VB9-02329

RAD File / Dossier de la SAR : VB9-02329 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 September 30, 2020 Date de la décision Panel J. Lourenço Tribunal Counsel for the person who is the subject of the appeal Lobat Sadrehashemi 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 (the Appellant), a citizen of Iraq, appeals a decision of the Refugee Protection Division (RPD), dated March 5, 2019, rejecting his claim for refugee protection. The Appellant alleges that he faces persecution and a risk to life at the hands of his family and a mafia-like tribe with whom his family is engaged with in a feud. The RPD found that the Appellant was not credible and rejected his claim. [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 the Kurdistan Region of Iraq (KRI). The Appellant alleges that his brother fell in love with a woman from a mafia-like tribe who was already engaged. Despite warnings and increasing violence, the brother continued to pursue the woman. The Appellant alleges that eventually, he was run off the road and died of his injuries. The Appellant alleges that his father vowed revenge and demanded that he take part in the revenge plot. The Appellant alleges that he refused and, as a result, was assaulted and threatened by his father. He alleges that he fears his own family and the mafia-like tribe. The Appellant alleges that due to this fear, he went into hiding until he could leave Iraq for the United States. The Appellant initially travelled to the United States to reunite with his wife, but when that relationship fell apart, the Appellant entered Canada and initiated a refugee claim. ROLE OF THE REFUGEE APPEAL DIVISION [4] 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 [5] The Appellant argues that the RPD erred in its credibility assessment and made unreasonable plausibility findings. The Appellant argues that the RPD was microscopic in concluding that there were omissions in his Basis of Claim (BOC) narrative. The Appellant argues that the RPD's plausibility findings were not based on the evidentiary record and instead relied on speculation. The Appellant also submits new evidence with his appeal and asks for an oral hearing to be convened, or in the alternative, seeks that the RAD determine that he is a convention refugee. NEW EVIDENCE [6] Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA)2 sets out that an appellant may only present evidence that arose after the rejection of their claim, or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented at the time of the rejection. Where evidence meets the requirements of subsection 110(4), the RAD will then go on to consider the factors affirmed by the Federal Court of Appeal in Raza and Singh.3 [7] The list of new evidence submitted with the appeal is as follows: 1. Statutory declaration sworn by the Appellant on XXXX XXXX, 2019.4 2. Statutory declaration from XXXX XXXX dated XXXX XXXX, 2019.5 3. Statutory declaration from XXXX XXXX dated XXXX XXXX, 2019.6 4. A letter from XXXX XXXX dated XXXX XXXX, 2019 and accompanying identity documents.7 5. Copies of various photographs of the Appellant's father with other individuals.8 [8] In considering the admissibility of this new evidence, I find that the statutory declarations (items 1-3) do not meet the requirements of subsection 110(4) of the IRPA and therefore will not be admitted with the appeal. I find that much of the information contained in the declarations is not new. The only new information contained in the affidavits relates to an allegation that the Appellant's father was abusive for many years. This information did not arise after the rejection of the Appellant's claim and was clearly reasonably available to the Appellant prior to his claim being rejected. The Appellant argues that he did not provide this information because he did not realize that it would be relevant to his claim. I am not persuaded by this argument. I find that this information could have reasonably been expected to be presented by the Appellant in his circumstances. The crux of the Appellant's allegation is that he fears harm at the hands of his father after being violently assaulted by him. Therefore, I find that any evidence the Appellant wanted to provide about the history of abuse at the hands of his father could have been reasonably expected to be presented before his claim was rejected. I acknowledge that the Appellant makes mention of the difficulty in discussing this history in his affidavit. However, he has not provided any psychological or corroborating evidence regarding an inability to discuss these events prior to his claim being rejected. Therefore, in the circumstances, I find that these statutory declarations do not meet the requirements set out in subsection 110(4) of the IRPA. [9] In considering the letter from the Appellant's relative (item 4), I find that there is information within the letter that arose after the rejection of the Appellant's claim. Specifically, I note that the author of the letter indicates that "4 weeks ago" a car drove by the Appellant's family home and fired shots into the air. Given that the letter is dated XXXX XXXX, 2019, the event would have taken place after the Appellant's claim was rejected. In considering the factors set out in Singh, I find that the information is new and relevant as it relates to an ongoing threat against the Appellant. There is nothing on the face of the letter that makes me question credibility and therefore it will be admitted as new evidence. [10] The photographs provided by the Appellant as new evidence will not be admitted with his appeal. The Appellant indicates that his father was a member of the Peshmerga when he was a small child.9 The new photographs provided by the Appellant purport to be of his father from this time. As such, these clearly did not arise after the rejection of his claim. There is no indication that these photographs were not available to the Appellant prior to the rejection of his claim. The Appellant does not set out any substantive argument about why they were not provided previously, aside from stating that he did not realize the importance of these photographs. Given that the Appellant identified his father as one of the agents of persecution, I find that any information about him and his involvement in the security forces could have reasonably been expected to be provided prior to the rejection of the Appellant's claim. As such, this evidence does not meet the requirements of subsection 110(4) and will not be admitted as new evidence. The RPD erred when it concluded the Appellant omitted significant details regarding the assault by his father from his BOC narrative [11] The RPD found that the Appellant was not consistent in his evidence regarding the attack against him by his father. The RPD pointed out that in the Appellant's BOC narrative, he indicated that his father slapped and punched him and pointed a gun to his head. However, the RPD noted that the Appellant testified at the hearing that his injuries were significant and that, in fact, his father had also kicked him and hit him with the gun. The RPD found that this inconsistency impugned the credibility of the Appellant's allegation that he was assaulted by his father. [12] The Appellant argues that the RPD was unreasonable in concluding that there were significant contradictions between his evidence regarding this attack. The Appellant notes that the RPD made comments about the level of experience of counsel and the competency of the interpreter when it did not accept his explanation that perhaps some details of the attack were missed through interpretation. The Appellant highlights jurisprudence which he argues sets out that these types of small inconsistencies should not lead to a negative credibility finding. The Appellant argues that the RPD's examination of his evidence was microscopic and argues that the additional details in his testimony that were not in the narrative did not detract from the credibility of the allegation. [13] I agree with the Appellant that there were no significant contradictions in his evidence regarding this attack. The Appellant testified that his father assaulted him as a result of his refusal to participate in taking revenge against another family. When the Appellant was asked about the photographs of his significant injuries, the Appellant indicated that the injuries were caused not only by punching and slapping but also included kicking. I find that this is simply an elaboration on the part of the Appellant in his testimony regarding the attack. There is nothing in his testimony that is significantly inconsistent with what is in his BOC narrative. I agree that the RPD's analysis of this evidence was microscopic. The Appellant has consistently maintained that as a result of him refusing to participate in taking vengeance, his father assaulted him, and that assault involve the use of a firearm. Therefore, I find that the Appellant's allegation has remained consistent regarding the attack of his father and is credible. The RPD's plausibility findings are not based on the evidence and are speculative [14] The RPD found that it was not plausible that the Appellant's family would allow his brother to continue to contact the woman with whom he had a relationship with given the prevalence of honour killing in the region. The RPD noted that the Appellant testified that his family deeply believes in the importance of retaining honour. Therefore, the RPD found that it was not plausible that the Appellant's family would only verbally dissuade his brother from contacting the woman with whom he had a relationship. The RPD found that the Appellant's family would have been more forceful in its efforts to end this dishonourable relationship. [15] Similarly, the RPD found that it was not plausible that the family of this woman did not take more forceful steps to end her relationship with the Appellant's brother. The RPD found that it was not plausible that her family, and tribe, did not take away her phone and allowed her to continue to go to school. The RPD found that, in the circumstances, it expected this woman would be isolated and unable to communicate with the Appellant's brother. The RPD goes on to find that "most importantly she was not murdered in the five months from when the relationship was discovered to the alleged murder of XXXX [the Appellant's brother] on XXXX XXXX, 2016. She also did not commit suicide, nor was she married off to her relative."10 [16] The Appellant argues that the RPD's plausibility findings were incorrect. The Appellant highlights that this relationship took place in a wholly different context than Canada and, due to the limited evidence about the relationship, it is difficult to assess the plausibility of the families' reactions. The Appellant also argues that there is nothing implausible about the reaction of his own family to his brother's relationship. The Appellant argues that the RPD erroneously conducted a superficial review of country documents and concluded that all dishonourable relationships would lead to the same simplistic reaction from the families that were offended. [17] The Appellant highlights that he does not himself know whether this woman had her phone taken away from her or how exactly she was able to get in contact with his brother. The Appellant also highlights that he is not aware of whether her family forbid her from going to school or what steps they took to end the relationship between her and the Appellant's brother. [18] Having independently reviewed the record, I agree with the Appellant. I agree that there is nothing in the objective evidence to suggest that it is implausible that the Appellant's family would simply try to dissuade his brother from continuing the relationship with this woman. Even accepting that the Appellant's family may have understood the significant risk behind this relationship, there's nothing implausible about them telling the Appellant's brother to discontinue the relationship. It is unclear to me what the RPD believed ought to have happened or how the Appellant's family could have stopped an adult male from continuing his contact with a woman he was pursuing. It is clear from the Appellant's evidence that his family was unhappy about the relationship and continually told his brother to cease contact with this woman. Therefore, I find that there is nothing implausible in the Appellant's evidence regarding the reaction of his own family. [19] In considering the RPD's conclusions about the plausibility of the reaction of the woman's family, I find once again that these conclusions are not based in the evidence. Firstly, I agree with the Appellant that at no point did he present evidence of being aware of the particulars of the reaction of the woman's family regarding her relationship with his brother. The Appellant simply testified that it was his knowledge that his brother continued to try to reach out to her and see her. Nowhere does the Appellant provide evidence that the woman was allowed to freely leave her home, attend school and had her own cell phone readily available to her. The RPD's conclusions in this regard are based on speculation rather than the evidence before it. [20] Further, I find that the RPD's conclusion that it is not plausible that this woman was not murdered within the five-month period after her relationship was discovered or did not commit suicide is again baseless and highly problematic. First, this assumption is based on an oversimplified review of the evidence around honour killings. While the objective evidence certainly does highlight that women can, and do, fall victim to murder at the hands of their family when they have been perceived to bring dishonour, there is no indication in the objective evidence that this is always the outcome. Put simply, there is nothing to suggest that every woman who dishonours her family in the KRI will be murdered within a five-month period or would commit suicide. [21] Further, I agree with the Appellant that he did not testify or present any evidence suggesting that he was aware of the fate of this woman. There is no indication in the evidence that the Appellant would have any personal knowledge about her whereabouts or if she is in fact still alive. Again, the RPD's conclusions on this issue are based on speculation and therefore cannot stand. The RPD's finding regarding the omission of the tribesmen driving by the Appellant's family home is insufficient to ground finding that the Appellant is not credible. [22] The RPD found that the Appellant's evidence regarding the XXXX tribesmen was inconsistent. The RPD noted that the Appellant testified that on two or three occasions he witnessed an individual driving by his home in a suspicious manner with a weapon in the car. The RPD noted that there is no mention of this activity in the Appellant's BOC narrative. The RPD found that the Appellant did not adequately explain this discrepancy and it detracted from the credibility of his allegations. [23] The RPD also found that the Appellant's late disclosure of photographs of these individuals was problematic as the Appellant did not amend his narrative to state that after finding the photographs he now remembers that this was the man who had driven in front of his home. [24] Further, the RPD found that the Appellant lacked subjective fear because following these alleged suspicious visits from the tribesmen, he and his family did not move or take any steps to ensure their safety. [25] The Appellant argues that the RPD should accept his explanation that it was an oversight that he did not mention these men driving by his home in his original narrative. The Appellant continues to argue that he simply remembered this after coming across their photographs on Facebook. The Appellant highlights that his evidence is that he found the photographs the night before the hearing and had not even had time to present them to his lawyer. Therefore, the Appellant argues that he would be unable to have realistically amended his narrative to reflect this new detail given the short period of time. [26] The Appellant also argues that the RPD's finding that his family failed to take any steps to protect themselves after these visits was a plausibility finding. The Appellant argues that this plausibility finding is not grounded in the evidence and cannot be used as a basis to reject his claim. [27] I agree with some of the concerns of the RPD. I find that the Appellant's failure to mention tribesmen driving by his family home in his narrative raises some credibility concerns. However, I do not share the finding of the RPD that the Appellant could have been reasonably expected to amend his narrative after finding photos of the tribesman. [28] It is clear from the record that the Appellant's testimony indicated that he found these photographs shortly before his hearing and had not presented them to his counsel. The record reflects that there was a delay in having these photographs entered into evidence and that the Appellant's counsel had not seen them prior to the hearing. During a break in the hearing, the Appellant's counsel had to attempt to find some more references of the photographs before the RPD finally admitted them as evidence. Therefore, in that context, I find that it's not reasonable for the RPD to draw a negative inference from the Appellant's failure to amend his narrative to reflect locating these photographs. [29] I disagree with the RPD's finding that the failure of the Appellant's family to move from their home after tribesmen drove by reflected a lack of subjective fear. In the context of what was occurring in his family, and the attempts to have his brother stop pursuing a relationship with this woman, I find that it is plausible that the Appellant and his mother chose not to involve his father given his history of violence. I find that this does not demonstrate a lack of subjective fear. [30] Therefore, while I share some concerns about the Appellant's failure to mention the tribesmen driving by his family home in his narrative, I find that this is not enough in view of the other evidence to ground a finding that the Appellant's allegations are not credible. The corroborating documents do not independently establish the Appellant's allegations, however, they also do not contradict them [31] The RPD found that the Appellant's supporting documents did not independently establish his allegations. Given the credibility concerns the RPD had with the Appellant's evidence, it found that these documents were insufficient to credibly establish his allegations. [32] The Appellant makes no significant arguments about this part of the RPD's analysis. [33] I agree with the RPD that the Appellant's supporting documents do not independently establish his allegation. However, for the reasons I have set out, I find that the Appellant's other evidence has generally been credible and consistent. Therefore, while these documents do not establish the claim on their own, I find that they simply support the Appellant's allegation and will be afforded some weight. The Appellant's new evidence supports his claim and demonstrates ongoing risk [34] As set out in these reasons, I have allowed the letter from the Appellant's relative into evidence for the appeal. This letter indicates that individuals continue to drive by the Appellant's family home and that the dispute continues. While the information is limited, I find that it does generally support the Appellant's allegation and speaks to a forward-looking risk. Therefore, I find that this letter supports the Appellant's claim concerning on-going risk. The Appellant does not have a viable internal flight alternative or adequate state protection [35] Although the issue of state protection and internal flight alternative (IFA) were not canvassed by the RPD, I am nevertheless able to make a determination based on the information on the record. I find that in view of the Appellant's circumstances, he does not have a viable IFA and has rebutted the presumption of state protection. IFA [36] I find that the evidence in the National Documentation Package (NDP) establishes that there is an objective basis to the Appellant's fears about honor killings. As noted in the evidence, families who perceive that their honour has been tarnished may seek retribution for many years.11 As such, I find that there is a forward-looking risk at the hands of the Appellant's family, as well as the family of the woman with whom his brother had a relationship and her tribesmen. [37] I would also note that the objective evidence sets out that while Kurds can move and settle within Iraqi Kurdistan, they are subject to restrictions. In order for them to relocate and settle, they require permission from the Asayish office, which is tied to the security forces and the Peshmerga.12 These restrictions and requirements for security screening would bring the Appellant to the attention of security forces, including the Peshmerga where his father worked. The objective evidence also establishes that the Peshmerga is highly organized and effective and can locate individuals of interest in all of Iraqi Kurdistan.13 I also note that the Appellant's father currently works for the XXXX in the region which could allow him to track the Appellant throughout Kurdistan. State Protection [38] In considering the effectiveness and availability of state protection, I find that the Appellant could not avail himself to the protection of the state. In the Appellant's case, his father works for the XXXX. Therefore, I find that the Appellant would be at heightened risk if he approached the state for protection. [39] Further, the objective evidence sets out that although there are laws criminalizing honour crimes, they remain prevalent in the region. Law enforcement is often sympathetic to the families and under the influence of the tribes in the region,14 and enforcement of the law is inadequate. Therefore, I find that the Appellant does not have access to adequate state protection. CONCLUSION [40] The appeal is allowed. I substitute my own decision that the Appellant is a person in need of protection, pursuant to paragraph 111(1)(b) of the IRPA. (signed) J. Lourenço J. Lourenço September 30, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157, at para 103. 2 Subsection 110(4), Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended. 3 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385; Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230. 4 Exhibit P-2, Appellant Record, pgs. 86-88. 5 Ibid., pgs. 89-90. 6 Ibid., pgs. 91-93. 7 Ibid., pgs. 94-97. 8 Ibid., pgs. 98-100. 9 Ibid., pg. 86. 10 Exhibit RPD-1, RPD Record, RPD Reasons, pg. 16, paragraph 61. 11 Exhibit RPD-1, RPD Record, Exhibit 3.1, National Documentation Package (NDP) for Iraq, 30 April 2018, Item 1.16: ?Country Policy and Information Note. Iraq: Kurdish 'honour' crimes. Version 1.0, United Kingdom. Home Office, August 2017. 12 Ibid., Item 1.18: ?The Kurdistan Region of Iraq (KRI): Access, Possibility of Protection, Security and Humanitarian Situation. Report from Fact Finding Mission to Erbil, the Kurdistan Region of Iraq (KRI) and Beirut, Lebanon, 26 September to 6 October 2015, Denmark. Danish Immigration Service, April 2016. 13 Ibid., Item 1.18, at p. 38. 14 Exhibit RPD-1, RPD Record, Exhibit 3.1, NDP for Iraq, 30 April 2018, Item 1.16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-02329 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