues of finding work and being able to worship freely in Iraq are only relevant in the appellant's submission if the RPD is considering an argument of discrimination amounting to persecution, something the appellant had not advanced. The RPD continued on to make the statement that the appellant himself had not previously been targeted for harassment or ill-treatment due to his ethnicity. In stating this, the appellant alleges the RPD erred in law. [34] The appellant cites the authority of the Federal Court of Appeal in Salibian26 for the proposition that there is no legal requirement for past persecution, or individualized persecution when assessing whether or not an individual has a well-founded fear of persecution on one of the Convention grounds. A successful claimant need not establish that they were personally targeted in the past. As stated by the appellant:27 The RPD had to turn its mind towards the objective evidence on the persecution qua persecution of Turkmen in Iraq and then determine if the appellant faced risks based on his ethnicity or particular social group. [35] As was noted by the Federal Court of Appeal in paragraph 18 of the Salibian decision: [18] The best evidence that an individual faces a serious chance of persecution is usually the treatment afforded similarly situated persons in the country of origin. In the context of claims derived from situations of generalized oppression, therefore, the issue is not whether the claimant is more at risk than anyone else in her country, but rather whether the broadly based harassment or abuse is sufficiently serious to substantiate a claim to refugee status. (RAD emphasis) [36] The Federal Court in Vozkova ,28 when considering a similar submission that an RPD Member had applied the wrong test in assessing a refugee Convention claim based on general persecution, i.e., one not directly tied to the claimant's past, came to the following conclusion on the standard of review: [20] The standard of review for whether the RPD applied the proper test for refugee protection under s. 96 of IRPA is a question of law and to be assessed on a standard of correctness: Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982 (SCC). [37] In his memorandum, the appellant makes reference29 to extracts from the 266 page, multi-article, RPD Exhibit 7 which the appellant had disclosed before the RPD. These extracts make reference to a number of particular events about which one might, after consideration, conclude is evidence of violence and other forms of persecution perpetrated against persons of Turkmen ethnicity in Iraq. The appellant states:30 There was abundant, credible, documentary evidence before the RPD regarding the targeting of the Turkmen community based upon their ethnic identity. Some of these attacks occurred in the appellant's home city of XXXX, occurred over several years and show the Turkmen community to be vulnerable to targeted sectarian attacks, arrests and threats. [38] The appellant closes his submission with the comments:31 The RPD has misapprehended the nexus ground advanced by the appellant. In framing the Appellant's ethnic identity as an issue of discrimination amounting to persecution, the RPD failed to properly consider the objective evidence of serious harm to the appellant by virtue of his ethnic identity alone. As a result it has conducted an analysis of risk that is truncated and ignores the compelling evidence of violent attacks against Turkmen in Iraq. [39] In my assessment the appellant has accurately identified an error in law made by the RPD with respect to this claim. I accept the submission, confirmed by the authorities, that the focus taken by the Member in this case was incorrect in restricting her analysis to the particular life story of the appellant, without considering the broader assertions of persecution based solely on the appellant's ethnicity. For that reason, the RPD determination is set aside. Having come to this conclusion, it is necessary to consider the appropriate remedy. REMEDY [40] I have concluded that, in the circumstances of this claim and the fact that, in my assessment, the matter must be referred to the RPD for redetermination in any event, it would not be appropriate that the RAD should attempt to come to ultimate conclusions as to whether or not there is an objective evidentiary base to the appellant's alleged ethnically-based claim of a serious possibility of persecution for the appellant should he return to Iraq. I do, however, conclude that the country condition evidence referred to by the appellant on this appeal, does indicate that there are serious factual matters which should be considered, assessed and properly weighed in determining the appellant's persecution claim based on his ethnicity. [41] In my assessment it would not be useful or efficient for the RAD to attempt to resolve the objective basis aspect of his claim inasmuch as that would not end the matter. Even if a review of the evidence does establish the claim objectively, it would still be necessary to determine whether or not the appellant can demonstrate the requisite subjective fear in order to successfully establish a claim under section 96 of IRPA. Both elements must be established. [42] With respect to subjective fear, questions concerning the appellant's delay in departing Iraq may well be not only relevant, but even determinative. Time spent outside of Iraq, such as in 2007-2009 with respect to Turkey.32 could give rise to questions of a failure to make claim in another country and/or re-availment. In addition, internal flight alternative and state protection issues too would need to be addressed, even if persecution is established. All of those issues require evidence from the appellant and, if appropriate, from any witnesses he might wish to call. [43] The appellant has not sought to present "new" documentary evidence to the RAD under subsection 110(4) of the Act. As well, he has not sought a hearing before the RAD pursuant to subsection 110(6) of IRPA. That subsection provides: 110(6). The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3): (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. (RAD emphasis) [44] In my assessment there is no basis established under the Act in this case whereby it would be appropriate for the RAD to conduct a hearing in this appeal. I note as well that, if the RAD attempted to do so, it would be more than likely that it would be re-hearing, at least in part, evidence already heard previously by the RPD. [45] Moreover, as the remaining issues mentioned above would require credibility assessments, I consider that it would be imprudent for the RAD to attempt to make such credibility findings based on a CD recording, or even a transcript, of the testimony provided directly to the RPD with respect to whatever RPD evidence might touch on those remaining issues. [46] Accordingly, the RPD determination is set aside pursuant to subsection 111(2)(c) of the Act and the matter is referred to the RPD for redetermination by a differently constituted panel, subject to the following directions. DIRECTIONS [47] As noted in the above reasons, there were two primary bases for the appellant's claim. [48] The first specifically concerned his allegations arising from the scenario involving the appellant's brother's kidnapping by the Islamic State of Iraq (ISIS) and various threats associated with that event. [49] This first claim was, I have found, reasonably rejected by the RPD. As well, as I noted earlier, that finding by the RPD was not challenged by the appellant in the within appeal to the RAD and no submissions were made to the effect that the RPD committed any errors of fact and law or mixed fact and law in coming to that determination. [50] The above being the case, in conducting a redetermination, the RPD is directed to focus upon the second claim raised by the appellant concerning alleged persecution based on his ethnicity as discussed in these reasons and to not redetermine the first claim. [51] However, in making this direction, I do not intend to fetter in any way the evidence the appellant might wish to present in pursuing the second claim which might be coincident in time or even directly related to the events surrounding the ISIS matter if, as to be determined by the RPD, such evidence is relevant to the second ethnicity-based claim. CONCLUSION [52] Based on all of the foregoing, the RAD sets aside the determination of the RPD and refers the matter of the claim of XXXX XXXX XXXXXXXX to the RPD for redetermination by a differently constituted panel subject to the above noted directions. (signed) "Philip MacAulay" Philip MacAulay June 4, 2014 Date 1 Immigration and Refugee Protection Act, S.C., 2001, c. 27. 2 Refugee Appeal Division (RAD) Exhibit 2, Appellant's Record (AR). 3 RAD Exhibit 3, RPD Record (RPDR). 4 RAD Exhibit 2, AR, pp. 13-15. 5 RAD Exhibit 3, RPDR, p. 9, para.16. 6 RAD Exhibit 3, RPDR, p. 9, para. 17. 7 RAD Exhibit 3, RPDR, pp. 9-10, paras. 18-19. 8 RAD Exhibit 3, RPDR, pp. 168-182, Item 1.7, p. 78. 9 RAD Exhibit 2, AR, pp. 18-20, paras. 22-27. 10 RAD Exhibit 2, AR, p. 15. 11 RAD Exhibit 2, AR, p. 28. 12 RAD Exhibit 2, AR, p. 16. 13 Pushpanathan v. Canada (Minister of Citizenship and Immigration), (1998) 1 S.C.R. 982. 14 RAD Exhibit 2, AR, p. 16 and see Vilmond v. Canada (Minister of Citizenship and Immigration), 2008 FC 926, at para. 13 and Nabizadeh v. Canada (Minister of Citizenship and Immigration), 2012 FC 365, at para. 24. 15 Dunsmuir v. New Brunswick, 2008 SCC 9. 16 Iyamuremye c. Canada (Citoyenneté et Immigration), 2014 CF 494. 17 Dunsmuir v New Brunswick, 2008 SCC 9, at para 47. 18 Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689. 19 Lorne Waldman, Immigration Law and Practice, Volume 1, Second Edition, Lexis/Nexis Canada, 2005, p. 8-191. 20 RAD Exhibit 3, RPDR, p. 4, para. 2. 21 RAD Exhibit 3, RPDR, p. 6, para. 9. 22 RAD Exhibit 2, AR, p. 18. 23 RAD Exhibit 2, AR, pp. 18-19. 24 RAD Exhibit 2, AR, p. 19, paras. 24-25. 25 RAD Exhibit 2, AR, pp. 19-20, para. 26. 26 Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (F.C.A.). 27 RAD Exhibit 2, AR, p. 21. 28 Vozkova v. Canada (Minister of Citizenship and Immigration), 2011 FC 1376. 29 RAD Exhibit 2, AR, pp. 21-22. 30 RAD Exhibit 2, AR, p. 22, para. 31. 31 RAD Exhibit 2, AR, p. 23-24, para. 34. 32 See RAD Exhibit 3, RPDR, p.52. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB4-00709