MB5-01749

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 File No. / No de dossier de la SAR : MB5-01749 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 at Montréal, Quebec Appel instruit à Date of decision November 17, 2015 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Stéphanie Valois Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister Sarah Marie Côté Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX, a citizen of Iraq, is appealing against a decision of the Refugee Protection Division (RPD), which rejected his refugee protection claim, having determined that he is neither a "Convention refugee" nor a "person in need of protection" under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant is requesting that the Refugee Appeal Division (RAD) allow the appeal because the RPD's decision is flawed. [3] The appellant is not submitting any new evidence on appeal in accordance with subsection 110(4) of the IRPA, nor is he asking that a hearing be held under subsection 110(6) of the IRPA. [4] The Minister is intervening on appeal by way of submissions concerning the standard of review. DETERMINATION OF THE APPEAL [5] Pursuant to subsection 111(1) of the IRPA, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [6] The appeal is dismissed. BACKGROUND [7] The appellant claims to be a Kurd from XXXX, which is located in XXXX, a part of Iraqi Kurdistan. In his Basis of Claim Form (BOC Form), he claims to fear returning to Iraq because in XXXX 2013 he dishonoured his neighbour by having sexual relations with her. He is afraid that her parents will kill him. [8] According to the information in the BOC Form, the appellant obtained permanent residency in Switzerland after his parents submitted an asylum claim. While he was a teenager, he encountered delinquency problems and was placed in foster homes. Around the age of 16 he fled to France. Once again he apparently got involved in crimes, which led to his arrest by the French police. For several months he was held in an institution for minors. He lost his residency in Switzerland because of the number of years he spent outside the country. He rejoined his father, who had gone back to live in Iraq. [9] The claimant alleges that in XXXX 2013, he had intimate relations three times with his neighbour. One night he was surprised by the young woman's brother. The appellant managed to escape and took refuge with his mother's family. After informing his grandmother of the situation, she hid him with a maternal aunt. His family made arrangements with a smuggler for him to go to Turkey and then rejoin his mother in Switzerland. [10] The claimant alleges that he arrived in Switzerland in XXXX 2014 and that three months later he applied for refugee status. While staying in an immigration centre, he apparently changed his mind after learning that Switzerland did not accept second asylum claims. His mother contacted a brother in Iraq so that he could make arrangements for the appellant to come to Canada with a Swiss passport. [11] The claimant made an initial-and fruitless-attempt to enter Canada under the name XXXX XXXX. He made a second attempt on XXXX XXXX, 2014, and was admitted as a visitor. The Immigration and Refugee Board of Canada received his refugee protection claim on XXXX XXXX, 2014. [12] On July 4, 2014, the Minister of Public Safety filed a notice of intervention with the RPD.1 The Minister makes the following submissions: the refugee protection claimant is known in Switzerland by the name XXXX XXXX; he submitted a second claim for asylum on February 12, 2014; and two days later he left the registration centre. This asylum claim [translation] "became moot and was filed away." According to the information obtained from the French authorities, the [translation] "asylum claimant is not known in France." [13] In light of this information and considering that the refugee protection claimant did not claim [translation] "refugee protection upon arriving in Canada-twice, in fact-that he claimed asylum twice in Switzerland under a different identity, that the dates declared by the claimant concerning events preceding his arrival in Canada are not in keeping with with the entry/exit stamps in his Iraqi passport," the Minister's representative submits that the [translation] "claim lacks credibility."2 Impugned decision [14] On February 23, 2015, the RPD rejected the refugee protection claim, concluding that the refugee protection claimant's credibility was the determinative issue. What is more, he did not establish a serious possibility of persecution merely by reason of his ethnicity should he return to Iraqi Kurdistan. Here are the factors that led the RPD to conclude that the refugee protection claimant lacked credibility. [15] In his BOC Form, the claimant claims to have had sexual relations three times with his neighbour, but at the hearing he stated that he had had sex with her just once. When questioned in order to clarify this inconsistency, the refugee protection claimant changed his testimony [translation] "many times." [16] In his BOC Form, he claims to have fallen in love with his neighbour in XXXX 2013, but at the hearing he testified that this event occurred in XXXX or XXXX of that year after he had had his first contacts with her early in 2013. Confronted with these inconsistencies, he offered explanations that the RPD found unsatisfactory. [17] In his BOC Form, he claims that his problems occurred in XXXX 2013, that he arrived in Switzerland in XXXX 2014 and that three months later he claimed asylum. But the claimant's passport shows different trips between Iraq and Turkey. The stamps indicate that the last time he entered Iraq was on XXXX XXXX, 2013, and that he left this country the next day, XXXX XXXX, 2013. In light of this information, the RPD finds that it [translation] "would be practically impossible for him to have had the time to have this sexual encounter with his neighbour, to go to his grandmother's and aunt's home, for his grandmother to sell one of her properties and for him to obtain a false passport through a smuggler in two or three days." Also, according to Exhibit M-6 filed by the Minister, the claimant claimed asylum in Switzerland on XXXX XXXX, 2014, which [translation] "reinforces the panel's thinking that the claimant left Iraq on XXXX XXXX, 2014." [18] The RPD also found inconsistencies in the evidence relating to the filing of his asylum claim in Switzerland. [19] The RPD also took into account that he did not claim refugee protection when he arrived in Canada, twice, in fact, and that he waited two months before claiming refugee protection in Canada. [20] Lastly, concerning the situation with the Kurds in Iraq, the RPD found that the evidence in the record did not show that there is a serious possibility of persecution solely on account of this fact, should he return to the Kurdistan region where his family is from. GROUNDS OF APPEAL AND REMEDY SOUGHT Appellant's allegations [21] The appellant claims that the RPD erred in analyzing his credibility and did not take account of his explanations for why his comings and goings in Turkey were not all official. [22] He adds that the RPD did not take into account that he cannot live in Iraq for a number of reasons, including the fact that his habits are contrary to the Muslim faith and not in keeping with Iraqi Kurdish culture. In addition, the RPD did not take into consideration that [translation] "the Kurds are currently at war with the Islamic State and that the situation is very dangerous." He argues that the RPD neglected to consider this reason, that the documentary evidence-more specifically Tab 1.9 of the national documentation package-discusses a dangerous situation for Kurds and that the appellant cannot go to Kurdistan if he is deported from Canada. According to him, his profile places him particularly at risk, because the fact that he does not speak Arabic means that he could easily be identified and persecuted. THE RAD'S ROLE AND FUNCTIONS [23] In the memorandum of appeal, counsel for the appellant submits that [translation] "the RAD is a specialized (super-specialized) tribunal" that has jurisdiction to hear appeals de novo. Unlike the Federal Court, the RAD must analyze the evidence presented and make its own findings. It owes no deference to the RPD.3 [24] Counsel states that the Federal Court justices are not unanimous as to the approach that the RAD should apply when it disposes of an appeal against an RPD decision. Some justices favour the standard of "palpable and overriding error," while others recommend applying the "correctness standard." Counsel argues that [translation] "the issue is the level of deference that is owed to the RPD's decision."4 [25] Counsel submits that "palpable and overriding error" is too high of a standard and was developed in a context different from that of refugees. She argues the following: [translation] ...Consideration needs to be given to the fact that the Refugee Appeal Division is the only safety net for failed refugee protection claimants.... With the new legislative amendments, refugee protection claimants are no longer entitled to pre-removal risk assessments or applications on humanitarian and compassionate grounds prior to their deportation from Canada. They have to wait one year from the negative decision by the refugee division to begin these procedures and may therefore be deported beforehand.5 [26] For his part, the Minister's representative submits that [translation] "the appellant has not shown that the RPD's decision is tainted by an error leading to an erroneous outcome." He submits that regarding the questions of fact and mixed fact and law raised by the RPD, the RAD must show deference toward the RPD's conclusions. [27] Since an appeal before the RAD is a statutory remedy, its mandate and powers are defined in its home statute, the IRPA. The statutory provisions indicate precisely the allowable grounds for appeal,6 as well as the "remedial powers" available to it. Parliament allows the RAD to confirm the determination, set it aside and substitute a determination that, in its opinion, should have been made, or refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate.7 [28] The Federal Court, in being called on to determine the appropriate type of review by the RAD of decisions rendered by the RPD, recognizes its "expertise" on refugee-related matters. The Court is of the opinion that broad powers are conferred by the IRPA, "thus allowing the RAD to dispose of the merits of appeals,"8 and states that "[t]he idea that the RAD may substitute an original decision by a determination that should have been rendered without first assessing the evidence is completely inconsistent with the purpose of the IRPA."9 Although these observations have been shared by different justices, as the appellant's counsel points out, the Federal Court is faced with two key lines of case law. [29] According to the proponents of the first line of case law put forward by Justice Shore: [27] ...the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts...10 [30] Justices Roy and Leblanc agree that the "error must be palpable and overriding...to succeed on appeal."11 Justice Roy notes that appeals before the RAD are intended to be generous but that "this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety."12 Justice Roy is also of the opinion that "[i]t will be on the basis of the record of proceedings before the RPD that the appeal will be heard based on the questions identified and raised, subject to the documentary evidence (subsection 110(3)) or evidence that is consistent with subsection 110(4)."13 [31] A different approach is proposed by Justice Phelan in Huruglica..14 According to Justice Phelan, "the RAD is required to conduct a hybrid appeal." [32] It must "review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a 'Convention refugee' or a 'person in need of protection'. Where its assessment departs from that of the RPD, the RAD must substitute its own decision."15 [33] Justice Phelan, when writing about the deference that the RAD owes to findings of the RPD, states that it may be justified to show "deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative". Nevertheless, when it comes to interpreting the documentary evidence on country conditions, Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment." [34] For my part, I have reviewed the Federal Court's decisions to date, and it appears to me that the RAD, a tribunal specialized in refugee protection matters, must examine all the evidence to determine whether the decision is well founded in light of the evidence before the RPD and any additional evidence accepted by the RAD as new evidence under subsection 110(4) of the IRPA. [35] I disagree with the appellant's argument that appeals before the RAD are appeals de novo, because the RAD holds a hearing only in the circumstances set out in subsection 110(6) of the IRPA and when it examines the evidence it is limited by the testimony given in response to questioning by another decision-maker. In this context, given the RPD's advantageous position compared with the RAD, it appears to me that the RAD may show a measure of deference when the credibility of a refugee protection claimant is central to the decision. Nevertheless, when findings of fact or mixed fact and law are erroneous or are not supported by the evidence, the RAD must intervene by one of the means set out in subsections 111(1) and 111(2) of the IRPA. [36] As for errors of law, Justice Shore states that "the RAD must be able to correct any error of law".16 MERITS OF THE APPEAL [37] The RPD found that the appellant's credibility is the determinative issue. This is a question of fact for which the RPD's expertise is recognized, since it has the advantage of seeing and hearing the refugee protection claimants and witnesses.17 In this appeal, I will not have such an opportunity as the requirements of subsection 110(6) of the IRPA have not been met. [38] The memorandum of appeal argues that [translation] "the burden of proof must be that of erroneousness," a burden that falls on the appellant. [39] Concerning his credibility, except for the conclusions regarding his return trips to Turkey and the delay in claiming refugee protection, the appellant does not advance any specific arguments or specify which errors the RPD made in analyzing his credibility. [40] In paragraph 30 of its decision, the RPD found [translation] "that by reason of his lack of credibility" it does not believe the allegations in his refugee protection claim." It found that his testimony that he had had only one intimate encounter with his neighbour, whereas in his written account18 he claims to have had three intimate encounters with the young woman, undermined his credibility. Next, the RPD noted that the claimant states in his written account that he [translation] "fell in love" with the young woman in XXXX 2013, whereas at the hearing he testified that he [translation] "fell in love" in XXXX or XXXX 2013. [41] As indicated by counsel in her memorandum, one of the main issues in an appeal before the RAD [translation] "has to do with the level of deference that is owed to the RPD's decision." Since the RPD is in an advantageous position over the RAD, I find that in the case at hand it should be granted a degree of deference because its conclusions took into account the case law principles applicable to credibility and are based on contradictory statements by the appellant. In this regard, the Federal Court recognized that: ...it is open to the Board to draw negative credibility inferences from an unsatisfactorily explained contradiction between the PIF19 and the applicant's oral testimony.20 [42] What is more, in the case at hand the refugee protection claimant is very proficient at reading and expressing himself in French. He had the chance to review his BOC Form with his new counsel. Next, at the beginning of the hearing he was offered the opportunity to make any necessary changes to the written account, but he confirmed that his document was correct. Based on these inconsistencies in the evidence, the appellant failed to establish on a preponderance of the evidence the central aspect of his claim for refugee protection. Having considered all the evidence and listened to the recording of the hearing, I find that the appellant failed to establish that the RPD's conclusions concerning this point, which is central to his refugee protection claim, are unjustified. Return trips between Turkey and Iraq [43] Regarding his return travel between Turkey and Iraq, the appellant submits that the RPD erred and that it did not consider his explanations. With respect, I cannot accept this argument. The decision, primarily from paragraphs 19 to 20, leads one to believe that the RPD took into account the explanations offered by the appellant when he was questioned about these trips between Turkey and Iraq in the fall of 2013. In addition, the RPD's conclusions are also based on the documentary evidence indicating that the borders are strictly controlled. In light of the passport stamps, the RPD was warranted in finding that the appellant likely left Iraq for good on XXXX XXXX, 2013. The appellant failed to establish that this finding by the RPD was baseless. Delay in claiming refugee protection [44] As for the delay in claiming refugee protection, it should be pointed out that the appellant is not without experience in this area. He claims to fear being killed if he were to return to Iraq, and yet he left the immigration centre without waiting for the response to the asylum claim he filed in XXXX 2014. Next, he went to Canada because he feared being deported to Iraq. He had not claimed refugee protection during his first attempt to enter Canada. [45] In Huerta, the Federal Court declared that: The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant. [46] Thus, while the delay in claiming refugee protection is not, in itself, a determinative element of the validity of a claim for refugee protection, it is an important factor.21 In the case at hand, the RPD did not take only this factor into account. It is on top of the others that were noted. Failure to examine a reason in the refugee protection claim [47] The appellant maintains that the RPD did not consider his personal profile or the objective situation in Kurdistan caused by the conflict between the Kurds and the armed Islamic State group. Because of the insecurity and because the Kurds are [translation] "currently at war with the Islamic State and the situation is very dangerous," he is afraid of returning there. The appellant maintains that [translation] "the Home Office document, at Tab 1.9 of the national documentation package, discusses the dangerous situation in Iraq's contested areas" (RAD's emphasis).22 [48] It should be noted that the version of the package in evidence before the RPD is that of March 14, 2014.23 This version does not include Tab 1.9. However, the package dated January 30, 2015, contains a Home Office document at Tab 1.9. I have considered the information contained therein, more specifically in paragraphs 1.3.4, since this is recent information on the situation in Iraq and it has to do with what the appellant is arguing. [49] That being said, the RPD is presumed to have considered all the evidence before it. Regarding the Kurds' situation, the RPD found that the appellant [translation] "failed to show that he would be persecuted should he return to the Kurdistan region." For its conclusions, the RPD relied on tabs 1.4, 1.7 and 14.1 of the national documentation package, which is a mission report jointly prepared by the Danish Immigration Service and the Home Office. [50] In the case at hand, I find that the RPD's conclusions concerning the risk to which the appellant would be subjected if he returned are founded on the evidence. [51] The appellant is right to state that the situation in [translation] "Iraq's contested areas" is dangerous. On this topic, the information contained in Tab 1.9 of the national documentation package dated January 30, 2015, indicates that: 1.3.1 For the purposes of this instruction, the contested areas of Iraq are those areas controlled by non-government armed groups, notably by the Islamic State (formerly known as the Islamic State of Iraq and the Levant (ISIL) or Islamic State of Iraq and al-Sham (ISIS)), and those territories where active internal armed conflict has occurred, or where control of territory has changed between government and non-government forces. It may also include territory that is highly likely to be contested imminently, based on an assessment of available, relevant, country facts. 1.3.2 At the current time the Home Office assesses the 'contested areas' of Iraq to include the governorates of Kirkuk; Diyala; Anbar; Salah al Din and Ninewa. 1.3.3 Although the city of Kirkuk is currently controlled by Kurdish peshmerga forces, limitations in reporting; together with the general insecurity in Kirkuk governorate and the surrounding areas, mean that at the current time Kirkuk city should also be included in the contested areas. 1.3.4 Baghdad, governorates in the south and the semi-autonomous Kurdistan Region of Iraq (KRI), should not at the current time be assessed as being 'contested', although decision makers should note that the security situation throughout the country is volatile and therefore may change quickly. The latest country information must always be used24. [52] In the case at hand, it should be pointed out that the appellant comes from the Dohuk region. According to the documentary evidence, this province is not part of the contested areas of Iraq. Rather, it is located in the semi-autonomous region of Kurdistan, where Kurds are the majority25 and which is under the control of the regional Kurdistan government.26 [53] As it appears in the appellant's passport, he travelled various times between Turkey and Iraq from XXXX 2013 to XXXX 2013. He did not mention any particular problems entering Kurdish territory. While he argues that he would have difficulty making his way back to Kurdistan in the event of a return, such a conclusion is not borne out by his testimony or the documentary evidence. In fact, Tab 1.9 of the package that the appellant has asked the RAD to take into consideration indicates that: As persons returned to Iraq, will arrive either at Bagdad international airport or Erbil international airport, return to non-contested areas should not involve travel through areas identified as being contested.27 [54] I have considered all the evidence. Except for the facts having to do with his romantic relationship, the appellant did not include in his BOC Form any facts suggesting that he fears returning to Kurdistan for other reasons. To be sure, at the hearing he claimed to fear returning because the Kurds are on the front lines of the fight against the Islamists, but taking into account the body of the evidence and the appellant's area of origin, I am of the opinion that he did not discharge his burden of establishing that there is a serious possibility of persecution or that it is likely that he would be subjected to one of the risks set out in section 97 of the IRPA in the event of a return to Iraqi Kurdistan. [55] For these reasons, I find that the appellant has not established that the RPD's decision is not based on the evidence or that it is unjustified. CONCLUSION [56] For these reasons, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [57] The appeal is dismissed. Maria De Andrade Me Maria De Andrade November 17, 2015 Date IRB translation Original language: French 1 Refugee Protection Division (RPD) record, pages 116 to 119. 2 RPD record, page 119. 3 Appellant's memorandum, page 12. 4 Appellant's memorandum, page 13. 5 Appellant's memorandum, pages 14 and 15. 6 Subsection 110(1) of the Immigration and Refugee Protection Act (IRPA): "Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection." 7 Paragraphe 111(1) of the IRPA. 8 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 9 Idem. 10 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 11 Spasoja v. Canada (Minister of Citizenship and Immigration), Justice Roy, 2014 FC 913, Lamia Aloulou v. Canada (Minister of Citizenship and Immigration), Justice Leblanc, 2014 FC 1236. 12 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 13 Idem. 14 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 15 Idem. 16 Supra, footnote 10. 17 Allalou v. M.C.I., (Minister of Citizenship and Immigration), 2014 FC 1084 para. 17, Sajad v. M.C.I., (Minister of Citizenship and Immigration), 2014 FC 1107, para. 20. 18 RPD record page 94, paragraphs 40 and 41. 19 Former title of the current Basis of Claim Form (BOC Form). 20 Grinevich et al. v. M.C.I., No. IMM-1773-96). 21 Cruz v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1247. 22 Appellant's memorandum, page 16. 23 RPD record, page 187. 24 National Documentation Package on Iraq, January 30, 2015, Tab 1.9; Country Information and Guidance. Iraq: The Security Situation in the 'Contested' Areas of Iraq. United Kingdom. Home Office. August 22, 2014; page 6. 25 Idem page 58. 26 Idem page 12 para. 1.3.39. 27 Idem, para. 1.3.40. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-01749 14 RAD.25.02 (2014.09.11) Disponible en français