TB3-09159

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 : TB3-09159 TB3-09160 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXX XXX XXXX XXXXXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 28, 2014 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal John Rokakis Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (The Appellant) and his minor daughter, XXXX XXXX XXXX (the Minor), are citizens of Iraq; they are appealing the Refugee Protection Division's (RPD's) determination which rejected their claims for refugee protection. [2] The Appellant was appointed as the Designated Representative (DR) for the minor by the RPD. [3] The Appellants submitted new evidence in support of their appeals. [4] They want the RAD to set aside the RPD's decision and the matter to be referred back to the Refugee Protection Division for a re-determination by a different panel. Determination [5] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the Refugee Protection Division for re-determination. This appeal is allowed. Background [6] The Appellant alleged before the RPD that he is the father of the minor and they are Chaldean Christians from Baghdad, Iraq. The family includes the Appellant's wife and another daughter, both could not travel with the Appellants to Canada. They were to follow in a few weeks, but they have as yet to arrive, and the Appellants do not know their current location. [7] The Appellant alleged before the RPD that after the American invasion of Iraq in 2003, the situation for Christians worsened because the Christians were perceived as pro-American by Islamic militants. [8] The Appellant's family was affected by this; they were targeted by Islamic militants who started to threaten the family beginning in 2007. Islamic militants wanted the Appellant and his family to convert to Islam and pay monthly protection money or leave their house. The Appellant chose to pay the money, hoping that the situation in Iraq would improve. They paid until around XXXX 2011; after that the Appellant could not continue to pay. [9] The Appellant alleged before the RPD that at this stage the militants threatened that they would take the Appellant's daughters until the Appellant resumed payment. At this, the Appellant decided to leave Iraq. The Appellant sold their house and travelled with his family to XXXX in the north of Iraq, where they waited for about a year until arrangements could be made for the Appellant to leave the country. [10] The Appellant alleged before the RPD that a smuggler obtained false passports for the Appellant's family and brought the Appellants to Turkey, from where they were to travel together to Canada. [11] The Appellant alleged before the RPD that the plans changed the day before leaving and only two members of the family travelled to Canada. [12] The Appellants left for Canada in XXXX 2013; their Basis of Claim forms were signed1 on February 4, 2013. Their refugee claims were heard on September 25, 2013 and the RPD rendered an oral decision at the end of the hearing. [13] The RPD stated in its reasons, "I find that you have not established your identities on a balance of probabilities. As such, I cannot find you to be Convention refugees or persons in need of protection, and your claims are therefore rejected". New Evidence [14] The Appellants submitted the following documents to be considered as new evidence pursuant to section 110(4) of the Act: (a) an affidavit from the male Appellant that is essentially a sworn narrative explaining why he is submitting the article on XXXX and the affidavit from the XXXX as new evidence, (b) affidavit from XXXX XXXX XXXX, (c) an article on XXXX, Baghdad. [15] The Appellants however did not request an oral hearing pursuant to subsection 110(6) of the Act. [16] In order for the RAD to consider this as new evidence, it must meet the criteria set out in subsection 110(4) of the Act, which provides that the evidence proffered must not have been reasonably available at the time of the hearing, and states: S.110 (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [17] Additionally, if the evidence meets the statutory criteria, it must also be assessed against the factors set out in Raza, which is the leading case on "new" evidence. Even though the Raza case was specific to the Pre-Removal Risk Assessment (PRRA) process, I consider it relevant to the RAD because the wording in s. 113(a) of the Act, which is regarding PRRA provisions, and ss. 110(4) of the IRPA regarding the RAD are similarly worded. [18] In Raza, the court posed the following questions that need to be asked in deciding whether to accept new evidence for a Pre-Removal Risk Assessment case. These, as summarized by the Court, are: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or, (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or, (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered. [19] The RAD applied Raza in considering whether to accept evidence that was provided after the RPD decision. [20] The Appellant's affidavit, Item (a), at paragraphs 5 and 6, states the following: 5. XXXX is not a town. XXXX is an area within Baghdad. National identity cards for XXXX residents are issued in XXXX XXXX or New Baghdad. 6. The two documents with Father XXXX XXXX signature: the Certificate of Birth, Baptism & Confirmation, and the letter from the XXXX XXXX Church, were given no weight by the RPD panel member towards establishing our identities. However, these two documents are authentic. [21] These two paragraphs stated above are intended to dispel an alleged mistake by the RPD Panel that stated in its reasons: "I note that the documents also indicate that an individual's identity card is issued in the area where their parents reside and you indicated you lived all your life in XXXX. Your family's cards are issued in XXXX XXXX or New Baghdad". This appears to indicate that XXXX is a town different from the rest of Baghdad. Thus, the Affidavit provides information "that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection". Thus, it meets the express statutory condition and it meets the Raza test that it is new; it is credible, material and relevant. Thus, it is accepted as new evidence. [22] Item (c) is an article that supports the contents of paragraph 5 from Item (a) cited above and is also accepted for the same reasons. [23] The last document, item (b), the affidavit from XXXX XXXX XXXX, is to address the RPD's concern that two documents - one signed in 1995 in Iraq and the other in 2013 from Canada - are both signed by Father XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [24] Thus Affidavit, item (b), also provides information "that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection". Thus, it meets the express statutory condition and it meets the Raza test that it is new; it is credible, material and relevant. Thus, it is also accepted as new evidence. [25] Thus, the new three items meet the Raza test as well as the statutory conditions and are accepted as new evidence. [26] The Appellants did not request an oral hearing before the RAD, and none is granted. ANALYSIS Standard of Review [27] The Appellants submit that the RPD's decision "is unreasonable because it was based on unreasonable findings of fact. It was unreasonable for the RPD to fail to give appropriate weight to: a) their Iraqi identity cards, (Exhibits 7 and 8), b) certificate of birth, baptism and confirmation (Exhibit 12), and c) letter from the XXXX XXXX XXXX Church in XXXX, Ontario (Exhibit 11). This is an issue of fact. [28] The Appellants submit on the issue of "Standard of Review" the following that for: "this appellate administrative tribunal the standard of review of a decision of the RPD, a tribunal of first instance, is reasonableness. Unless the findings of fact are unreasonable, this appellate tribunal should not interfere with the decision. [29] The Immigration and Refugee Protect Act (IRPA or the Act) does not provide direction or guidance as to what is the appropriate standard of review to be applied in its appeals brought before it. [30] In Dunsmuir,2 the Supreme Court of Canada concluded that there are two standards of review: correctness and reasonableness. [31] In Khosa,3 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute. This case was not specifically in the context of an appeals tribunal charged with reviewing the decision of a tribunal of first instance. [32] In Newton, the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:4 (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (g) other factors that are relevant in the particular context. [33] The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.5 The subject of the RPD proceedings or the Minister may appeal decisions of the RPD to the RAD. The appeal may be regarding a question of law, a question of fact, or a question of mixed law and fact. The Immigration and Refugee Protection Act empowers the RAD to determine questions of jurisdiction as well as questions of law and fact. The RAD is charged with a review of the appeal and determines whether to confirm the RPD's decision; or set aside that determination and substitute another; or refer the matter back to the RPD for redetermination with or without directions it deems appropriate. [34] The respective roles of the RPD and the RAD in the Act suggest that deference is owed to the RPD on findings of fact, or findings of mixed fact and law, that RPD finds based on the evidence and the testimony of the refugee claimants given at the RPD hearing. However, in cases where the RAD accepts new evidence, relatively less deference may be owed to the RPD because the RPD did not have the new evidence before it. [35] The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [36] Canada's refugee system is, in the first instance, about saving lives and offering protection to the displaced and persecuted.6 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [37] In the context of an appeal to RAD, this objective can be understood as ensuring that Appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with Section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, Section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [38] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [39] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. d: The Expertise and Advantageous Position of the Tribunals: [40] Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,7 and each can take notice of information and opinions within its specialized knowledge.8 In the area of fact finding and credibility assessment; however, the RPD holds a significant advantage. It must hold a hearing,9 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD proceeding.10 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will not have this opportunity in all cases. Despite several similarities between the two tribunals, this fact that the RPD directly takes testimony suggests that the RPD is owed deference on findings of fact, particularly in respect to credibility,11 other than in situations where the RAD holds an oral hearing and therefore has the opportunity to consider evidence firsthand. e. The Need to Limit the Number, Length and Cost of Appeals: [41] In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.12 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would, in effect, be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one important objective of the IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [42] The interpretation of the legislation as a whole, and the intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, other factors suggest a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. If the question is one of fact, the Courts have held that triers of fact are better situated to make findings of fact at first instance.13 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD proceedings would be reduced to little more than preliminary inquiries. [43] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual and credibility findings of the RPD. The notion of deference to the administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.14 [44] The issues in this appeal concern findings of fact where the appropriate standard of review is reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process but also with whether the decision falls within a range of possible, acceptable outcomes, which are defensible in respect of the facts and the law.15 The RPD's Determination [45] Specifically, the Appellants challenge the RPD's determination that "the RPD panel member erred in impugning the credibility of the Appellants by giving their nationality identity cards (NIC) little weight in establishing their personal or national identity. This finding is partially based on the RPD's understanding that XXXX is a town in Iraq and "that the Appellant's identity card ought to have been issued in XXXX, and the RPD cited Exhibit 4, item 3.3, that states that "a person must go to where their parents reside.16" [46] The new evidence, item (a), the Appellant's affidavit which is supported by an excerpt from Wikipedia confirms that XXXX is in fact a part of Baghdad and the new item (c) also confirms that. Thus, the RPD placing little weight on the NIC is based on wrong information and it is therefore not reasonable. [47] The RPD also stated in its reasons regarding the baptismal certificate and a letter from the XXXX XXXX Church in XXXX." "Another concern for the document comes from a comparison with another document provided by you at the hearing today, Exhibit 11, a letter reportedly from the XXXX XXXX Church in XXXX. Both letters are signed by the same individual, XXXX XXXX, listed as a Parish priest on the certificate from Iraq and XXXX of the church in Canada with the same signature on both documents with what appears to be the same pen given the appearance of the writing. [48] The affidavit from XXXX XXXX XXXX item (b), provides a reasonable explanation and states: "The signature which appears on XXXX XXXX XXXX "Certificate of Birth, Baptism and Confirmation" dated XXXX XXXX XXXX.1995 is my original signature on a copy of his original certificate. His original is with the XXXX XXXX XXXX church. I was a priest in Baghdad for XXXX years-from 19XXXX-20XXXX. I came to Canada on XXXX XXXX, 2001. I was priest at the XXXX XXXX XXXX Chaldean Parish in 19XXXX and XXXX XXXX XXXX was a Congregation member at that church and his father was XXXX XXXX XXXX. I also signed the letter from the XXXX XXXX XXXX Catholic Church dated September 21, 2013". [49] Based on the foregoing, I find that the RPD assigning "no weight" to the letter from the Holy Family Church in XXXX is not reasonable in light of the new evidence. [50] Objective documentary evidence before the RPD clearly show (numerous articles in the RPD record in the form of disclosures by the Board and by the claimants) that the Christians in Iraq and Bagdad are persecuted due to their religious beliefs and practices. New evidence in item (c) further confirms that the XXXX area in particular was affected as the Appellant's allege. Item (c) states: XXXX (also XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Arabic,...) is a neighborhood in XXXX XXXX administrative district, southern Baghdad, Iraq. Although this was a majority Assyrian Christian neighborhood, it became controlled by Sunni Muslim Extremists during the Iraq War. They started ethnic cleansing of the neighborhood in 2006-2007, driving out or forcing conversions and confiscating or attacking property. [51] In light of the above, the finding by the RPD that the Appellants did not establish their identities is not reasonable in light of the new evidence and it is vital that the RPD consider all the evidence with abundant care. [52] Unfortunately, I do not have enough credible evidence, even when viewed cumulatively, to find that the Appellants have established their national identities. On the religious identities, while there appears to be sufficient evidence that the Appellants are Christians, however, there is still the issue of why there is no baptismal certificate for the Minor Appellant. I however note that the RPD record17 shows that the Minor Appellant is an active member of the Parish. [53] Even if I were to find that they are Iraqi Christians, which I do not, I do not have sufficient remaining credible evidence to substitute the RPD's decision because the merits of the claim were not fully explored at the hearing before the RPD. For example, the evidence shows that the Appellants were able to live for more than a year in XXXX in Northern Iraq. Since Internal Flight Alternative (IFA) was not canvassed as an issue at the hearing, I cannot find whether or not there is a viable IFA for them. The Appellants state in their BOC that adequate state protection is not made available to the minority Christians in Iraq, I am not going to overrule the RPD's determination because a review of the record shows that this matter was not fully explored by the RPD. [54] Based on the foregoing, I find that the RPD's decision is not reasonable as it does not meet the test that it is cogent, intelligible, justifiable and transparent. Thus, the RPD's finding does not fall within a range of possible, acceptable outcomes defensible in respect of the facts and the law. Conclusion [55] The Appeal is allowed. [56] The RAD, pursuant to subsection 111 (1)(c) of the Immigration and Refugee Protection Act, refers the matter back to the Refugee Protection Division for re-determination. (signed) 'Atam Uppal' Atam Uppal February 28, 2014 Date 1 RPD Record, pages 21 and 94. 2 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. 3 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 4 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, para. 43. 5 IRPA, Sections 96 and 97. 6 IRPA, Section 3(2)(a). 7 IRPA, Sections 170(g) and 171(a.2). 8 IRPA, Sections 170(i) and 171 (b). 9 IRPA, Section 170(b). 10 IRPA, Section 110(3). 11 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, para. 89. 12 Newton, para. 80. 13 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, para. 89. 14 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 15 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes. 16 Appellants Record, pages 19-20 17 RPD Record, page 25 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-09159 TB3-09160