MB6-07650

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / No de dossier de la SAR : MB6-07650 MB6-07651 / MB6-07652 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision November 26, 2018 Date de la décision Panel Normand Leduc Tribunal Counsel for the appellant(s) Sepideh Ghafarinamin Conseil(s) du (de la/des) Appelant(e)(s) Designated representative(s) XXXX XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, his wife, XXXX XXXX XXXX XXXX, and their minor daughter, XXXX XXXX XXXX XXXX, all citizens of Jordan, are appealing the decision of the Refugee Protection Division (RPD) rejecting their refugee protection claim. [2] They are presenting new evidence as part of their appeal but are not requesting that a hearing be held before the Refugee Appeal Division (RAD). [3] The principal appellant, XXXX XXXX XXXX XXXX, was appointed the designated representative of the minor appellant, XXXX XXXX XXXX XXXX. DETERMINATION OF THE APPEAL [4] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the RPD's determination and substitutes the determination that, in its opinion, should have been made, namely, that XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are "Convention refugees" under section 96 of the IRPA. BACKGROUND [5] In his Basis of Claim Form (BOC Form), the principal appellant, XXXX XXXX XXXX XXXX, who arrived in Canada in September 2011 as a student, states that he gradually converted to Christianity. [6] The male appellant states that he has attended a Christian church regularly since 2012, that he took bible study classes, and that he was baptized in 2016. [7] In 2012, appellants XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX joined the principal appellant in Canada, where the couple then had two other children. [8] The male appellant states that, in June 2016, they learned that his father had disowned and disinherited him and that the female appellant's family was ordering her to return to Jordan where she would be remarried to another man because her marriage to the male appellant was considered null due to his religious conversion. [9] The male appellant also states that members of his wife's family threatened to kill him if he returned to Jordan. [10] The appellants claimed refugee protection in Canada in August 2016. [11] The RPD rejected the refugee protection claim on the ground that the appellants' allegations were not credible because: 1) the reasons for the male appellant's religious conversion were not satisfactory or credible; 2) it is not credible for the male appellant to be attending a church in Montréal while living in the city of Gatineau; 3) the fact that the appellants waited until 2016 to claim refugee protection even though the appellant had been attending a Christian church since 2011 is behaviour that is inconsistent with that of people who allegedly fear returning to their country. [12] Before the RAD, the appellants state that the RPD erred in its assessment of the evidence presented for reasons that will be reviewed later under the "Analysis" section, if necessary. [13] For those reasons, the appellants are asking the RAD to set aside the RPD's determination and grant them refugee protection or, alternatively, to refer the matter to the RPD for re-determination. STANDARD OF REVIEW AND THE RAD'S ROLE [14] The RAD's role is to review RPD decisions using the correctness standard after conducting its own analysis of the record in order to determine whether the RPD erred, as submitted by the appellant. The exception to this rule concerns the RPD's findings in the assessment of the credibility of or the weight to be given to the oral testimony before it in situations where it enjoys a meaningful advantage. In such cases, the RAD must apply the reasonableness standard (Canada v. Huruglica, F.C.A., No. A-470-14). If I am of the opinion that the RPD enjoyed a meaningful advantage, I will provide reasons in my analysis. NEW EVIDENCE [15] The appellants submitted before the RAD a number of documents that they state constitute new evidence under subsection 110(4) of the IRPA, which indicates: 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. [16] At pages 41 et seq. of their memorandum, the appellants indicate the reasons they are submitting those documents, that is, to respond to the RPD's various findings. [17] The purpose of new evidence submitted before the RAD is not to respond to the RPD's findings. It must be new evidence within the meaning of subsection 110(4) of the Act. [18] Consequently and given my decision, I do not accept into evidence the documents submitted by the appellants that, while for the most part are dated after the RPD decision, discuss facts that date before the decision, and the appellants do not indicate why those documents were not available or why they could not reasonably have been presented before the RPD. [19] The only two documents that I accept into evidence are those that describe facts or incidents that occurred after the RPD decision, namely, the letter from XXXX XXXX dated November 27, 2016 (pages 16 and 17 of the memorandum) and the email from the appellant's cousin dated December 2, 2016 (pages 19 and 20 of the memorandum), which the principal appellant explains he received on those dates in the affidavit he submitted. ANALYSIS [20] I am of the opinion that the issue to be decided in this case is whether the RPD erred in its analysis of the appellants' credibility. [21] After analyzing all the evidence presented, including listening to a recording of the hearing before the RPD, and taking into account its reasons and the appellants' submissions, I respectfully come to a different conclusion than that of the RPD, for the following reasons. [22] First, I would like to specify that the RPD did not enjoy a meaningful advantage in its assessment of the appellants' credibility and the RAD therefore does not have to show deference to it in terms of its findings on the credibility of the allegations. [23] After listening to the recording of the hearing held before the RPD, I am of the opinion that the testimony of the two adult appellants were given in a frank and direct manner, without any hesitations or contradictions that could undermine their credibility. [24] With regard to the principal appellant's conversion to Christianity, the RPD is of the opinion, at paragraph 21 of its reasons, that there are "serious discrepancies and incoherence between Mr XXXX story of conversion and his testimony." The RPD concluded that the appellant's reasons for converting are not reasonable, adding that, in its opinion, such a conversion would be done following an important life event (paragraph 27 of the RPD's reasons). [25] I do not agree with that RPD finding. There is no evidence indicating that religious conversions are done only after an important life event. [26] On the contrary, I am of the opinion that it is totally reasonable and plausible for the male appellant to have converted following a process spanning over five years, that is, after attending a Christian church on Sundays and taking bible study classes, as he testified. Converting from the Muslim religion to the Christian religion is not a trivial act; on the contrary, it appears to me totally reasonable for the process to take some years. [27] The RPD also held against the male appellant the fact that he did not submit any documents to corroborate the fact that he has allegedly been attending a church in Montréal since 2011. [28] I am of the opinion, however, given the male appellant's testimony regarding his attending church, testimony that I found frank and direct and free of contradictions, that he cannot be criticized for failing to submit documents in that regard. It is also possible to attend a church without the heads of that church necessarily being aware of it. [29] Also, the appellant submitted into evidence a baptismal certificate (Exhibit C-1, pages 208 and 209 of the RPD record). I am of the opinion that the authenticity of that document is not disputed and that that document effectively demonstrates that the appellant was baptized in a Christian church in 2016. It cannot be inferred from the date of the baptism that the appellant had not been attending the church before 2016. On the contrary, it is more likely that the official conversion and baptism were done after attending the church for a relatively long period. [30] Then, the RPD was of the opinion that it was not plausible for the male appellant to be attending a church in Montréal while living in Gatineau. The male appellant explained that he initially went to that church in Montréal when he was there for classes and that he decided to attend that church to prevent fellow countrymen from seeing him attend a church in Gatineau. [31] I am of the opinion that those explanations are reasonable and that it is not intrinsically implausible for the male appellant to travel as far as Montréal almost every week to discreetly attend a church. Moreover, I recall that the male appellant, as mentioned above, submitted into evidence a baptismal certificate from a church in Montréal, even though he lives in Gatineau. [32] Finally, I am of the opinion that the delay between the appellants' arrival and the date of their refugee protection claim is not, in this case, behaviour that is inconsistent with that of people who fear returning to their country, as the RPD concluded. [33] On the contrary, it was only after receiving telephone threats in 2016 that the appellants claimed refugee protection in Canada. Paradoxically, if they had claimed refugee protection before then, the panel could have held against their claim the fact that they were not threatened and that they did not know how their families in Jordan would react. [34] Consequently, I find that the appellants' essential allegations are, on a balance of probabilities, credible and demonstrate that they have a well-founded fear of persecution that would manifest as physical assault, divorce and forced remarriage, as well as ostracism and discrimination, if they had to return to their country. [35] On that note, I take into account not only the threats that the appellants received first-hand from members of their families, but also the documentary evidence submitted (Tab 12.1 of the National Documentation Package on Jordan dated August 31, 2018), which indicates the following: Converts from Islam to Christianity reported continued social ostracism, threats, and physical and verbal abuse, including beatings, insults, and intimidation, along with government surveillance. Some converts from Islam to Christianity reported they continued to worship in secret because of the social stigma they faced as converts. Some converts from Islam reported persistent and credible threats from family members concerned with protecting traditional honour. Church leaders continued to report incidents of violence and discrimination against religious converts and individuals in interfaith romantic relationships. A convert from Islam to Christianity fled the country after she received credible threats from family members. Individuals in interfaith romantic relationships continued to report ostracism and, in some cases, feuds among family members and violence toward the individuals involved. State protection [36] I am of the opinion that the evidence presented demonstrates that, in the appellants' situation, Jordanian state protection is not adequate. First, it is difficult to request protection against ostracism and discrimination. Second, the documentary evidence (Tab 12.3 of the National Documentation Package on Jordan dated August 31, 2018) indicates that the Jordanian state has a hand in what is happening or, at least, does not take any measures to protect "converts" in that: The US International Religious Freedom Report for 2013 states that Muslim converts to Christianity that had been harassed by government intelligence services in the past reported that "they had not been followed or interrogated in recent years" (US 28 July 2014, 8). Open Doors states that "the state does not play an active role" in opposing conversion to Christianity, "but maintains a permissive attitude towards the threats and violence that arise out of such conversions" (Open Doors n.d.b). Internal flight alternative (IFA) [37] The appellants were not questioned at the hearing before the RPD regarding the possibility of living in a location other than where their families live if they had to return to Jordan. [38] However, in my opinion, the situation in Jordan, which is a small country in terms of territory and is fully controlled by the state, demonstrates that it would be impossible for the appellants to live there without their families or the state being able to find them. Furthermore, the appellants would have to be registered with various state organizations, for example, to obtain identity documents or for the children to attend school, thereby making it that much easier to find them. REMEDY [39] In light of all the foregoing, I conclude that the RPD's decision is erroneous and that the appellants demonstrated that they have a well-founded fear of persecution by reason of their religions and their membership in the particular social group of "family" if they had to return to Jordan. [40] Under subsection 111(1) of the IRPA, the RAD sets aside the RPD's determination and substitutes the determination that, in its opinion, should have been made, namely, that XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are "Convention refugees" under section 96 of the IRPA. [41] The appeal is allowed. Normand Leduc Normand Leduc November 26, 2018 Date IRB translation Original language: French 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB6-07650 MB6-07651 / MB6-07652 8