TB5-06578

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 : TB5-06578 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 September 14, 2015 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jared Will 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 (the Appellant), who claims to be a citizen of Turkey appeals a decision of the Refugee Protection Division (RPD), denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and substitute its own positive decision, or to refer his claim to the RPD for redetermination by a differently-constituted panel. DETERMINATION [2] Pursuant to Section 111(c) of IRPA, the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. BACKGROUND [3] The Appellant alleges before the RPD that his problems began in 2008 as a result of his membership in the Peace and Democracy Party (BPD) and the Democratic People's Party (HDP). The Appellant further alleges that as a result of his political activities, such as distributing flyers, putting up posters and his participation in demonstrations against the government on the Persian New Year, he was subsequently arrested for these and other actions. The Appellant was arrested and detained for XXXX days where he was released without any charges being laid. [4] The Appellant further alleged before the RPD that he performed his compulsory military service from XXXX to XXXX, which was not free of harassment from his superiors. The Appellant alleges that he was arrested on XXXX 2011 and XXXX 2013 for canvassing for the BPD party where he was once again arrested, detained and released without charges laid. In XXXX 2014 the Appellant alleged that he canvassed unsuccessfully as a BPD candidate, he along with other protested the election results, but was arrested and again released without charges laid. In XXXX 2014, the Appellant along with others protested the Islamic assaulted on the nearby towns in Syria, but was arrested and detained and tortured. The Appellant was released two days after being arrested without charges laid. [5] The Appellant with the help of an agent was able to leave Turkey on XXXX XXXX, 2014 via numerous countries and arrived in Canada. The Appellant made a claim for protection inland office on or around XXXX XXXX, 2015. [6] The Appellant had a refugee determination hearing on April 21, 2015. Written reasons dismissing his claim were issued on June 10, 2015. In its decision, the RPD panel found the following: a) Inconsistent evidence detracted from his credibility. b) Subjective Fear; Delay in Departure [7] In the Appellant's memorandum, the Appellant alleged that the RPD made several errors of law and fact as follows: a. Did the member err in impugning the Appellant's credibility; and b. Did the member err in ignoring the evidence that corroborates the Appellant's allegations; and c. The RPD erred when it failed to consider the documentary evidence and other convention grounds that were applicable to the Appellant; and d. Did the Member err in his assessment of the Appellant's subjective fear [8] The Appellant asks the RAD to set aside the determination and substitute a positive determination or refer the matter to the RPD for re-determination as per Section 111(1) (b) and (c) of IRPA. ROLE OF THE RAD [9] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica1, provides the RAD 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. 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". [10] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person is need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [11] As provided for in s. 110(3) of IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of IRPA provides that 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. [12] The Appellant has tendered the following proposed new evidence in support of his appeal. 1. Amnesty International Report 2014/2015 undated;2 and 2. Amnesty International, 21st session of the UPR working group, January-February 2015;3 and 3. A publication titled, Turkey: Draconian reforms give police wide-ranging power to repress dissent; by unknown author or publication dated 27 March 2015;4 4. Key Statistics and Findings on Asylum Requests at the U.S. - Mexico Border, unknown author, dated June 2014;5 5. FY2012 Statistical Year Book, dated February 2013, (revised March 2013);6 [13] The RAD finds that, all articles submitted were produced prior to the Appellant's RPD hearing. The RAD finds that the Appellant has failed to provide a reasonable explanation why these articles were not submitted at this RPD hearing. What efforts he made to obtain them, and why they were not readily available. Further, there is no evidence before the RAD why he is presenting them now, and what is the relevancy to his Appeal. [14] In considering the statutory provisions in Section 110(4), the RAD considered the following. [15] First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim. [16] The RAD will consider not only the date on which the document came into existence but the timing of the event or circumstance which the document seeks to prove. For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. [17] It is important to note here that Section 110(4) does not contemplate whether the evidence arose after the RPD hearing but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. [18] If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and materiality of the document. [19] Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in Section 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection; has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim, or that it proves a fact that was unknown to him at the time of the hearing? If so, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [20] Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim and that it was reasonably available at the time of the rejection, it must consider the final part of the Section 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered. If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [21] In regards to documents 1 to 5, the RAD finds there is no explanation why these articles were not available prior to the hearing or before the rejection of the claim. There is no explanation as to what steps if any were taken by the Appellant to obtain this report prior to the claim or before the rejection. [22] In the case at hand, the proposed new evidence documents 1 to 5 fail to meet the requirements of s. 110(4) in that the evidence is not capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim. Accordingly, the RAD finds that the proposed new evidence does not meet the test of new evidence and, as such, will not be accepted these articles as new evidence in this appeal. [23] After review, the RAD finds that the documents tendered as proposed evidence in this appeal are not material. It is the view of the RAD that materiality is the measure of the estimated effect that the presence or absence of an item of information may have on the accuracy or validity of a statement. That evidence has to have a certain threshold effect to be material, namely, that the evidence is capable of showing that the decision or reasons of the RPD are in error, or might the evidence affect the appropriate disposition of the appeal. [24] The RAD notes that the Appellant has not provided a persuasive argument to demonstrate how this document is capable of showing that the decision or reasons of the RPD are in error or how the evidence might affect the appropriate disposition of the appeal. [25] The RAD make note that due to the convoluted manner in which this portion of the memorandum is put together, the RAD finds that document 1, is part of the NDP package dated 30 June, 2015 on Turkey which was not available at the time of the RPD hearing. However, as indicated previously, this was not explained nor was any explanations provided for why it is relevant to the Appeal. [26] The RAD finds that documents 1 to 5 are not material in that it is incapable of showing that the decision or reasons of the RPD are in error and, as such, rejects them as new evidence. Application for an Oral Hearing [27] The Appellant asks that an oral hearing be held, pursuant to Section 110(6) of IRPA, in the event that the RAD does not find the Record sufficient to grant refugee protection. [28] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), 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." [29] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [30] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [31] The RAD has not admitted the new evidence submitted by the Appellant in support of his appeal. As such, the RAD must proceed without a hearing, and the Appellant's request for an oral hearing is denied. RPD FINDINGS [32] The Appellant argues that finding the claimant is not a credible witness is not determinative of the issue of whether he qualifies for protection. The Appellant argues that the panel erred when it failed to consider and assess documentary evidence in support of his claim, and country documents regarding the Appellant's ethnicity as a Kurd. The Appellant argues that the RPD, in its decision, makes mention of the above evidence which corroborate his allegations and fears, but doesn't explain why it gives the evidence little weight. The Appellant further argues that the RPD, in its decision, also failed to consider the allegations concerning his political activism in Turkey (which it appears the panel accepted), and by failing to mention and address this evidence, implies that the decision was made without regard to the evidence.7 The RPD is presumed to have considered all of the evidence before it.8 [33] The RPD is not required to refer to each and every piece of documentary evidence before it. However, the more important the evidence not specifically mentioned and analyzed in the Board's reasons, the more willing the Federal Court is to find that the RPD made an erroneous finding of fact without regard to the evidence,9 and the same reasoning seems applicable to the RAD's review of the RPD's reasons. [34] The RAD has reviewed the evidence referred to by the Appellant.10 In the RAD's view, some of that evidence which included some important pieces of evidence which were not mentioned, but the RAD feels it's important enough for the RPD to have mentioned. Such as, the RPD did not mention in its reasons the letter from the President of the AgriXXXX XXXX (Peoples Democratic Party) in which the author says that the Appellant was arrested and released, this leaves this piece of evidence untested. The RAD notes that the RPD's reasons make no mention of the NDP, which would indicate if the appellant is at risk, notwithstanding his credibility problems, simply because of his political activities. [35] While the RAD acknowledges that the RPD is not required to refer in its reasons to all potentially relevant evidence, I agree with the Appellant's position that it is also well-accepted that the more important the evidence that is not specifically mentioned and analyzed in a decision-maker's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact without regard to the evidence (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 FTR. 35, at paras. 14-17, [1998] FCJ No 1425 (FCTD)). [36] In this matter, the RPD simply did not acknowledge or articulate in its reason whether it directly or indirectly assessed all the documents corroborating the alleged targeting by the Turkish authorities, and the RAD finds the RPD erred by making its risk analysis finding without making mention of this evidence in its reasons, and finds that the finding in this area is unreasonable and unsupportable. [37] At paragraph forty-nine of its decision, the RPD panel found that the "the panel concludes that the above-mentioned credibility findings also apply to section 97 of IRPA, and that, on a balance of probabilities, you would personally be subjected to a danger of torture, or face a risk to life or a risk of cruel and unusual punishment in Turkey."11 After a lengthy and detailed credibility analysis, the RPD member found that "having considered all of the evidence, the Panel determines that the claimant is neither a Convention refugee nor person in need of protection...."12 The Appellant's lack of credibility was equally fatal to his claim under Section 96 and Section 97 of IRPA. Once the RPD found that he had not provided credible evidence concerning his subjective fear, delay in departure and other aspects of his claim, there was simply no basis for a finding that the Appellant was a person in need of protection. [38] It is trite law that a negative credibility finding in relation to Section 96 will often obviate the need to consider Section 97. Although in this case, the consideration of Section 97 was contained in the reasons, there was nevertheless an analysis. Given the RPD's concerns about credibility, the relatively cursory nature of the Section 97 analysis was reasonable in fact and correct in law.13 Credibility Findings [39] The RPD made many negative credibility findings which it stated led to a final determination that the Appellant was not credible and that the lack of credibility cast doubt on the totality of the evidence. The RPD's decision was based on credibility issues including: inconsistency with the circumstances surrounding his subjective fear, his delay in departure, inconsistency between knowledge in BoC and oral testimony. [40] The RPD had the opportunity to test the Appellant's knowledge and his testimony related to the allegations. The RPD is to be given deference in its findings of fact and in its overall assessment of the Appellant's credibility. Based on the concerns identified by the RPD and given the significant deference afforded the RPD member, the RAD finds that the RPD's findings related to credibility of the allegations were supportable. [41] The Appellant argued that the RPD erred by ignoring country documentary evidence and the objective basis for the claim. The RPD found that the Appellant's allegations were not credible, and therefore the Appellant has not established his political profile and that he would be wanted by Turkish authorities. [42] A review of the RPD's reason reveals that the RPD found credibility concerns in some areas of the Appellant's allegations for which the Appellant was not able to provide a reasonable explanation. A panel may err by discounting the entirety of the evidence based on one or two non-determinative credibility concerns; however, this is not the case in this Appeal. The concerns raised by the RPD went to the heart of the Appellant's allegations. The RAD finds that this finding was open to the RPD given the number and nature of the concerns identified by the panel. [43] It would have been better had the RPD considered the context of the Appellant's documents and provided fulsome reasons as to why it gave them little weight. These in RAD's view are important documents which go to the heart of the claim, in such aspects of establishing his political identity and his credibility. [44] For all of the reasons set out above, the RAD finds that the RPD's decision is not supportable. [45] After conducting an independent assessment of the entirety of the evidence, the RAD does not reach the same conclusion as the RPD did in its findings. The RAD noted that there were numerous credibility concerns in the record before it, but without giving the Appellant the opportunity to give explanations, the RAD defers any credibility concerns to the RPD. SUMMARY AND DETERMINATION [46] I am unable to make a determination as to whether the Appellant is a Convention refugee or a person in need of protection under paragraph 111(1)(a) or (b) without hearing the evidence that was presented to the Refugee Protection Division. Therefore, the matter is remitted to the RPD for redetermination by a differently-constituted panel. CONCLUSION [47] Pursuant to ss. 111(1)(c) of the Act, the Refugee Appeal Division remits the matter for redetermination to the Refugee Protection Division by a differently constituted panel. [48] This appeal is therefore allowed. (signed) "Luis F. Agostinho" Luis F. Agostinho September 14, 2015 Date 1 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Exhibit P-2, Appellant's Record, at pp. 246-251. 3 Exhibit P-2, Appellant's Record, at pp. 252-257 pages dated June 2014. 4 Exhibit P-2, Appellant's Record, at pp. 258-260, unknown author or publication dated 27 March, 2015. 5 Exhibit P-2, Appellant's Record, at pp. 264-265, unknown author or publication dated June 2014. 6 Exhibit P-2, Appellant's Record, at pp. 266-295. 7 Exhibit P-2, Appellant's Record, at p. 316, para 85. 8 Hassam v. M.E.I. (1992), 14 N.R. 317, at para 318. 9 Dessie, Worku v. M.C.I. (F.C., no. IMM-3927-11), Mactavish, December 19, 2011, 2011 FC 1497 para. 7-8. 10 Exhibit P-2, Appellant's Record, at p. 312, para 63-64. 11 Exhibit RPD-1, RPD's Record, at p. 16, para. 49, Reasons for Decision. 12 Exhibit RPD-1, RPD's Record, at pp. 8-9, paras. 25-32 and at pp. 12-16, paras. 36-48. 13 Ache, Djidda Mahamat v. M.C.I., (F.C., No. IMM-5907-10), Simon Noël, June 9, 2011; 2011 FC 659, para. 15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-06578