TC1-18602

RAD File / Dossier de la SAR : TC1-18602 Private Proceeding / Huis clos Reasons and Decision ? Redetermination of Appeal Motifs et décision - Nouvel examen de l'appel Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Date of decision January 24, 2023 Date de la décision Panel K. Foreman Tribunal Counsel for the person who is the subject of the appeal Mehran Youssefi Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the Appellant) is a citizen of Iran and appeals a decision to the Refugee Appeal Division (RAD) from the Refugee Protection Division (RPD) rejecting his claim for refugee protection on October 13, 2021. DETERMINATION [2] The RAD confirms the decision of the RPD and dismisses the appeal pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA or Act).1 DECISION [3] The RAD dismisses the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection . BACKGROUND [4] The Appellant's allegations are contained in his Basis of Claim form (BOC)2 and his narrative.3 In short, the Appellant alleges that he fears harm from the Iranian regime for three reasons, a land dispute with a shia mullah, his Kurdish ethnicity and Sunni religion. [5] The Appellant notes that in XXXX of 2018, he and his uncle attempted to sell some family land only to discover that a Shia Mullah had ownership of the land. The Appellant unsuccessfully approached the police, who would not lodge a complaint. The Appellant later got into a fight with the Mullah's sons. He was then arrested and detained for two months. The Appellant then spent another month in police custody and was released on bail. The Appellant alleges he was offered to sign a form saying he would join the war in Syria for six months in exchange for his criminal charge being removed. [6] The Appellant left Iran and came to Canada, making a claim for refugee protection. Standard of review [7] I have applied the standard of correctness and arrived at independent findings based on the evidence before me.4 [8] The RPD had numerous credibility concerns with the Appellant's claim. The Appellant argues that the RPD:5 a. Erred in its credibility assessment by basing findings on irrelevant inconsistencies and peripheral factors; and b. Erred in its assessment of the Appellant's residual profile. [9] I agree with the RPD's credibility concerns and confirm the RPD's negative determination. I find that the determinative issue in this appeal is credibility. NEW EVIDENCE [10] The Appellant has provided three new pieces of evidence for the purpose of his appeal: 1) A summons dated XXXX XXXX, 2021;6 2) A letter from the Appellant's mother dated XXXX XXXX, 2022;7 and 3) A summons dated XXXX XXXX, 2022.8 [11] Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [12] The second step in the analysis for new evidence is to consider it in relation to the adapted Raza factors endorsed in Singh.9 In Singh, the Federal Court of Appeal (FCA) held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. The RAD will therefore apply the Raza factors, minus the "materiality" factor, as this is to be assessed in light of subsection 110(6) of the IRPA only. [13] The first document is a summons issued on XXXX XXXX, 2021. The second item is a letter from the Appellant's mother dated XXXX XXXX, 2022. The third document is dated XXXX XXXX, 2022. I note that all three documents are dated post-rejection of the RPD claim and could not have reasonably been available at the time of the negative refugee determination. [14] In relation to items 1 and 3, after a review of this document and in performing a comparison with the samples provided in the National Documentation Package (NDP),10 I find that these documents are not reliable. The documents are inconsistent with the summons samples provided in the NDP. While the documentary evidence indicates that there is no standard for all the issues summons, this note appears with the caveat that some summons are issued electronically.11 The documentation goes on to note it would be "relatiavely easey to forget a court document."12 [15] Observing the first summons submitted by the Appellant and comparing it to the sample in the NDP documentation, I note that the structure and format of the summons is not consistent with the NDP documentation. While the Appellant's summons does have has boxes that accompany lines of text, the sample and the objective documentary evidence note that the reason for appearance would be included in this document. The Appellant's summons document does not include a reason for appearance and does not include the name of the "Agent Serving the Notice" or a spot for the "Signature of the person being summoned" as noted in the sample. [16] In observing the third document, an additional summons which includes notice of an arrest warrant, I note that it too varies from the samples provided. When I compare this document to the sample criminal summons found in the NDP, I also find that this document is not reliable. While I note that this document does provide a reason that the Appelalnt is required to appear, it again is missing the location of the justice department and the prosecution office at the top of the page. The Appellant's document is also missing the signature of the serving agent and date, which is inconsistent in structure with the originals provided in the NDP documentation. [17] While these documents both contain stamps and signatures, there is no security features that would help determine their legitimacy. I find on a balance of probabilities that the Appellant has submitted two fraudulent summons and therefore cannot accept them as new evidence. I note that I am not obligated to put an obvious inconsistency between the Appellant's documents and the material provided in the NDP for Iran to the Appellant for an explanation.13 The case law indicates that where there is sufficient evidence to cast doubt on the authenticity of a document, whether because of an irregularity on the face or the questionable circumstances in which it was obtained or provided, the document may be assigned little or no weight.14 Further, evidence of the widespread availability of fraudulent documents in a country is not by itself sufficient to reject foreign documents as forgeries, but it may be relevant if there are other reasons to question the documents or a claimant's credibility.15 [18] In relation to item two, the Appellant has provided a letter from his mother detailing allegations that the police are still looking for him. I note this document was created post-rejection of the Appellant's claim and could not have reasonably been provided at the time of the RPD determination. However, the contents of this document relate to the service of a summons that I have found to be fraudulent. As this letter refers to an unreliable document, I cannot find the contents to be credible or relevant, and it therefore lacks any probative value. I therefore reject this document as new evidence. [19] Since new evidence that has been admitted does not create any concerns relating to credibility, I do not have the authority to conduct an oral hearing under subsection 110(6) of the IRPA. ANALYSIS [20] The RPD made numerous negative credibility findings, including inconsistencies, delay in departure from Iran and confusing testimony about his arrival in Canada. [21] I have conducted an independent review of the transcripts of the RPD hearing,16 as well as the Record. I agree with each of the RPD's credibility findings, for the same reasons provided by the RPD. [22] These numerous credibility findings relate to material elements of the Appellant's claim and are consistent with the evidence. The Appellant argues that the RPD erred in its assessment of the inconsistency regarding the Appellant's detention. Having reviewed the Record and the transcripts, I disagree. The RPD's reasons are detailed and complete, they accurately reflect the information in the Appellant's Schedule 12,17 which he attested was truthful, complete and correct,18 as well as his testimony on the Record. The Appellant failed to provide a reasonable explanation as to why the dates he provided for his detention varied by months, noting only it was a difficult time. The reasons are clear and I find that they are correct. Delay in Departure [23] The Appellant was released from detention in XXXX of 2019 however, despite holding a valid visitor visa to Canada,19 he did not leave Iran until XXXX of 2019. When asked by the panel why he did not leave Iran at the earliest opportunity, the Appellant noted he needed to care for his mother. I agree with the RPD that this explanation is not reasonable. The Appellant testified that he was he was on bail for the criminal charge of assault and feared he would be detained for a lengthy prison term. He has siblings living in the same area of Iran as their mother, and no reasonable explanation was provided as to why they could not assist with the care of their mother. [24] If the Appellant genuinely feared a long detention or worse, I find it reasonable that he would have left Iran at the earliest opportunity. I draw a negative credibility inference in relation to the central allegations of his claim, that he feared detention or harm at the hands of the Iranian police. The inconsistencies relating to the incidents at the Port of Entry (POE) [25] The Appellant travelled to Canada with an unrelated male child. When he was questioned at the Port of Entry and told he was inadmissible because he used a fraudulent document for the purpose of obtaining a visa, the Appellant made a claim for protection. The child's father was contacted and stated he was at the aiport to pick up his cousin and child. He stated his cousin, the Appellant would be working for him as a welder. [26] The Appellant did not initially include the information of what happened at the Port of Entry in his Basis of Claim. However, the Minister intervened20 in this matter due to credibility concerns and the panel became aware of what took place at the POE. After the intervention, the Appellant noted that he left Iran with his counsin's child to ease his exit form Iran.21 [27] At the hearing, the Appellant testified that the child's father was in fact not his cousin and instead belonged to a brother of a friend. When asked why he referred to the child's father as his cousin in his response to the Minister's intervention, the Appellant said he wasn't sure what he had said and that he used the term cousin because he is close to the family. He noted problems with the interpreter, but denies telling the Canadian Border Service Agency that he had difficulty. The Appellant made a further denial that he was planning to take a job at a welding shop run upon his arrival in Canada, a job offer that was disclosed by the child's father to the Border Services Officer (BSO). [28] While the Appellant argues that the RPD put too much emphasis on the Port of Entry notes, in this particular circumstance, I disagree. This is not the only inconsistency in the Appellant's story, and the Appellant failed to provide this information until the Minister intervened with the evidence surrounding the events at the POE. While the Appellant notes that the RPD is preferring POE notes over the sworn testimony of the Appellant, I note that it was the Appellant himself who provided the evidence that the father of this child was in fact his cousin. [29] While this omission and evolving evidence would usually be peripheral to this matter, I find that in these circumstances they are not. The Appellant has provided inconsistent testimony and delayed leaving his native country of Iran. I have found that he has also provided fraudulent documents for the purpose of his appeal. This is just another example of the Appellant providing inconsistent evidence to immigration officials, including the RPD. I agree with the RPD and do not fault the Appellant for supplying a fraudulent document for the purpose of his Temporary Resident Visa application, it's the failure of the Appellant to admit to any untruths he told at the time he tried to enter Canada. I draw a negative credibility inference with regards to the Appellant's inconsistent evidence relating to what occurred at the Port of Entry. Supporting Documents [30] The Appellant has provided four letters from his family members, specifically his uncle, brother, sister and mother. These letters are unsworn. They provide information about the land dispute but have limited probative value in relation to the Appellant's alleged arrest. I have found the Appellant's allegations regarding his arrest and detention to not be credible. I have also rejected documentary evidence regarding those alleged events to be fraudulent and therefore find that the unsworn letters of family members do not overcome my earlier credilbity findings in this matter. Residual profile [31] After a review of the Appellant's testimony and his documentary evidence, I do find that he has established on a balance of probabilities that he is of Kurdish ethnicity and a Sunni Muslim. While the documentary evidence suggests that Sunnis are discriminated against in Iran, but it is hard to distinguish whether the root of the discrimination is religious or ethnic, because most Sunnis are also members of ethnic minorities.22 There is evidence of people imprisoned due to their teachings of Sunni Islam, as well as those involved in political related crimes,23 and Department Of Foreign Affairs And Trade assesses Sunnis as facing a moderate risk of discrimination in Iran.24 [32] There are approximately 5-11 million Kurds in Iran. The language is not banned, but schools do not teach it and political groups and media are scrutinized and harassed for supporting Kudish independence.25 Some note that under the Rouhani government things had improved, and that activists have been allowed to hold peaceful rallies and some cultural activities have been able to resume. [33] The Appellant testified that he was not engaged in Kurdish events or groups in Iran. Furthermore, he has not attended any such activities in Canada. He also noted that he does not have strong feelings about Sunni versus Shia issues and does not attend any Sunni meetings or services. I find the Appellant's testimony to be consistent with the documentary evidence and I accept that he may face discrimination based on his Kurdish and Sunni ethnicity and religion. However, I find in the Appellant's particular circumstances, the allegations made by the Appellant relating to his profile as a Kurdish Sunni do not rise to the level of persecution. The Appellant has failed to establish that he is engaged in activities that would attract negative attention from the Iranian regime. CONCLUSION [34] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) Kimberley Foreman K. Foreman January 24, 2023 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 RPD Record, Exhibit 2, pp. 17-26. 3 Ibid, pp. 27-31. 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157, at para. 103. 5 Appellant's Record, Appellant's Memorandum, p. 21. 6 New Written Submissions, XXXX XXXX 2022, pp. 58-59. 7 Ibid., p. 61. 8 Ibid, p. 62. 9 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 10 NDP for Iran, 30 November 2022, item 9.15: Court summonses and arrest warrants, including issuance procedures; description of the documents, including security features; whether copies can be obtained from outside the country or by a third party; prevalence of fraudulent court .... Immigration and Refugee Board of Canada. 13 March 2020. 11 Ibid. 12 Ibid. 13 Osei, Gyane Nana v. M.E.I. (F.C.T.D., no. T-2992-92), Reed, November 17, 1993. 14 Grozdev, Kostadin Nikolov v. M.C.I. (F.C.T.D., no. A-1332-91), Richard, July 16, 1996. 15 Nasim, Babar v. M.C.I. (F.C.T.D., no. IMM-6455-00), XXXX XXXX, XXXX XXXX, 2001, 2001 FCT 1199. 16 RPD Hearing Transcripts, June 2, 2021 and September 20, 2021. 17 RPD Record, Exhibit 1, p. 39. 18 Ibid, p. 40. 19 RPD Record, Exhibit 1, p. 65. 20 Ibid., pp. 91-100. 21 Ibid., Exhibit 7, p. 223. 22 NDP for Iran, 30 November 2022, item 12.12: Iran: Freedom of Religion; Treatment of Religious and Ethnic Minorities. COI Compilation. Austrian Red Cross. Austrian Centre for Country of Origin and Asylum Research and Documentation. September 2015. 23 Ibid. 24 Ibid., item 1.8: DFAT Country Information Report: Iran. Australia. Department of Foreign Affairs and Trade. 14 April 2020. 25 Ibid., item 12.12: Iran: Freedom of Religion; Treatment of Religious and Ethnic Minorities. COI Compilation. Austrian Red Cross. Austrian Centre for Country of Origin and Asylum Research and Documentation. September 2015. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-18602 RAD.28.07 (February 15, 2022) Disponible en français 2 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.28.07 (February 15, 2022) Disponible en français