TB4-07555

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 : TB4-07555 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 December 15, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal M. Max Chaudhary 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 Iran, 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 quash the decision and order a new hearing by the RPD. DETERMINATION [2] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that he converted to Christianity in Iran, and he is therefore considered an apostate and is sought by the authorities. [4] The Appellant's refugee claim was heard on March 19, 2014 and April 16, 2014. By a decision of August 5, 2014, the RPD rejected the claim on the basis of credibility, finding that the Appellant had not established that he is a genuine convert to Christianity. [5] The Appellant submits that the RPD erred by failing to properly assess the sur place element of his claim, by making vague credibility findings, and by engaging in conjecture and speculation. The Appellant asks the RAD to admit new evidence-a summons issued to him by the Iranian authorities after he left that country. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of IRPA provides that an 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 an 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 [8] The Appellant asks the RAD to admit a "Writ of Summons" from the Revolutionary Court.3 The document is dated April 20, 2014, and it requires that he attend at court on April 30, 2014, with respect to a complaint "for propagations against Islam". This evidence was filed after the appeal record, and the Appellant therefore made an application under Rule 29 to submit the document. [9] The Appellant's claim was rejected more than three months after this document was issued. As such, this evidence did not arise after the rejection of the Appellant's claim. As the document relates to the very core of the claim-that the Appellant is sought by the authorities because of his conversion to Christianity-he could reasonably have been expected in the circumstances to have presented this document to the RPD prior to the rejection of his claim. Therefore, in order for this document to be admitted under Section 110(4), the Appellant must establish that it was not reasonably available at or prior to the rejection of his claim. [10] In an affidavit accompanying his appeal, the Appellant explains that the summons: ... was delivered to my wife on XXXX XXXX, 2014. This document was delivered to me on XXXX XXXX, 2014 and a certified translation was completed on XXXX XXXX, 2014.... This document arose after my second hearing and therefore was not available at that time. The document was smuggled out of Iran by a friend of the family who is now visiting Canada. I could not get the document before this date.4 [11] The Appellant argues in his Memorandum that this document is very sensitive and had to be smuggled out of Iran, and therefore it was "not available at the hearing or prior to the impugned decision being rendered."5 [12] In the RAD's view, the Appellant's proposed new evidence is not just a document, but the contents of that document. What is important here is the alleged fact that the Iranian authorities have ordered him to appear to answer to charges. This information was provided to his wife on XXXX XXXX, 2014. Why was that information not promptly provided to the RPD, which did not render a decision in the Appellant's refugee claim until months later? Rule 43 of the Refugee Protection Division Rules allows a claimant to bring new evidence after a hearing-why did the Appellant not bring an affidavit containing this new and significant allegation? [13] The Appellant does not tell the RAD when he first learned of the summons. The RAD notes, however, that the Appellant's wife communicated to him at other times. She emailed him a letter, dated XXXX XXXX, 2014, about a raid on the family home by the authorities. She also allegedly emailed his counsel twice, and she even provided her cell and home phone numbers. In this context, the Appellant can reasonably be expected to explain why he did not bring his new evidence-even without the availability of the actual document-to the attention of the RPD, or, conversely, why he did not learn of this important fact until receiving the actual document. [14] The Appellant has not established that this new evidence was not reasonably available to him-if not the actual document, then its contents-prior to the rejection of his refugee claim in August of 2014. [15] This document does not meet the test in Section 110(4) and is not admissible in this appeal. Role of the RAD What is the role of the RAD in considering an appeal against a decision of the RPD? [16] While 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. [17] Although the RAD is a relatively new body, it now has the benefit of some Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [18] In Iyamuremye, the Court found itself: ...entirely in agreement with the RAD that the standard of review to be applied to findings of fact made by the RPD is reasonableness. It is well established that an appellate body must review the findings of a trial court by applying a correctness standard to findings that involve questions of law and by applying a reasonableness standard to those involving questions of mixed fact and law....6 [19] The Court went on to hold that the RAD must review the evidence that was before the RPD and conduct its own, independent assessment of that evidence to determine whether the lower tribunal had properly considered the evidence and "reasonably justified its conclusion".7 [20] In the subsequent case of Alvarez, the Court clarified the role of the RAD in relation to the RPD.8 It held that the RAD is not to undertake a process of judicial review, but rather must perform its own assessments of the facts in order to determine whether the RPD made an error of law or mis-assessed the facts to the point of making a "palpable and overriding error".9 In the Court's view, the lower tribunal's ability to hear evidence viva voce makes it better situated than the RAD to make findings of fact, and therefore the appeal tribunal should show deference to the RPD's findings of fact and mixed fact and law. In contrast to its ruling in Iyamuremye, here the Court found that the RAD erred by assessing the decision of the RPD against a standard of reasonableness-but then required the use of a higher standard. [21] In Malhotra,10 issued after Alvarez, the Federal Court considered another decision of the RAD, in which the tribunal applied a standard of reasonableness to the RPD's decision under appeal. Although the Court did not specifically address the RAD's selection of the standard of review, it observed that the RAD had applied a standard of reasonableness and concluded that the RAD's decision did not contain any error which justified the intervention of the Court. [22] More recently, the Court, in Huruglica, considered the appropriate relationship between the RAD and the RPD.11 It found that the RAD erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.12 [23] While the Court had endorsed the standard of reasonableness in Iyamuremye and accepted it in Malhotra, it found in Huruglica that the application of such standard was in error. In contrast to Alvarez and Eng, the Court held that the RAD is not restricted to intervening only in the event of a palpable and overriding error. [24] The Appellant submits that the RAD must follow Huruglica. [25] In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". The RAD will therefore review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. The RPD's Findings [26] The Appellant argues that the RPD made credibility findings that were "impermissibly vague" and improperly substituted its own conjecture for his testimony. Having reviewed the RPD record as well as the panel's reasons, the RAD concludes that the RPD's treatment of the Appellant's credibility was indeed wrong. [27] First, it may be that the RPD had credibility concerns it did not reveal in its reasons. The RPD wrote, "In short, the panel did not find the claimant to be a credible witness and found his story as a whole lacked the ring of truth. Some of the panel's concerns are outlined below."13 The RAD notes that the identical words appear in another decision of the same RPD member, which was set aside by the RAD on appeal in RAD file TB4-07115. Here, as it did in that file, the RAD observes that these words could be understood to mean that the RPD's decision was also based on other credibility concerns which do not appear in its reasons. If true, this would be profoundly unfair to the Appellant, whose claim may have been rejected for reasons that have not been revealed to him and which he therefore cannot contest on appeal. If the RPD had other credibility concerns which factored into its general credibility finding, it was obligated to set out these deficiencies in its reasons. [28] Second, as in the appeal referenced above, the RPD focused on peripheral issues and failed to analyze the core of the Appellant's refugee claim. One of the RPD's negative credibility findings was based on the discrepancy of one day-the Appellant testified that on March 10, 2014, he requested a letter from his wife, but the letter he received is dated March 9. [29] The RPD also had concerns about an e-mail allegedly sent to the Appellant by his wife; the Appellant claimed that he forwarded this to the interpreter, but the RPD wrote, "If the message was forwarded, there should be some indication of that in the body or header of the email, however there was not."14 The panel failed to set out the evidentiary basis for its expectation that the email should contain certain features or information. [30] The RPD also made a negative credibility finding with respect to the Appellant's destruction of his genuine Iranian passport on the flight to Canada, rejecting his explanation that a smuggler told him that he would be returned to Iran if he arrived in Canada on a valid passport. The RPD found that "it does not make sense that the claimant would destroy such an important document. By destroying his passport, the claimant is getting rid of a key identity document that provides proof of not just his identity (personal and national) but also a record of his personal history-when and where the passport was issued, where and when the claimant travelled-for how long (passport stamps) and with what status (visas and counterfoil.)"15 The panel concluded that the Appellant's failure to provide his passport was "likely to be an effort to obfuscate his travel history." In the RAD's view, the RPD substituted its own perspective of the importance of the passport for the view of the refugee claimant. Here, the Appellant was able to prove his identity with other documents. The travel history of a refugee claimant may well be of importance to the RPD, but that does not mean that a claimant can be expected to see that history as important for his claim-which, in this case, rests on an alleged religious conversion. In making a negative credibility finding with respect to the destruction of the passport, the RPD also appeared to disregard the words of the Federal Court in Lubana: However, not every kind of inconsistency or implausibility in the applicant's evidence will reasonably support the Board's negative findings on overall credibility. It would not be proper for the Board to base its findings on extensive "microscopic" examination of issues irrelevant or peripheral to the applicant's claim: .... In particular, where a claimant travels on false documents, destroys travel documents or lies about them upon arrival following an agent's instructions, it has been held to be peripheral and of very limited value to a determination of general credibility.16 [31] The RPD also questioned an affidavit provided by the Appellant's aunt in Canada. The affiant confirms the Appellant's personal identity. The RPD asked the Appellant if the aunt knew of his conversion to Christianity, and he responded that she did. The panel proceeded to make a negative credibility finding on the absence of confirmation of the Appellant's religious identity in the affidavit.17 The Federal Court has held that it is an error for the RPD to make a negative credibility finding based on what a document does not say,18 and the RPD made such an error here. In the RAD's view, there may be some circumstances where the absence of expected information in a document may lead to a negative finding:19 perhaps a medical report with no diagnosis or treatment, or a police report with no mention of a reported crime. However, the RAD has reviewed the affidavit in question.20 It is clear that its purpose was to declare that the Appellant was born in Iran and is a citizen of that country. What is less clear is why the RPD faulted the affidavit for failing to set out the basis for the Appellant's claim. It was an error for the RPD to rely on what this document does not say in order to make a negative credibility finding. [32] It is unfortunate that the RPD chose not to analyze the core of the Appellant's claim-his allegation that he is a convert to Christianity. Although the panel wrote that it had "concerns with the claimant's evidence on issues going to the heart of his claim, including his involvement with Christianity in Iran..." it does not appear to have set out such concerns in its reasons. Instead, those reasons focus on the Appellant's travel to Canada, his Iranian passport, the date of his wife's letter, whether her e-mail was forwarded, and other peripheral matters. When it came to the Appellant's evidence of practicing Christianity in Canada, the RPD simply found that this evidence was "insufficient to overcome the above credibility concerns." In short, the evidence going to the core of the Appellant's claim was unable to overcome the RPD's concerns that largely related to peripheral elements. [33] It is clear that the RPD's general credibility finding was a cumulative one: "the cumulative negative inferences with regard to the claimant's credibility lead the panel to find that the claimant is generally not credible and that his risk allegations are not credible."21 A number of those findings, as discussed above, are in error, and therefore cannot support the cumulative finding. The RPD's decision must therefore be set aside. [34] The RAD has the authority to substitute its own determination for that of the RPD. The RAD cannot do so in this matter, as there were two areas of the Appellant's evidence that give rise to concern. When questioned at the port of entry, the Appellant explained that his belongings were seized in a raid by the authorities, but he failed to include the very significant fact-in a country where women are frequently mistreated in detention-that his wife was brought in for questioning. It was not an error for the RPD, after considering the Appellant's explanation, to find that this omission diminished his credibility. The Appellant also gave inconsistent testimony about whether a meeting of his group was under surveillance by the authorities. These areas were as close as the RPD came to assessing the core of the claim, and they are areas of valid credibility concern. The RAD is unable to resolve these concerns, and this matter must therefore be returned for re-hearing. CONCLUSION [35] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act, the Refugee Appeal Division refers the matter to the Refugee Protection Division for redetermination by a differently-constituted panel. This appeal is allowed. (signed) "Edward Bosveld" Edward Bosveld December 15, 2014 Date 1 In the French version of 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, 28 October 2014; 2014 FC 1022, para 51. 2 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 3 Appellant's Record, p. 37. 4 Appellant's Record, p. 20, Affidavit, para. 17. 5 Appellant's Record, p. 43, Memorandum, para. 17. 6 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 2 7 Iyamuremye, para. 3. 8 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 FC 702; the same reasons are given in Eng, Sengloem v. M.C.I. (F.C., no. IMM-7281-13), Shore, July 17, 2014; 2014 FC 711. 9 Alvarez, para. 33. 10 Malhotra, Sunil et al. v. M.C.I. (F.C., No. IMM-6899-13) Bédard, August 1, 2014; 2014 FC 768. 11 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 12 Huruglica, para. 45. 13 RPD's Reasons, para. 11, emphasis added. 14 RPD's Reasons, para. 16. 15 RPD's Reasons, para. 28. 16 Lubana, Rajwant Kaur v. M.C.I. (F.C.T.D., no. IMM-2936-02), Martineau, February 3, 2003; 2003 FCT 116, paras 10-12 17 RPD Reasons, para. 39. 18 Arslan, Yasar v. M.C.I. (F.C., no. IMM-4854-12), Russell, March 8, 2013; 2013 FC 252, at para. 88; and Pantas, Monica Lourdes v. M.C.I. (F.C., no. IMM-9213-03), Russell, January 19, 2005; 2005 FC 64, at para. 102. 19 See Pararasasingam, Mautharan v. M.C.I. (F.C., no. IMM-6959-12), Snider, July 22, 2013; 2013 FC 805, para. 16. 20 RPD's Record, p. 233, Affidavit. 21 RPD's Reasons, para. 32. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-07555