VB3-03121

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: VB3-03121 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered / heard at Appel instruit à Date of decision March 19, 2014 Date de la décision Panel Tribunal Counsel for the person(s) who is(are) Adrian Huzel Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Sonya Sunger Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the "appellant"), a national of Iran, appeals the November 15, 2013, decision of the Refugee Protection Division (the "RPD") rejecting his claim for refugee protection. The claim was heard by the RPD on September 24, 2013, with a written decision rendered on October 31, 2013. The RPD found that the appellant was neither a Convention refugee nor a person in need of protection. DETERMINATION [2] I find that the determination of the RPD cannot be confirmed. I also find that I am unable to set aside the RPD decision and substitute a determination which, in my opinion, should have been made, without hearing evidence that was presented to the RPD. Pursuant to subsection 111(1)(c) of Immigration and Refugee Protection Act ("IRPA" or the "Act"), the Refugee Appeal Division (the "RAD") refers the matter to the RPD for re-determination by a differently constituted Panel. BACKGROUND [3] Appellant's counsel at the RAD is a different individual than was counsel before the RPD. The Minister intervened and appeared before the RPD and has also intervened at the RAD by way of a Notice of Intervention1 and has filed a Minister's memorandum of argument (MM).2 The appellant has filed an Appellant's Record (AR)3 as well as an Appellant's Reply (ARM)4 to the Minister's memorandum. [4] The appellant seeks to present documentary evidence to the RAD pursuant to subsection 110(4) of IRPA ("new evidence") as well as an oral hearing before the RAD pursuant to subsection 110(6) of the Act.5 Basis of the Claim [5] The primary basis of the appellant's claim arises from his fear of persecution in Iran because of his conversion from Islam to Christianity. [6] As related by the RPD, starting in May 2012, the appellant began to meet privately with a friend, XXXX, to learn about Christianity. A week later, the appellant returned to XXXX home and stated before others that he wished to convert to the Christian faith. This happened two to three weeks after the appellant's XXXX XXXX birthday. [7] Two weeks later, the appellant began to secretly disseminate Christian literature. One month before the appellant left Iran, XXXX told him to stop all contact with him because Iranian intelligence services had become aware of the group's Christian activities. One month after his conversion, unidentified persons went to the appellant's home looking for him. While these people were speaking with the appellant's brother, the appellant escaped by climbing out a window. When the appellant then contacted XXXX mother, she told him that XXXX had been arrested two days previously. [8] A man from the appellant's workplace helped him leave Iran. The appellant travelled through a number of countries before arriving in Vancouver on XXXX XXXX, 2013, at which time he made a claim for refugee protection. [9] The appellant testified that since arriving in Canada he has attended a local Christian church each Sunday, participated in weekly Bible study sessions and attended other local Christian functions. He was baptized through this church in XXXX 2013. [10] As an individual who has converted from Islam to Christianity, the appellant alleges a well-founded fear of persecution by reason of his religion should he be returned to Iran as well as IRPA section 97 risks or danger for that same reason. RPD Decision [11] Having accepted that the appellant had established his personal identity, the RPD found that the determinative issue in the claim was credibility. The RPD found that the appellant had provided insufficient credible and trustworthy evidence to establish his allegations, due to contradictions between his testimony and the documentary evidence and contradictions within that documentary evidence. [12] Two general areas of evidence were assessed by the RPD with regard to credibility. [13] The first concerned the events alleged to have occurred in Iran, including the scenario advanced by the appellant as to why and how Iranian authorities pursued him, the veracity of his description about what led him to leave Iran, as well as the details of his journey to Canada. [14] The second primary topic was whether the appellant's conversion to Christianity was genuine such that he would face persecution, risk or danger upon any return to his country. Events in Iran [15] The only event alleged by the appellant whereby Iranian authorities were said to be directly looking for him due to his conversion was when some unidentified people, suspected to be Iranian intelligence agents, went to the appellant's home to find him. The RPD refers to this as the "seminal event". Due to contradictions and discrepancies with respect to when the incident allegedly occurred, the RPD found that, in fact, the incident never did occur. [16] The original scenario set out in the claimant's original Basis of Claim (BOC) narrative6 has the raid on the home happening two or three days before his stated departure from the country on XXXX XXXX or XXXX XXXX XXXX 2012. The appellant had alleged that he drove directly to Turkey where he remained for about one month, until he flew to Thailand on XXXX XXXX, 2012, stayed there for 11-12 days, then to Vietnam for three days and, finally, to Canada on XXXX XXXX, 2013. [17] However, the RPD notes that the appellant testified at the hearing that the visit to his home by authorities occurred sometime between XXXX XXXX and XXXX XXXX XXXX. The appellant had provided that new information during one of his many interviews with a Canadian Border Services Agency (CBSA) officer between the time the claim was initiated and the RPD hearing. As well, the appellant testified that he had not travelled to Turkey at all but, rather, had flown directly from Iran to Thailand on his own genuine passport. The appellant explained the discrepancy about when the Iranian authorities went to his house on the basis that the smugglers who had assisted him in travelling to Canada instructed him to conceal the fact that he travelled directly from Iran to Southeast Asia and to mislead immigration officials by stating he had been in Turkey for one month before going to Southeast Asia. Accordingly, in order for him to make the timeline work he had to change the time at which he alleged the authorities came to his home to around XXXX XXXX, 2012, instead of the allegedly true date in XXXX XXXX or XXXX XXXX XXXX. [18] In assessing the importance of the above evidence, the RPD noted that other misrepresentations were made by the appellant to Canadian immigration authorities concerning what had happened in support of his untruths about having been in Turkey for a month, despite the appellant's advice that he would be truthful. [19] The RPD found the appellant's explanation implausible and contradictory. Whereas the appellant had said the smugglers wanted him to provide false travel history by saying he was in Turkey, other testimony of the appellant was that the initial leg of his journey, from Iran to Southeast Asia was done with the appellant using his own valid passport to make that trip. In other words, the smugglers had no involvement with the first stage of his travel to Canada. Moreover, why would they have him misrepresent only that leg of his travel? The RPD also noted that the appellant's explanations for providing false evidence about staying in Turkey alternated from concealing the smugglers' involvement in his travel to Canada versus a belief that providing that false information would somehow benefit his refugee claim, it being unclear to the RPD as to how the latter reason could assist him. [20] The RPD did acknowledge that the appellant volunteered the information concerning the false stay in Turkey but noted as well that the impact of the initial misrepresentation was not mitigated because the true information did not come forward until the appellant was confronted with a disbelieving CBSA officer, the unclear and contradictory evidence provided as to why he had been untruthful and other credibility concerns arising from other aspects of the timeline described by the appellant. [21] These other credibility concerns included the appellant's evidence that he left Iran approximately three days after the authorities came to his residence whereas, Mr. XXXX, the appellant's employer who was alleged to have assisted the appellant in doing so, told CBSA that it took him "a month or a month and a half" to find someone to assist the appellant, during which time he did not know where the appellant was staying but that "he kept visiting" him. Given that it relates directly to the seminal event of the Iranian authorities allegedly seeking out the appellant, the RPD found that the discrepancy between the appellant's evidence and that of Mr. XXXX was significant. [22] The appellant's initial explanation for the discrepancy was that he did not believe that the individual spoken to by CBSA was, in fact, Mr. XXXX. The RPD found that this assertion was rebutted by a reading of the actual interview7 and the manner in which the CBSA came in contact with the speaker who identified himself as Mr. XXXX. Although counsel did not concede this issue, counsel did provide an explanation as to why Mr. XXXX may have provided false information to CBSA as well as post-hearing evidence from Mr. XXXX8 which, while it does not speak to how long it took him to find a smuggler, does state that he paid the money due for that service after a month and a half. [23] The RPD weighed this evidence and preferred the sworn declaration of the CBSA officer of March 8, 2013 to the post hearing evidence offered by the appellant. The latter was not a sworn declaration, unclear as to whether it was actually from Mr. XXXX, prepared after it had become clear to the appellant that there were concerns about the credibility of his testimony and did not provide sufficient other detail about the appellant's departure from Iran to offset negative inferences drawn by the RPD. Moreover, Mr. XXXX had supported the appellant's false Turkey travel description in his interview with CBSA. [24] The RPD also gave no weight to evidence provided by the appellant's only brother to CBSA on March 2013.9 Unexpectedly in the RPD's assessment, the brother did not know why the claimant had to leave the country, why people came to the house and who had come to the house, despite their allegedly having come on three occasions looking for the appellant. He also did not know if the appellant had ever worked for the Revolutionary Guard, the Basiji, the Iranian Intelligence Services or what religion the appellant followed. In addition, the RPD noted differences between the appellant's and the brother's description of their residence with regard to the appellant's alleged escape. The RPD also noted the discrepancy between the appellant's testimony that he could only leave the country because his brother had sent some clothes and his passport to him but the brother only mentioned sending clothes and nothing about sending his passport. [25] Taking all of the above into account, the RPD concluded that the incident described by the appellant which allegedly caused him to flee his residence at night because Iranian authorities had come looking for him, had not happened. The Conversion Claim [26] The RPD found that because of the extent of the above-noted credibility concerns relating to the seminal event, the claimant had also failed to establish that his conversion to the Christian faith was genuine. [27] The RPD did not accept the Minister's submission that the appellant was not a genuine Christian because of the short time (five-six months) in which the alleged conversion took place as there was no evidence that would allow the RPD to conclude that an individual's conversion could not happen in that time frame or in the manner described by the appellant. [28] However, the RPD did take a negative inference from the short time frame between the conversion and the authorities visit to the appellant's home because the appellant's fear is based on "his fear of persecution on a solitary incident that occurred after a relatively short period of time as a practicing Christian." In the RPD's assessment, this increased the significance of the contradictions in the claimant's evidence in regard to an overall assessment of the appellant's credibility. The logic of the RPD's conclusion in this regard is not clear to the RAD. [29] The RPD also stated that it drew no negative inference about the conversion based on the appellant's knowledge of Christianity. The RPD did not accept the Minister's submission that the testimony offered by the appellant on the concept of "hell" was erroneous as the Member refused to make a determination that the appellant was incorrect in explaining such an abstract, theological concept as the definition of 'hell', and will not base a determination on the genuineness of the claimant's religious conversion based on his lay-person's understanding of this term as distinguished between Islam and Christianity.10 [30] The RPD noted that the claimant was able to refer to some of the basic concepts of Christianity in his testimony and, "there was no evidence before the panel that would either contradict or corroborate the specific minutia of the claimant's level of theological understanding."11 However, the RPD also found that the level of knowledge of Christianity exhibited by the appellant did not outweigh the Member's assessment of the appellant's overall lack of credibility. In this regard, the RPD found: At issue is not the depth or extent of the claimant's knowledge, but the reasons why he acquired the knowledge. Given the credibility concerns noted above, the Panel considers it just as likely that the claimant acquired the knowledge of Christianity he did exhibit for the purposes of bolstering his refugee claim as opposed to the purposes of religious and spiritual fulfillment.12 [31] Regarding the above finding, the RPD noted that the appellant was intelligent, articulate and well-educated, having five years of university education. The RPD found that the appellant's demonstrated knowledge of Christianity could have been acquired by him relatively easily through study, regardless of whether the claimant acquired the knowledge for the purpose of bolstering the refugee claim or for obtaining religious and spiritual fulfillment.13 [32] The RPD also found that it would not rely on letters provided by Canadian individuals supporting the appellant14 in assessing the genuineness of the appellant's conversion. The RPD noted that the authors of the letters concerning the conversion are primarily predicated on statements made to them by the claimant and their observations of his behavior. Therefore, the reliability of their statements regarding the genuineness of the appellant's expression of religious belief is contingent upon the appellant having been truthful with them, a finding the RPD was not prepared to make based on its own assessment of his credibility. [33] With regard to the letter from the pastor of the appellant's church, the RPD notes that, while it was clear to the pastor that the appellant had "sufficient knowledge of the gospel of Jesus Christ to make an informed profession of faith in Jesus Christ, and that the claimant was a 'genuine convert'," when contrasted with the RPD significant concerns with the appellant's evidence, the letter is not determinative regarding the appellant's conversion. The RPD concluded that the authors' stated belief that the appellant's conversion was genuine does not "address the many reasons noted above as to why the conversion may not be genuine, and therefore will not [be] relied upon by the Panel".15 [34] The RPD concluded: [38] The Panel concludes that due to the significant credibility concerns underlying this claim's key event, the Panel cannot rely on the claimant's testimony in establishing that his conversion to Christianity was genuine. This credibility finding extends to the level of knowledge of Christianity exhibited by the claimant, and the supporting letters provided by the claimant's associates in Canada. The Panel finds that the claimant has failed to establish that he converted from Islam to Christianity while in Iran, and accordingly, that he would be motivated to pursue his Christian beliefs if he were to return to Iran. The Panel's findings with respect to the claimant's credibility apply to its assessments under both section 96 and subsection 97(1) of the Act. GROUNDS OF APPEAL [35] The appellant raises the following issues with respect to the RPD decision; * Did the RPD err in finding that the appellant lacked credibility because he initially misrepresented facts relating to the date of the visit by the plain-clothed men to his home and details of his travel from Iran to Malaysia? * Did the RPD err in not finding that as a former Muslim who converted to Christianity, the appellant faced a risk to his life or a risk of cruel and unusual treatment or punishment in Iran under section 97 of the IRPA? [36] Pursuant to subsection 110(4) of the Act, the appellant seeks to introduce at the RAD two unsworn letters from individuals in Iran. The letters were written in December 2013, after the RPD hearing and its determination. In an affidavit16 included in his AR, the appellant sets out his reasons why he asserts that the two documents should be permitted to be presented to the RPD and that the RAD should conduct an oral hearing pursuant to subsection 110(6). Both of these letters concern facts surrounding events that occurred in Iran, before the appellant left the country. Neither of the letters makes any reference to the topic of the appellant's conversion from Islam to Christianity in Iran nor do they provide any commentary about his religious beliefs at any time, whether in Iran or in Canada. [37] Subsection110(6) of the Act provides: 110(6) 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 refugee protection claim. [38] Thus it is the case that, in order for there to be an oral hearing before the RAD, it is necessary that one or both of the two letters referred to above be accepted for presentment to the RAD and that the issue of credibility must relate to any such documentation. [39] As is set out in the Analysis portion of this decision, I have determined that the RPD's conclusion regarding the genuineness of the appellant's Christian faith and conversion from Islam was not reasonable and that the matter is to be referred to the RPD for a redetermination. As well, as discussed in the subsequent Remedy portion of my decision, I have also concluded that I will not give directions to the RPD which would preclude it from hearing evidence relating to events said to have occurred in Iran. Accordingly, it is not necessary that I make any determination with regard to subsections 110(4) or (6) and the letters sought to be presented to the RAD in these circumstances and I will not do so. REMEDY SOUGHT [40] The appellant seeks an order:17 * Pursuant to subsection 111(1)(b) of IRPA that the decision of the RPD be set aside and that the appellant be found to be a Convention refugee and/or a person in need of protection pursuant to sections 96 and 97 of the Act or, * Alternatively, pursuant to subsection 111(1)(c), that the decision of the RPD be set aside and that the matter be referred to the RPD for re-determination. [41] The Minister seeks an order that the RAD confirm the RPD determination that the appellant is neither a Convention refugee nor a person in need of protection.18 STANDARD OF REVIEW [42] As noted earlier, the determinative issue in the RPD's decision was the credibility of the appellant. Credibility findings are those based on fact or mixed fact and law. As noted earlier, the first general area of credibility concerned the appellant's allegations as to what had happened in Iran while the second is with regard to whether or not his conversion to, and practice of, Christianity is genuine. [43] When considering standards of review with regard to the judicial review of administrative tribunal determinations, the Supreme Court of Canada (the "SCC") in Dunsmuir19 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a specific issue before a review court is well settled by past jurisprudence, a reviewing court may adopt that standard of review. It is when that search proves fruitless that a reviewing court must undertake a consideration of factors comprising the standard of review analysis. [44] The RAD is a new appellate administrative tribunal about which, to the best of my knowledge, the Federal Court has yet to comment on the question of what standard of review the RAD should apply under various circumstances that might come before it. [45] However, some RAD decisions which, inter alia, set out detailed analysis establishing standards of review to be applied by the RAD, have now been made publicly available. [46] In my assessment, the issues raised by the appellant in this case concern issues of fact or of mixed fact and law. The RAD has previously determined that appeals based on such issues are to be assessed on a reasonableness standard.20 I agree with those conclusions and will apply that standard in this case. [47] In assessing reasonability, the SCC in Dunsmuir21 noted in paragraph 47 of its decision: In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within range of possible, acceptable outcomes which are defensible in respect of the facts and law. [48] The SCC has made it clear that on judicial review a court should not lightly interfere with a decision, even when the decision may not have been the one which the reviewing court would have reached on its own. As the SCC noted further in its subsequent decision in Khosa:22 There may be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome. [49] Based on the earlier RAD analysis referred to earlier, I find there is no substantive reason why a similar approach on the question of reasonability should not be applied in this case. ANALYSIS OF THE MERITS OF THE APPEAL [50] All participants at the RPD, including the Member, were of one mind in that the objective basis for a well-founded fear of persecution for a convert from Islam to Christianity in Iran was established and further evidence in that regard was not led. [51] At the outset of the September 24, 2013, RPD hearing, the RPD Member stated:23 Member: Thank you. Given the information in the country condition documents, it would be my understanding at this point that if the claimant's allegations are accepted as true, issues of nexus, state protection and internal flight alternative shouldn't be issues at this hearing, that the Minister is making arguments to the opposite [sic]. Does the Minister have concerns of any of those issues? Minister's representative: No. And, later in the hearing, after the appellant began to testify about his fears of being killed by the Iranian government as a convert if he returns to Iran: Member: I will jump in here at this point because at this point you are kind of moving to the territory of what the conditions are like for Christians in Iran, which for me is pretty event [evident] from the country condition documents. I don't think, as we discussed at the beginning, that the objective basis, if we accept what he is saying as true, then I think what he fears returning to is pretty self-evident, I think. But it all fairness if the Minister's counsel might determine otherwise, that's just my take on it. I don't know if you have any concerns about the objective basis behind the allegations? Minister's representative: No I don't. [52] Accordingly, the hearing and the subsequent submissions of counsel in this regard focused on the credibility of the appellant with regard to his alleged conversion to Christianity in Iran as well as the genuineness of his current Christian belief. [53] As noted earlier, the RPD found that the appellant was not credible in asserting what he had alleged had happened to him in Iran. The RPD's focus was tied significantly to the appellant's admission that his original allegation that he had left Iran to stay for a month in Turkey before he travelled on to Southeast Asia had been a lie. In fact, he had flown directly from Iran to Thailand on his own genuine Iranian passport, without ever going first to Turkey. It was evident than that certain other dates that he had provided earlier, before acknowledging his lie, as to, inter alia, when Iranian authorities went to his home which precipitated his departure or how long he was in the country before he left were of necessity altered so as to fit the timeline of his untruthful evidence. The RPD did not accept as credible the appellant's explanation that he had initially said he had gone to Turkey upon the advice of those who ultimately smuggled him into Canada. [54] The RPD found that, when coupled with other mostly resultant discrepancies, the appellant's credibility was found lacking such that the RPD determined that "the incident described by the claimant in which he had to flee his residence at night because Iranian authorities came looking for him did not happen."24 The RPD found this to be "the seminal event". [55] While I am making no direct finding that would be binding on the RPD on a redetermination with regard to the above-noted evidence, and, without considering the documents sought to be introduced under subsection 110(4) as noted earlier, it is not evident to me that these findings of the RPD were not "reasonable" as that term has been discussed by the SCC in Dunsmuir and Khosa. [56] However, I do not come to the same conclusion with regard to the RPD's finding as to whether or not the appellant's conversion to, and practice of, Christianity in Canada is genuine. In this regard, I find the RPD's determination is not reasonable. [57] In coming to this conclusion, I am mindful of the role of the RPD as compared to the more limited role of the RAD under the Act concerning credibility assessments. As I have previously stated in a now publicly available RAD decision25 (also referenced by the Minister in the Minister's memorandum): 26 [47] The RPD is a tribunal of first instance which has been given the authority under IRPA to make a decision to accept or reject a claim for protection.27 RPD Members have expertise in interpreting and applying IRPA and, as well, expertise in assessing claims based on country conditions. The RPD must conduct a hearing28 and assesses the totality of the evidence, including evidence related to the credibility of the appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses and other evidence. [48] In contrast, IRPA limits the RAD's ability to gather and consider evidence. The RAD is not a tribunal of first instance and its primary role is to review the decision made by the RPD. As stated earlier, the RAD must generally proceed without a hearing and on the basis of the Record, submissions by the parties, and, on occasion, new evidence.29 The RAD's authority to consider new evidence and hold hearings is limited to evidence that arose after the rejection of the 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.30 As well, oral hearings are limited to circumstances where the new evidence raises a meaningful credibility issue.31 [49] Given the RPD's role noted above, and the legislative limitations of the RAD process, I conclude that, generally speaking, the RPD is in the best position to assess the credibility of the appellant and to make findings on issues of fact and mixed law and fact, related to the claim. This position is consistent with Newton where it found that, with respect to the appellate board: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".32 [58] Thus, I had concluded that the RPD is, generally, better positioned than the RAD when making findings of fact inasmuch as the RPD hears live evidence, assesses demeanor and the like. Moreover, as I have also noted earlier, the RAD is to apply a standard of reasonability when assessing the RPD's ultimate findings on matters of fact or mixed fact and law and should be reluctant to set aside credibility findings. [59] In coming to my determination, I am also mindful of authorities such as the Federal Court of Appeal's decision in Sheikh33 that it is possible to make a finding that, overall, a claimant's testimony is not credible: ...even without disbelieving every word [a claimant] has uttered, a...panel may reasonably find him so lacking credibility that it concludes there is no credible evidence relevant to his claim.... In other words, a general finding of a lack of credibility on the part of the [claimant] may conceivably extend to all relevant evidence emanating from his testimony. (RAD emphasis) And, further, that in some cases, a claimant's contradictory testimony can cast doubt upon the totality of his oral evidence. As was noted by the Federal Court of Appeal in Dan-Ash:34 ... unless one is prepared to postulate (and accept) unlimited credibility on the part of the Board, there must come a point at which a witnesses contradictions will move even the most generous trier of fact to reject his evidence. (RAD emphasis) However, I find nonetheless in the following that, in this case, the RPD's determination is not reasonable. [60] In my assessment, when drawing its conclusions about the genuineness of the appellant's Christian conversion and his activities in Canada, the RPD effectively set aside uncontroverted positive evidence it had before it concerning that issue because, essentially, the RPD had found he had not been credible in relating what had happened in Iran or his travels from that country to Canada. The RPD did so without really assessing the fundamental claim that the appellant is now a genuine Christian who, given the established objective basis for a fear of persecution for such an individual who returns to Iran, may face more than a mere possibility of persecution in his country. Importantly in my view, this blanket view extended beyond the appellant's own evidence to that of individuals who had come to know the appellant well and who attested to his current religious practice. [61] In my assessment, the Sheikh and Dan-Ash authorities concern situations where a claimant's evidence is so riven with contradictions and inconsistencies, effectively touching on all essential aspects of a claim, that the decision-maker is justified in disbelieving all of the material evidence provided by the claimant. But this is not always so, especially when a Board's findings of a lack of credibility are not clearly tied to all of the ultimate issues to be determined in the claim.35 [62] In my assessment, more apropos of the circumstances in this case is the 2008 Federal Court decision of Justice Zinn in Guney.36 [63] In that case, a national of Turkey who was of Kurdish descent and an adherent of the Alevi sect of Islam, alleged he faced persecution in Turkey because of his nationality and political opinions. He claimed protection in September 2006 but, in November 2007, he amended his claim to include a second ground for protection, namely a fear of persecution on account of his conscientious objection to military service. [64] Justice Zinn notes: [7] The Refugee Protection Division's decision in this matter is relatively brief. The RPD found that Mr. Guney's failure to initially include conscientious objection as an element of his claim undermined his credibility: The panel concludes that the objection to military service which the claimant alleged at his hearing has been fabricated, or made up, after completing the Personal Information Form in order to bolster the claim for persecution. The panel does not accept, or believe, that the claimant has an objection to military service in Turkey which would form the basis for his claim to refugee protection. [8] The RPD considered that this negative credibility finding could be extended to the whole of Mr. Guney's testimony, and stated as follows: This leaves the claimant's allegations with respect to the history of three arrests and detentions. However, because the applicant has manufactured one arm of his claim, one of the two bases of his claim for protection in Canada, the panel finds that it cannot rely on the other arm either. That is, the claimant's testimony in general is neither reliable nor credible, and as such it cannot support his claim on any arm, or basis. (emphasis added by Federal Court) [65] In concluding that the RPD had been unreasonable, Justice Zinn distinguished the Sheikh authority: [14] Justice Evans in Rahaman v Canada, 2002 FCA 89, explained that the Sheikh decision relied on by the Respondent was intended to provide guidance with respect to the "no credible basis" test which existed under the predecessor to Immigration and Refugee Protection Act. At the time, a claim could be screened out at the preliminary stage of a two-step determination process if it lacked a credible basis. Sheikh clarified that in cases where a claimant's testimony is all that links him or her to the persecution alleged (aside from general country of origin documentation), a finding that the claimant is not credible effectively amounts to a finding that the claim as a whole has no credible basis. (RAD emphasis) [66] It is to be noted in the case before me that the evidence with regard to the appellant's Christian practice in Canada is not restricted to his own testimony, although it must be said that the RPD did not find that the appellant's testimony about Christianity was flawed in and of itself but, rather, that it might be "studied" and not sincere. I find that other witnesses and uncontroverted facts such as the appellant being baptized in Canada play an important evidentiary role in assessing the ultimate question of whether the appellant is a converted Muslim who faces a serious risk of persecution in Iran, which evidence should be fairly considered by the RPD. [67] Justice Zinn found that it was reasonably open to the RPD to disbelieve the conscientious objection claim because it was submitted so long after the original narrative but went on to state: However, in my view, it was not reasonable for the Board to conclude that because the Applicant fabricated one part of his story to bolster his claim, he was generally not a credible witness, especially where the fabricated part had little or no bearing on the remainder of his story. The fact that a witness has been caught in one lie, in itself, is insufficient to discredit all of his evidence, where, as here, the evidence is otherwise plausible and consistent. (RAD emphasis) [68] It is true that in this case both the credibility findings of the events which happened in Iran and the appellant's practice in Canada concern the same topic, i.e., his conversion to Christianity. However, I find that, even if a finding is made that the events which were alleged to have occurred in Iran are not to be believed primarily because of inconsistencies and untruths about the appellant's departure from the country, that is insufficient to discredit all of the evidence about the appellant's Christian activities in Canada such that they should not be considered more independently from that finding than is evident in the RPD reasons. This is particularly so in my assessment where the RPD did not conclude that the Canadian evidence was, of itself, unbelievable but was discarded because the appellant had lied about events related to happenings in Iran. The Canadian evidence was "plausible and consistent". [69] The RPD had not accepted the Minister's submission that a credible conversion could not take place in the short time of five to six months nor did the Member draw a negative inference about the conversion of the appellant based on his knowledge of Christianity. [70] In the former case, the RPD found that there was no evidence upon which it could conclude that a genuine conversion could not take place in the timeframe or in the manner alleged. [71] In the latter, the RPD simply did not accept the Minister's assertion that the appellant's description of "hell" was erroneous and would "not base a determination on the genuineness of the conversion based on his laypersons understanding of this term as distinguished between Islam and Christianity", there being no evidence before the RPD to either contradict or corroborate the specifics of the appellant's theological understanding. [72] There were, therefore, no findings made by the RPD arising from the testimony of the appellant directly concerning his Christian practice in Canada upon which it could reject the appellant's allegation that he had converted. [73] However, because the RPD had found that the Iranian events had not occurred based on the appellant's lack of credibility concerning them, the RPD then made the jump that whatever Christian knowledge the appellant did possess was likely as a result of him studying the topic of Christianity to bolster his refugee claim as opposed to attaining religious and spiritual fulfillment. [74] The RPD noted that the appellant was intelligent, articulate and well educated. The RPD went on to find that the appellant's knowledge of Christianity "could have been acquired by him relatively easily through study" (RAD emphasis). While a witness's inherent intellectual capacity to be mendacious is a justifiable credibility consideration, one must be careful not to conclude that, just because someone could be deceptive, they are. [75] The RPD justification for its conclusion that the appellant was not a genuine Christian convert became, in my opinion, even less so in its treatment of the letters disclosed in the evidence from the appellant's Christian acquaintances in Canada, including his pastor. [76] One was from a couple, the Predigers, who had spent much time assisting the appellant adjust to Canada through their organization which houses and cares for refugee claimants. Of particular interest is the appellant's involvement for over seven months in the couple's family and church life. The couple concludes, "He has grown as a believer in Jesus Christ and as a friend". The second letter is from a member of the congregation of the church the appellant has been regularly attending. The appellant had spent much time with the writer's family who opines, "I have seen [the appellant] desire more Jesus Christ, and always desires to go to church to learn about him". [77] The third letter is from a pastor at the appellant's church. He writes that he has known the appellant since shortly after his arrival in Canada and as a Christian convert. The pastor concluded that the appellant had sufficient knowledge of the gospel of Jesus Christ to make an informed profession of faith in Jesus Christ such that he was baptized in front of the congregation. In the pastor's opinion, the appellant was a genuine convert. The appellant has regularly attended church services and participated in other church groups. [78] I acknowledge that it is for the Member, and not a pastor or acquaintance, to come to the ultimate determination for refugee protection purposes of whether or not a claimant has credibly established his bona fides as a genuine convert. That is not a question that the RPD could properly abdicate to others. As well, provided the evidence is considered in a manner consistent with reasonability, it is not for the RAD to substitute its view for that of the RPD of such evidence. [79] However, in my assessment there is a duty that the RPD fairly consider uncontroverted, plausible and consistent relevant evidence before coming to such a conclusion. I find that in this case the RPD did not do so having concluded that, because of his misrepresentations concerning Iranian events, neither the appellant's nor others evidence is credible. [80] The RPD simply stated that it would not rely on the letters because their authors do "not address the many reasons noted above as to why the conversion may not be genuine". This latter reference is not altogether clear but, presumably, concerns the evidence which led to the RPD's conclusion that, due to a lack of credibility about the events alleged by the appellant as having happened in Iran, they never occurred. The RPD also noted that, whatever view the letter writers might have about the appellant's Christian beliefs was predicated on whatever he told them being true, "a finding the panel does not make after having assessed the claimant's credibility for itself". Effectively, the RPD found that the letter writers did not know the appellant like the RPD did. [81] In this latter regard, the IRB makes no mention of the evidence provided in testimony37 that the appellant's decision to acknowledge his untruths to CBSA arose after he confided in the Predigers about his earlier misstatements to authorities. This discussion with the Predigers took place long before they wrote their December 2013 letter. [82] The appellant testified that he was troubled about having told CBSA about having gone to Turkey when he had not. The appellant had had a number of interviews with CBSA after he arrived in Canada in XXXX 2013. After speaking to the Predigers, it was they who encouraged him to speak to his lawyer who, in turn, encouraged him to rectify the situation at his first opportunity at his next interview with CBSA. This this was done in the interview of April 10, 2013. [83] If the letter writers' lack of knowledge of the appellant's capacity to be less than truthful is the primary reason to reject a potentially material letter out-right, it is incumbent upon the RPD in my view to directly consider evidence such as noted above, a consideration not evident in the RPD reasons. [84] In my assessment, the RPD put itself in the position that, although the appellant's direct evidence about his Christian beliefs were not erroneous, and the three letters from members of the local Christian community were directly relevant to the appellant's actual Christian practice in Canada, the IRB was not reasonably open to consider coming to a conclusion that, although the appellant had not been credible about what had happened in Iran, he might nonetheless be a genuine convert to that religion in Canada. [85] For these reasons and, having regard to the Guney Federal Court authority noted earlier, I find that the RPD decision regarding the question of the appellant's conversion to Christianity and practice in Canada, was not reasonable as considered by Dunsmuir and Khosa in that it does not fit comfortably with the principles of justification, transparency and intelligibility. [86] Accordingly, the RPD determination is set aside. REMEDY [87] With respect to the RAD, section 111 of IRPA provides: 111(1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions: (a) confirm the determination of the Refugee Protection Division; (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate. [88] Subsection 111(2) of the Act provides: 111(2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that (a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. [89] With respect to subsection 111(1)(b), in the circumstances of this claim I find that I cannot substitute the RPD determination with one which, in my opinion, should have been made for the primary reason that the RPD hearing heard significant testimony about all aspects of the claim which the RAD would have to rehear. With respect to matters of credibility, there is only the transcript of the hearing which I find would be problematic in providing a proper basis for the RAD to make its own credibility findings. This is particularly so with regard to the question of the appellant's current Christian beliefs which in my assessment, would necessitate the finder of fact to have the benefit of live testimony which is not replicated by simply reading a transcript. Accordingly, I find that the matter must be referred to the RPD for redetermination. [90] Subsection 111(1)(c) of IRPA provides that when the RAD refers a matter to the RPD for redetermination, the RAD may do so with directions. In this case, I considered whether or not those directions could include a restriction whereby the matter of whether or not the appellant had credibly established events which occurred in Iran would not be re-determined. However, I have ultimately concluded that I would not so restrict the RPD inasmuch as, in making credibility conclusions about the appellant's Christian activities in Canada, his credibility about Iranian events may still inform the RPD's determination about the situation in Canada. As noted above, the lack of reasonability in the RPD decision arose not because the RPD considered those Iranian events but, rather, from a failure to reasonably consider other evidence. CONCLUSION [91] Accordingly, I conclude that the appeal of XXXX XXXX XXXX is allowed and that the matter is to be referred to the RPD for re-determination by a differently constituted RPD Panel. (signed) "Philip MacAulay" March 19, 2014 Date 1 Refugee Appeal Division (RAD) Exhibit 5, Minister's Intervention (MI). 2 RAD Exhibits 4, Minister's Memorandum (MM). 3 RAD Exhibit 2, Appellant's Record (AR). 4 RAD Exhibit 6, Appellant's Reply (ARM) to the Minister's Memorandum. 5 RAD Exhibit 2, AR, p.83. 6 RAD Exhibit 3, Refugee Protection Division Record (RPDR), pp. 19-22. 7 RAD Exhibit 3, RPDR, pp. 311-317. 8 RAD Exhibit 3, RPDR, pp. 422-428. 9 RAD Exhibit 3, RPDR, pp. 318-326. 10 RAD Exhibit 3, RPDR, p. 11, para. 34. 11 RAD Exhibit 3, RPDR, p. 11-12, para. 35. 12 RAD Exhibit 3, RPDR, p. 12, para. 35. 13 RAD Exhibit 3, RPDR, p. 12, para. 36. 14 RAD Exhibit 3, RPDR, pp. 275-278. 15 RAD Exhibit 3, RPDR, pp. 12-13, para.37. 16 RAD Exhibit 2, AR, pp. 83-97. 17 RAD Exhibit 2, AR, pp. 109-110. 18 RAD Exhibit 4, MM, p. 10. 19 Dunsmuir v. New Brunswick, 2008 SCC 9. 20 For example see X (Re), 2013 CanLII 82622 at para. 29 (IRB); X (Re), 2013 CanLII 67015 at para. 29 IRB): X (Re), 2013 CanLII 76397 at para. 18 (IRB); X (Re), 2013 CanLII 76473 at para. 28 (IRB); X (Re), 2013 CanLII 76390 at para. 27 (IRB). Decisions on CanLII are publicly available at <http://canlii.org>. 21 Dunsmuir v. New Brunswick, 2008 SCC 9. 22 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para.59. As well, see Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 and Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10. 23 RAD Exhibit 2, AR, p. 20. 24 RAD Exhibit 3, RPDR, p. 10, para. 30. 25 X, (Re), 2013 CanLII, (88064) (IRB) publicly available at <http://canlii.org>. 26 RAD Exhibit 4, MM, pp. 9-10. 27 Immigration and Refugee Protection Act ("IRPA" or the "Act"), S.C. 2001, c. 27, section 107. 28 IRPA, section 170. 29 IRPA, subsection 110(3). 30 IRPA, subsection 110(4). 31 Refugee Appeal Division Rules (the "Rules"), SOR/2012-257; Rule 57. 32 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, para 82. 33 Sheikh v. Canada (Minister of Employment and Education), [1990] 3 F.C. 238 (C.A.), at 244. 34 Dan-Ash v. Canada (Minister of Employment and Immigration), (1988), 93 N.R. 33 (C.A.), at 35. 35 Ferdosi v. Canada (Minister of Citizenship and Immigration), 2001 FTC 1203. 36 Guney v. Canada (Minister of Citizenship and Immigration), 2008 FC 1134. 37 RAD Exhibit 3, RPDR, pp. 79-80. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB3-03121 RAD.25.02 (February 7, 2014)