TB6-11879

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 : TB6-11879 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 9, 2016 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Luke McRae 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), who is a citizen of Iraq, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal, and he is requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellant is asking the RAD to substitute a positive determination, or in the alternative, remit the matter to a newly constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant is an ethnic Kurd from Sulaymaniyah, in the Kurdish north of Iraq. Although he dropped out of school when he was young, he was able to obtain work with the City of Sulaymaniyah doing yard work, for which he earned a good living. In the spring of 2012, the Appellant noticed a young woman named XXXX in a park where he was working. They began an illicit relationship because XXXX's father was a devout Muslim who would have been upset to learn of this relationship. [4] In March 2013, the Appellant learned from XXXX that her father had hired a detective to spy on her and this detective had told him about their covert meetings. XXXX's father was enraged and he and XXXX's older brother planned to kill the Appellant. Upon learning this, the Appellant initially went into hiding, and then found a smuggler to facilitate his escape to Germany, where he made an asylum claim and obtained work there. [5] In September 2013, XXXX called the Appellant in Germany and told him that her family was moving to Australia in December of that year, which would mean that he could safely return to Kurdistan, which he did in January 2014, following the withdrawal of his asylum claim in Germany. The Appellant had turned away from Islam, before leaving Iraq for Germany, and when he was in Germany he was able to attend Christian churches with a fellow Kurd named XXXX. The Appellant enjoyed going to church in Germany with XXXX and at some point, viewed himself now as a Christian. [6] In the summer of 2015, after the Appellant returned to Kurdistan, he found a Christian co-worker named XXXX who gave him the address of a private house church and told him he was welcome to attend. The Appellant attended a number of meetings and alleges that he felt at peace to be among Christians. [7] In early October 2015, it was announced that a Minister would attend their Christmas meeting in December to baptize those who wished to have this ceremony performed. At this meeting, a new member was introduced to the group, whose name was XXXX XXXX However, the Appellant was suspicious of XXXX XXXX as he approached the two former Muslims in the group and asked a number of questions about their lives and work in Sulaymaniyah. The Appellant then followed XXXX, who eventually made his way to a mosque that was known for having many radical Sunni Muslims. It was at this point that the Appellant realized that his life was in danger. When the Appellant told XXXX about this the following day, she began weeping and said she had to contact the other Muslim convert from the group immediately. She discovered that his house had been burned to the ground and that the man was dead. XXXX then investigated the Appellant's home and discovered from his neighbours that Islamic radicals had broken into his home. The Appellant went into hiding and then made arrangements to leave Iraq on XXXX XXXX XXXX XXXX and he filed his inland refugee claim in Canada on March 15, 2016. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL Express statutory conditions [8] Section 110(4) of the IRPA provides that the 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 expected in the circumstances to have presented, at the time of the rejection. [9] The following new evidence has been submitted in support of this appeal: * Statutory Declaration from XXXX XXXX XXXX, with respect to the interpretation of the word "baptism";1 * Letter from Appellant's brother, XXXX XXXX XXXX dated September 2, 2016, in which is describes an incident which occurred on August 24, 2016 after the rejection of the Appellant's refugee claim;2 * Excerpts from the Bible - Matthew 6 and Matthew 26 and 27.3 [10] The RAD finds that the excerpts from the Bible could reasonably have been available prior to the rejection of the claim. However, the statutory declaration is admitted in support of improper translation of the word "baptism" and will be analyzed below. [11] The RAD agrees that a less stringent approach ought to be taken as it pertains to the Raza4 factors. These factors include "newness", "credibility", and "relevance". Credibility [12] Evidence that passes the test in Section 110(4) must be assessed for credibility. The RAD must determine whether the evidence is credible, considering its source and the circumstances in which it came into existence. [13] The RAD finds given its analysis below with respect to the overall credibility of the Appellant, that this new evidence cannot sufficiently overcome the credibility findings with respect to the material aspects of the claim. Accordingly, it will not be admitted. [14] Section 110(6) of the IRPA states: 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 claim. [15] Since the RAD has admitted only new evidence relating to a small portion of the overall evidence, it finds that it does not meet the criteria pursuant to ss. 110(6) of the IRPA and therefore, the request for an oral hearing is denied. ROLE OF THE RAD [16] Counsel for the Appellant agrees that the RAD should take guidance from the recent Federal Court of Appeal decision, in Huruglica.5 This decision provides us with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. The justices stated at paragraph 103: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. SUBMISSIONS BY THE APPELLANT * Did the RPD err in its credibility findings with respect to inconsistent evidence? * Was there a breach of natural justice by failing to provide the Appellant with an opportunity to respond to credibility concerns? * Did the RPD err in its assessment of the genuineness of Mr. XXXX's belief in Christianity? The Appellant's church attendance in Canada [17] The RPD noted that the Appellant had arrived in Canada on XXXX XXXX XXXX XXXX and therefore, he would have considered himself a Christian for at least two and a half years since May, 2013. The RPD further noted that the Appellant did not attend a church service in Canada, until three days before his hearing which included Christmas and Easter. Given that the entire reason the Appellant had made an asylum claim, ostensibly because he wants to be free to practice his Christian faith freely, the RPD found that this undermined his credibility. [18] The RPD considered the two letters from churches here in Canada, however, noted that the letter from Father XXXX is tepid in its endorsement of the Appellant's religious conversation and makes no reference to the Appellant attending services or wanting to be baptized. The RPD further noted that neither of these individuals was put forward as a witness in support of the Appellant's refugee claim. [19] It is submitted that the RPD erred when it rejected the fact that the Appellant did not attend church in Canada , when he had explained that there was nobody to take him and he was unfamiliar with things here in Canada and he had not found a church which was conducted in Kurdish. In other words, it is argued that the RPD did not explain why it rejected the Appellant's explanation. [20] The RAD finds that the RPD considered all of the evidence with respect to the Appellant's alleged practice of Christianity when reaching its conclusion. Upon review of the audio recording, the RAD concurs with the RPD that there was insufficient credible or trustworthy evidence upon which to conclude that the Appellant was a genuine adherent to the Christian faith based on the lack of credible evidence not only with respect to his alleged practice in Canada, but issues which will be analyzed below. The RAD further concurs with the RPD that the documents submitted in support of the Appellant's alleged practice in Canada, are insufficiently detailed to establish his attendance or commitment to the church. Timing of the Appellant's discovery of Christianity [21] The RPD questioned why the Appellant's BOC did not indicate that he was interested in Christianity when he was in Kurdistan before he went to Germany and his reply was "because Islam is strong". The RPD found this to be non-responsive and contradictory to the Appellant's own evidence about his evolution as a Christian, and as a result, it concluded that it undermined his credibility on a material point. [22] Moreover, in the absence of evidence regarding his asylum claim in Germany, which included the outcome of the claim, or whether or not he withdrew his claim, the RPD drew a further negative inference. [23] The RPD further considered the fact that the Appellant arrived in Canada using a visa which he had obtained on false pretences, given that he did not hold the employment alleged in the TRV. Additionally, his passport was issued in Kurdistan after he returned in 2015; however, the RPD noted that it had no knowledge of the exact time frame when he was in Germany, or of his transit, his previous travel and the timing of his return to Kurdistan. Moreover, the Appellant's testimony with respect to his having obtained a previous passport in 2007, followed by his shifting testimony that the smuggler kept it when he got to Germany, gave rise to the RPD's further credibility finding. In totality, the RPD concluded that the foregoing undermined the Appellant's credibility. [24] It is submitted by the Appellant that the RPD erred when it drew a "contradiction" from the absence of corroborative evidence. 6 Further, it is argued that his BOC suggests that he was attracted to Christianity before going to Germany, when he stated that he had turned away from the Islam religion, and he realized that Christianity was about love and peace and treating each other the way you wanted to be treated. [25] With due respect, the submission by the Appellant does not overcome the credibility findings as cited by the RPD. This issue is a central aspect of the Appellant's claim. There are many unanswered questions and the onus is on the Appellant to provide credible and trustworthy evidence in support of his allegations. Accordingly, the RAD finds that the RPD's conclusion above is absent of any error. Number of house church meetings attended [26] The RPD found that the Appellant's allegations surrounding his activities in the Christian house church in Kurdistan undermined his credibility further. This was based on the fact that his BOC states that he went to "a number of meetings", but in his testimony, he stated that he only went to the house church on two occasions. His explanation that 'a number of times means two" was found by the RPD to be unreasonable in the context of the BOC, given the detail provided about the meetings, strongly indicating that there were multiple meetings prior to attending the meeting in October 2015 where XXXX was present. [27] Moreover, the RPD considered the contradictory evidence with respect to the number of converts, when in his testimony he stated that all the attendees at the first house church meeting in Sulaymaniyah were converts; however, his BOC clearly states that there were only two converts. His explanation that those two were "new" was categorically rejected by the RPD. Moreover, this evidence was also inconsistent with the Appellant's testimony that XXXX would only warn one other person if they were all converts as the risk would be the same for all the Muslims at the house church. The RPD asked why there was no corroborative evidence from XXXX XXXX and the Appellant acknowledged that she could provide this information but it was never forthcoming, notwithstanding three sittings. The RPD noted that the only document the Appellant had provided to corroborate his allegations of persecution in Kurdistan is a letter from a friend which was not in its original form nor notarized or dated, thereby assigning it little probative value. [28] It is argued that when asked to clarify what appeared to be contradictory evidence in this regard, the Appellant stated "number of times means two", and therefore this response clarified any ambiguous language in his BOC. Accordingly, it is argued that the RPD has turned an ambiguity into an inconsistency without basis. [29] Again, with due respect, the RPD's findings were not based solely on a response by the Appellant that a "number of times means two". The RAD finds that it is clear from the RPD's reasons that it also considered the details provided in the BOC and the lack of evidence from XXXX XXXX before reaching its conclusion, and therefore, the RAD finds that this was not considered in isolation as counsel would have us to believe. Implausibility of the Appellant's return to Iraq once he became a Christian [30] The RPD found that the Appellant's re-availment to Kurdistan undermined his allegations of fear in Iraq and that this strongly suggested that he was not pursuing Christianity in any sort of genuine way while he was in Germany. [31] It is submitted that the RPD failed to consider the fact that XXXX family, the initial cause of his flight, was no longer a threat. Moreover, the Appellant had not yet experienced the persecution that eventually led him to flee Iraq. It is argued that these were relevant explanations that could have refuted the RPD's assumptions. [32] The RAD concurs that XXXXs family were no longer a threat. Having said this, however, the RAD concurs with the RPD that this finding was made with respect to the credibility issue surrounding whether or not the Appellant had in fact converted to Christianity and this was only one factor when it reached its conclusion. Breach of Natural Justice [33] In addition to the foregoing submissions by the Appellant with respect to consideration by the RPD of explanations provided by the Appellant, it is argued that there were other areas of concern. For example, it is submitted that the RPD erred in making a credibility finding regarding the fact that XXXX only attempted to warn one other member of the church of an impending attack, when the Appellant was never questioned on this issue and he has now explained this in his Statutory Declaration. [34] As stated above, the RPD did, in fact, question the Appellant with respect to this issue and the lack of corroborative evidence in this regard. The Appellant has failed to acknowledge that the RPD had concerns surrounding whether or not there were two or all of the members were converts, given the inconsistent evidence. Even for the purpose of this appeal, the Appellant has not provided any further evidence in this regard, after being afforded the opportunity to do so during and after the RPD hearing. Genuineness of the Appellant's religious beliefs [35] The RPD noted that the Appellant had no idea about what the RPD was talking about when it mentioned the word 'BAPTISM". The RPD further considered the fact that the Appellant's BOC indicates that the church group in Kurdistan was bringing in a Minister at Christmas for the purpose of baptizing those individuals in the group who wished to have it done and therefore he should have been familiar with the terminology. It concluded that this undermined his credibility even further on a material point. [36] On this point, the RAD, upon receipt of the "new evidence", accepts that the word "baptism" was improperly translated. However, the RAD finds that this is not fatal to the claim. [37] In terms of his religious knowledge, the RPD considered the Appellant's education, his life experiences, including the fact that he had the wherewithal to flee Kurdistan and to make a claim in Germany where he allegedly began practicing his faith, along with the difficulties he might have faced in trying to pursue Christianity, when questioning him about his religious knowledge. Having said this, the RPD noted that the Appellant had testified that he had been reading the Bible on a daily basis for one or two hours, because Islam is not on his mind anymore. The RPD cited examples of rudimentary responses and found that the Appellant's knowledge of Christianity was not commensurate with the level of immersion or experience as alleged. The RPD concluded that this lack of knowledge, coupled with his lack of action in pursuing the religion which he alleges to be "in his heart" in not one but two countries where he was free to do so, led to the finding that he is not a genuine convert to the Christian faith and that he manufactured this allegation to establish an asylum claim where none exists. Accordingly, the RPD further concluded that the Appellant is not a genuine Christian convert; he never practiced Christianity in Kurdistan as he alleges, and it is not likely he would practice Christianity in Kurdistan, nor would he be perceived as such in Iraq, should he return. The Appellant's Bible [38] The RPD noted the Appellant's testimony that he received the Bible in Kurdish through the mail here in Canada 10 days before the hearing, and therefore this was the first time he had ever looked at a Bible in the Kurdish language. The RPD found that this undermined the Appellant's credibility on a material point. [39] It is submitted that the RPD's finding that the Appellant knows "almost nothing about Christianity", in particular with respect to the terminology of "baptism", was erroneous. Firstly, the Federal Court has cautioned the Board when considering one's knowledge of religion, to provide proof of one's religious identity. [40] It is further argued that even if the RPD did not accept the religious knowledge demonstrated by the Appellant, the mere perception that he is a Christian by the perpetrators, namely Islam extremists, is sufficient to ground his refugee claim. [41] Moreover, the Appellant submits that the "new" evidence demonstrates that the Appellant's life remains at risk, given an incident at his home which occurred on August 24, 2016. Finally, it is submitted that according to the UNHCR, that while Kurdistan is a more stable region of Iraq, "Christian converts are likely to be in need of international refugee protection in the whole country, including the Kurdistan Region.7 [42] With respect to the term of "baptism", as indicated in the Statutory Declaration of XXXX XXXX, the word 'BAPTISM" was translated into Arabic rather than Kurdish, thereby preventing the Appellant from providing a complete answer to the questions being posed regarding this issue. [43] With respect to the Appellant's religious knowledge, it is argued that the RPD's finding that he "knows almost nothing of Christianity" is erroneous given that its finding was "highly speculative." The Appellant has submitted passages of the Bible and compared it to responses by the Appellant, which he argues are similar and do not portray a lack of religious knowledge. [44] The RAD finds that the RPD based its conclusion on many aspects of the evidence. Although the RAD concurs that the translation of the word "baptism" was incorrect, the RAD finds that the remainder of the credibility findings stand. The RAD has carefully considered the responses from the Appellant and is mindful of the need to be cautious in terms of assessing an individual's religion, even with the lack of knowledge of parts of the bible. The RAD finds that the new evidence cannot overcome the credibility findings made by the RPD. Furthermore, the RAD has considered whether or not the Appellant would be "perceived" to be a Christian. It finds, upon review of the audio recording and the RPD's reasons, that this perception was considered before it reached its conclusion. The RAD concurs with the RPD that the receipt of his bible in Kurdish a mere 10 days prior to the hearing, was a further credibility finding, which contributed to the conclusion reached by the RPD. CONCLUSION [45] In general, the RAD finds that the Appellant in his submissions has lost sight of the credibility issues, which on a cumulative basis, led to the conclusion by the RPD. The RAD concurs with the RPD that the onus is on the Appellant to establish his allegations, which in the case at hand, revolve around the issue of his alleged conversion to Christianity and his alleged fear as a result. [46] After conducting an independent assessment of the entire record, the RAD finds that the Appellant has not discharged that burden, on a balance of probabilities, with credible and trustworthy evidence. [47] Accordingly, Pursuant to subsection 111(1)(a) of the Immigration and Refugee protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Roslyn Ahara" Roslyn Ahara December 9, 2016 Date 1 Exhibit P-2, Appellant's Record, pp. 23-24. 2 Ibid., pp. 26-27. 3 Ibid., pp. 28-51. 4 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 5 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 6 Exhibit P-2, Appellant's Record, Memorandum, para. 28. 7 Exhibit RPD-1, RPD's Record, National Documentation Package for Iraq (April 29, 2016), item 1.7, s. IV(A)(5)(b). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-11879