TB8-03036

RAD File / Dossier de la SAR : TB8-03036 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, ON Appel instruit / entendu à Date of decision April 11, 2019 Date de la décision Panel Angus Grant Tribunal Counsel for the person(s) who is(are) the subject of the appeal Elyse Korman Barrister and 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 INTRODUCTION [1] These are my reasons for granting the appeal of XXXX XXXX XXXX (the Appellant), a citizen of Iran. Mr. XXXX appeals from a decision of the Refugee Protection Division (RPD), dated December 4, 2017, rejecting his claim for refugee protection. On appeal, the Appellant has not submitted new evidence and does not request an oral hearing. DETERMINATION [2] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. APPEAL SUMMARY Background [3] The Appellant asserts a well-founded fear of persecution in Iran on account of his conversion to the Christian faith. He claims to have continued his religious practice since coming to Canada, and he was baptized in XXXX, 2017.1 [4] Further details of the Appellant's claim are set out in the RPD's Record. Rather than recite them here, I shall refer to them as necessary throughout these reasons. RPD's Decision [5] The RPD rejected the Appellant's claim, essentially on the basis of one overriding credibility finding. In short, the RPD found that it was not credible that the Appellant could have left Iran if, as he claims, his religious conversion had come to the attention of the Iranian authorities. [6] The RPD further found that neither the corroborative documents provided by the Appellant, nor his testimony with respect to his religious knowledge, could overcome the negative inference that the Panel had drawn, in respect of his departure from Iran. As a result, the Panel concluded that the Appellant was not a genuine convert to Christianity and rejected his claim on this basis. ISSUES ON APPEAL [7] The Appellant raises the following issues on appeal: (i) Did the RPD err by impugning the Appellant's credibility, based on his ability to exit Iran? (ii) Did the RPD err by impugning all of the Appellant's corroborative evidence? (iii) Did the RPD err in its assessment of the Appellant's sur place claim? ROLE OF THE RAD [8] I have determined that the RPD held no meaningful advantage over the RAD in its assessment of the Appellant's claim.2 As such, I have not deferred to the RPD's findings. I have, rather, carried out my own independent analysis of the RPD's Record to determine whether the RPD erred. ANALYSIS The Appellant's Exit from Iran [9] At the heart of the RPD's rejection of the Appellant's claim was its finding that, if the Appellant was really wanted in Iran, the authorities would have prevented him from leaving the country. This finding was virtually determinative of the Appellant's claim, as it formed the foundation for the RPD's remaining findings, that neither the corroborative evidence, nor the Appellant's testimony, were sufficient to overcome the credibility concerns. Having reviewed the RPD's Reasons, the Record, and the testimony from the hearing, I agree with the Appellant that the RPD erred in this central finding. I arrive at this conclusion for a number of reasons. [10] First, as the Appellant notes, the RPD's findings with respect to the Appellant's departure from Iran were inconsistent with its own evidence. As the RPD itself acknowledged, Article 133 of Iran's Procedure for Criminal Prosecution explicitly states that "individuals can be prohibited from traveling abroad only if an active prosecution is underway." The Appellant did not assert, and there was no evidence to suggest, that he was the subject of an active prosecution. As such, the RPD's assumption that the Appellant would have been prevented from leaving Iran on the basis of the state's criminal procedure laws does not appear to be supported by the evidence.3 [11] As the Appellant further notes, the RPD also erred in relying on section 16 of Iran's Passport Law, which permits a "judicial officer" to prohibit the departure of an individual from Iran.4 I agree with the Appellant that the discretion of a judicial officer to prevent departures from Iran is not relevant in this case, as there was no evidence to suggest that judicial officers preside over departures at the airport. On a balance of probabilities, I accept that this provision "concerns the issuance of legal orders prohibiting a person from leaving Iran; it has nothing to do with a person's ability to board a plane at the airport in Tehran."5 [12] Moreover, I conclude that the RPD erred in rejecting the Appellant's testimony that the agent who assisted him in fleeing from Iran also helped him to navigate the security checks at the Tehran airport. The RPD acknowledged that corruption exists in Iran and that this corruption can include the bribing of officials. However, it noted that "in these particular circumstances", there was insufficient evidence to establish that the Appellant had taken "alternative measures" to get through security. The RPD does not explain what these "particular circumstances" were, aside from noting that the Appellant had also travelled to Dubai in 2014 without any problems. With respect, I do not see how the Appellant's smooth departure from Iran in 2014 undermines his departure in 2017, given his testimony that he engaged the services of a smuggler for the precise purpose of facilitating his exit. [13] In addition, the RPD's conclusion on this issue was made without regard to other evidence in the Record, which suggests that persons wanted in Iran may very well be able to leave the country. The Appellant cites this evidence at length in his memorandum. Rather than reproduce it here, I simply refer to the evidence cited at paragraph 18 of the Appellant's memorandum.6 On my own review of the Record, I accept that this evidence establishes that the RPD erred in concluding that the Appellant's ability to depart from Iran undermined the credibility of his claim. [14] Finally, on this issue, I conclude that the RPD also erred in finding that the Appellant's explanation as to why, and how, he obtained a new passport prior to his departure from Iran was not credible. The Appellant testified that the smuggler who assisted him obtained the new passport, after he had filled out the requisite forms. The Appellant further testified that he did not know why a new passport was needed, as his old passport was still valid. On the facts before me, I have no reason to doubt the veracity of the Appellant's explanation, particularly in light of the evidence referred to above on corruption and bribery in Iran. In any event, I do not find that the issue of the Appellant's passport in this case was particularly germane to the larger issues that were before the RPD. [15] Given the above, I conclude that the RPD erred in finding that the Appellant's departure from Iran called into question the core elements of his claim for refugee protection. The Appellant's Corroborative Evidence [16] The RPD essentially dismissed the corroborative documents provided by the Appellant, on the basis of its findings on the departure issue. More specifically, the RPD found that, in light of its "previous negative credibility findings, the weight given to these documents has been significantly diminished." With little by way of further analysis, the RPD then stated that the documentary evidence was "not sufficient to overcome the credibility concerns."7 Notably absent from the RPD's analysis was any independent assessment of the documents themselves. [17] Given the errors that I have already identified in the RPD's consideration of the Appellant's departure from Iran, and given its rather circular chain of reasoning with respect to the corroborative evidence, it is obvious that this aspect of the RPD's assessment cannot be sustained on appeal. On my own review of the Record, I find that the documents are consistent with, and corroborate, the essential aspects of the Appellant's claim. They assist in documenting the circumstances that led to the Appellant's departure from Iran, and they help to corroborate that his conversion to Christianity was genuine. The Sur Place Claim and the Appellant's knowledge of Christianity [18] The RPD's findings with respect to the Appellant's knowledge of Christianity and his religious practice in Canada are unsustainable for the same reasons that I outlined above with respect to the corroborating documents. In short, the RPD pointed to no errors, inconsistencies or other shortcomings arising from the Appellant's testimony about his religion. It acknowledged that the Appellant testified about concepts, holidays and practices, and that he was baptized. However, it found that this testimony had to be balanced against the negative credibility findings that it had already made, and it further noted that the Appellant's knowledge could simply have been memorized for the sake of his claim. [19] Once again, as the RPD's previous credibility findings were flawed, its subsequent reliance on these findings to dismiss the Appellant's sur place claim and religious knowledge cannot be sustained. [20] But the RPD's approach to this issue begs a further question, which is why it even went to the trouble of asking the Appellant to demonstrate his religious knowledge, if there was no way that his testimony, regardless of its accuracy or consistency, could overcome the Panel's other credibility findings. As the Appellant notes, the RPD appears to have put him in a classic "Catch 22" situation. That is, if he had not been able to answer the questions about his faith, the RPD would have drawn a negative inference; however, because he was able to answer these questions, his testimony was disregarded because he could have memorized the information and because he had already been found to be not credible. Independent Assessment and Remedy [21] In the above analysis, I have set out my rationale for concluding that the RPD erred in rejecting the Appellant's claim for refugee protection. [22] On my own assessment of the Record and the Appellant's testimony, I find that there is no basis on which to conclude that the presumption of truthfulness that attaches to a refugee claimant's sworn testimony has been rebutted.8 As a result, I have no reason to disbelieve that the Appellant began observing Christian religious practices while still in Iran. I have no reason to disbelieve that he fled from Iran after he came to the attention of the authorities, or that he has continued to practice his Christian faith in Canada and was baptized on XXXX XXXX, 2017. Finally, I have no reason to disbelieve that the Appellant's expressions of religious observance are anything but genuine. [23] Turning briefly to the documentary evidence on Iran, I note that Christians who have converted from Islam are at risk of harm from state authorities, as they are considered apostates, which is a criminal offence.9 The evidence further establishes that Christian converts face physical attacks, harassment, surveillance, arrest, detention, as well as torture and ill-treatment in detention.10 Christians have been convicted for their participation in informal congregations, such as that which the Appellant claims to have attended while still in Iran.11 [24] Furthermore, because the Iranian government is directly implicated in the persecution of Christians, state protection would clearly not be available to the Appellant. For the same reason, I conclude that the Appellant would not have a viable internal flight alternative in Iran. On the contrary, I find that the Appellant would face a serious possibility of persecution throughout the country, as it is the Iranian state that actively pursues converts and enforces the apostasy laws.12 In sum, as the agents of persecution are the state, there is no part of Iran where the Appellant would not face a serious possibility of persecution. [25] As a result of the above analysis, I have concluded that the RPD erred in rejecting the Appellant's claim for refugee protection. I have further concluded that the Appellant has established that he faces a serious possibility of persecution, on account of his religion, were he to return to Iran. I therefore accept his claim to refugee protection. CONCLUSION [26] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) "Angus Grant" Angus Grant April 11, 2019 Date 1 Exhibit RPD-1, RPD's Record, at pp. 13-25, Exhibit 2, Appellant's Basis of Claim forms and narrative. 2 M.C.I. v. Huruglica, 2016 FCA 93; and Rozas Del Solar, Paola v. M.C.I., 2018 FC 1145. 3 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Iran (March 31, 2017), item 14.1, Immigration and Refugee Board (IRB), Response to Information Request (RIR) IRN104624.E, October 21, 2013. 4 Ibid., NDP for Iran (March 31, 2017), item 14.1. 5 Exhibit P-2, Appellant's Record, at p. 82, Appellant's Memorandum, at para. 16. 6 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 18, citing Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Iran (March 31, 2017), item 14.1, IRB, RIR IRN104624.E, October 21, 2013; item 1.18, United Kingdom (UK) Home Office, Country Information and Guidance. Iran: Illegal Exit. Version 4.0, July, 2016. 7 Exhibit RPD-1, RPD's Record, at p. 10, RPD's Reasons, at para. 18. 8 Maldonado, Pedro Enrique Juarez v. M.E.I., [1980] 2 F.C. 302 (C.A.). 9 Exhibit RPD-1, RPD's Record, NDP for Iran (March 31, 2017), item 1.9, UK Home Office, Country Information and Guidance. Iran: Christians and Christian Converts. Version 2.0, December 2015, at pp. 4-5. 10 Ibid., NDP for Iran (March 31, 2017), item 1.9. 11 Ibid., NDP for Iran (March 31, 2017), item 1.9. 12 Ibid., NDP for Iran (March 31, 2017), item 1.9. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-03036 RAD.25.02 (September 18, 2018) Disponible en français 8 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 (September 18, 2018) Disponible en français