TB7-14233

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 : TB7-14233 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 April 18, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Styliani (Stacey) Markaki 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 FOR 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 not submitted new evidence in support of this appeal. The Appellant is not requesting an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. BACKGROUND [2] The Appellant is a Kurdish man from the Kurdish Region of Iraq (KRI) who was involved with an organization known as "XXXX XXXX", which advocates for the rights, health and well-being of girls and women. After attending a conference in Denmark for XXXX XXXX, the Appellant returned to the KRI and began a project to reduce female genital mutilation (FGM) in his area, holding seminars and handing out pamphlets on the subject. In XXXX 2016, the Appellant received his first of two threatening phone calls, telling the Appellant to stop conducting his seminars, etc., as his teachings were going against the local culture and religion. [3] The Appellant filed a complaint with the police after the second phone call on XXXX XXXX, 2016 and then to the courthouse to present his statement, the next day. After the courthouse visit, the Appellant was followed by three individuals who were armed with knives. The Appellant ran away. The next day, the Appellant flew to the U.S.A. for a workshop. [4] On XXXX XXXX, 2016, the Appellant's mother contacted him to tell the Appellant that two armed persons had come looking for the Appellant at the family home and told the mother that they would kill the Appellant if he returned to Iraq. [5] Further details may be found in the Appellant's Basis of Claim (BOC)1 form and by listening to the audio recording of the hearing. [6] The Appellant spent one month in the U.S.A. and then came to Canada to claim protection. The Appellant entered Canada on January 6, 2017 and filed his claim on January 27, 2017. RPD's Reasons [7] In its reasons, the RPD found it unreasonable that the Appellant, who was conducting seminars on issues including FGM, did not have any knowledge of the various types of FGM. Further, the panel found a contradiction regarding the death threats received by the Appellant and found it implausible that the three men with knives who chased the Appellant would simply give up the chase. The panel also found that the Appellant behaved inconsistently when he failed to report the above incident to the police. [8] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. Appellant's Issues [9] The Appellant raises two issues at the RAD: a. Did the RPD err in its assessment of the Appellant's credibility? b. Did the RPD err when it failed to consider the Appellant's various exhibits? ANALYSIS Standard of Review [10] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.2 Arguments - Knowledge of FGM [11] Counsel argues that the panel erred when it made a negative credibility assessment of the Appellant because the Appellant was not aware that there were four different types of FGM. The Appellant explained to the panel that he had no need to know details about the various types of FGM and never received instructions on those details. The Appellant explained that his audience was uneducated and had no need to know such details. Counsel argues that the Appellant had submitted evidence3 in showing that he had been trained by XXXX XXXX. The evidence shows that the program was not specific to FGM and did not include any training in relation to this particular issue. [12] I find that the Appellant's explanation for his failure to know that there are four different types of FGM is reasonable. As FGM was not something the Appellant had been instructed on, and was only a part of his seminars, it is reasonable that the Appellant would not be aware that there are four different types of FGM. [13] I find that the panel erred when it made a negative credibility finding based on the Appellant's lack of knowledge of four different types of FGM. [14] Counsel argues that the panel found an inconsistency in the Appellant's testimony in regards to the threats he received. The panel found that the inconsistency occurred when the Appellant wrote in his BOC that during the phone call in XXXX, the caller "was making threats and using abusive language." Whereas in testimony, the Appellant testified that the XXXX call included a death threat. The panel found this to be an inconsistency because in the BOC, the threat was referred to as a "threat" but in testimony, it was referred to as a "death threat". I find this situation to be absurd. A threat is a threat and in this case, the panel was microscopic in a search for an inconsistency. In the Appellant's "BOC Annex", the Appellant writes in regard to the threats: "On XXXX XXXX, 2016, I got another call and a text message from the same person using a private number. He threatened me again with death to stop my project ..." [15] It is very obvious that the Appellant, in this "annex", has written that he was threatened with death during both phone calls. The Appellant, when writing about the second call clearly states that he was threatened again with death. [16] Regardless of whether or not the Appellant had mentioned that both calls threatened death (and he did so mention that), any threat is an act of violence. It is a gross error on the part of the panel to microscopically dissect testimony and evidence in search of irrelevant and imagined inconsistencies, as was apparently done in this case. The panel erred in this case. [17] Counsel argues that the panel ignored or failed to properly assess and consider evidence. Counsel points out proof4 of his training with the NGO "XXXX XXXX". The proof consists of letters of congratulations for being one of the people accepted into the training course as well as two certificates of achievement for passing both levels of the course. [18] The Appellant also submitted email communications5 between himself and the XXXX XXXX organization, expressing his concerns about the threats he was receiving and the work he was doing. [19] Further, counsel argues that the Appellant also submitted his business card for the XXXX XXXX program along with assorted photographs of the Appellant at different seminars. [20] The panel found that the Appellant did not conduct seminars in the rural areas of Kurdistan, did not believe that there were death threats against him and attached no probative value to the email exchange6 between the Appellant and the XXXX XXXX organization or to the transcript7 of the recorded telephone conversation involving death threats on XXXX XXXX, 2016, to the CD8 of that recording, to the threatening text messages9 or to the photos10 of the Appellant in front of XXXX XXXX posters. The panel also attached no probative value to the police report11 or to the letter12 from the Appellant's lawyer. The panel dismissed all of the above evidence based on its finding that the Appellant personally lacked credibility. [21] The panel's credibility findings were flawed, as shown above. Even if those findings had been accurate (and they were not), that is insufficient reason to simply write off the credibility of supporting documentation. An Appellant may be 100% untruthful in his story; however, when the documentary evidence supports the risk factors, that evidence must be considered on its own merit. Failing to do so, by the panel, is a major, reviewable error. [22] The documentary evidence disclosed is strong. [23] There is no argument that the Appellant was a member of the XXXX XXXX organization, as the certificates of achievement and the correspondence show this to be a fact. The panel has given no reasons to support the finding of no probative value, other than the flawed credibility findings attributed to the Appellant. [24] The correspondence between the Appellant and XXXX XXXX clearly indicate that he was being threatened. This email was written on XXXX XXXX, 2017 with a reply from XXXX XXXX XXXX XXXX of XXXX XXXX, the very next day, acknowledging the problems the Appellant was facing. Again, the panel has given no reasonable explanation for dismissing this evidence. [25] The Appellant submitted an audio compact disc with the recording of the XXXX telephone call during which time the Appellant was threatened a second time. The recording was accompanied by a translated transcript of the call. This is an extremely probative piece of evidence which again was dismissed without reasonable explanation. [26] Finally, the police report and letter from the Appellant's lawyer in Iraq were arbitrarily dismissed by the panel, once again, without justifiable reasons. [27] The panel made a gross error in its treatment of the supportive evidence adduced by the Appellant. [28] After a fulsome and total review of this file, I find that, for the reasons outlined above, the Appellant has successfully rebutted the panel's decision. [29] As the Appellant is being targeted specifically because he was spreading the word that FGM is wrong, this was an affront to the uneducated, rural, traditional people in the areas he conducted his seminars. The people who threatened him did so for religious reasons and cultural reasons and perceived the Appellant as having opinions on these matters that differ from theirs. As any opinion can be deemed "political", I can find there to be a nexus for this Appellant as "perceived political opinion" under section 96 of the IRPA. [30] However, there is much that has gone unspoken to because of the errors committed by the panel. State protection has not been canvassed, nor has an internal flight alternative (IFA) been canvassed. I cannot canvass these issues here as they are not a part of this appeal and due notice would have to be given to the Appellant that such inquiries would be made. As there has been no new evidence adduced for this appeal, I cannot convene an oral hearing to discuss these issues. I am therefore left with one reasonable decision and that is to return this file to the RPD to be re-heard, by a different panel with instructions to canvas state protection and IFA. Summary [31] The Appellant has convinced me that the panel made multiple errors in law and in fact. Disposition [32] The RAD has found that the RPD decision will not stand. CONCLUSION [33] Pursuant to paragraph 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently-constituted panel, with instructions to canvas state protection and IFA. (signed) "David Lowe" David Lowe April 18, 2018 Date 1 Exhibit RPD-1, RPD's Record, pp. 21-32. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Exhibit RPD-1, RPD's Record, exhibits P-7 and P-8, at pp. 122-128. 4 Ibid. 5 Exhibit RPD-1, RPD's Record, exhibit P-12, at p. 135. 6 Ibid. 7 Exhibit RPD-1. RPD's Record, exhibit P-13, at pp. 141-143. 8 Ibid. 9 Exhibit RPD-1, RPD's Record, exhibit P-14, at p. 144. 10 Exhibit RPD-1, RPD's Record, exhibit P-9, at pp.129-132. 11 Exhibit RPD-1, RPD's Record, exhibit P-15, at pp. 145-159. 12 Exhibit RPD-1, RPD's Record, exhibit P-16, at pp. 160-161. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-14233