MB4-03062

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 : MB4-03062 Private Proceeding / Huis clos Reasons and decision ? Motifs et decision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision March 13, 2014 Date de la décision Panel Stephen J. Gallagher Tribunal Counsel for the person who is the subject of the appeal Me Styliani Markaki Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre Révisée par I. Bourgeau le 3 mars 2015 REASONS AND DECISION [1] Mr. XXXX XXXX XXXX, who is allegedly a 27-year-old citizen of Afghanistan, is appealing a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant has presented new evidence and has not requested an oral hearing. DETERMINATION OF THE APPEAL [2] I find the decision of the RPD to be wrong on questions of mixed fact and law. I am unable to confirm or set aside the RPD decision without hearing further evidence with respect to the issues of identity, credibility and country conditions. Pursuant to ss. 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers this matter to the RPD for redetermination by a differently constituted panel. RESPONSE TO A CHARGE OF AN APPREHENSION OF BIAS [3] The Appellant appears to argue that the RAD does not have the authority to disclose documentary evidence. As set out in detail below, my approach is that the new evidence submitted by the Appellant does meet the qualification for a hearing under articles 110(4) and (6). The concern of the Appellant's counsel may be that I have identified other issues with the RPD decision which must also be addressed, if I am to reach a determination. This is the reason, as noted below, for my disclosures. I responded to the Appellant's counsel's January 22, 2015 letter with an explanation for my actions.1 I have received no further response from the Appellant's counsel. [4] With respect the raised question of a 'reasonable apprehension of bias' argued in the Appellant's counsel letter of January 22, 2015, I cannot accept this understanding. I assume the Appellant's counsel's concern is that the RAD does not have the authority to disclose documentation and/or that while holding a hearing on the Appellant's new evidence that the RAD has the capacity to also ask questions related to the RAD's disclosed documentation. I conclude that the legislation and RAD rules provide for the possibility of the RAD disclosing documentation and I would identify section 170(a) of IRPA as a section which allows for proactive claimant specific research. I would also conclude that in reviewing my logic for disclosing documentation and considering holding a hearing to address issues that I have identified with the Appellant's appeal, a reasonable person would conclude that I was not biased in considering this approach to deciding this appeal.2 BACKGROUND [5] The Appellant, who alleges that he comes from the XXXX Province of Afghanistan, fears forced recruitment to the Taliban and alleges that now that he has run away, he is at risk of revenge at the hands of the Taliban. [6] The claimant alleges that in 2010, the Taliban and district 'elders' made an agreement that the Taliban will not use the villages as operational bases, if the villages provided them with money and fighters. The Appellant argued that because he was the only male in the family, that he should not be recruited. The Appellant alleges that the Taliban refused this accommodation. The Appellant alleges that he and his family fled the area. [7] The Appellant alleges that he traveled overland to Istanbul whereupon, with the aid of an agent, he entered Norway and submitted an asylum claim. This claim was eventually denied but with the money the Appellant raised while working in Europe, the Appellant alleges he secured the resources to be smuggled to Canada, where he arrived in May 2014, and applied for Canada's protection upon arrival. The RPD denied this claim in a decision dated July 21, 2014, whereupon this decision was appealed by submitting a Notice of Appeal, which was received by the RAD on August 5, 2014 SUBMISSIONS [8] The Appellant alleges that the RPD erred in its conclusion on Internal Flight Alternative (IFA), which was identified by the RPD as the single determinative issue. The Appellant argues that, in fact, a review of country conditions will show that there is no viable IFA for the Appellant in Kabul. [9] In terms of an outcome from this appeal, the Appellant seeks to have the appeal 'granted' and I assume that the Appellant seeks to be recognized as a Convention refugee. NEW EVIDENCE [10] In this appeal, the Appellant has introduced new evidence. In reviewing this evidence, it includes material which notes that given the ongoing withdrawal of coalition forces including American forces, there has been a deterioration of the security situation in Kabul (Appellant's Record, pp. 73-87). I must conclude this is an important point. The documentation on an IFA in Kabul appears clear that there is the need for some kind of support network for the Appellant, if an IFA is to be considered viable for Kabul. The question is, what kind of support network would the Appellant have, if he were to relocate to Kabul today? I do not see that this question was effectively put to the Appellant during the hearing. [11] Put simply, I am in agreement that the new evidence coupled with the logic of the appeal meets the criteria for holding a hearing and potentially overturning the RPD decision. My concern is that, as set out below, I also find that the RPD's analysis of credibility was perfunctory with perhaps an expedient logic that the claim could be most effectively addressed with an IFA analysis. But if the IFA is determined not to be viable, I must conclude that the credibility analysis is not of a quality that would support recognition of the Appellant as a Convention refugee. More questions need to be asked. [12] I must also conclude that I would not necessarily reach the same conclusion as the RPD with respect to identity. In this area, based on the evidence before me, on a balance of probability, I would be more likely to conclude that the Appellant is Pakistani of Pashtun ethnicity. This would provide an explanation for why there is a lack of original Afghanistan sourced identity documentation and it would be consistent with the existing residence of the Appellant's family. Being a Pakistani national would also better explain, as set out below, how the Appellant managed to reach Istanbul with enough resources remaining for an effective clandestine entry into Norway. In terms of seeking a resident status in Norway, at this point, claiming Afghani nationality becomes expedient. [13] Taken together, I must conclude that the new evidence is not sufficient for me to reach a positive determination because it does not address additional credibility concerns that I have with respect to the existing evidence found in the file. Given that I find that the RPD's decision analysis is no longer applicable to the situation of the Appellant and additional testimony is required on subject matters unrelated to the new evidence, I conclude that the appeal must be granted and the file returned to the RPD for another hearing. In the context of a differently constituted RPD panel, the new evidence that I have disclosed3 is to be available for review. ROLE AND FUNCTION OF THE RAD [14] The RPD in this claim pronounced itself 'ready to believe' the allegations of the Appellant and focused on a determinative issue that the Appellant had a viable IFA in Kabul. The Appellant seeks to have the RAD review the country conditions to reach a conclusion on whether the RPD is correct in its assessment. [15] I note that the RAD has now received some Federal Court guidance on the role of the RAD vis-à-vis RPD decision-making. One Justice suggests that the RAD's assessment of the RPD's determination with respect to the Appellants' credibility and with respect to questions of mixed fact and law, should involve an evaluation of the evidence to determine if the RPD made 'palpable and overriding errors'. This jurisprudence sets out that the RPD is owed a "measure" of deference in its conclusions and establishes that the RAD is responsible to perform its "own assessment" of the evidence (Alvarez4 and Eng5). [16] I note that in Spasoja,6 which is another recent decision, Justice Roy agrees with Justice Shore on the conclusion that 'palpable and overriding errors' should be the standard of intervention with respect to questions of fact. [17] In Huruglica,7 the Federal Court has stated that the RAD "must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection". Justice Phellan in Huruglica indicates that there is no need for the RAD to enunciate a 'standard of review' and suggests that while the RAD might show some deference on a credibility assessment and/or where the RPD enjoys a particular advantage in reaching such a conclusion, in other areas, such as an assessment of country conditions evidence, the RAD need not be deferential. [18] In Njeukam,8 Justice Locke references Huruglica and suggests that "Except in cases where the credibility of a witness is critical or determinative or when the RPD has a particular benefit from the RAD to draw a specific conclusion, the RAD must not give any deference to the analysis of the evidence made by the RPD". [19] Following Huruglica and Njeukam, I conclude that this appeal, which turns on a question of mixed law and fact, specifically the RPD's assessment of country conditions in Afghanistan with respect to the viability of an IFA in Kabul, I must reach my own conclusion based on my own assessment of the evidence and I do not need to show deference to the RPD's conclusions. ANALYSIS OF THE MERITS OF THE APPEAL Core Issue: Did the Board err in its IFA determination? [20] With respect to the RPD's credibility assessment, the RPD notes that "the claimant did not make any contradiction and there were no relevant inconsistencies. Therefore, the tribunal is ready to believe that the Taliban tried to forcefully recruit him". The RPD notes that while in general the documentation would find this "exceptional", there is some evidence that it happens in "certain regions" (RPD Decision, paragraph 8). [21] I recognize that with a viable IFA in Kabul, it would be expedient to set aside credibility concerns. At the same time, however, I must conclude there are clear credibility issues with respect to this claim which should be addressed, if an IFA is not possible. It starts with the Appellant's documentation which sets out allegations that he lived in XXXXVillage, Chapa Dara District, Kunar Province, from 2004 to 2010 (RPD Record, p. 118). The Appellant also states that he went to high school in XXXX High School, Kunar Province, and then XXXX University, Jalalabad, Afghanistan. I must conclude that these background allegations raise credibility issues, which is the reason for my disclosing documentation which has the purpose of more effectively situating the Appellant geographically and with respect to the security situation in Kunar Province. [22] The Appellant sets out a scenario where the villagers reach an agreement with the Taliban. In researching the military situation in this area, I must conclude that this is a disputed area with constant combat in which the roads, mines and villages are generally controlled by forces opposed to the Taliban, including local tribal fighters, but that the Taliban regularly infiltrate the forests and mountain areas. At times, the Taliban control villages and even whole districts, but in this area Coalition forces and the Afghan military have been very active. [23] For example, in 2012 the BBC reported that NATO had killed the senior Taliban commander in Chapa Dara, identified as Maulawi Nur Mohammad, along with this second in command in an air strike. There is also a November 2014 report which has the Afghanistan Ministry of the Interior suggesting that the Chapa Dara had been cleared of insurgents. There are numerous military related sources which regularly report engagement and situation reports with respect to the Kunar province. The fact is that Afghanistan is a very well documented area. Aid and development agencies have spent billions in Afghanistan and most areas are now well mapped and district level development and security reports are readily available. [24] The clear credibility issue with respect to this appeal is that Kunar province is hotly contested and the idea that a district 'jirgah' somehow peaceably negotiated the Appellant's fate is open to question. This is piled on top of the concern that the Appellant, who alleges he is a medical school student, does not fit a typical profile of a Taliban as an individual who is less educated and if educated, educated in a madrassa. Then, there is the problem that even if all that is alleged is true, there is a possibility that the Taliban that knew of him are now dead and if not dead, it is hard to believe that they would remember the Appellant after nearly five years of constant warfare. [25] In addition, there is the general credibility issue of the Appellant even coming from XXXX Village, in the Kunar province. It must be recognized that XXXX Village is remote by any criteria. There is only a map defined 'track' (lowest type of road) into this village. Chapa Dara District is poor in a way that it would be difficult to understand in the west. For example, most of the people in this area would not attend elementary school let alone high school (Literacy rate of Chapa Dara is perhaps 25 %). It is not even clear how the Appellant would have gotten to high school, which he alleges attending, because this would be a significant walk from XXXX to XXXX and according to the map, the track only crosses the river some distance down river from XXXX.9 On foot, this trip would likely involve walking perhaps three to six kilometers, depending on possible short cuts and where the river is forded. [26] The Appellant also alleges that he began studying at XXXX University in September 2009. Commuting to Jalalabad from XXXX on a daily basis is out of the question. This means the Appellant lived in Jalalabad. The question therefore arises as to where the money came from to support the Appellant's family and his own studies, if his father died in 2009. This only begins to address the question of how an individual from a remote village in a poor district would be able to involve Mr. XXXX XXXX XXXX XXXX XXXX XXXX XXXX of Kunar province and Mr. XXXX XXXX XXXX XXXX XXXX XXXX XXXX of Kunar province in his problems with the Taliban. [27] There is also the question of resources to undertake the transit to Europe. Here I find a major plausibility issue. Put simply, the Appellant's education and travel to Europe indicates resources which would not place him as the son of a rural farmer from Kunar province Afghanistan who had passed away, causing the remainder of his family to become refugees in Pakistan. [28] Specifically, the Appellant is alleging an overland route through Iran to Turkey, which needless to say is arduous and dangerous. But when the Appellant is in Istanbul, unlike thousands of other young Afghanis, he can afford to secure an 'agent' and a British passport to reach Norway by air. It should be kept in mind that large numbers of Afghanis attempt to come to Europe each year and a key difficulty they face on entry to Europe is to reach a country with a relatively liberal determination process to first lodge their asylum claim. Such countries include UK and the Nordic countries, including Norway. Because Europe has an effective safe third country policy (Dublin Regulation), the problem for an asylum seeker is to somehow jump the relatively less desirable countries at the boundaries of Europe (Greece, Italy, Spain) to get to a desirable host country. In this case, the Appellant alleges he had an 'agent' who is accompanying him and the Appellant is flying from Istanbul to Oslo using a UK passport (Oral Hearing at minute 1.17; RPD Record, p. 119). Where is the Appellant getting these resources? [29] There is also the travel of the Appellant mother and sisters to Peshawar in 2010. The Pakistani government has been attempting to return Afghan Refugees for some time, and to close off the border to more. There is also the credibility concern related to why the Taliban would target woman in the first place. When the Appellant was asked why his mother and sister needed to flee Afghanistan if woman are not a concern of the Taliban, his answer was very unclear and the somewhat anomalous rationale is that, in this case, woman were targeted in order to 'send a message' (Oral Hearing at 1:55). On a balance of probability, such an argument is open to question. [30] There is also the question that in this claim, there is absence of authoritative corroborative evidence with respect to the Appellant's identity. The history of the Appellant would suggest that he should be capable of providing authoritative corroborative evidence. With respect to the Appellant's period in Europe, the Appellant should be able to provide the decision/reasons for why his asylum claim was refused in Norway. This would include a determination on whether Norwegian authorities recognized the Appellant as Afghani. With respect to Afghanistan, at the very least, the Appellant should be able to provide school records for his studies at XXXX University. It should be noted that there was/is an XXXX University in Peshawar, an XXXX University in Jalalabad and an XXXX University in Kabul. Needless to say, clarification is needed and regardless of the institution, documentation should be provided and such documentation should not be difficult to obtain. [31] Although I considered the possibility of holding a hearing in this appeal to address the IFA issue, recognizing that the thrust of recent Federal Court decision making is almost to encourage RAD initiative, I must conclude that this file requires a 'do over'. This is to say that many issues are potentially involved, aside from the IFA issue, which could require a lengthy hearing and a developed decisional analysis. [32] My conclusion is that the RPD did err with respect to its IFA analysis. The documentation related to a viable IFA in Kabul sets out that the Appellant would require some type of support network upon arrival otherwise this destination would not be reasonable. Given that I do not see that the RPD undertook to determine what situation the Appellant would face in Kabul with respect to a support network, I must conclude that the RPD decision must be set aside. I also conclude that this file should be returned to the RPD to undertake such a review. DIRECTIONS [33] The RPD should reassess the Appellant's identity given the lack of original identity documents which come directly from Afghanistan. The RPD should also undertake a reassessment of the credibility of the claim. The RPD should also assess the viability of an IFA in Kabul taking into consideration that documentary evidence implies the need for a network of support to render this destination reasonable. CONCLUSION [34] The RAD is unable to confirm or set aside the RPD decision without hearing additional evidence. The RAD therefore exercises its discretion under paragraph 111(1)(c) of IRPA to refer the matter back to the RPD for a redetermination in accordance with the Directions to a differently constituted RPD panel. [35] Therefore, the appeal is allowed. Stephen J. Gallagher Stephen J. Gallagher March 13, 2014 Date /cl 1 RAD, Reply to letter sent January 22, 2015, requesting to explain basis to hold a hearing, January 29, 2015. 2 Committee for Justice and Liberty et al. v. National Energy Board et al. (1978) S.C.R. 369. 3 RAD, "Disclosure of Documents - Ref: RAD File MB4-03062 - To: Me S. Markaki," January 8, 2015. 4 Alvarez v. M.C.I. (2014) FC 702. 5 Eng v. M.C.I. (2014) FC 711. 6 Spasoja c. Canada (Citoyenneté et Immigration) 2014 CF 913. 7 Huruglica v. M.C.I. (2014) FC 799. 8 Njeukam v. M.C.I. (2014) FC 859, paragraph 14. 9 Supra, note 1, p. 1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) Available in English N° de dossier de la SAR/RAD File No.: MB4-03062 11