VB9-06010

RAD File / Dossier de la SAR : VB9-06010 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 Vancouver, BC Appel instruit / entendu à Date of decision November 6, 2020 Date de la décision Panel David Morris Tribunal Counsel for the person who is|are the subject of the appeal Katherine Rejminiak 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] These are my reasons for allowing the appeal of XXXX XXXX XXXX from a decision of the Refugee Protection Division (RPD), dated 24 July 2019, which rejected his claim for refugee protection. [2] The Appellant is a Kurdish citizen of Iraq. Prior to coming to Canada, he lived in the city of Erbil, which is in the Kurdistan Region of Iraq (KRI). [3] The Appellant fears he will be targeted by the Kurdistan Regional Government (KRG) or the party in power, the Kurdistan Democratic Party (KDP) because of a family dispute and because of his political views. [4] The Appellant's family was involved in a dispute with a more powerful family from the Barzani tribe (the family) which has connections to the KDP. As a result, the Appellant's family was forced to relocate from Pirmam to Erbil and to sell their property in Pirmam. [5] The Appellant became a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Erbil. He voiced opinions critical of the KRG and of the university to colleagues and students. Although he says he did not volunteer these opinions, he was honest when asked. The Appellant now understands that he was asked for his views in order to develop a profile which would be given to the Kurdistan Democratic Party (KDP). [6] The Appellant was involved in an online altercation on Facebook which resulted in his receiving threats by phone. [7] The Appellant was kidnapped in February 2018. The kidnappers indicated he should not criticize the KDP and threatened to kill him. He was then released. The police refused to take a report. [8] The Appellant was denied authorization from the University to attend a conference in the US because he had publicly criticized the President of the University on Facebook and social media. [9] The Appellant attended the conference in the US in any case and then came to Canada, claiming refugee status on XXXX XXXX 2018. RPD findings [10] The RPD found the Appellant had a viable internal flight alternative (IFA) in Sulaymaniyah - which is also located in the KRI. It found there was insufficient evidence to demonstrate the agents of persecution had the ability or motive to track the Appellant "throughout Iraq".1 It also found that relocation was reasonable given the Appellant's circumstances. Grounds of Appeal [11] The Appellant identifies three issues on appeal: 1) The RPD erred by failing to make any finding with respect to the agents of persecution; 2) The RPD erred by failing to consider whether the Appellant had a well-founded fear based on his political opinion; 3) The RPD erred in failing to properly apply the first prong of the IFA test since the Appellant alleges persecution by the KDP which controls the government and therefore has influence throughout the KRI. ANALYSIS [12] My role is to look at all the evidence and decide if the RPD made the correct decision.2 The RPD erred by making veiled credibility findings [13] First, I find that the RPD made veiled credibility findings in its IFA assessment. Specifically, the RPD found there was "almost no evidence"3 linking the alleged kidnapping to the agents of persecution. It further found the Appellant failed to establish that he had a public profile against the government. [14] The Federal Court has indicated that the RPD errs when, ... the essence of the decision is that the applicant's (Appellant's) story and professed fears are given no weight, effectively rejecting the claim as not credible, even though no specific reference is made to credibility as an issue.4 [15] I find that this is the case here. I further find that absent a negative credibility assessment, the Appellant's testimony should be deemed to have been accepted.5 This is not to say that his testimony must be accepted. Merely, that it could only be rejected after a proper analysis. [16] For example, the Appellant's evidence was that the kidnapping was tied to his political opinion as being opposed to the KDP. If the RPD had reason to doubt this it should have stated why. The Appellant's unchallenged testimony and his Basis of Claim (BOC) narrative cannot be dismissed out of hand as being "almost no evidence" simply because the RPD dealt with this evidence in its IFA analysis. [17] I find this led to a failure to properly assess an important aspect of the Appellant's claim. That is, whether he would face persecution due to his political opinion. [18] While the RPD noted the Appellant's assertion that his career at the university was stifled due to his opinions, the Appellant's claim went well beyond sanctions at work. He also asserted that the KDP had used students and staff to build a profile on him and that he had come into confrontation with supporters of the KDP through social media. He was subsequently kidnapped and threatened. [19] While it would have been open to the RPD to reject this evidence, I find the RPD should not have rejected the Appellant's stated political profile without making a clear credibility assessment. The RPD erred with regard to the level of influence of the agents of persecution in the proposed IFA [20] The RPD's determination that a viable IFA exists in Sulaymaniyah is based, at least in part, on the presumption that the agents of persecution would have little influence in Sulaymaniyah since it is dominated by the KDP's chief political rival, the Patriotic Union of Kurdistan (PUK). [21] I find the RPD's assessment of the objective evidence is erroneous. While it is true that the PUK, has its political base in Sulaymaniyah, this does not mean that the KDP has no presence there. Elections for the regional parliament took place in in [sic] KR-I [Kurdistan Region of Iraq] on 30 September 2018 ... . The ruling Kurdistan Democratic Party (KDP) came first, followed by the PUK, which gained less than half of the seats of the KDP. ... On 3 December 2018, the KDP announced that Nechirvan Barzani, the KRG's outgoing prime minister, would be their candidate for President of the KR-I. ... It is expected that the long-established informal power-sharing arrangement between the two dominant parties, the KDP and the PUK will be extended. [footnotes omitted]6 [22] I note that since the above excerpt was published, the KDP's Nechervan Barzani has been named President of KRI. Simply put, the KDP holds power throughout the KRI, including in Sulaymaniyah, as it holds both the Presidency and the majority in parliament. While KDP influence may be somewhat less in Sulaymaniyah, where the PUK has its base, and presumably holds most of its seats, I find the RPD has seriously oversimplified the situation. I find the KDP does have a presence in Sulaymaniyah and that they would have the means to locate the Appellant there if they wished to. [23] Accordingly, I find the RPD's decision must be overturned. [24] After a review of the entire Record, I am unable to reach a determination of the Appellant's claim without hearing the evidence that was presented to the RPD. I therefore refer this matter back to the RPD for re-determination. CONCLUSION [25] The appeal is allowed. Pursuant to ss. 111(1)(c) of Immigration and Refugee Protection Act (IRPA), the matter is referred back to the RPD for re-determination by a differently constituted panel. (signed) David Morris David Morris 6 November 2020 Date 1 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 5, para. 7. 2Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 6, para.13. 4 Zokai v. MCI, 2004 FC 1581, at para. 13. 5 Moreno v. MCI, 2010 FC 993, at para. 2. 6 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Packge (NDP) for Iraq (31 March 2020), item 1.7, at p. 10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-06010 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