TB4-00014

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 / Dossier de la SAR : TB4-00014 Private Proceeding / Huis clos Redetermination of Appeal ? Nouvel examen de l'appel Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 20, 2018 Date de la décision Panel James Sloan Tribunal Counsel for the person(s) who is(are) the subject of the appeal Joseph P Granton Barrister & Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant) is a national of Uzbekistan. He claims he was told by a prosecutor in early 2013 that he must pay him a large sum of money or he would be imprisoned for 18 years. The matter related to a loan that had been issued by a bank where the Appellant had worked until November 2007. The Appellant fled to Canada in XXXX 2013 and made an inland claim later that month. The initial basis for his refugee claim was that if he returned to Uzbekistan, he would be unjustly prosecuted and tortured. [2] Later, in 2015, the Appellant changed the focus of his claim. He put forward two sur place claims: first, he claimed that if he were to return to Uzbekistan he would be persecuted based on the religious beliefs he has begun to practise in Canada (he became a pious Muslim, a Gulenist and an adherent to Said Nursi teachings) and, second, he would be subject to persecution or other harm because he had claimed refugee status in Canada. PROCEDURAL HISTORY [3] On November 19, 2013, the Appellant's claim for refugee protection was heard by the Refugee Protection Division (RPD). It was refused on the same day owing to a lack of credibility and a lack of nexus to a Convention ground. [4] By a decision dated April 16, 2014, the Refugee Appeal Division (RAD) (Member Uppal) allowed the appeal.1 [5] On June 3, 2014, the Honourable Madam Justice Heneghan of the Federal Court quashed the RAD's decision, on consent, and remitted the matter to a differently constituted RAD panel for redetermination. [6] The matter was returned to the RAD, and the new panel (Member Ahara) confirmed the finding of the RPD and dismissed the appeal on September 17, 2014. It agreed with the RPD's finding that there was no nexus with a Convention ground and endorsed all but one of the RPD's credibility findings. [7] On August 13, 2015, judicial review was again granted.2 The Honourable Madam Justice Strickland of the Federal Court held that the RAD had unreasonably denied a request by the Appellant for the admission of certain new evidence and breached procedural fairness by failing to take the evidence into account when assessing the RPD's crediblity findings. The Federal Court set aside the RAD's decision and remitted the matter to a differently constituted panel of the RAD for redetermination. [8] By a decision dated September 22, 2016, a new panel of the RAD (Member Fiorino) once again confirmed the finding of the RPD and dismissed the appeal. In this appeal, the Appellant argued his sur place claims for the first time. The RAD endorsed most of the RPD's credibility findings, found that the Appellant would not face persecution on the basis of being a failed refugee claimant and held that he "was not an active practitioner of the Gulen movement or of the Said Nursi teachings and that he would not face a reasonable chance of persecution due to his religious profile if he were to return to Uzbekistan." [9] On September 18, 2017, judicial review was once again allowed.3 Once again the Honorable Madam Justice Heneghan of the Federal Court reviewed the matter. The Court held that the RAD had erred because, while it found that the Appellant was not a practitioner of the Gulen movement or of the Said Nursi teachings, it "did not clearly say that it was looking at [the risk of persecution on the grounds of religion] from the viewpoint of the persecutor, that is, the state."4 The decision was set aside and the matter was remitted to a differently constituted panel of the RAD for redetermination. [10] It now falls to me to decide this appeal for the fourth time. DETERMINATION [11] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), I refer the matter to the RPD for redetermination. The appeal is allowed. DETERMINATIVE ISSUES [12] The determinative issues in this case are credibility and the sur place claims. ANALYSIS 1. New Evidence [13] The Appellant requested the admission of twelve documents as new evidence in the first RAD appeal (in April 2014). He requested the admission of the same twelve documents in the second RAD appeal (in June 2014). In advance of the RAD considering the matter for the third time (in September 2016), he requested the admission of 46 additional new documents. Finally, in advance of this appeal, the Appellant requested yet another 29 documents. The documents the Appellant requested be admitted in his third and fourth appeals relate to his sur place claims. [14] While I have reviewed the documents, because of my finding in this matter, I need not consider whether the proposed new evidence is admissible. 2. My findings on credibility [15] While the Appellant has not abandoned his claim that the RPD's findings regarding his credibility were in error-and those arguments still form a part of his claim before me-it is clear that it is no longer his focus. Nevertheless, the Appellant's credibility or lack thereof is relevant to my analysis of his evidence in this matter. [16] The RPD found that the Appellant was not credible based on: a) the omission of police visits to his home from his Basis of Claim (BOC) narrative; b) the implausible nature of his testimony regarding his lack of knowledge in relation to the police visits; c) an inconsistency between his testimony and his BOC narrative regarding when he was told about a fraudulent loan; d) his inability to remember the dates when the meetings with the prosecutor occurred; e) his inability to recall when the prosecutor became aggressive; f) an inconsistency between his testimony and his BOC narrative regarding whether the prosecutor told him to return after the third interview; and g) his inability to explain how he was able to travel to Canada if he was being pursued by the prosecutor. [17] The second RAD panel-from June 2014-upheld all of the RPD's credibility findings with the exception of item b). I endorse the second RAD panel's findings regarding the RPD's credibility findings and the reasons given for those findings, with the exception of its finding in relation to item g).5 While I need not make an overall credibility finding, it is clear that there are material reasons to doubt the Appellant's credibility and the Maldonado presumption6 is inapplicable in this appeal. 3. Remedy [18] The Appellant submitted a document entitled "Additional Submissions of the Appellant", dated November 20, 2017, in advance of this appeal. In it, the Appellant focusses on what he describes as his "new basis of claim", i.e. the sur place claims. He submits that "the RAD lacks jurisdiction to assess his refugee claim and the evidence on new risk grounds, and requests the RAD to send the present case back to the RPD for redetermination." In the circumstances, I need not decide on the merits of his argument in this regard (and note that I am not at all sure that it is convincing), because I have arrived at the view that I am unable effectively to make a determination on the sur place claims based on the record and, as such, must refer the matter back to a differently constituted panel of the RPD. [19] It is clear that the RPD was not in a position to question the Appellant about the credibility of his assertions relating to his religious views: they had not been raised when he was before the RPD. Given my finding that the Appellant has credibility problems, I am not in a position to accept as true the evidence he has submitted in support of his sur place claims-including the affidavits in which he attests to his religious practices. I believe that rigorous questioning of this Appellant is required (especially given his previous credibility problems) in order that the genuineness of his sur place claims may be assessed. As such, I am not in a position to substitute the RPD's decision and find that the Appellant is a refugee or person in need of protection. [20] Nor am I in a position to dismiss the appeal, in view of the lack of adequate evidence regarding the Appellant's sur place claim. The Federal Court held, in 2017, that the RAD had acted unreasonably by not making a clear finding regarding the risk of persecution from the viewpoint of the state. I am not in a position to make a finding on this point based on the record-even if all proposed new evidence is admitted. [21] Finally, I note that the IRPA provides that I may hold a hearing in certain limited circumstances and note further that the Appellant has requested such a hearing. Subsection 110(6) provides a hearing may be held where three conditions in relation to the new evidence are met. The new evidence must: a) raise a serious issue with respect to an Appellant's credibility; b) be central to the decision with respect to his refugee protection claim and c) if accepted, justify allowing or rejecting his claim. For the reasons outlined above, I would be unable to allow or reject this claim even if all evidence was admitted. Consequently, I am unable to hold a hearing in this matter. [22] Given this matter first came before the Immigration and Refugee Board over five years ago, in November 2013, I find it regrettable that the matter is now to return to a first-level decision maker. While this is the remedy the Appellant has requested, the continuation of the process with another oral hearing before the RPD (after which, if the Appellant is unsuccessful, he will almost certainly embark on a fifth appeal to the RAD) will result in the continuation of a very uncertain time for the Appellant. Moreover, given the length of time that has elapsed (and will elapse), it is difficult to see how this matter could be said to meet the expressed desire of the Government of Canada for the efficient resolution of refugee claims. CONCLUSION [23] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), I refer the matter to the RPD for redetermination. The appeal is allowed. (signed) "James Sloan" James Sloan December 20, 2018 Date 1 It held that the RPD erred by not informing the Minister pursuant to Rule 26(1) of the Immigration and Refugee Protection Act (IRPA) that there was a possibility that the Appellant may be excluded due to serious non-political crime and ordered that the matter be remitted to the RDP to be decided by a differently-constituted panel. 2 Ismailov v. Canada (Citizenship and Immigration), 2015 FC 967. 3 Ismailov v. Canada (Citizenship and Immigration), 2017 FC 837. 4 Ibid., at para 31. 5 This finding was held by the Federal Court to be in error as the RAD had not allowed in evidence that may have disproven it. (Ismailov v. Canada (Citizenship and Immigration), 2015 FC 967). 6 Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19,. 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB4-00014 RAD.25.02 (September 18, 2018) Disponible en français 7 RAD.25.02 (September 18, 2018) Disponible en français