TB8-14901

RAD File / Dossier de la SAR : TB8-14901 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 Toronto, ON Appel instruit / entendu à Date of decision July 27, 2020 Date de la décision Panel J. Lourenço Tribunal Counsel for the person who is the subject of the appeal Ashley Erin Fisch 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) is a citizen of Iraq. He appeals a decision of the Refugee Protection Division (RPD), dated May 30, 2018, rejecting his claim for refugee protection. The Appellant alleges that he faces persecution and a risk to life at the hands of the Islamic State of Iraq and Syria (ISIS) and the Kurdistan authorities. The RPD found that the Appellant was not credible. In the alternative, it also found that the Appellant's allegations of fear lacked an objective basis and determined that the Appellant had access to adequate state protection. [2] For the reasons that follow, I disagree with the RPD. The appeal is allowed and I find the Appellant is a Convention refugee. BACKGROUND [3] The Appellant is an Iraqi Kurd who resided in Iraqi Kurdistan. The Appellant alleges that ISIS entered Kurdistan in 2013 which commenced a series of raids and armed conflict in the region. The Appellant alleges that in 2016 his wife and children left their village as they feared for their safety and that he has not been in contact with them since this time. [4] The Appellant alleges that after his wife left, ISIS raided his village and kidnapped him and his father. The Appellant alleges that he and his father were held in an ISIS detention centre where he was tortured and threatened. The Appellant alleges that he convinced a guard to let him escape on the promise of paying a large bribe and left his father behind as collateral. [5] The Appellant alleges that he escaped from the detention centre and went to his friend's home to seek assistance. The Appellant alleges that his friend convinced him to leave Iraq rather than pay the bribe as he felt that ISIS would simply kill the Appellant and his father once the bribe was paid. The Appellant alleges that his friend also convinced him that officials in Kurdistan might suspect him of being an ISIS operative given his ability to escape the detention centre. The Appellant alleges that he fled Iraq using a smuggler who assisted him in crossing into Turkey. The Appellant alleges that 5 days after his arrival in Turkey he used a XXXX XXXX passport to fly to Canada. [6] The RPD found that aspects of the Appellant's allegations were not plausible and that he had not credibly established his allegations. In the alternative, the RPD found that the Appellant's allegations lacked an objective basis. The RPD also found that the Appellant had not rebutted the presumption of state protection and ultimately rejected his claim. ROLE OF THE REFUGEE APPEAL DIVISION [7] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which in particular cases, attracts deference. Unless specifically stated below, I have applied a correctness standard.1 APPELLANT'S ARGUMENTS [8] The Appellant argues that the RPD erred in its credibility assessment and that the RPD's plausibility findings are not supported by the record. The Appellant argues that the RPD was unreasonable in concluding that his failure to claim asylum in Turkey was an indication that he lacked subjective fear. The Appellant argues that the RPD failed to properly assess his supporting documentation, including psychiatric reports. The Appellant also argues that the RPD failed to assess the risk he faced at the hands of ISIS and only focused its analysis on his allegations of fear of the authorities in Kurdistan. In doing so, the Appellant argues that the RPD's state protection analysis is incorrect and argues that the objective evidence supports his assertion that he would face a serious possibility of persecution throughout Iraq. ANALYSIS The RPD erred in its credibility and plausibility findings [9] The RPD found that the Appellant's allegations were not credible. It found that the Appellant's explanations regarding how he obtained his original documents from Iraq were not credible. The RPD found that it was not credible that the Appellant did not bring his original documents with him when he came to Canada. The RPD also found that the circumstances around how the Appellant's friend obtained his original identity documents and sent them to Canada was not plausible. The RPD noted that the Appellant testified that his village was under the control of the Peshmerga but his friend was able to access his home and obtain his documents. The RPD found that it was not reasonably likely that if the Appellant's house was under the security watch of the Peshmerga his friend would have been able to enter the home and obtain these documents. [10] The Appellant argues that the RPD's plausibility finding regarding his ability to obtain his original documents from a friend in Iraq was erroneous. The Appellant argues that the RPD mischaracterized his testimony regarding how these documents were obtained. The Appellant argues that his testimony indicated that while the village was under the control of the Peshmerga, he never testified that his home was specifically surveilled or occupied by security forces. The Appellant also highlights that his testimony before the RPD indicated that individuals did not require permission from the Peshmerga to enter a residence in the village. As such, the Appellant argues that the RPD misconstrued his evidence and that the plausibility finding is not supported by the record. [11] Having independently reviewed the record I agree with the Appellant. I find that the Appellant's testimony before the RPD was that the Peshmerga were able to regain control of his village and had a presence in the area. However, the Appellant did not testify that the Peshmerga occupied his home or had it under surveillance such that it would prevent his friend from being able to attend the residence and obtain his documents. I find that there is nothing in the record to suggest that it would be implausible that the Appellant's friend was able to attend his home and send the Appellant his original documents. I also note that the RPD ultimately accepted that these documents belonged to the Appellant and had credibly established his identity. Therefore, I find that there is nothing in the evidence regarding the Appellant's identity documents which undermine the credibility of his core allegation that he was kidnapped and detained by ISIS. [12] The RPD also found that the Appellant's failure to claim asylum in Turkey demonstrated a lack of subjective fear. The RPD found that the Appellant's explanation for his failure to claim was not credible. The RPD did not accept that the Appellant failed to claim in Turkey on the advice of a smuggler and found that his testimony regarding his failure to claim was evolving. The RPD noted that under Turkish law, Iraqis could obtain protection and that many individuals from Iraq are in Turkey seeking protection through the United Nations High Commissioner for Refugees (UNHCR). Therefore, the RPD found that the Appellant's actions amounted to "forum shopping."2 [13] The Appellant argues that the RPD erred in finding that his failure to claim in Turkey impugned his credibility. The Appellant argues that his justifications for not claiming in Turkey included that he was fearful of ISIS locating him in Turkey and that the smuggler advised him not to make a claim in that country. The Appellant argues that these are reasonable justifications given his fear and the fact that he had never travelled outside of Iraq prior to fleeing ISIS in 2016. The Appellant argues that it was unreasonable for the RPD to conclude that he was asylum shopping. [14] Having independently reviewed the record, I agree with the Appellant. It is noteworthy that the Appellant was in Turkey for only a few days after fleeing Iraq before coming to Canada. I find that the Appellant's brief stay in Turkey does not undermine his credibility or his subjective fear. I also note that the Appellant's testimony was that he used the assistance of a smuggler who obtained a fraudulent travel document to facilitate his travel to Canada. In view of the effort taken by the Appellant to travel to a country that he believed could offer him protection, I find that it was reasonable that he did not make a claim during his short stay in Turkey. I also find that the RPD's reliance on the prevalence of Iraqi asylum seekers in Turkey is an error. While it may be the case that there are a number of Iraqis seeking protection through the UNHCR in Turkey, this does not automatically discount the Appellant's explanation for not claiming in Turkey, nor does it necessitate that he make a claim in that country. The Appellant's failure to claim in Turkey does not impugn the credibility of the Appellant's allegations and therefore, I find that the RPD's reliance on the Appellant's failure to claim in Turkey was an error. [15] The RPD also found that the Appellant's allegation that he was kidnapped by ISIS but was afraid to approach the Kurdish authorities, was not plausible. Specifically, the RPD found that it was unclear as to why the Appellant would not have gone to the Kurdish authorities following his release from an ISIS detention centre. The RPD found that the Appellant could not provide any particular reason why the Kurdish authorities would disbelieve that he escaped, treat him unfairly or suspect him of being an ISIS operative. The RPD found that the Appellant's allegation that he did not approach the Kurdish authorities due to these fears was nonsensical and incoherent. The RPD noted that authorities in Kurdistan routinely arrest ISIS suspects however there was nothing in the objective evidence to suggest that these authorities indiscriminately accuse innocent citizens of being ISIS accomplices. [16] The Appellant argues that the RPD erred by finding that it was implausible that he feared that authorities in Kurdistan would not believe that he was able to escape an ISIS detention centre and would suspect that he was working with ISIS. The Appellant argues that a careful review of his testimony sets out why he feared that authorities in Kurdistan would not believe him and might arrest and detain him. The Appellant argues that he sought the advice of a friend who told him that that was a risk given his situation. Therefore, the Appellant argues that the RPD mischaracterized his evidence when it concluded that he did not provide any particular reason why the Kurdish authorities would automatically disbelieve him. The Appellant argues that there is nothing implausible in his assertion that the Kurdish authorities might suspect him of being an ISIS sympathizer given his ability to escape detention. [17] Having independently reviewed the record, I agree with the Appellant. The RPD's finding that it was implausible that the Appellant feared that Kurdish authorities might suspect him of being an ISIS operative was incorrect. In this case, the Appellant was not alleging that the Kurdish authorities would in fact objectively believe that he was an ISIS operative and detain him. A careful review of the record demonstrates that the Appellant testified he feared this might happen based on the advice of his friend. I find that there is nothing in the record to suggest that it is implausible that the Appellant had a fear that the Kurdish authorities might suspect that he was an ISIS operative and detain him. [18] I also note that the RPD remarked that the objective evidence indicates that there are human rights concerns regarding the Kurdish authorities and their treatment of suspected ISIS members.3 The objective evidence highlights that authorities in Iraq have arrested, detained and abused individuals who they believed to be members of ISIS.4 As such, given the context of the Appellant's situation, it is not implausible that he would have feared going to authorities given their treatment of suspected ISIS members or sympathizers. Therefore, I find that the Appellant's failure to approach the authorities does not undermine the credibility of his allegation given his circumstances. The Appellant's support letters and psychological reports are not determinative [19] In considering the Appellant's other supporting documents, the RPD found that the psychological reports that were tendered by the Appellant simply established that he had psychological conditions but could not reasonably attribute the cause of the Appellant's psychological difficulties. In considering the witness letters in support of the Appellant's allegations, the RPD found that the letters contained many similarities which impugned their credibility. [20] The Appellant argues that the RPD should have ascribed more weight to the psychological reports as they were tendered by professionals who concluded that the Appellant suffered psychological difficulties as a result of the events that he alleged occurred in Iraq. The Appellant also argues that the RPD failed to fully consider the reports as they related to difficulties he might experience when testifying about these events. The Appellant argues that the psychological reports support his allegation. [21] I find that the psychological reports do not establish the Appellant's allegations. The psychological reports were authored by mental health professionals after interviewing the Appellant. I accept that these professionals were able to assess his mental health and determined that he suffers from a number of difficulties including post-traumatic stress disorder. However, I do agree with the RPD that the authors of these reports are unable to independently verify the credibility of the Appellant's allegations or the reasons for his trauma. [22] Nevertheless, I find that the Appellant's testimony before the RPD was consistent with his Basis of Claim Form narrative and his other supporting documentation. As such, I find that the Appellant's evidence was consistent and credible and that it is therefore owed the presumption of truthfulness. In light of this, I find that the Appellant's psychological reports, as well as the supporting letters from witnesses, simply further corroborate otherwise credible allegations. Therefore, while not determinative, I find these supporting documents simply provide further corroboration that the Appellant was kidnapped and detained by ISIS as alleged. The RPD erred in its objective basis and state protection analysis. [23] The RPD found that the Appellant's allegation that he was at risk from the Kurdish or Iraqi authorities was not objectively well-founded. The RPD also found that the Appellant had not established that he would be unable to avail himself of adequate state protection. The RPD then undertook an analysis of the general state of human rights in Iraq, as well as the efforts of the authorities in Kurdistan to push back against ISIS and regain control of some of their territory. The RPD found that while the objective evidence suggested some problems with access to state protection, the preponderance of evidence suggested that there was a functioning police and security system in Kurdistan. [24] The Appellant argues that the RPD's analysis of state protection is flawed as it failed to undertake any analysis of whether the authorities in Kurdistan would protect him from ISIS. Essentially, the analysis of the RPD simply indicates that the Appellant does not face harm at the hands of Kurdish authorities but does not deal with the allegation that he faces harm at the hands of ISIS. The Appellant argues that the objective evidence demonstrates that authorities in Kurdistan are unable to protect individuals from ISIS and that he does not have access to adequate state protection. [25] I agree with the Appellant that the RPD's analysis is incorrect as it fails to evaluate the Appellant's ability to avail himself of adequate state protection from ISIS. The RPD's analysis focuses solely on the Appellant's alleged fear of the authorities in Kurdistan. I find that this is an error as it fails to consider the Appellant's central allegation that he was targeted by ISIS, kidnapped and detained. The Appellant alleges that following his release from detention, the Appellant failed to pay the bribe to ISIS operatives as promised. The Appellant's evidence has been clear that his primary fear is at the hands of ISIS given his failure to pay the bribe. The Appellant's allegation of fear of the Kurdish authorities relates simply to the reason why he did not seek protection from them and his worry that they will now suspect him of being an ISIS member or sympathizer. [26] Having independently reviewed the objective evidence, I find that the Appellant does not have access to state protection and would not have a viable internal flight alternative (IFA) from the threat of persecution at the hands of ISIS. The Appellant does not have an IFA or access to adequate state protection [27] The RPD does not undertake an IFA analysis in its decision, however I find that I am able to come to a determination on the basis of the record before me. [28] I find that the objective evidence that was before the RPD was mixed on the continuing strength and presence of ISIS in Iraqi Kurdistan and the RPD failed to reference and consider the objective evidence which suggested that ISIS continues to operate in the region. [29] I also find the determinative issue in my current IFA analysis is whether there is a forward-looking risk to the Appellant in Iraq. In considering the current objective evidence and most recent National Documentation Package (NDP), I find that the Appellant faces a serious possibility of persecution throughout Kurdistan at the hands of ISIS. [30] I note that the UNHCR report titled International protection considerations with regard to people fleeing the Republic of Iraq, dated May 2019, indicates that while the security situation in the Kurdistan region remains relatively stable, the risk of ISIS attacks persists.5 The report indicates that security forces have reported the presence of homegrown sleeper cells of ISIS in the region. [31] I also find that a recent report from the European Asylum Support Office dated March 2019 sets out the existence of continued attacks against Kurds at the hands of ISIS.6 The report references several attacks against Kurdish villages, as well as the ambushing and killing of policemen and members of the Peshmerga within Kurdish villages. The report references Kurdish villages being evacuated in 2018 following waves of ISIS killings. The report notes an attack on a government building in Erbil in July 2018 which was suspected to have been carried out by ISIS. The report also indicates that ISIS routinely targets civilians that it perceives to be opponents, and that civilian targets have included a number of public spaces where civilians gather. [32] The United States (US) Department of State Iraq 2019 Crime and Safety Report: Erbil also indicates that ISIS continues to operate in Kurdistan.7 The report indicates that there continues to be a serious risk from terrorism in the region. The report notes that although ISIS no longer holds physical territory, the group has shown resilience and that remaining ISIS elements have transitioned to recruitment, fundraising and insurgency operations. The US report indicates that ISIS maintains lethal capabilities and frequently carries out asymmetric attacks targeting Iraqi civilians and the Kurdistan regional security forces. The report indicates that ISIS remains capable and extremely dangerous. [33] In reviewing the objective evidence, I find that it establishes that although the physical territory of ISIS in Kurdistan has been reduced, the group remains active. The objective evidence establishes that ISIS continues to be a significant threat and continues to carry out attacks against civilians and security forces throughout the region. I find that the objective evidence in the current NDP establishes that ISIS has been able to infiltrate security forces and target civilians in Kurdistan. Considering the ability and willingness of ISIS to target individuals it views as opponents, I find that the group has the means and motivation to locate the Appellant throughout Kurdistan. [34] I find that the objective evidence highlights the shortcomings of state protection and the ongoing allegations of human rights abuses at the hands of the authorities.8 Given the attacks against security forces, as well as the ability of ISIS to infiltrate law enforcement in Kurdistan, I find that the Appellant does not have access to adequate state protection. CONCLUSION [35] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee.9 (signed) J. Lourenço J. Lourenço July 27, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157, at para 103. 2 Exhibit RPD-1, RPD Record, RPD reasons, at p. 8, para 18. 3 Exhibit RPD-1, RPD Record, RPD reasons, at p. 8, para 20. 4 National Documentation Package (NDP) for Iraq (31 March 2020), item 2.6. 5 NDP for Iraq (31 March 2020), item 1.7, at p. 22. 6 NDP for Iraq (31 March 2020), item 1.11, at pp. 118-119. 7 NDP for Iraq (31 March 2020), item 7.8, at pp. 2-3. 8 NDP for Iraq (31 March 2020), item 2.6. 9 Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-14901 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