TB9-09194

RAD File / Dossier de la SAR : TB9-09194 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 29, 2020 Date de la décision Panel H. Shepherd Tribunal Counsel for the person who is the subject of the appeal H.J. Yehuda Levinson 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] I dismiss this appeal. The Appellant, XXXX XXXX XXXX XXXX, is a citizen of Iraq from the Kurdish area of northern Iraq. The Refugee Protection Division (RPD) rejected the claim, but the Refugee Appeal Division (RAD) allowed the appeal due to the inadequacy of the interpretation. This is an appeal of a de novo hearing before the RAD which did not admit the transcript of the first proceeding into evidence. In addition to a digital audio recording of the hearing, a transcript is available in the Appellant's Record. [2] In light of the pandemic, the RAD Registry sent a generic letter to counsel on June 15, 2020 which gave 30 days to submit new evidence and to make additional submissions. Counsel wrote back on June 19, 2020 to ask for the name of the client because the previous lawyer was no longer with the office. The CMO called him on June 22, 2020 to inform him of the client's name. The 30-day period elapsed and no new evidence or submissions were received. Basis of Claim Summary [3] On December 31, 2014, the Appellant met a woman named C1 and approached her father for permission to marry in June 2015. Although both are Sunni Muslims, her religious father did not agree because the Appellant and his family are not strict observers of their faith. In addition, a marriage was being arranged between C and XXXX XXXX XXXX XXXX XXXX, an influential man XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. A few days after, C's father ordered them not to see each other again. C told the Appellant that her marriage to XXXX XXXX was arranged for July 2016. They subsequently agreed to meet in a park where they had sex for the first time in a secluded area. They continued to meet in the park for liaisons for months. C's father followed her to the park in September 2015 and confronted them. He then confined her to the house and threatened to have them both killed by his brother if they met again. C disguised the Appellant's calling information on her phone and continued to communicate with him. Her father seized the phone and gave it to his brother's company for analysis. The Appellant then went into hiding. The police refused to intervene because honour killings are too dangerous to investigate. The Appellant obtained a Canadian temporary resident visa (TRV) in XXXX 2015 which he used to come to Canada on XXXX XXXX, 2016. Although additional details about surveillance and an attack on the house were subsequently added, the Basis of Claim (BOC) narrative was never amended. Refugee Protection Division Reasons for Decision [4] The determinative issue for the RPD was credibility. In particular, it made the following adverse findings: i) The RPD gave little weight to the Affidavit from an interpreter who explains why he neglected to include some incidents in the BOC narrative; ii) There are inconsistencies between the police reports which state that the identity of the assailants is unknown and the Appellant's testimony that agents of his uncle were responsible; iii) The Appellant presented vague and evolving testimony about who C's uncle worked for (whether Asayish or not) and the nature of the threat (anonymous assassination or conspicuous surveillance together with spraying the house with AK-47 fire); iv) The RPD drew an adverse inference from the Appellant's delay in leaving Iraq, notwithstanding the fact that he received a valid TRV a couple months before his departure; v) The letters from family members were given little weight because they were vague, inconsistent with his BOC, were likely motivated to help him, and they do not overcome credibility concerns; vi) The Appellant failed to establish his claim; and vii) The RPD concluded that there is no nexus between the stated risk and the Refugee Convention because this concerns a criminal vendetta, not the tangential issue of religion. Nevertheless, the claim would fail on the basis of an analysis under either sections 96 or 97 because of the lack of credible evidence that the Appellant is in danger. Grounds for the Appeal [5] The Appellant submits that the RPD erred for the following reasons: i) By the time of the second RPD hearing, the Appellant was unsure whether to swear to the BOC's accuracy, given that it was already disputed. If the RPD expected it to have been amended, the RPD should have made that clear. The Appellant's counsel offered to produce a revised BOC; ii) The explanation given by the interpreter for the BOC omissions should have been taken into account; iii) Other documents corroborated the events which were omitted from the BOC; iv) The RPD cannot reject evidence solely because they come from family members; v) The RPD engaged in inappropriate rolling credibility findings which rely on each other to justify themselves; vi) Documents were not properly assessed. Photographs show bullet holes in the house; vii) The issue of shots being fired over that house rather than at the house was never put to appellant. This could be accounted for as a translation issue; viii) The inconsistency concerning the last telephone call is minor. His initial answer was that he could not recall the timing; ix) The Appellant's testimony about C's uncle organization is reasonable in the circumstances; x) The RPD made inappropriate plausibility findings concerning the actions taken by security forces; and xi) The RPD reasons for decision are inconsistent with respect to whether or not the house was shot at because it both disbelieved the incident and also used it to impugn credibility. Summary of RAD Decision [6] The determinative issue for the appeal is credibility. Despite a few errors made by the RPD, it correctly assessed the BOC omissions and inconsistencies in testimony in support of its conclusion that the Appellant is generally lacking in credibility. Although it failed to provide adequate reasons for giving no weight to the supporting statements from family members, my independent assessment supports the RPD's conclusions. The RPD did not ignore the other evidence, as alleged. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA)2. ANALYSIS [8] My role is to look at all the evidence and decide if the RPD made the correct decision.3 Did the RPD err it its treatment of the BOC? Submissions by the Appellant [9] Counsel submits that the RPD erred by drawing an adverse inference concerning evolving testimony from the fact that the Appellant did not amend his BOC prior to the first hearing in 2016, despite having been represented by counsel. The Appellant provided the missing information to the interpreter who failed to include it in the BOC. The RPD counsel suggested that "either we have to go back and do another narrative from scratch"4 or the one before the RPD could be relied on with the interpreter's statutory declaration taken into consideration. The panel ignored this comment by counsel when it stated that it was open to the Appellant to amend the BOC before the hearing. If the RPD had identified this as being an issue, the Appellant could have asked for an adjournment in order to update the BOC. The RPD breached principles of procedural fairness. RAD Assessment [10] The RPD did not err, as alleged, nor was there a breach of procedural fairness. [11] The RPD noted at paragraph 13 of its reasons for decision that the Appellant was reluctant to swear that the BOC was true, correct and complete. An interpreter's Affidavit was submitted to account for this. At paragraph 16, the RPD notes that the Appellant did not amend his BOC before the first hearing in 2016, despite having been represented by counsel. In addition, he did not amend the BOC in 2018, before the second hearing either. He was unable to establish exactly what was inaccurate or missing at the beginning of the hearing. His testimony continued to evolve from this BOC to his testimony during the two days of the hearing. [12] The discussion of this issue can be found at pages 20 to 31 of the transcript from the first day of the hearing.5 When asked if he could confirm that the BOC narrative was translated to him, the Appellant said that it was sent to a friend who translated it. Although a copy of the translator's statutory declaration was filed in support of the first RAD appeal, it was disclosed to the RPD at the second hearing. Counsel provided a copy to the RPD during a break. When the panel asked about the BOC errors and omissions at page 246, the Appellant indicated that his house was shot at and that he complained to the police. The Appellant then stated that the BOC is otherwise accurate ant that these are the only omissions from the narrative. Counsel then interjected to state that the Appellant cannot say any more than what is stated in the statutory declaration. The Appellant cannot affirm that whatever he remembers today is comprehensive. In order for the Appellant to be able to swear to the accuracy of the BOC, he would have to go through it from scratch with the Appellant and a translator. Either they could go back and draft another BOC narrative or they could proceed with the current one in conjunction with the interpreter's statutory declaration. The RPD responded by saying that it expected that a new BOC narrative would have been prepared with an interpreter before the hearing. The panel stated that the Appellant needs to take some responsibility for his narrative in order for the RPD to be able to test his credibility. Counsel suggested at page 31 of the transcript that the Appellant affirmed the BOC with the caveat that it be assessed in light of the interpreter's statutory declaration.7 The RPD agreed with this. [13] First, the RPD misunderstood the application of the principle that sworn evidence is presumed to be true. The panel appears to have believed that the BOC is simply a statement that becomes sworn evidence if it is affirmed at the hearing. The RPD erred in this conclusion. The BOC declaration includes the following statement: "I declare that the information I have provided in this form is complete, true and correct. ... My declaration has the same force and effect as if made under oath."8 [emphasis added]. There is no need for a claimant to affirm the BOC at the hearing in order for it to be sworn evidence that is presumed to be true. [14] Rule 9 of the RPD Rules establishes the procedure required to amend the BOC. The changes or additions must be underlined and made on each altered page of the BOC. The pages must then be dated and signed with a declaration that the changes or additions are complete, true and correct, and that the claimant understands that the declaration has the same force and effect as if made under oath. The BOC amendments must be filed with the RPD at least ten days before the hearing.9 The RPD was under no obligation to engage in the lengthy discussion about the circumstances in which the Appellant could affirm the BOC at the hearing. It was declared to be complete, true and correct when the Appellant signed it. The BOC does not need to be affirmed a second time. The onus was on the Appellant to amend it before the hearing if changes needed to be made. The Appellant failed to do so. [15] The Appellant was represented by counsel throughout the refugee claim process. The RPD correctly noted that it expected that the BOC would have been amended before the hearing. Counsel never made an application to adjourn the proceedings in order to amend the BOC. As a procedural matter, the RPD agreed to take the interpreter's statutory declaration into account in addition to the BOC narrative. It did not undertake to accept the explanation contained in it, nor did it waive its responsibility to assess the claim in light of the applicable case law, including jurisprudence concerning BOC omissions. The RPD Rules provided ample notice to the Appellant and to counsel concerning how BOC amendments should be made. Their failure to comply with the RPD Rules does not constitute a valid basis for a finding that the RPD breached principles of procedural fairness at the hearing. Did the RPD err in its treatment of the interpreter's statutory declaration? Submissions by the Appellant [16] Counsel submits that the RPD erred by failing to take the statutory declaration of the interpreter into account. The RPD erred by failing to take the interpreter's explanation into account, including the emphasis he placed on the cultural issues surrounding his relationship with C. As sworn testimony, it is presumed to be true. The RPD was required to provide adequate reasons to discredit it.10 Counsel submits that the RPD failed to assess the statutory declaration in light of all of the other evidence. RAD Assessment [17] The RPD did not err in its assessment of the statutory declaration. The interpreter's statutory declaration was sworn on November 15, 2016, after the rejection of the claim by the RPD.11 Although it was filed as new evidence on appeal, the RAD did not admit it as new evidence. The deponent states that he and the Appellant took about seven evenings to prepare the narrative. Although he assumed that former RPD counsel would have met with the Appellant to discuss it, this did not happen. Counsel provided a typed version of the narrative at their last meeting before the claim was filed. Counsel said that the forms were fine and that they would be taken to Immigration Canada. New counsel told him that the English narrative should have been read back to the Appellant in Kurdish. They quickly became aware that there were errors and omissions after the forms were filed. Although the Appellant told him that he was being followed and that his house was shot at, he did not include these incidents because he did not realize that these incidents were critical. Because of the cultural context of the risk, he put the emphasis on what the Appellant did to incur the anger of C's family. [18] The RPD did not ignore the statutory declaration, but rather devoted over one page at paragraphs 14-17 of its reasons to evaluate it.12 The RPD stated that the statutory declaration was sworn after first RPD rejected the claim. No notes from the interview were provided. The BOC narrative is very detailed and it meticulously records all aspects of the development of the relationship, but omits important references to surveillance and the house being fired upon. Even if the RPD accepted that the narrative was not read back to him, the Appellant should have filed a BOC amendment after the omissions were identified and prior to the first hearing, given the fact that the Appellant was represented by counsel. Furthermore, the Appellant could not clearly identify what was missing from the narrative at the beginning of the second hearing. More likely than not, his version of events was evolving throughout the refugee claim process. The RPD did not err in this assessment. It is true that the cultural context explains why having sex with an unmarried woman whose family had already arranged a marriage would evoke strong anger on the part of the woman's family, who could interpret this as an offence to their honour. The BOC narrative is about three single-spaced pages. It is not until the end of the second page that reference is made to him asking C's father for permission to marry. The lengthy narrative about their courtship contributes little to the relevant issue which concerns the physical nature of a pre-marital relationship which could be perceived as dishonouring the family. Reference is later made to the Appellant hiding in a friend's house and to complaints made to the police, but not to the key issues of surveillance by State intelligence services and shots fired at the house. The RPD considered a number of contributing factors and, in light of all of them, correctly concluded that the statutory declaration does not adequately account for the BOC omissions. [19] The RPD considered the Appellant's overall credibility and the degree to which other supporting documents assist in establishing the material facts of the claim. The RPD considered the relevant allegations in the statutory declaration and provided adequate reasons to support giving the document little weight. The RPD also provided adequate reasons throughout the decision to rebut the presumption that the Appellant's testimony is true. In light of all of the record, my independent assessment leads me to conclude that the RPD did not ignore evidence in arriving at its decision. [20] By way of an additional comment, I note that the statutory declaration alleges that the first RPD counsel failed to adequately supervise the drafting of the BOC narrative. In particular, counsel never met with the Appellant to review the narrative, nor did he ensure that it was read back to the Appellant with the assistance of the interpreter. [21] The Federal Court has held that the threshold for establishing a breach of procedural fairness because of the inadequate conduct of counsel is "very high."13 This will only be the case under "extraordinary circumstances." This must be established "without the benefit and wisdom of hindsight". Former counsel must be given an opportunity to reply to the accusations. According to the Supreme Court of Canada, there is a strong presumption that counsel's conduct fell within a wide range of reasonable professional forms of assistance. The onus lies on the appellant to establish that the acts of omissions complained about are not the result of reasonable professional judgement.14 [22] The Federal Court's requirement that former counsel be given notice of the accusations and an opportunity to respond finds expression in an Immigration and Refugee Board of Canada (IRB) Practice Notice (Allegations Against Former Counsel) which applies to all four of its divisions. Among other things, it stipulates that a copy of the Appellant's Memorandum be disclosed to former counsel, together with all documents that contain the allegations, signed authorization to release any privilege, a copy of the Practice Notice, and written notice that counsel has ten days to respond. Proof of service must then be filed with the RAD. The Appellant has failed to comply with this requirement, yet submits that former counsel's failure to provide adequate assistance, can adequately explain the BOC omissions. It is unfair to attribute errors and omissions to former RPD counsel without having advised him of the issues and having given him an opportunity to respond. As a matter of policy, the IRB has determined that RAD appeals should not proceed on the basis of untested allegations made without former counsel's knowledge. Did the RPD err by failing to consider all of the evidence? Submissions by the Appellant [23] Counsel submits that the RPD erred by giving no weight to statements from family and friends because they are interested parties.15 In addition, the RPD employed "a series of rolling credibility findings" based on prior adverse conclusions, rather than assessing it on its own merits.16 RAD Assessment [24] The Appellant filed a statement from his uncle, XXXX XXXX XXXX XXXX XXXX.17, dated August 20, 2017, which states that he visited C's family in June 2015 to ask permission for the Appellant to marry C. Her father refused and told them to stay away from his family.18 A statement from another uncle, XXXX XXXX XXXX XXXX XXXX.19 says the same thing.20 According to a statement from the Appellant's aunt, XXXX XXXX XXXX XXXX XXXX.21, the Appellant hid with her for a few days in October 2015 because of a conflict with the family of his girlfriend. This family has strong connections with the government and is influential in the community. The Appellant changed his hiding place every few days and the family is still looking for him.22 A statement from another uncle, XXXX XXXX XXXX XXXX XXXX.23, indicates that the Appellant hid at his place for a few days due to a conflict with his girlfriend's family. The family has strong connections with the government and is influential in the community.24 [25] The RPD refers to these statements at paragraph 23 of its reasons, but gave little weight to them due to its finding that the Appellant is not a credible witness, because they are not disinterested parties, and because his mother likely filed a police report in January 2016 to bolster the claim. [26] Evidence from third-parties may not be rejected solely on the basis of a finding that a claimant is generally lacking in credibility.25 Independent evidence is not proven to be false by the mere fact that the Appellant's testimony is unreliable and could not alone establish that a fact is true.26 Similarly, statements cannot be rejected for the mere fact that they were written by family members who are not disinterested parties. [27] I agree with the counsel that the RPD failed to provide adequate reasons for assigning little weight to the supporting letters. However, my independent assessment of the documents leads me to the same conclusion. All of them were signed on August 20, 2017, after the Appellant's claim was initially rejected by the RPD. According to his BOC, he filed a complaint with the police while in hiding with a friend, but he made no mention of moving every few days and living with relatives. Although Schedule A states that he was in hiding from October 2015 until January 2016,27 it does not indicate that he moved around. This came out for the first time during at the hearing. This is a material fact that should have been included in either the BOC or an amendment filed prior to the hearing. [28] Assuming that it is true that the Appellant went into hiding after unidentified assailants fired shots at the Appellant's house and threatened him and that he spent a few days with an aunt and a few days with an uncle, this does not address the question of the identity or the motivation of the assailants. Assuming that it is true that family members met C's father in June 2015 and were told to stay away, this alone does not establish a connection with the shots fired in September. Assuming that it is true that the family members who wrote the supporting documents genuinely believe that the Appellant is at risk from a person who is influential and well-connected with the government, the letters do not identify the name of the organizational connection, the source of this information, when they learned it, and whether it is independent of the Appellant. In particular, the letters do not support the claim XXXX XXXX XXXX XXXX State security is behind the risk. Given that significant omissions and inconsistencies, the RPD correctly concluded that the Appellant lacks overall credibility. The supporting documents are not sufficiently independent of the Appellant, nor do they provide sufficient reliable details to establish credibility that he is at risk for the reasons stated by him. Did the RPD err in its assessment of the police reports? Submissions by the Appellant [29] The police report states that shots were fired over the house, whereas the Appellant filed photographs of bullet holes in his house. Counsel submits that the officer who took the notes may have misheard or the translation may be poor. The Appellant was not given notice that this minor issue was of concern to the RPD. RAD Assessment [30] Counsel's submission that the officer who took the reports may have misheard is speculative. In addition, the Appellant's complaint from September 2015 and that of his mother, from January 2016 both state that shots were fired over the house. Counsel's suggestion is based on an unlikely coincidence that an officer misheard testimony on two different days from two different people and made the same mistake. [31] The RPD pointed out to the Appellant during the hearing that his police report indicates that shots were fired over the house by unknown assailants who threatened him, and then asked for his comment.28 However, the focus of the discussion was the BOC omission, not the inconsistency between his testimony that shots were fired at the house and the police report which indicates that shots were fired over it. This was not an issue of concern during the hearing. [32] The RPD considered the two police reports at paragraph 18 of its reasons for decision.29 The first, dated XXXX XXXX, 2015 attests that the Appellant went to the police on XXXX XXXX, 2015 concerning shots fired at the house.30 The second is from XXXX XXXX, 2016 and states that his mother attended the police department in XXXX 2016 to report the threat.31 The testimony of the witness who took photographs of the house was also considered. The RPD accepted that shots were fired at the house which left bullet holes, but not that shots were fired over the house as stated in the police report. Nevertheless, it concluded that the evidence does not credibly establish who fired them, when and why. The RPD did not draw an adverse credibility inference from this inconsistency, but rather simply acknowledged that it cannot both be true that shots were only fired over the house and that they were fired into the house at the same time. The RPD did not err in making this passing observation without having put it to the Appellant during the hearing. Because the issue of the inconsistency was evident on the record and the panel specifically drew his attention to it, he had a reasonable opportunity to have responded to it if he had so chosen. [33] The RPD acknowledged the statements received from family members, but gave them limited weight as a result of the other credibility concerns. Furthermore, the RPD stated that they are not disinterested parties, and that their letters do not provide sufficient clear and reliable evidence to corroborate the Appellant's testimony. The police report provided by his mother was likely obtained to bolster the claim. [34] The first police report states that the Appellant went to the police in XXXX on XXXX XXXX, 2015 to report that unknown assailants fired several bullets over his house and threatened him. His report was registered and presented to an investigating judge who ordered an investigation into the matter and the arrest of the assailants.32 A photograph of a building with some large holes was filed.33 The person who took the photographs also testified at the hearing and stated that, in his opinion, they are likely bullet holes. Although the RPD expressed some surprise during the hearing that bullets could have left holes as large as those in the building, it ultimately accepted that they were bullet holes in its reasons for decision. Not only did the RPD not ignore evidence, it accepted that the house was fired upon, as alleged. In so doing, it gave more weight to the Appellant's testimony and to the photographs than to the police reports which provided conflicting information. It did not conclude that the police reports are inauthentic, but only that this piece of information is erroneous, given its preference for the Appellant's testimony. The RPD did not err in this conclusion. [35] In addition, the RPD gave more weight to the police report which states that the Appellant was unable to identify the assailants than to his testimony that agents of the State intelligence service sent by C's uncle were responsible. The RPD provided clear, transparent and intelligible reasons to justify this conclusion. [36] The second police report states that the Appellant's mother went to the police station on XXXX XXXX, 2016 to report that unknown assailants fired shots over the Appellant's house which caused him to flee from there.34 This report was filed one week after his arrival in Canada. Given that the Appellant had already filed a complaint, that an investigation was already underway, and that he had already left the country, it is unclear what purpose this police complaint would have served in order to ensure his protection. In any event, his report adds little to the initial complaint made to the police by the Appellant on XXXX XXXX, 2015. Did the RPD err in its assessment of inconsistent testimony about last contact with C? Submissions by the Appellant [37] The Appellant testified that he could not remember when he was last in contact with C. When pressed, he contradicted the BOC by saying September. His inability to remember should not count against his credibility. The RPD relied on a memory test as part of an overzealous quest for inconsistencies. RAD Assessment [38] According to the RPD, the BOC indicates that the Appellant was in contact with C secretly by phone until November 2015. However, he provided contradictory testimony.35 The RPD did not err in taking inconsistent testimony into consideration. The BOC indicates that they continued communicating secretly until C's phone was seized in November and analysed by State intelligence authorities. However, he testified that C's father followed her to the park, saw the phones, read the messages and found out that they had been sleeping together. The two versions of events are so fundamentally different that they cannot reasonably be attributed to a memory issue. Did the RPD err in its assessment of the Appellant's knowledge about the uncle? Objections by Counsel [39] The RPD concluded that the Appellant avoided giving clear answers, that his testimony about C's uncle working for Asayish was not credible because of the highly visible nature of their surveillance, and that there is an inconsistency between the allegation that C's uncle would arrange for his death anonymously and the use of an AK-47 to fire on his house. The Appellant submits that this assessment is erroneous. The Appellant made serious efforts to describe the nature of the uncle's organization, rather than providing the name. He testified that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. When specifically asked for the name of the organization, he said that "it is something like an intelligence department."36 It has a different name in Sulaymaniyah and in Erbil. When the RPD asked if he was referring to the Asayish, he said yes. The RPD failed to account for barriers that may have made it difficult for the Appellant to have presented the evidence more clearly. The RPD incorrectly characterized its attempts to formulate the answers as evasiveness. [40] The RPD erred by engaging in an impermissible adverse plausibility finding with respect to how the panel believed the security service to have conducted surveillance. The RPD did not cite any evidence about how the Asayish conducts its work. In addition, the RPD applied Western standards to its appraisal of their surveillance techniques. RAD Assessment [41] According to the RPD, testimony about surveillance was omitted from the BOC. The Appellant was unable to provide a clear answer to the question who C's uncle worked for. After repeated questioning, he answered in the affirmative to the question of whether he means Asayish. In addition, his testimony about being under surveillance was vague and lacks credibility. First, he provided inconsistent testimony between the uncle's stated intention to kill him in such a way that nobody would know, and his reference to being under constant surveillance. Second, the description of the surveillance techniques used were considered by the RPD to be "comically poor"37 for an intelligence agency. [42] The RPD did not err in this assessment. A review of the hearing clearly demonstrates that the Appellant was unable to provide a clear description of who the uncle worked for. The RPD repeatedly asked for details about his uncle's employer, but received vague responses. The Appellant had ample opportunity to provide an adequate answer, but failed to do so. He was assisted by an interpreter at the hearing. No identifiable barrier accounts for his failure to provide credible testimony about his assailants. No identity is provided for the assailants in the BOC narrative, an amendment, the police reports or in the statements from family members. In light of the totality of the evidence, this allegation likely represents an embellishment on the Appellant's part. [43] Implausibility findings should only be made in the clearest of cases. The Appellant testified that C's uncle threatened to kill him in such a way that nobody would know who did it. On the other hand, he testified that a State intelligence agent put his house and place of employment under surveillance with conspicuous vehicles and opened fire on his house. Although I agree with counsel that the RPD should not speculate about procedures adopted by intelligence agencies without evidence, the RPD was entitled to consider the inconsistency which it identified. The RPD had sufficient reasons on other grounds to reject the trustworthiness of his testimony on this issue. Was the RPD incoherent it its assessment of the holes in the wall of the Appellant's house? Submissions by the Appellant [44] The RPD erred by drawing inconsistent conclusions from the evidence of bullet holes in his house. On the one hand, it was used to discredit his testimony that shots were fired over the house, but it was then held not to establish that his house was attacked. The RPD's reasons are unintelligible on this issue. RAD Assessment [45] The RPD did not err in this assessment, as alleged by counsel. However, it erred by failing to provide an intelligible assessment of this issue. The RPD states at paragraph 20 of its reasons for decision that it does not believe the statement in the police report that bullets were fired over the house rather than into it. It also mentions that this is not in the BOC, but does not explain the consequence of this.38 It is evident from its reasons for decision that the RPD accepted that bullets were fired at the house, but not over the house as indicated in the police report. This amounts to a logical inference that shots could not have been fired over and at the house at the same time. This does not necessarily amount to an adverse credibility inference, given that the RPD accepted the Appellant's version of events. However, the RPD noted that the Appellant did not tell the police the same thing as he later testified to and appears to have drawn an adverse inference from this at paragraph 21. Counsel is not correct that the RPD was inconsistent, as alleged. Although the RPD believed the Appellant's testimony about the house having been fired at, it noted that he likely said something different to the police with respect to shots having been fired over it. It is unclear from the RPD's reasons for decision what significance this had for its assessment of overall credibility. The RPD erred by failing to provide clear, transparent and intelligible reasons on this issue. Did the RPD err in drawing an adverse inference from his delay in leaving Iraq? Submissions by the Appellant [46] The RPD drew an adverse inference from the Appellant's delay in leaving the country because it refused to consider his explanation as a result of previous adverse credibility findings. The panel erred by not conducting a separate analysis of his explanation. RAD Assessment [47] The RPD did not err, as alleged. The RPD noted that the Appellant received a Canadian TRV on XXXX XXXX, 2015, but did not leave the country until XXXX XXXX, 2016. It did not accept the explanation that the friend who helped him obtain the visa was out of the country with his passport. This conclusion was based on the fact that no mention is made of this in the BOC, it stretches credulity, it finds no support in the evidence, and the Appellant is not otherwise credible. The RPD did not base its conclusion solely on its determination that the Appellant is not generally credible, but considered other relevant factors in support of its assessment, including his failure to state this in his BOC. Concluding remarks [48] Although the RPD erred a few times as previously outlined, its overall assessment is correct. The RPD ought to have considered all of the documentary evidence together with the omissions and inconsistencies before making its credibility findings. Nevertheless, my independent assessment concurs with the RPD's conclusions. The Appellant is not a credible witness, and the supporting evidence is insufficient to establish the facts as alleged by the Appellant. Although the evidence shows that the Appellant went into hiding after shots were fired at his house, it is unlikely that this event had anything to do with State intelligence services or with C's powerful uncle. Although an assessment of a claimant's residual profile is required in such circumstances, the Appellant's unwillingness to be truthful about what really happened deprived both the RPD and the RAD of a sufficient factual basis upon which to base such an assessment. Information about the identity of the assailants, the reason for the attack, the nature of the threats and whether there is any future-oriented risk would need to be addressed. The Appellant has not provided credible and trustworthy evidence that would permit an assessment of these issues. [49] The Appellant does not have a well-founded fear of persecution, nor would he likely be killed, tortured, or subject to cruel and unusual treatment or punishment should he return to Iraq. CONCLUSION [50] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the IRPA. (signed) H. Shepherd H. Shepherd July 29, 2020 Date 1 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII). 4 Exhibit P-2, Appellant's Record, volume 2, p. 689. 5 Ibid., volume 1, pp. 30-41. 6 Ibid., p. 34. 7 Ibid., p. 41. 8 Exhibit RPD-1, RPD Record, Exhibit 2, p. 21. 9 Refugee Protection Division Rules (SOR/2012-256). 10 Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC) at para. 17. 11 Exhibit RPD-1, RPD Record, Exhibit 16, pp. 299-301. 12 Exhibit RPD-1, RPD Record, RPD Reasons, pp. 7-8, paras. 14-17. 13 Galyas v. Canada (Citizenship and Immigration), 2013 FC 250 (CanLII). 14 R. v. G.D.B., 2000 SCC 22 (CanLII), [2000] 1 SCR 520 at para. 27. 15 Tabatadze v. Canada (Citizenship and Immigration), 2016 FC 24 (CanLII) at paras. 6-7. 16 Wang v. Canada (Citizenship and Immigration), 2017 FC 19 (CanLII) at para. 34. 17 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision. 18 Exhibit RPD-1, RPD Record, Exhibit 17, p. 305. 19 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision. 20 Exhibit RPD-1, RPD Record, Exhibit 17, p. 307. 21 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision. 22 Exhibit RPD-1, RPD Record, Exhibit 17, p. 309. 23 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision. 24 Exhibit RPD-1, RPD Record, Exhibit 17, p. 311. 25 Canada (Citizenship and Immigration) v. Sellan, 2008 FCA 381 (CanLII) at para. 3. 26 Dhaliwal v. Canada (Public Safety and Emergency Preparedness), 2015 FC 157 (CanLII) at paras 85 and 86. 27 Exhibit RPD-1, RPD Record, Exhibit 1, p. 36. 28 Exhibit P-2, Appellant's Record, volume 2, p. 49. 29 Exhibit RPD-1, RPD Record, RPD Reasons, p. 8, para. 18. 30 Exhibit RPD-1, RPD Record, Exhibit 7, p. 182. 31 Ibid., p. 184. 32 Ibid., p. 182. 33 Ibid., Exhibit 12, p. 262; see also Ibid., Exhibit 14, pp.274-275. 34 Ibid., Exhibit 7, p. 184. 35 Exhibit P-2, Appellant's Record, volume 1, pp. 53-57 36 Ibid., p. 69. 37 Exhibit RPD-1, RPD Record, RPD Reasons, p. 9, para. 21. 38 Ibid., p. 8, para. 20. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-09194 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