TB9-23590

RAD File / Dossier de la SAR : TB9-23590 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Calgary, AB Appel instruit / entendu à Date of decision August 31, 2020 Date de la décision Panel M. Kingma Tribunal Counsel for the person who is the subject of the appeal Lani Gozlan Barrister and Solicitor 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 (Appellant) was born in Somalia in 1988. His dream is this: "I just want to reach a place where I can actually live and have a life and try to be accepted and feel like I can have a life and forget all the things I have been through."1 [2] The appeal is allowed. The Refugee Protection Division (RPD) adjudicated the claim incorrectly. The Appellant is a Convention2 refugee. Background [3] The Appellant is one of 11 siblings and a member of the XXXX XXXX XXXX clan. His family left their Baidoa region of Somalia when the Appellant was very young, and he has been displaced for most of his life. The family lived for a time in Mogadishu but radical factions, mainly Hawiye, threatened their personal safety. Of most concern was efforts to recruit young men like the Appellant and his brothers into the anti-government militias. The Appellant recalls being harassed during his teenage years while he was attending Islamic studies and for selling newspapers to earn money. [4] The Appellant's father tried to move the family to Kenya in 2003 but they were turned back at the border. In 2006, they successfully crossed the border and went to Nairobi. They eventually settled in the XXXX XXXX XXXX. [5] The Appellant's oldest brother went to the United States of America (USA) and his plan to resettle the family there did not materialize - this brother is still in the USA and suffers from mental health and addiction problems. Two other siblings went missing but reconnected with the family many years later. [6] In XXXX 2017, the Appellant's brother, XXXX, was resettled to Canada through the United Nations High Commissioner for Refugees (UNHCR), with his spouse and child, and also the Appellant's sister, XXXX. Another sister, XXXX, came to Canada in XXXX 2017 as a student. [7] After leaving Somalia in 2006, the Appellant spent about six years in Kenya trying to earn a living and help his family - "I was the most active at that time in my family, I was trying to work everywhere I can."3 Life in Kenya was unsettled; there were raids and people were sometimes deported back to Somalia.4 The Appellant says he "... tried to work in a XXXX and tried to work other places, ... was unable to sustain myself and the family that is why I have to go and find another, find a way to live."5 [8] The Appellant left Kenya in 2012 and went to XXXX and then XXXX XXXX XXXX After about XXXX months, bleak prospects in XXXX led the Appellant and other young people to head for XXXX. They traveled for XXXX days through the desert "without water, without anything".6 Between XXXX and XXXX, they were robbed and detained until the Appellant's family paid $XXXX. He was released and continued to XXXX where war raged. The Appellant got on a boat towards Europe, knowing that some survive that journey and others not: "I had no other choice ...I didn't have anywhere else to return to."7 The boat people were rescued and taken to XXXX, where the Appellant was detained for XXXX months. He got a temporary three-year permit that expired in 2016. The camp in XXXX was crowded and difficult; after XXXX months, he was evicted with instructions to go and find some work. The Appellant lived with other Somalis under a bridge. Advice on the street was to go elsewhere in Europe because there were no jobs for them in XXXX. [9] The Appellant made his way to XXXX, where he stayed with some distant relatives for about XXXX XXXX. He learned that he was not eligible to claim refugee status there because he had claimed in XXXX, so he went to XXXX where he lived in a camp for underage persons for one year. He lied about his age in the hope of making a refugee claim, but bone density testing exposed the truth and he was told to go back to XXXX. The Appellant was afraid to return to XXXX, so along with others in a similar plight and with financial help from mosques and churches, raised enough money for a smuggler to help them travel to the USA by transiting through South and Central America. [10] The trip to North America began in XXXX 2014, from XXXX to XXXX XXXX and through Central American countries. The group eventually reached Mexico, where the Appellant was detained for XXXX days and ordered to leave the country. He reached the USA in XXXX 2014 and claimed asylum. [11] The USA claim was refused in XXXX 2015. When deportation proceedings loomed, the Appellant took a bus from San Diego to Oregon and walked across the border at Emerson, Manitoba in XXXX 2017. The RPD's decision [12] The determinative finding of the RPD is that the Appellant's narrative is not true. The RPD also concluded that the Appellant can live in Mogadishu and that he does not have a residual profile that puts him at risk to return. The RPD found no nexus to a Convention ground8 for which the Appellant would have a well-founded fear of return to Somalia, and concluded that any risk the Appellant may have is a generalized risk faced by the population generally and not specific to him. ANALYSIS The Appellant has well-founded fear [13] The RPD accepted the Appellant's identity as a citizen of Somalia including as a member of the XXXX XXXX XXXX clan. That is a correct finding. The rest of the RPD's findings are wrong. [14] There is both subjective fear and an objective basis for it. There is a serious possibility or reasonable chance that the Appellant will be persecuted for what can be characterized as political or religious reasons if he returns to Somalia. The likelihood of persecution is evidenced by the past experiences that caused the family to flee and there is a reasonable chance of similar problems in the future. The possibility of persecution in the future is even more likely for the Appellant because of his profile as a returnee. [15] The essence of the Appellant's fear has not changed from the time he and his family fled Somalia in 2006. It was a desperately unsafe place for them, and it is not in dispute that Somalia was and continues to be a country in turmoil. The Appellant has given consistent descriptions about what happened in Somalia in 2006 and since then. In his claim for asylum in the USA,9 the interview notes from Canada border personnel,10 the Appellant's subsequent BOC narrative, and in testimony at the RPD hearing, the Appellant consistently explains how the family was driven from Somalia in 2006 for fear of and disagreement with the politics of anti-government radicals who tried to enlist young men. The Appellant was targeted for XXXX XXXX and, since leaving Somalia in 2006, has shown his subjective fear of returning. There is an objective basis for his fear, including as a returnee from westernized countries. He fears he will be killed by Al Shabaab because "they believed I supported the government by selling newspapers that told stories about the government" and because he would not join them.11 He explained that he knew "they kill people and made boys my age shoot their enemies" and they believe that anyone who is not with them is against them.12 He said that they do not forget and, even years later "will come after a person who disobeyed them, especially someone who has been to their ultimate western enemy, the USA."13 The Appellant recalled many friends who were doing similar jobs either selling or writing for the newspaper who have been killed by Al Shabaab, and he fears the same fate.14 [16] The Appellant's subjective fear is evident. He has spent years searching for a safer place to live and has risked his life many times to do so. Most recently, he walked across the border into Manitoba in XXXX 2017 to avoid being sent back to Somalia. [17] The evidence, when considered as a whole and weighed correctly, shows a narrative of subjective fear that is not manufactured as suggested by the RPD. Rather, there is credible and trustworthy evidence of a life spent trying to escape from danger, and years searching for safety and security, for an opportunity to work, to belong somewhere, and to live peacefully. The evidence shows that the Appellant has a fear of returning to Somalia that is so great he was prepared to risk his life in ways most people do not need to contemplate. That evidence was not heard by the RPD or given the weight it deserved. Rather, RPD hearing and decision focused on evaluating slight but reasonably explained inconsistencies that have little relevance to the pivotal question, which is whether the Appellant has well-founded fear of returning to Somalia. The RPD's erroneous framework of analysis is discussed in more detail later in this decision. The Appellant's situation is not materially different from his brother, XXXX [18] The Appellant's personal fear and his circumstances are essentially the same as what generated a positive UNHCR assessment for his brother, XXXX. The UNHCR concluded that, in 2006, the Appellant and his family fled persecution or harm from the anti-government militia - previously dominated by the Hiwaye clan and now in the form of Al Shabaab - and that they cannot return to Somalia. The UNHCR's 2017 refugee determination for XXXX and his family confirmed that, because of imputed political opinion and religious views, there is a reasonable possibility that XXXX "will be subjected to serious harm or other intolerable predicament" if returned to Somalia.15 [19] The UNHCR's analysis of the situation in Somalia is equally relevant to the Appellant. The country evidence was assessed and summarized by the RPD and has now been considered by me. That evidence shows that there is an objective basis for the Appellant's fears. The UNHCR decision emphasizes the activities of Al Shabaab in Somalia as a non-state agent of persecution for people like the Appellant's family and confirms that XXXX fear was objectively well-founded. The UNHCR decision concluded that XXXX (and family members) are in continued need of international protection as refugees. [20] The RPD suggested in its decision that the situation of XXXX and his family is "much more nuanced" and then refers to their expedited resettlement.16 That is incorrect. The expedited resettlement for XXXX and his family was arranged by the UNHCR because they were being targeted in the refugee camp for reasons unrelated to the claim against Somalia. The fact of an expedited resettlement was not relevant to the claim against Somalia and is not a reason to find that the Appellant's fear of returning to Somalia should be viewed differently from XXXX. The Appellant is at risk in Somalia because of his profile as a returnee [21] The RPD acknowledged the serious, fragile, and unpredictable situation in Mogadishu, and the risk that returnees will be targeted by Al Shabaab because of their external experiences.17 The country documents speak about the special danger for returnees, with phrases that are easily applicable to the Appellant: "any western touch can profile a person",18 there is indiscriminate targeting of returnees,19 and that to be safe one needs relatives who are not in bad standing with or well regarded by Al Shabaab.20 [22] The RPD quoted large sections of the country evidence and also referred to the United Kingdom (UK) Country Information and Guidance Note on Somalia that cautions decision-makers about the importance of considering personal circumstances such as being outside the country for a number of years.21 However, the RPD then disregarded both when concluding that the Appellant can return safely to Mogadishu. The only explanation offered by the RPD is that "...Mogadishu is an area that the Claimant is aware and has family in Somalia [sic]."22 [23] The RPD's brief conclusion ignores the Guidance Note and the objective country evidence that was quoted at length, without explanation. The Appellant has one sister whose whereabouts became unknown to the family in 1995. There was reconnection with her around 2005 according to XXXX, and she returned to Mogadishu from Saudi Arabia at some point. The Appellant said he was not in touch with his sister but maybe the family was. The RPD was highly concerned about that evidence, finding inconsistencies between the brothers to be an example of the Appellant's lack of credibility. I disagree. The evidence between the brothers was not substantially different and easily allows for the logical and real possibility that the Appellant has had minimal contact with his sister over the years. More importantly, the evidence has almost no relevance or value to the determinative questions. The sister's circumstances in Mogadishu were almost completely unknown to the RPD, and what little was known is not sufficient to establish that she is someone who can offer the kind of protection or defense to targeting that the documentary evidence suggests might assist a returnee from being persecuted or harmed. [24] The RPD's reference to the Appellant being "aware" of Mogadishu is a similar non- analysis and does not explain anything.23 The Appellant has lived in Mogadishu so is presumably familiar with the city. His familiarity is to a place where he has experienced harassment and fear, and where he is likely to face persecution again. The Appellant has consistently explained what life was like in Mogadishu before leaving in 2006. The term "aware" does not address any of his factual realities or explain why the Appellant would now be safe in Mogadishu, or how his personal circumstances would make it reasonable for him to live there. The Appellant is not excluded pursuant to Article 1E [25] According to section 98 of the Immigration and Refugee Protection Act (IRPA),24 under Article 1E of the Refugee Convention a person is excluded from protection if there is a country where they have taken residence and have rights and obligations that attach to the nationality in that other country. [26] The RPD touched on the possibility of an exclusion under Article 1E but said that it did not have sufficient evidence to decide if the Appellant still has protection in XXXX.25 The RPD's fact-finding and assessment of credibility was relevant to the question of possible exclusion. [27] In his first Basis of Claim (BOC), the Appellant did not disclose that he was in Europe from 2012 to 2014 and that he had received temporary status in XXXX. When evidence of European travel was revealed by the Minister, the Appellant was immediately forthcoming and has been consistent since then about traveling to XXXX, his reasons for leaving XXXX, his time in XXXX and XXXX, and then traveling through Central America to the USA. [28] A prima facie case must exist before the onus to disprove a status shifts to a claimant. The RPD only had the Appellant's evidence about status elsewhere - the Appellant said he received a three-year temporary status in XXXX that expired in 2016, and that the relevant document was retained by authorities in XXXX. The Minister did not offer evidence of having investigated status in XXXX or that the status in XXXX was not as the Appellant described. [29] The evidence before me indicates temporary status in XXXX that expired in 2016. Anything else is speculation, and speculation does not create an onus on the Appellant to disprove his own evidence of a temporary status that expired in 2016. The RPD was wrong to impugn the Appellant's credibility for its own sake [30] The RPD found reasons to disbelieve some of the Appellant's evidence and then offered those findings as an explanation for refusing the entire claim. [31] The RPD identified credibility as the determinative issue and this led it astray. Issues are the questions that need to be answered to decide if the definition of refugee is met and evidence is the vehicle by which those questions are answered. Credibility is a tool for assessing evidence. [32] The RPD's heightened concern for credibility in this case can be traced to two sources: 1) credibility is often referred to in refugee adjudication as an issue rather than as a tool for weighing evidence,26 and 2) a seed of suspicion was planted at the Manitoba border by an officer who dealt with the Appellant. Issues and credibility [33] Issues arise from the definitions set out in sections 96 and 97 of IRPA. To make a successful refugee claim, a person needs to establish that there is a serious possibility they will be persecuted, i.e. that they are a Convention27 refugee pursuant to the IRPA section 96, or that, on a balance of probabilities, they will be personally subjected to harm, i.e. that they are a person in need of protection pursuant to IRPA subsection 97(1).28 Specifics for the definition raise questions of nexus, subjective fear and an objective basis for it, and whether there is adequate state protection or a safe place where a person can live. [34] Credibility is a tool in the fact-finding process that will lead to answers for the issue questions. This framework, recently re-affirmed by Mr. Justice Grammond of the Federal Court,29 highlights that the first step in the fact-finding process is to determine the credibility of the various pieces of relevant evidence. Relevance is determined by the questions being asked. In this case, the RPD assessed credibility for its own sake and without clearly articulating the definition-based questions it was seeking to answer. [35] There were two issues in this case that engaged evidence apparently lacking credibility: the Appellant's identity and his possible status in XXXX. The omission of information about time spent in XXXX and Europe raised legitimate concerns about those two issues. However, once the RPD was satisfied that the Appellant is a citizen of Somalia and after setting aside the question of status, the RPD failed to identify the next determinative questions for the claim. [36] The RPD had to decide if there was a serious possibility or reasonable chance the Appellant would be persecuted, or if he was likely to be harmed, in Somalia. Rather than ask those questions and conduct the relevant fact-finding process, the RPD conducted a search for inconsistencies anywhere, found some, and then offered that as a basis to conclude that the Appellant "created much of the elements in his narrative".30 That approach led the RPD to overlook relevant and substantially consistent testimony that showed subjective fear and an objective basis for that fear. The RPD focused on minor differences in minimally relevant evidence. For example, XXXX claim documents talk about the family's unsuccessful attempt to go to Kenya in 2003 and the Appellant did not mention that event. The Appellant's narrative focused on and gave details about the successful departure in 2006. The RPD found the differences meant that the Appellant was manufacturing a narrative,31 a conclusion that is based on several errors: firstly, it incorrectly presumes that XXXX documented accounts are somehow more accurate than what the Appellant has said. Secondly, it presumes that memories are like retrieving documents from a file cabinet - selectable to produce equivalent descriptions by any person involved. It is more correct to view memories as individually constructed and influenced over time by subsequent events and personal perspective. Finally, and most importantly, the RPD incorrectly suggested that differences in the brothers' recollections of how the family left Somalia in 2006 or attempted to do so in 2003 means that the Appellant dos not have well-founded fear of returning to that country. A seed of suspicion was planted at the Manitoba border [37] When the Appellant arrived in Emerson and made his claim for asylum, he voluntarily provided 22 pages of documents related to his USA refugee claim. He was interviewed by border officers and confirmed his identity, his fear of Somalia, that he has no status elsewhere, that he is not inadmissible to Canada, and that he seeks Canada's surrogate protection.32 An officer became suspicious at some point when the Appellant wanted some of the 22 pages from the USA claim to be removed from his claim file. The officer described it like this:33 Mr. XXXX approached me at the counter and expressed concern that the Border Services Officers involved had photocopied and retained a number of documents that were in his possession relating to his refugee claim in USA. Mr. XXXX was concerned because he did not want his USA information to be held against him as he plans on filing a different reason for needing protection in Canada. Mr. XXXX spent approximately five minutes at the counter attempting to negotiate with me lobbying for the destruction of those photocopies. Mr. XXXX seemed to be fairly concerned that he did not want Canada to see his USA information... From the urgency and level of concern with which he has attempted to negotiate, along with his mannerisms that he presented at the time, I became concerned that his credibility may be an issue moving forward... [38] Instead of asking the Appellant the obvious question of what reasons were different, the case was flagged so that when the Appellant's BOC was reviewed one month later, it was closely examined. Sure enough, a couple of discrepancies were detected, and the Minister notified the RPD that it intended to intervene in the RPD's adjudication of the claim. An officer also completed a section 44(1) referral but there is no indication from the information before me that an admissibility hearing took place.34 [39] The Minister's Notice of Intervention to the RPD quotes the officer's description set out above, and then highlights two discrepancies between the USA and Canadian claims. The differences are these: first, the Canadian claim includes information from a family acquaintance in Toronto who recently explained to the Appellant that his family had originally left Baidoa in the mid 1990's because of a feud related to his mother's marriage. Secondly, it took note that the Appellant's description of a 2006 attack by the mujahidin that preceded the family's departure from Somalia adds that the tip of his finger was cut, a detail not included in his USA claim version. These are small differences that have minimal relevance to the centra claim questions. [40] The Minister's Notice to Intervene correctly acknowledged that the discrepancies may not be central to the claim, but then, somewhat incongruently, suggests that they appear to be embellishments for the purpose of bolstering the claimant's narrative of persecution. The template format letter used for the Minister's Notice of Intervention adds confusion because it ticks a box that says the purpose of the intervention is "credibility issue".35 The final submission from Minister explains, however, that its concern relates to identity and possible status elsewhere: it says that the Appellant "has not provided any objective evidence to demonstrate that he is a citizen of Somalia and no other country and has not provided any objective evidence to authorities of either country to substantiate his identity."36 [41] The RPD did not examine the purpose for the Minister's intervention or clarify that the Minister's concern was about identity and possible status in XXXX. Rather, the RPD took the usual approach in RPD adjudication of saying that credibility is an issue and, perhaps bolstered by the Minister's intervention for "credibility issues", adopted a presumption that the Appellant's narrative of persecution is untrue. Credible and trustworthy evidence37 about what the Appellant fears, and why, was ignored [42] Concern about the Appellant's identity and status in XXXX was valid because in his BOC he omitted information about time spent in XXXX and Europe. There was good reason to examine the credibility of his evidence about the two years in Europe and to consider if an Article 1E exclusion applied. It would have been correct for the RPD to point out that the Appellant did not enjoy the presumption of truthfulness in his evidence because of what appeared to be a strategic omission in his first BOC. It was wrong, however, for the RPD to ignore reasonable explanations and to rely on the omission as a basis to find that no evidence from the Appellant could be believed. [43] I have quoted sections of the hearing transcript to illustrate the nuanced but important errors that resulted from adjudicating credibility for its own sake in this case. The examples demonstrate that assessing credibility in isolation from determinative issue questions inhibits a fulsome consideration of relevant evidence. They also show that the RPD ignored reasonable explanations that restored credibility after the presumption of truthfulness had been lost. [44] When the Appellant tried to be forthcoming about his reasons for omitting the information about his time in Europe, the RPD did not allow him to explain but attacked the Appellant, as follows:38 MEMBER: Why didn't you tell us this in your original narrative that you completed when you came to Canada dated and signed on March 24th, 2017? CLAIMANT: At that time I was afraid. I was detained in the US for XXXX months. MEMBER: Oh yes, it is now, it is late now to say I will tell you the truth now, but you just sworn the truth then, the paper is in oath, you said everything was true. I mean sir it is, I haven't asked the question. It is interesting that you waited until the Minister's intervention before you changed it and why you waited? CLAIMANT: Because I didn't even know how to fill out all these forms I had someone to assist me and I had to gone through all these country and I have gone through a lot of hardship so I really wasn't thinking right. MEMBER: Okay. Sir, that would be really believable if you had lived for months in the US and actually made your way across the border to seek protection. It would be more believable if you would just arrived from whereever, but you were in the United States, it was a democratic State, you chose to come to Canada? CLAIMANT: I was actually about to be deported from the United States, that is why I think... MEMBER: Does it mainly the lawyers any better sir, that doesn't mean that is an excuse to lie. You had an experienced counsel who I have a deep respect for, this lady, excellent counsel. [45] Later in the hearing, the Appellant's counsel gave the Appellant another chance to explain the omission:39 COUNSEL .... can you explain why is it that you did not provide your full history the moment you arrived in Canada and (inaudible) narrative? CLAIMANT: I made a big mistake. I am really sorry about that, I apologize about that. I made a big mistake, not seeing everything, because I have been through so many places and I have been through a lot of things and I have a seen a lot of things and I have been through a lot of hardship and I came across a lot of people who were always telling me one or another. So, then I was afraid if I say the wrong thing or if I say something I might have no chance of being able to be safe again or be in a place that where I can actually have a life. I am so sorry and I really regret following anybody else's advice because it seem to have made a terrible problem in my situation because I followed people's advices, so I am not going to from this point forward everything I say is really everything that I just said, it is everything that happened. COUNSEL: And, when you say people whose advice did you fall, who are these people? CLAIMANT: Some of the people that I was detained with, some of the people that I came, I had, I accompanied in the boat with, some of the people or the group of people that I was with in the desert all of these people had something to say and things that I have followed that I shouldn't have. [46] The RPD was not open to accepting the Appellant's reasonable explanation that he took bad advice and was afraid of having his claim for asylum rejected. A later exchange at the hearing again demonstrates the RPD's closed mind. The RPD is asking about a perceived inconsistency between the Appellant's narrative and XXXX claim documents:40 MEMBER: So, you can't say part of my information is correct, so I just wanted to be sure, this is pretty big information to leave out of your narrative, the fact that you already went to Kenya once and that you returned to Somalia. The fact that, I am sorry, just give me a second that you and your family returned to Somalia and then you went back to Kenya in a little over two years later. The fact that your brother doesn't remember you being having your XXXX XXXX XXXX by people who were trying to harm you in 2006 and your brother here says that you all arrived in Kenya together. His brother says that he arrived in Kenya with his parents and nine of his siblings excluding XXXX and XXXX (ph) which I guess is the guy who went to the US. CLAIMANT: So, we came to all the way until the border of Mandera, but we could not cross the border we don't have any documents, how could we all cross together? MEMBER: He said that you arrived together that you came across Mandera with a bunch of people fleeing, a bunch of Somalis fleeing. They took the same route through Mandera to Kenya again crossing the border with many other fleeing Somalis., page 38 counsel. CLAIMANT: No, there were officers at the border, we could not have cross altogether. [47] The RPD's compound questions were often unclear, and the example above and the one below show that the RPD not only presumed that the Appellant was always lying, it used the hearing as an opportunity to chastise the Appellant for his life choices and presume facts about status in XXXX that were not in evidence:41 MEMBER: You had a place to live, you had XXXX, they gave you a card with that card you were given probably certain privileges, one of the is not to be removed to your country probably if it is a temporary status card you were entitled to probably find the job and yet you left, I mean you traveled to XXXX where you lied about your age and stayed there for a year and then you left again and then you traveled to XXXX and then on to XXXX XXXX? CLAIMANT: Yes, because I was with the group of people who were also leaving. MEMBER: Sir, I am really struggling here because I find that you were willing to do or say anything to get what you want. You aren't going to come forth with the evidence. I believe it appears you were not coming forth with the evidence until the Minister's intervention. So, I am struggling here with what you really fear because I don't, you were safe in XXXX, they won't go to remove you to Somalia, perhaps life is hard but it wasn't impossible you were being forced to do anything. What happened if we were you to send you back to Somalia? [48] The RPD's "struggle" to understand what the Appellant really fears arose from its inability to appreciate relevant and abundant evidence about why his family left Somalia and what awaits him there if he returns. Had the RPD identified the specific questions related to well-foundedness of the Appellant's fear, it could have identified relevant evidence correctly. CONCLUSION [49] The appeal is allowed. The Appellant is a Convention refugee. (signed) M. Kingma M. Kingma August 31, 2020 Date 1 Transcript of RPD Hearing on July 18, 2019, at p. 28. 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 3 Transcript of RPD Hearing on July 18, 2019, at p. 27. 4 Exhibit RPD-1, RPD Record, Appellant's Basis of Claim (BOC), at p. 27 and p. 138. 5 Transcript of RPD Hearing on July 18, 2019, at p. 27. 6 Transcript of RPD Hearing on July 18, 2019, at p. 20. 7 Transcript of RPD Hearing on July 18, 2019, at p. 21. 8 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 9 Exhibit RPD-1, RPD Record, pp. 99-103. 10 Exhibit RPD-1, RPD Record, at p. 58. 11 Exhibit RPD-1, RPD Record, Application for Asylum and for Withholding of Removal, at p. 171. 12 Exhibit RPD-1, RPD Record, Application for Asylum and for Withholding of Removal, at p. 172. 13 Exhibit RPD-1, RPD Record, Application for Asylum and for Withholding of Removal, at p. 172. 14 Exhibit RPD-1, RPD Record, Application for Asylum and for Withholding of Removal, at p. 172. 15 Exhibit RPD-1, RPD Record, United Nations High Commisioner for Refugees (UNHCR) Resettlement Registration Form, at p. 277. 16 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 28. 17 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 67. 18 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 61. 19 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 66. 20 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 61. 21 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 67. 22 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 67. 23 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 67. 24 Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), section 98. 25 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 51. 26 The origins for describing credibility as an issue rather than a tool for assessing evidence can be traced back to jurisprudence such as the 1995 decision of Federal Court Justice Muldoon in Bains v. Canada,26 and the Federal Court's 1996 judicial review of Paranawithana v. Minister of Citizenship and Immigration.26 Both cases refer to the issue of credibility but a careful reading reveals that it is the credibility of relevant evidence that is being assessed, not that credibility is a question that, in the abstract, can decide a claim. 27 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 28 Defined in te IRPA, section 97(1) as a danger of torture or of risk to life or cruel and unusual treatment or punishment. 29 Magonza v. Minister of Citizenship and Immigration, 2019 FC 14. 30 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 33. 31 Transcript of RPD Hearing on July 18, 2019, at p.16. 32 Exhibit RPD-1, RPD Record, at p. 58. 33 Exhibit RPD-1, RPD Record, at p. 112. 34 Exhibit RPD-1, RPD Record, at p. 111. 35 Exhibit RPD-1, RPD Record, at p. 111. 36 Exhibit RPD-1, RPD Record, pp.113-115. 37 171 Proceedings - In the case of a proceeding of the Refugee Appeal Division, (a.2) the Division is not bound by any legal or technical rules of evidence; (a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; ... 38 Transcript of RPD Hearing on July 18, 2019, at p. 7. 39 Transcript of RPD Hearing on July 18, 2019, at p. 25. 40 Transcript of RPD Hearing on July 18, 2019, at p. 17. 41 Transcript of RPD Hearing on July 18, 2019, at p. 23. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-23590 RAD.25.02 (January, 2020) 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.25.02 (January, 2020) Disponible en français