TB6-01603

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 : TB6-01603 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 March 30, 2016 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Clarisa Waldman 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 (the Appellant), who is a citizen of Turkey, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted any new evidence in support of his appeal, nor is he requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. However, the Appellant is asking the RAD to determine him to be a Convention refugee or a person in need of protection, or in the alternative, that the matter be remitted to a newly-constituted panel of the RPD for re-determination. DETERMINATION: [2] This appeal is allowed. Pursuant to sections 111(1)(c) and 111(2) of the Immigration and Refugee Protection Act (IRPA), the RAD refers this matter back to the RPD for re-determination by a differently-constituted panel. Background: [3] The Appellant's fears are based on his political opinion as an XXXX XXXX, and a leftist, who supports the XXXX cause. He alleges that between XXXX 2010 and XXXX 2015, he was arrested, detained and beaten on four separate occasions. On XXXX XXXX, 2010, the Appellant was allegedly detained for his involvement with XXXX XXXX XXXX in XXXX XXXX XXXX; in XXXX 2013 he was detained after participating in demonstrations in support of XXXX XXXX and in XXXX 2014 for his participation in a demonstration to protest XXXX XXXX XXXX XXXX XXXX. The fourth incident allegedly occurred in XXXX 2015, when the Appellant was arrested and detained in a protest regarding the XXXX XXXX XXXX XXXX. [4] The Appellant has made submissions which are in line with the recent Federal Court decision in Huruglica1 which the RAD will follow. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It 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. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". SUBMISSIONS BY THE APPELLANT: a) Did the RPD err in its credibility findings? b) Did the RPD err in its treatment of the corroborative documentary evidence? c) Did the RPD err in in concluding that the Appellant had a viable Internal Flight Alternative? [5] Given the final determination by the RAD, it is not necessary to make findings with respect to most of the submissions by the Appellant. Treatment of Corroborative documents: [6] It is submitted by the Appellant that the RPD erred in ignoring the Affidavit from Mr. XXXX XXXX, as he witnessed the Appellant's arrest by the authorities outside the town of XXXX XXXX XXXX in XXXX 2010. It is further argued that the RPD made no specific finding in relation to this particular incident and therefore it erred in concluding that the Appellant's well-founded fear of persecution in Turkey had neither a subjective nor an objective basis. Did the RPD err in its treatment of the XXXX XXXX XXXX 2015 letter from Mr. XXXX XXXX: [7] It is argued by the Appellant that the RPD erred when it accorded no weight to the above letter dated XXXX XXXX, 2015. It is submitted that the RPD considered its probative value and found that given that the letter was dated XXXX XXXX XXXX 2015, within the same month as the incident in XXXX 2015, that it would be reasonable to expect, on a balance of probabilities, that the lawyer would be inclined to recall and include this incident that occurred in the same month he wrote the letter. However, it is argued that the Appellant testified that he himself was surprised by the omission, in that there was no reference to the XXXX 2014 and XXXX 2015 incidents. The RPD noted that the letter had all the necessary formal requirements and appeared to be genuine, and therefore, it is submitted that the letter should be accorded some weight as to what it said as opposed to what it did not say. It is further argued that the letter stated what had occurred in 2013 when counsel was able to secure the Appellant's release from detention, rather than the two occasions when counsel was unable to assist. Moreover, it is argued that the RPD's conclusion that this letter was "manufactured' and is, thus, fraudulent, is a serious finding. It is argued that the Appellant was not provided an opportunity to respond to this allegation. Did the RPD err in its treatment of the XXXX XXXX, 2015 letter from the Appellant's former Counsel? [8] It is submitted by the Appellant that the RPD erred when not accepting the first letter from counsel and found that the second letter was also manufactured with the sole purpose of attempting to embellish the claim. Firstly, it is argued that the second letter had all the markings of a genuine document. Moreover, this letter indicates that the Appellant's wife contacted counsel, and the letter discusses the two incidents in XXXX 2014 and XXXX 2015. Again, it is submitted that the Appellant was not provided the opportunity to respond to the allegations, and accordingly, it is argued that this is a denial of natural justice. Medical Report [9] It is further submitted by the Appellant that the RPD erred when finding that the above document was fraudulent. [10] It is submitted that the RPD erred when its finding was as a result of not seeking legal guidance about giving his wife a Power of Attorney to obtain a private hospital document on his behalf. It is argued that there was nothing before the RPD that the Appellant's wife would have been able to obtain a private hospital document even if she had a Power of Attorney from the Appellant. Again, it is submitted that the RPD failed to give notice to the Appellant about the lack of authenticity of the document to provide him an opportunity to respond, given that the letter appeared to have the necessary verifiable information on its letterhead. [11] The RAD has declined to make a finding on the above documents and the weight accorded to them in light of our finding with respect to the RPD's conclusion on Internal Flight Alternative below. The RAD, in conducting its independent assessment, recognized the error below and therefore, it was not necessary to make findings with respect to the corroborative evidence and whether or not failure to give notice was an erroneous finding. Internal Flight Alternative: [12] It is submitted by the Appellant that there is a duty on the part of the RPD to give notice of the issues to be addressed. It is argued that the RPD failed to give such notice at the first sitting held on September 9, 2015, nor did it raise it at the second sitting held on December 10, 2015. Moreover, the RPD failed to advise counsel prior to oral submissions whether the city of Antalya constitutes a viable Internal Flight Alternative for the Appellant. Accordingly, it is submitted that this constitutes a breach of natural justice and procedural fairness. [13] The RAD concurs with the Appellant, after listening to the audio recording of the proceedings, that the issue of "internal flight alternative" was not identified at either of the two sittings, as well as prior to counsel making her submissions. Accordingly, the RAD concurs with the Appellant that this is a breach of natural justice as the Appellant was not provided an opportunity to make argument on this determinative issue. [14] This appeal is allowed. Pursuant to sections 111(1)(c) and 111(2) of the IRPA, the RAD refers this matter back to the RPD for re-determination by a differently-constituted panel. (signed) "Roslyn Ahara" Roslyn Ahara March 30, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-01603