TB4-05981

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 : TB4-05981 TB4-05982 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision erson(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 3, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Luwam Lily Tekle 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 XXXX (hereinafter referred to as the P.A.), and her daughter, XXXX XXXX XXXX XXXX XXXX XXXX, are appealing the decisions of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have submitted new evidence in support of their appeal and are requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellants are requesting that they be found to be Convention refugees or persons in need of protection or, in the alternative, that the matter be referred back to a differently-constituted panel of the RPD for re-determination. DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111 (1) (a) of the Immigration and Refugee Protection Act ("IRPA"), the Refugee Appeal Division ("RAD") confirms the decision of the RPD, that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. Background: [3] The Appellants' claims are based on two issues. The first is the fact that the P.A.'s husband was planning to force her daughter (the Appellant) to marry a wealthy older businessman in Qatar, and when the P.A. and her daughter refused, they were both abused, according to their Basis of Claim forms (BOC's). [4] The Appellants also fear being targeted by Shia militias in Iraq as they are Sunni Muslims. PROCEDURAL MATTER [5] The procedural events occurred as follows: * The RPD hearing was held on May 28, 2014 and the RPD rendered its decision on June 9, 2014. * The Notice of Appeal ("NOA") was filed with the RAD on June 24, 2013. * On August 8, 2014, the RAD contacted counsel for the Appellants, as directed by the acting Assistant Deputy Chairperson. The Appellants were advised that their appeals would be dismissed for lack of perfection as of August 22, 2014, if they did not file an Application for an Extension of Time to File or Perfect an Appeal before that date. * On August 22, 2014, the Appellants filed such an application, and they argued that due to a miscalculation by their counsel they did not meet the time limit. * On September 29, 2014 the RAD allowed the extension of time, and their appeal was deemed perfected as of that date. * On November 10, 2014, the Appellants submitted an Application to Submit Documents Not Previously Provided under Rule 29 of the RAD Rules and an Extension of Time Request to Perfect the Appellants' appeal record. * On November 28, 2013, the RAD notified the Appellants that Rule 29 was the correct procedure to apply to have documentary submissions considered after an appeal is perfected, not an application for extension of time. NEW EVIDENCE [6] The following new evidence has been submitted by the Appellant:- * A copy of a death certificate indicating the death of XXXX XXXX, the P.A.'s brother-in-law, due to gunshots fired to the head. * A copy of a document issued on November 30, 2005 and valid until November 30, 2006 in which it is indicated that XXXX XXXX XXXX XXXX XXXX was employed with the Ministry XXXX XXXX XXXX in Iraq. This document confirms the identity of the P.A.'s brother-in-law who died. * Copy of a document "Ministry of Migration and Displaced People Registration Centre of Returned People in the name of XXXX XXXX XXXX XXXX XXXX XXXX XXXX (the P.A.'s sister) with the departure date of XXXX XXXX, 2007 and the return date of XXXX XXXX, 2008. This was submitted by the Appellant to refute the contradictory evidence with respect to the P.A.'s sister's residency in either Iraq or Jordan. * Documentary evidence dated XXXX XXXX, 2014 entitled "British prepares to send troops back to Iraq. * Documentary evidence from the web dated November 05, 2011 entitled "Isil fights make gains in northern Iraq." * New Country Guidance from the internet dated November 05, 2014 asking for donations and highlighting various groups, such as women, LGBTI, children, ethnic minority groups, etc. * News from the web entitled "Baghdad braces for more ISIL attacks dated November 5, 2014. * News from the web entitled "Canada's forces face daunting mission against ISIS in Iraq dated November 5, 2014. * News article dated November 05, 2014 entitled "ISIS mass executions of Sunni men, women and children in Iraq continues." * News article dated November 05, 2014 entitled "Officials: 50 Iraqis executed by ISIS in latest massacre." * News article dated November 05, 2-014 entitled "U.N. expresses "deep outrage" at ISIS. * News article dated November 05, 2014 entitled "Women in Syria and Iraq at high risk for sexual enslavement by ISIS". * News article dated September 23, 2014 entitled "Iraq: Be captured and killed or risk dying of hunger". * News article dated November 05, 2014 entitled "Islamic state orders women to wear full-face veil or risk "serious punishment". * News article entitled "Women and girls in Iraq risk forced circumcision". * News article dated September 23, 2014 entitled "Action Hunger". * BBC news article dated September 23, 2014 entitled "The fighters are everywhere". * ABC news dated September 23, 2014 entitled "What life is like in Baghdad right now". * US Travel warning dated August 2014. [7] The RAD has considered the following "new" evidence, pursuant to the RAD Rule 29(4) and the factors set out in the Rule. It has also considered Section 29 (3) and (4) of the RAD Rules state: (3) The person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsection 110(4) of the Act and how that evidence relates to the person, unless the document is being presented in response to evidence presented by the Minister. (4) In deciding whether to allow an application, the Division must consider any relevant factors, including: (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and, (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL Express statutory conditions: [8] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that he/she could not reasonably have been expected in the circumstances to have presented at the time of the rejection. [9] The Appellant draws the RAD's attention to the new personal evidence of a death certificate for the P.A.'s brother-in-law and the Appellant's uncle, who were both murdered in Baghdad by extremists groups in XXXX 2013. The Appellants also provided a copy of Mr. XXXX XXXX XXXX identification document (brother-in-law, his place of employment in Iraq). [10] The Appellant acknowledges that while the perpetrators are not indicated in the death certificate, the cause of death is identified as "gunshots to the head." The Appellant submits that this death certificate provides legitimacy to the Appellants' concerns that they could also be targeted in Iraq as a result of their religious faith. [11] The RAD finds that, given the death of the P.A.'s brother-in-law in XXXX, 2013, this certificate does not meet the statutory requirement. [12] The Appellants provided an identification card for XXXX XXXX XXXX XXXX, the Appellant's sister and the Appellant's aunt, from the Ministry of Migration and Displaced people. It is submitted that this document supports the Appellants' assertions that XXXX sister had moved from Iraq and was no longer living there, as she had testified that her sister is now in Jordan. The Appellant acknowledged that these personal documents pre-date the refugee hearing; the Appellants obtained these documents approximately two months ago and they were, therefore, not reasonably available at the time of the hearing in May 2014. The RAD acknowledges that the Appellants could not have reasonably known that these documents would be required. Accordingly, they meet the Statutory requirements. However, the RAD finds that this document does not meet the factors as set out in Rule 29(4), as they have no probative value with respect to the central aspects of this claim. [13] The Appellants further submit that the copious country conditions package provides no objective evidence in support of the Appellants' claims that they are at risk of persecution based on their gender, the dangerous country conditions in Iraq, and their religious status as Sunni Muslims. [14] The country documents all post-date the rejections of the claims. They have been submitted by the Appellants to re-enforce the situation in Iraq in terms of generalized risk as well as providing current conditions and they are, therefore, admitted and will be considered when assessing the risk to the Appellants in Iraq. The RAD has been sensitive to the recent decision in Singh, and has not applied the factors strictly. [15] Under subsection 110(6) of IRPA, the Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3): (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and, (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [16] Since the documents admitted by the RAD do not meet the factors as set out above, the RAD has no jurisdiction to conduct an oral hearing. ROLE OF RAD: [17] In line with counsel's argument, a recent Federal Court decision in Huruglica1 has provided the RAD with guidance on the role of the RAD. Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision. 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 an "overriding and palpable error." [18] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau in Alyafi2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. The RAD has applied the reasoning as set out in Huruglica. SUBMISSIONS BY COUNSEL [19] Did the RPD err in failing to consider grounds of persecution? [20] Did the RPD err in drawing adverse inferences from the evidence in the face of reasonable explanations contrary to its findings? Timing of Appellant's attempted suicide: [21] The P.A. testified that her daughter had attempted suicide in XXXX and in XXXX 2013. However, this evidence contradicted the information contained in her application for refugee status (Port Of Entry), in which her daughter had indicated the timing to be once after she finished high school and again in 2012. The P.A. was unable to explain the contradiction, however, her daughter explained that she was tired that day and there were dialect issues with the interpreter, who was interpreting by telephone. The RPD drew a negative inference as a result. [22] The P.A. submits that the fact that her daughter had scars should be sufficient to prove the suicide attempts and that the RPD's refusal to view the wrist scars was not reasonable as it was the only way to assess the evidence in this regard. The Appellant further submitted that the RPD should have accepted the P.A.'s daughter's explanation for the contradiction in the dates as she was tired, and there were problems with the dialect of the interpreter which was conducted by telephone. [23] The RAD finds that the scars provide little probative value with respect to the timing or the cause of the injuries, however, the RAD finds that the RPD was not justified in drawing a negative inference, particularly when it chose not to view the scars. Nevertheless, the RAD further finds that it is necessary to consider this finding in conjunction with the absence of corroborative evidence, which is analysed below. With respect to the daughter's explanation of the conflict in dates at the port of entry, the RAD concurs with the Appellants that this was a valid explanation; namely, a lengthy flight via Amsterdam, the dialect, and particularly the utilization of the services of an interpreter via the telephone. Lack of supporting documentation: [24] The Appellants provided only one personal document in support of their claims; a doctor's letter for the P.A. from a family doctor in Canada, which speaks to some physical issues as well as major XXXX relating to the P.A. The RPD found that the letter dated four months earlier had little link to the allegations in her refugee claim. [25] When asked why the Appellants had not provided medicals with respect to the attempted suicides, the P.A. responded that she did not think about it. The RPD drew a negative inference from this lack of supporting evidence given that this evidence is central to the claim. [26] The P.A was also asked, given the assistance to leave Qatar provided to the P.A. by her son XXXX, why there was no statement from him of his personal knowledge and involvement in the Appellants' situation, and again she responded that she did not think of it. In the absence of a reasonable explanation, the RPD drew a negative inference. [27] The Appellants submit that a credibility finding in this regard, in the absence of corroborating evidence, is erroneous.3 Counsel further submits the P.A.'s "major XXXX XXXX supports the fact that the P.A. did not think of obtaining any corroborative evidence. [28] The RAD finds, given the testimony that the P.A. has only one contact in Qatar, namely with her son on a weekly basis, it begs the question as to why he would not have provided this information. After listening to the audio recording of the proceedings, the RAD notes that XXXX did everything to effect the Appellants' departure, which included the visa application and how to proceed when entering Canada. Moreover, the RPD noted the visa application, which her son had prepared on her behalf, was accompanied with a number of supporting documents, and yet he had not assisted with corroborative evidence for the purpose of the refugee claim. Furthermore, the RPD noted that there was no effort to obtain these documents, in spite of the instructions contained in the BOC to provide supporting documentation as well as Rule 11 of the Refugee Protection Division Rules, which requires that the Appellants must provide acceptable documents establishing their identity and other elements of the claim. The RPD also noted that the Appellants were not only represented by counsel, but had almost eight months to prepare for their hearing and therefore the RPD did not find it reasonable that they did not think to obtain some corroborative evidence. After listening to the audio recording of the proceedings, the RAD finds that the P.A.'s "major depression" was a submission made by counsel, although this is also in the medical report. However, this was not the evidence provided orally by the Appellant when she stated as "I did not think of it," when referring to the lack of corroborative evidence. Given that the visa application was a prelude to the refugee claim, the RAD further questions the lack of corroborative evidence. [29] The RAD finds that it is even more compelling that it is now another seven months, with an extension granted to perfect this appeal, and yet there is no corroborative evidence to support the central elements of the claim. The RAD finds that this is particularly noteworthy in the absence of an explanation as to the reason, particularly when considering the weekly contact with the P.A.'s son and the efforts he has made in the past to assist her. Family's status in Qatar: [30] This evidence was elicited by the RPD in relation to the P.A.'s husband's employment contract, which in turn gave him status in Qatar, and affected the residency of his family. The evidence in this regard further suggested that the "suitor" for the P.A.'s daughter could have a large influence on the future of the family in Qatar. Initially, there was conflicting testimony, when it was suggested that the P.A.'s husband's contract could be cancelled at any time. However it was clarified when the P.A. acknowledged that her husband's work contract does not end until XXXX XXXX, 2015. There was no evidence elicited to suggest that, from conversations with the P.A.'s son, this contract had, in fact, been cancelled, which would affect the P.A's remaining family, namely her four sons, two of whom are still minors. The RPD drew a negative inference based on this evidence. [31] The Appellant made no submissions in this regard. [32] Although this evidence is a peripheral issue, nevertheless, the RAD finds that it runs contrary to the P.A.'s evidence that her husband needed the assistance of the daughter's "suitor" to have influence on his contract and his residency in Qatar, given the P.A.'s testimony that she believes the contract will run until XXXX XXXX, 2015. The P.A's friend in Canada: [33] The P.A. testified that once her husband decided to announce the engagement of the dependent Appellant to the older Qatari man, she began to plan a way to leave Qatar with her daughter. She contacted a friend in Canada and asked her for an invitation letter for both her and her daughter. However, when the Port of Entry notes asked if the P.A. had any family or friends in Canada, and she responded "no," she was asked to explain. Her response was that her friend was in the United States (U.S.) attending to her ailing mother and she did not think of explaining this to the authorities. Given that the visa application indicated the invitation from this friend, the RPD asked why the P.A. would not have indicated upon entry that she had a friend, but she was out of the country, particularly since this friend had written a letter. The RPD did not accept that the P.A. was unaware of the contents of her visa application and the accompanying documentation as her English is poor and her son had filled out everything. The RPD concluded that the P.A.'s explanations were unreasonable, not credible, and drew a serious negative inference from this inconsistent testimony. Moreover, the P.A.'s testimony revealed that she had had no contact with her friend since her arrival in Canada, even though the affidavit provided in support of her visa application indicates "best" friend. Her response that her friend's mother was in "bad shape" was not accepted by the RPD. The RPD asked the Appellant why she would not comfort or support her friend, to which she responded that she was just thinking of her daughter's situation and wanted to be here in Canada, even though they have been here for eight months. The RPD concluded that her actions and lack of concern brought into question her relationship with the affiant. [34] The Appellant submits that since the P.A.'s friend was out of the country, this was a logical explanation for this omission. Moreover, it is submitted that the explanation that the P.A.'s son filled out the forms was not considered by the RPD, and the RPD findings were based on implausibilities relating to evidence not germane to the claim. The RAD finds that, given the P.A.'s statement that this was her "best" friend, it is implausible that there has been no contact whatsoever. The RAD does not accept the P.A.'s explanation that she has been preoccupied with her arrival in Canada, particularly now since a further seven months have elapsed. [35] On this same issue, the RPD questioned the contents of XXXX XXXX ("best" friend's) affidavit, in which she states "I would like to add that I personally guarantee their return to Qatar." The RPD further found that there were conflicting dates provided by the P.A. as to when she contacted her friend and asked for the invitation. The absence of a reasonable explanation led the RPD to conclude, on a balance of probabilities, that the affidavit was obtained by the P.A.'s son, perhaps through a third-party or agent who found someone in Canada willing to make them an invitation. [36] The RAD finds that another seven months have passed, and again if the P.A. had this "best" friend, one would reasonably expect that some contact would have been made. This, in the RAD's opinion, further enhances the RPD's finding that, on a balance of probabilities, there was never a relationship between this "best" friend and the P.A. Accordingly, the RAD concurs with the RPD's finding in this regard. Ability to leave Qatar: [37] The RPD had credibility concerns as stated above with respect to the attempted suicides. As a result, the RPD further found that it was not credible that the dependent Appellant would be perceived to be in such a state as to require a break to calm down and prepare for the wedding, as testified. Furthermore, the RPD found if the Appellant's father cared as little for her as alleged, and was as strong headed and controlling as portrayed by the Appellants, it did not make sense that he would allow the two women to travel unaccompanied to the West, but rather he would not give heed to his daughter's well-being and would have proceeded with the marriage. These credibility concerns led the RPD to draw a negative inference. Moreover, this finding was exacerbated by the fact that the P.A.'s husband had a hand in the Appellants' applications as he had written a letter of authorization to visit his wife's friend, whom the RPD, found was not, in fact, a friend. As such, the RPD found that her husband would know that their initial purpose was not to visit a friend, but rather something else. The RPD also noted the Appellants' demeanor, and, although not determinative, was another factor to consider with respect to their credibility. This lead the RPD to conclude that the Appellants had failed to establish, on a balance of probabilities, that these family problems in Qatar had, in fact, occurred. The RPD then went on to speculate that it may well be that the Appellants were sent to Canada to explore a more stable solution to the family's future. [38] The Appellant submits that it is not at all implausible that the P.A.'s husband would let them travel alone to Canada, particularly if this trip would advance his wish that his daughter marry. She further argues that the RPD's finding was based on pure speculation and made in error. [39] The RAD concurs with the RPD that, given the P.A.'s husband's concerns, why would he have written a letter of authorization for his wife to visit Canada. With respect to the RPD's comments with respect to the demeanor of the Appellants, the RAD must owe deference to the RPD findings in this regard. The RPD based its comments on the Appellants' lack of emotion when discussing their personal experiences in Qatar. However, the RAD finds that the RPD ought not to have speculated on the reasons why the Appellants were sent to Canada. Omission of fear of the P.A.'s tribe at hearing: [40] The P.A. was asked to summarize whom she fears in Iraq today and she stated two things; her husband's family for bringing shame to the family, and fears relating to her Sunni faith. At this point in the hearing, the Appellant had only spoken of being at risk from her husband's family and his tribe. However, later, the P.A. also stated that she feared her large tribe and testified that her husband in speaking to the tribe had requested that they kill her and her daughter. While the RPD noted that the Appellant had spoken about her family, it was only in relation to a lack of support, if she were to return to Iraq. The RPD found this initial omission and the Appellant's lack of explanation led to a negative inference. [41] The Appellant made no submissions in this regard. [42] The RAD finds that this omission and lack of explanation led to a justifiable conclusion by the RPD. In fact, after listening to the audio recording, the RAD finds that this evidence seems to have come out of nowhere and was not expanded upon, following this statement. Inconsistent testimony on the whereabouts of the P.A.'s family: [43] In the P.A.'s BOC, she lists her brother-in-law and sister as living in Baghdad, Iraq, whereas in testimony she indicated that they are living in Amman, Jordan. According to the P.A., they moved there in 2004 and have lived there since. The RPD drew a negative inference as the P.A. did not know why her son would have listed their residence as Baghdad. The RPD concluded that the P.A. had not established, on a balance of probabilities, that her family is no longer in Iraq, however, this evidence was not considered to be an integral part of the claim. [44] The P.A. has submitted "new" evidence in this regard. However, although this evidence indicates some movement out of the country, the dates do not coincide with the P.A.'s testimony and it does not confirm a current address. Accordingly, this does not address the inconsistency. Having said this, however, the RAD finds that since this evidence is not an integral part of the claim, the credibility finding by the RPD does not affect the overall outcome of the claim. CONCLUSION BY RPD: [45] In totality, the RPD concluded that the Appellants had failed to provide sufficient credible and trustworthy evidence to establish, on a balance of probabilities, that the P.A.'s husband had tried to force an arranged marriage on her daughter and similarly they had not established the problems allegedly stemming from this situation. [46] The RAD finds that the RPD's credibility findings are absent of any error. The RAD finds that it has not been established with credible evidence that the Appellant's father was forcing his daughter into an unwanted marriage with an individual who would have influence over her father's status in Qatar, and that, because of this, the Appellant attempted suicide, and this led to her and her mother's visa application authorized by the alleged perpetrator to visit Canada. Harm feared by the Appellants in Iraq: [47] The RPD noted two fears expressed by the Appellants in returning to Iraq; one was related to the arranged marriage refusal, and the other being targeted due to their Sunni faith. [48] The RPD found that the allegations surrounding the arranged marriage and related concerns were not established on a balance of probabilities. Moreover, the Appellant acknowledged that she would have the support of her tribe and her husband's family on this issue. The RPD then canvassed the issue stemming from their Sunni faith. The Appellants fear targeting by Shia militias. The RPD directed the Appellants to the documentary evidence in which it indicates an increase in sectarian violence over the past few years, the main target being the Shia community. However, the P.A. indicated that the Sunnis also had problems. In submissions, counsel made reference to item 4.4 of the National Documentation Package (NDP).4 The RPD acknowledged that, although it speaks to Sunni-Shia tensions in Iraq, and the exacerbation of this by external sources and to the related political crisis, it does not speak to general problems faced by Sunni civilians in Iraq. The RPD also considered the USCIRF report for both 2013 and 2014. The RAD has reviewed the documentation and concurs with the RPD's assessment of the documentary evidence in this regard. [49] In the Appellant's submissions, reference was made to item 7.2 of the NDP.5 The RPD noted the general violence and sectarian tensions, however it also cited that the motives for such attacks were diverse, some being sectarian, targeting members of particular religious communities, including mosques and also sustained level of attacks against Christians and other minority religious groups. The RPD noted some retaliatory violence, however, after examining the current country conditions documentation, the RPD found little evidence to suggest that Sunnis in Iraq are broadly or generally targeted by the government, Shia militias or any other group(s) or individual(s), due to their religion. The RPD found that the situation the Appellants, as 49 year old and 30 year old Sunni women, would face does not present them with a serious possibility or reasonable chance of persecution due to their religious profile. The RAD reviewed the Record carefully and concurs with these findings. [50] With respect to women, counsel submits that it is one of the most dangerous countries to be a woman. However, after examining the evidence, the RPD found it was not alleged by the Appellants that merely being a women presents one with a serious possibility or reasonable chance of persecution. The RPD does, however, acknowledge the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq6 indicates that "Women with Specific Profiles or in Specific Circumstances" as a risk profile in Iraq. These profiles are identified women who have public roles, activists or professionals and those who have been targeted for not conforming to conservative Islamic or traditional norms. The RPD found, on a balance of probabilities, that the Appellants do not fall into any of these profiles or circumstances. At the same time, the RPD acknowledges that the country documentation7 report the conditions in Iraq are quite dangerous, such that, as counsel noted, Canada has imposed a temporary suspension of removals to Iraq as these conditions are faced generally throughout the country. The RPD found that this risk is a risk faced generally by other individuals in or from Iraq, and therefore falls under 97(1)(b)(ii), "generalized" risk, and therefore cannot be found to be persons in need of protection under 97(1)(b) of IRPA. [51] The Appellants submit that conditions are so dangerous in Iraq, causing a temporary suspension of removals and that this evidence, notwithstanding the credibility concerns, should permeate all of the RPD findings. [52] The RAD concurs that Iraq is dangerous, however we do not find that the RPD erred when considering the documentary evidence based on the Appellants' allegations with respect to their Sunni faith. The RAD further finds that given the lengthy absence of residency in Iraq, namely 12 years, the Appellants were unable to provide any personal evidence to demonstrate that they would be personally targeted as a consequence of belonging to a Sunni sect. After reviewing the record, in particular the NDP package and the USCIRF report, along with the lack of profile of these Appellants, the RAD finds that it concurs with the RPD findings that these Appellants would not be personally targeted. Generalized Risk: [53] The RAD finds that the RPD concluded that, with little objective basis to support their allegations, the Appellants' arguments that they would be at risk for being a part of the Sunni sect had no merit. [54] Counsel submits that the RPD failed to consider a ground of persecution (Niyonkuru), even if it is not raised during a hearing.8 His submission is based on documents that indicate that armed gangs, some with religious and political motivation engage in extortion. The P.A. submits that her husband is a high profile person, a former XXXX for the Iraqi XXXX XXXX XXXXeam, perceived to be wealthy and they are ideal targets for extortionists. Moreover, since Saddam Hussein was the ruler at the time, the P.A. would be perceived as being a support of Saddam, placing this in a political context. [55] The RAD finds that there was insufficient persuasive evidence that the allegations are political or religious in nature. The RAD has indicated that it finds that the Appellants would not be subject to harm as a consequence of their Sunni faith, and. moreover, the RAD finds that there is no evidence so support counsel's assertion that since the Appellants did not support Hussein their lives would be at risk. In fact, counsel submits that, as a former XXXX, he would be perceived to be wealthy and therefore an ideal target for extortion, a fact with which the RAD concurs could be the case. This, in the RAD's opinion, only enforces the RPD's decision that this would be "generalized" risk. [56] The RAD finds that the Appellants must establish, on a balance of probabilities, that the harm they face amounts to a risk to life or a risk of cruel and unusual treatment or punishment. The degree of risk under s. 97(1)(b) is that the risk is more likely than not.9 The analysis is prospective (i.e. likely harm faced on return to the country). [57] The evidence must establish a specific, individualized risk of harm with regard to the particular claimant. Country conditions evidence describing generalized human rights violations, without a direct specific linkage to the claim, is insufficient to establish a personal risk of harm and to ground a claim.10 [58] After conducting an independent assessment of the entire record, the RAD finds that both Appellants are not Convention refugees or persons in need of protection, as they have not established that they would be subject to a personal risk based on either issue; namely the alleged family problems, or as a result of their Sunni Faith. [59] Accordingly, pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA"), the Refugee Appeal Division ("RAD") confirms the decision of the RPD, that the Appellant is neither a Convention refugee nor a person in need of protection. [60] The appeal is therefore dismissed. (signed) 'Roslyn Ahara' Roslyn Ahara February 3, 2015 Date 1Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 2 Alyafi, Aghiad v. M.C.I. (F.C. No. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952 3 Ahortor v. Canada (Minister of employment and Immigration) (1993) FCJ No. 705 (FCTD), at paragraph 45 4 RPD-1, National Documentation Package, Iraq, item 4.4 5 RPD-1, National Documentation Package, Iraq, item 7.2 6 Ibid., item 1.7 7 Exhibit 4, National Documentation Package, Iraq, items 1.4, 1.7, 2.1 and 5.2 8 A.G. v. Ward (1992) 28CR 589, Viafara, Lorena Pastrana v. M.C.I. (F.C., no. IMM-7231-05), Dawson, December 20, 2006, 2006 FC 1526, Niyonkuru v. M.C.I. 2012 FC 732 9 Li v. Canada (Minister of Citizenship Immigration), 2-5 F.C.A. 1; (2005) 3 F.C.R. 239 (F.C.A.) 10 Ahmad, Hasib v. M.C.I.(F.C. no. IMM-90188-03), Rouleau, June 4, 2004; 2004 FC 808; Samuels, Tracyann Elizasbeth v. M.C.I. (F.C., No. IMM-3087-10, Boivin, March 24, 2011; 2011 FC 366. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05981 TB4-05982