TB7-11267

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 : TB7-11267 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 April 18, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal H. J. Yehuda Levinson 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 XXXX (the "Appellant"), a citizen of Iraq, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of this appeal. The Appellant is not requesting an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. BACKGROUND [2] The Appellant is a XXXX-year-old male Iraqi of Kurdish ethnicity. He resides in the Kurdish Region of Iraq (KRI), born to a Sunni family. The Appellant converted to XXXX (XXXX), locally known as XXXX. The Appellant's family was upset that he had converted and two family members threatened to kill the Appellant and to extort money from him. After moving to Erbil for a few weeks, the Appellant obtained a U.S. visa and traveled there on his own passport even though police were allegedly looking for him in order to arrest him. He later traveled west and two weeks after entering the U.S., he crossed the border into Canada, got caught and consequently put in a refugee claim. Preliminary Issues - Translation issues [3] Counsel has argued that the interpreter used in British Columbia at the Port of Entry did not use the Appellant's dialect, causing some issues; however, there is no record of any complaints by the Appellant or counsel to the Canadian Border Services Agency (CBSA) which conducted the interview, nor is there a record of any complaint subsequent to the interview, with the Board or to anyone else. The panel therefore rejected that complaint as unfounded. I concur with the panel. [4] There were a few interpretation issues at the hearing, for which an informal audit was contracted by the Appellant. That audit showed that there were few errors made; however, the panel reviewed this informal audit and found that none of the interpreted statements had any bearing on the outcome of the hearings. Authenticity of Documents [5] The panel found there to be issues regarding the authenticity of some documents; however, the panel found that there was nothing which could turn on this issue. Therefore, the complaint is dismissed. RPD's Reasons [6] In its reasons, the RPD found that the Appellant was not a credible or truthful witness and therefore rejected the claim. [7] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. Appellant's Issues [8] The Appellant raises six issues at the RAD: a. Did the RPD panel's conduct at the hearings raise a reasonable apprehension of bias, thereby calling into question the fairness of the hearing? b. Did the RPD err when it failed to give due consideration to interpretation problems arising out of the interviews at the Port of Entry (POE) and during the hearing? c. Did the RPD err by placing undue reliance on POE notes and statements? d. Did the RPD err in fact and in law in its consideration of the evidence? e. Did the RPD err when it misapprehended facts, which then lead to a flawed credibility finding? f. Does the new post hearing evidence submitted in support of this appeal affirm the Appellant's risk of persecution in the KRI? ANALYSIS Standard of Review [9] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.1 Admissibility of New Evidence [10] The Appellant submitted new evidence2 with his Appeal Record. Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of his or her 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 of his or her refugee claim. [11] If the proposed new evidence does meet the requirements of subsection 110(4), I must then apply the analysis set out in the Federal Court of Appeal's decision in Raza3 as subsequently modified by the same court's decision in Singh;4 effectively, I will assess the credibility and relevance of the evidence in order to determine whether it is admissible. [12] The Appellant submits the following documents for my consideration: i. Letter from XXXX XXXX, dated June 19, 2017 [13] The single piece of new evidence submitted is an affidavit from a lifelong friend of the Appellant who has been living in Canada since 1999 but recently returned to Iraq to visit family. The affiant's family are close friends and neighbours of the Appellant's family. The affiant states that he visited the Appellant's mother in Iraq at least three times during the affiant's two-month visit. [14] In this affidavit, the affiant states that the Appellant's parents advised the affiant that although they would never harm the Appellant, because he had converted to XXXX, he is no longer welcome in his own family. The parents also told the affiant that the Appellant's cousins and other relatives consider the Appellant as an apostate and consequently have said that they will kill the Appellant should they get a chance. The parents further told the affiant that the family (extended) is waiting for the Appellant to return to Iraq so that they might kill him. [15] I find that this document does post-date the RPD decision and therefore meets the test of IRPA subsection 110(4). Looking at the document, I have no reason to disbelieve the affiant, who has sworn that his statement is true, and as the document post-dates the RPD decision and is credible, I therefore will allow this document in as new evidence. Arguments - Member Conduct [16] Counsel argues that the Member who presided over this claim is currently under investigation by the Immigration and Refugee Board (IRB) for breaching the Members' Code of Conduct. A copy of counsel's letter of complaint, with accompanying documentation to the IRB is provided in the Appellant's Record.5 [17] I have no information on that issue other than the counsel's and the Appellant's allegation, therefore I will not deal with that matter. [18] Of equal concern to the RAD are the multiple and continuous applications by the Appellant for a different interpreter. The Appellant had complained at the first hearing about interpretation issues, with no positive outcome other than an adjournment after much argument. The issue continued at the second sitting. Counsel for the Appellant wrote a letter to the member officially requesting different interpreters, one who could interpret the dialect of the Appellant more accurately. Summary [19] I have read the transcript and the informal audit of the transcript. It is obvious to me that there were issues in the interpretation and those issues were potentially serious should they continue. [20] For this reason alone, and with no findings otherwise, I find that the interpretation issues are sufficient to warrant sending this file back to be heard by a different Member. Disposition [21] The RAD has found that the RPD decision will not stand. CONCLUSION [22] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. (signed) "David Lowe" David Lowe April 18, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-2, Appellant's Record, at pp. 464-474. 3 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 4 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 5 Exhibit P-2, Appellant's Record, at tab 6, at pp. 475-477. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-11267