TB4-05662

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. / N° de dossier de la SAR : TB4-05662 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 9, 2014 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Michael F. Loebach Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of Iraq, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] The Appellant submitted new documents to be considered as new evidence pursuant to s. 110(4) of the Immigration and Refugee Protection Act (the Act). The Appellant also requests a hearing before the Refugee Appeal Division (RAD) pursuant to s. 110(6) of the Act. [3] The Appellant requests that the appeal be allowed and the RAD set aside the determination of the RPD and refer the matter back to the RPD for redetermination by a differently constituted panel and, in the alternative, the Appellant be found to be a Convention refugee or a person in need of protection. DETERMINATION [4] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA or the Act), the RAD remits the matter back to the RPD for redetermination by a differently constituted panel. This appeal is allowed. Background [5] The Appellant alleged before the RPD that he worked as a XXXX for "XXXX XXXX XXXX" ("XXXX"), XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX to XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2005 to sometime in 2007. The Appellant survived an attack by Al-Saddir militias on XXXX XXXX, 2007 during which his employer, XXXX, was killed. After the attack he fled Iraq for Syria, where he lived from XXXX 2007 until XXXX 2011 and made his living in Syria by XXXX XXXX XXXX XXXX XXXX. [6] On or about XXXX XXXX XXXX 2013, "some men"1 attacked the home of his ex-wife and eight of his children telling them that the Appellant was not a Muslim as he worked with Americans, and inquired about his whereabouts. He fled Iraq on XXXX XXXX, 2013, fearing for his own life. He fears harm from Islamic terrorists known as the Al-Saddir militias. He arrived in Canada in early July 2013 and claimed refugee protection shortly after his arrival in Canada. [7] His claim was heard on September 9, 2013 and September 26, 2013; the RPD rendered a written decision on May 26, 2014. The RPD found that the Appellant was not credible and "there is not a serious possibility or reasonable chance that the claimant would be persecuted in Iraq or that, on a balance of probabilities, he would be personally subjected to a danger of torture or face a risk to life or of cruel and unusual treatment or punishment." [8] The Appellant's Issues (in his words) are as follows: * What is a standard of review at the Refugee Appeal Division?; * Did the Member err disbelieving the Appellant's testimony due to the Appellant's lack of evidence regarding the American army nexus?; * Did the Member err implying higher standard of proof?; * Did the Member err failing to address every ground of risk put forward by the Appellant?; * Did the Member err in not considering the totality of the evidence with the respect to the Appellant's claim for refugee protection?; * Did the Member err ignoring evidence which established the Appellant's need for protection?; * Did the Member provide adequate reasons in reaching his decision?; * Does the Refugee Appeal Division have jurisdiction to consider the new evidence provided by the Appellant? Role of the RAD [9] The Appellant was given an opportunity to make submissions on recent Federal Court decisions regarding the RAD's role. [10] The Appellant's submission may be summarised as the RAD has a duty to review all the evidence presented before the RPD, which is consistent with Huruglica,2 which I will follow, and where the court stated the following: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. 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. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error". New Documents submitted by the Appellant: [11] The Appellant submitted 10 documents that it wants the RAD to accept as new evidence pursuant to s. 110(4) of the Act. The documents submitted are as follows: * Religious Divorce Paper, XXXX XXXX, 2010; * Affidavit of XXXX XXXX, XXXX XXXX, 2013; * Affidavit of XXXX XXXX XXXX, XXXX XXXX, 2013; * Letter from XXXX XXXX XXXX XXXX, 2014; * Letter from the Ministry XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX at XXXX XXXX XXXX XXXX XXXX, 2012; * Letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2012; * Letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX * Letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2014; * Letter from XXXX XXXX XXXX; * Death Certificate XXXX XXXX XXXX XXXX XXXX. [12] In order for the RAD to consider this as new evidence, it must meet the criteria set out in section 110(4) of the Act, which provides that the evidence proffered must not have been reasonably available at the time of the hearing, and states: S.110 (4): On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [13] Additionally, if the evidence meets the statutory criteria, it must also be assessed against the factors set out in Raza,3 which is the leading case on "new" evidence. Even though the Raza case was specific to the Pre-Removal Risk Assessment (PRRA) process, I consider it relevant to the RAD because the wording in s. 113(a) of the Act, which is regarding PRRA provisions, and section 110(4) of IRPA regarding the RAD are similarly worded. [14] In Raza, the court posed the following questions that needed to be asked in deciding whether to accept new evidence for a Pre-Removal Risk Assessment case. These, as summarized by the Court, are: * Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. * Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. * Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or, (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or, (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. * Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered. [15] The RAD applied Raza in considering whether to accept these documents. The Appellant did not state why the documents submitted on appeal were not reasonably available or presented to the RPD prior to the rejection of the claim. It is particularly relevant in this case because the RPD waited for nearly eight months after the conclusion of the hearing to write its decision. I will now comment on each of the documents submitted on appeal. [16] Document 1 is not relevant to the appeal, and thus is not accepted as new evidence. The issue of his divorce from his first wife was not an item of concern for the RPD. [17] Documents 2 and 3 are not accepted as new evidence because the information contained therein did not arise after the rejection of the claim, thus they do not meet the statutory requirements of the Act. Moreover, these documents are lacking in credibility as the statutory declaration bears the heading City of London and Province of Ontario Canada; yet the declaration is made in the province of Alberta. To add to the confusion, the Commissioner for Oaths in both documents is the same person; however, in one is just the Commissioner for Oaths, a Notary Public for the Province of Alberta (page 145 of Appellant's record) and in the next declaration the words "a Notary Public" has been crossed out. I am not sure whether this Commissioner of Oaths is a Commissioner of Oaths and a Notary Public or a Commissioner of Oaths only and whether they are issued in London, Ontario or in Calgary, Alberta. [18] Document 4 is the letter from XXXX XXXX; it is handwritten in English and states that he brought some documents from Iraq at the request of the Appellant. I note that the name of the alleged friend/employer of the Appellant written in this letter is Mr. XXXX XXXX (could be XXXX). This is not the name of the Appellant's employer as per the next two documents - the central compensation committee, as well as the XXXX XXXX XXXX which show the name "XXXX XXXX XXXX XXXX XXXX." Moreover, this letter does not state what and how many documents he received and brought for the Appellant. For this reason, this document is not credible and does not meet the criteria of new evidence. [19] Document 5 is a "Letter from the Ministry of XXXX XXXX XXXX XXXX XXXX XXXX XXXX", which is dated XXXX XXXX XXXX 2012, and did not arise after the rejection of the claim; therefore, does not meet the statutory conditions of the Act. This document states an incident is the killing and burning of his car at XXXX XXXX XXXX highway by the terrorist militias. It does not identify which terrorist militias; moreover, it requests "actual details and information related to the claimant's statement and allegations to enable us to decide compensation." This document allegedly has an ink stamp of the Ministry of Interior, the same as document number 6 which is another letter issued by the Ministry of the Interior. This document is extremely confusing, and the first bullet point on this page states, "the corpse was sent to Medical Jurisprudence," and refers to an incident that took place "inside the car parking lot." This document appears to contradict the Appellant's statement in the Appellant's record - this is Page 76 which states, "we were about 40 trucks driving together, XXXX truck was driving ahead of us", yet the report from the police department lists five vehicles - trailers. It adds confusion to the Appellant's testimony that there were 40 vehicles in the caravan and yet the report lists five trailers damaged. Document 9 is a letter from somebody who worked with the Appellant and also states "all vehicles were burnt including my vehicle.4" Even if I were to accept this document, it does not establish a relationship between the deceased person and the Appellant, and that the deceased person or the Appellant worked for the Americans. Therefore, documents 5 and 6 are not accepted into evidence. Moreover, both of these documents did not arise after the rejection of the claim and therefore they do not meet the statutory condition of the Act. [20] Similarly documents 8 and 9 are letters which described situations prior to the rejection of the claim and do not meet the statutory requirements of the Act. Therefore, these documents are also not admitted as new evidence. [21] Document 10 is the death certificate of XXXX XXXX XXXX XXXX XXXX which essentially confirms the death of XXXX, but it does not establish the relationship between the Appellant and the deceased and whether the Appellant had done any work for the Americans. Therefore, this document is not accepted into evidence as it is not material as per Raza above. The RPD did not question that XXXX died and this document would not have changed the outcome at the RPD hearing. [22] Therefore, the appeal will be considered on the basis of the record and the arguments in the Appellant's memorandum. [23] The Appellant's second issue is, "Did the Member err disbelieving the Appellant's testimony due to the Appellant's lack of evidence regarding the American army nexus?" The RPD rejected the claim and a significant issue in credibility was a lack of corroborative evidence to establish that the Appellant worked as a sub-contractor linked to the Americans. The Appellant submits, in paragraph 61 of the Appellant's memorandum, that the Appellant did provide such evidence and it was entirely ignored by the Member. The Appellant further submits that the evidence was provided that refers to a declaration by XXXX XXXX XXXX XXXX, the Appellant's ex-wife, which speaks of the XXXX XXXX XXXX militias attack on her home and states that the militia called her husband an infidel because he was working with the American forces.5 The other declarations - one by the Appellant's brother6 and one by the Appellant's mother7 - also make reference to the Appellant working for the Americans. [24] After a careful review of the RPD's reasons for decision as well as a read of the transcript of the audio recording of the hearing, I find no evidence that the RPD considered these three documents. It was open to the RPD to assign appropriate weight to these documents, but to totally ignore these documents is an error considering they go to the core of the claim. [25] I acknowledge that the Minister intervened in the RPD hearing and provided evidence regarding the Appellant's credibility, and the RPD has numerous concerns about the Appellant's credibility. It is not essential for the RPD to refer to each and every piece of the documents/evidence submitted by the Appellant, however ignoring evidence that goes to the core of the claim and in impugning the credibility of the Appellant without making any reference to such evidence is an error. It is trite law that the RPD is presumed to have considered all the evidence before it but this presumption can be rebutted, as in this case. [26] I do not have sufficient credible evidence on which to find whether the Appellant is a Convention refugee or a person in need of protection under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. Therefore, the RAD remits the matter to the RPD for redetermination by a differently constituted panel. The final outcome of the RPD's hearing may or may not be any different than that made by the Member on May 26 2014. This appeal is allowed. [27] Considering that the RPD is able to set aside the RPD's determination on the Appellant's issue number two, the RAD is not going to consider other remaining issues. [28] Since no new documents submitted by the Appellant for consideration as new evidence are being accepted as new evidence, therefore the RAD will not conduct a hearing pursuant to section 110(6). DISPOSITION [29] Pursuant to Section 111(1)(c) of IRPA, the RAD refers the matter back to the Refugee Protection Division for re-determination by a differently constituted panel because the RAD cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. [30] This appeal is therefore allowed. (signed) 'Atam Uppal' Atam Uppal October 9, 2014 Date 1 Exhibit 2, Basis of Claim Form, Narrative l, 59. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799 3 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385 4 Appellant's Record, page 157 5 Appellant's Record, page 100. 6 Ibid., page 98 7 Ibid., page 102. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05662