TB8-23496

RAD File / Dossier de la SAR : TB8-23496 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 14, 2020 Date de la décision Panel James Sloan Tribunal Counsel for the person who is the subject of the appeal Lobat Sadrehashemi 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 [1] This is an appeal of an August 2, 2018 decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada (Board) denying the Appellant's claim for refugee protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (IRPA). [2] The Appellant, an Iraqi national, claims that he cannot safely return or the husband of a woman he had a long-term extramarital affair with will kill him. [3] For the reasons that follow I allow this appeal. FACTS AND ALLEGATIONS [4] The Appellant was in a sexual relationship with a woman, XXXX, which continued after she married another man at her family's behest in 2014. The man XXXX married is a member of the XXXX (XXXX XXXX XXXX), his father is a XXXX XXXX of XXXX, and his family is powerful and well-connected with Iraqi and Kurdish officials. On XXXX XXXX XXXX 2017, the Appellant claims that XXXX husband discovered photographs that revealed that they were having an affair. He was subjected to death threats by XXXX husband and his father. He travelled to the US on XXXX XXXX XXXX 2017 using a visa that had been issued in 2016. He entered Canada by foot on XXXX XXXX XXXX 2017. DETERMINATIVE ISSUE [5] The determinative issue in this case is credibility. STANDARD OF REVIEW [6] In my review of the RPD's decision, I will apply a standard of correctness.1 This is not a case where the RPD enjoyed a meaningful advantage in making its findings.2 ANALYSIS [7] The RPD found that the Appellant lacked credibility. It considered his supporting evidence and, based on a variety of misgivings it had about it, found that it did not outweigh its credibility concerns. [8] The Appellant argues that the RPD's credibility findings and its assessment of his supporting evidence are in error. In addition, he argues that the RPD member's conduct at the hearing was inappropriate, giving rise to an apprehension of bias or a breach of procedural fairness. Credibility [9] The RPD found that the Appellant lacked credibility because: a) his behaviour-giving XXXX jewelry, taking public photographs with her (sometimes with them kissing), and visiting the home she shared with her husband-was incompatible with someone who feared discovery; b) he was able to leave Erbil despite allegedly being pursued by XXXX powerful family; c) a photograph meant to depict XXXX at her wedding had been cropped, suggesting an intention to conceal some relevant fact; and d) his decision to delete his social media accounts suggested he did not want the Board to be in a position to confirm the posts that he entered into evidence. [10] I agree with the Appellant that the RPD's findings are all implausibility findings and that they do not meet the heightened test required for implausibility set out by the Federal Court. The Court in Valtchev3 outlines parameters around the Board's ability to make credibility findings based on implausibility-apparently in contradistinction to a credibility finding on another basis, such as a claimant's inconsistent testimony or his or her demeanour while testifying. The Court held that an implausibility finding may be made by the Board (1) "provided the inferences drawn can be reasonably said to exist," and (2) so long as the finding was made "only in the clearest of cases, i.e. if the facts as presented are outside the realm of what could reasonably be expected or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant."4 In addition, the Court cautioned that the Board "must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu." [citation omitted]5 [11] In the recent case of Zaiter6 the Federal Court went further. It held that it is wrong in law to make a finding of implausibility simply "on the basis that is it unlikely that things happened as the claimant contends...".7 It ruled that the Board, in that case, "failed to carry out the correct analysis and reached an unreasonable result" because it did not address "whether the evidence supports the conclusion that [the applicant's account] was 'clearly unlikely,' that it was 'outside the realm of what could reasonably be expected,' that it did not make sense, or that it 'could not have happened.'"8 The Court in Zaiter ruled that merely because the documentary evidence "'demonstrates that the events are unlikely to have happened in the manner asserted by the claimant...'" did not mean that it was open to the Board "'to find that a claimant's testimony is not plausible'...."9 It held that "credibility determinations...drawn from the implausibility of a claimant's account...are inherently dangerous...".10 Finding a) [12] I find that, although I agree with the RPD's finding that the Appellant's actions do not appear to be the type of actions likely to be taken by someone seeking to keep an extramarital relationship secret, his actions do not meet the heightened test for implausibility as per Zaiter. Finding b) [13] While the Appellant claims that XXXX family were powerful and well-connected, he does not claim that they possess a level of control such that they would have advance notice of everyone who left the area controlled by the Kurdish Regional Government. In these circumstances, I do not find that it is unlikely or improbable that he was able to leave Erbil without their knowledge. Finding c) [14] The RPD noted the photograph said to depict XXXX and her mother at XXXX wedding appeared to have been cropped-perhaps leaving the husband out of the photograph-and that this gave the impression that the photo had been "edited to disguise or conceal some relevant fact."11 I find that the RPD's finding in this regard is wholly speculative. Even accepting that the photograph was cropped, there is nothing in the evidence to indicate that XXXX husband had been removed from it or that the cropping was done for nefarious reasons. Finding d) [15] The RPD found that because the Appellant had deleted his social media accounts two months before the hearing, it was prevented from confirming that they were actually social media posts and not forgeries. It held that the Appellant's deletion of the texts and links to photographs gave the impression that he did not want "anyone [to] focus on the source of the material, which creates a highly negative impression of his credibility."12 The Appellant testified that he deleted one account in XXXX 2018 because he received a very strange message and was scared to death.13 I find that the Appellant's claim is unlikely; however, once again, it does not meet the Federal Court's test for implausibility. Documents [16] In addition to the RPD's credibility findings linked to documents, discussed above, the RPD also expressed the following misgivings about the Appellant's supporting documentation: i) photographs, said to be of XXXX and her husband, do not show a romantic relationship; ii) photographs said to be depicting the attack on the family residence on XXXX XXXX XXXX 2017, are unclear and the faces of the alleged assailants are not visible; and iii) various supporting letters warrant limited weight as their authors were not made available to testify. [17] I agree with the RPD's findings regarding the weaknesses of items i) and ii) above and will take this into account in my overall analysis. However, I disagree with the RPD's finding that merely because the Appellant did not make the individuals who made supporting statements available to provide live testimony, their statements are of limited value. The evidentiary requirements at the Board are, of course, less formal that those of a court. While the probative value of this type of statement would be strengthened where its author is available to testify, an approach that suggests that a supporting letter is deficient where its author is not available to testify is misplaced. Conclusion on credibility [18] Given my finding that the Appellant did not have credibility problems, and given that the Federal Court of Appeal in the Maldonado14 case has held that I must presume that that Appellant's sworn testimony is truthful in the absence of any indication otherwise, I accept the Appellant's story and find that he faces a likelihood of harm as per subsection 97(1) if he returns to Iraq. [19] In view of my finding I need not consider whether the additional documents he has sought the admission of are admissible. [20] Because XXXX family and her husband are closely associated with XXXX, I find that this is not a case where state protection is likely to be available for the Appellant. For the same reason, it is not a case where an internal flight alternative might be viable. CONCLUSION [21] The appeal is allowed, and I find that the Appellant is a protected person. (signed) James Sloan James Sloan September 14, 2020 Date 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, Bujar, 2016 FCA 93, at para 103. 2 Ibid., at paras 69-74. See also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras 124-125, relying on Guo v. Canada (Citizenship and Immigration), 2017 FC 317, at paras 15-19 and Jeyaseelan v. Canada (Citizenship and Immigration), 2017 FC 278, at paras 19-21. 3 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776 (CanLII), at para 7. 4 Ibid. 5 Ibid. 6 Zaiter v. Canada (Citizenship and Immigration), 2019 FC 908 (CanLII), at para 9. 7 Ibid., at para 9. 8 Ibid. 9 Ibid., at para 10. The internal quotation is a passage from a finding of the Refugee Appeal Division, which was held by the Federal Court to be in error. 10 Ibid. 11 Exhibit RPD-1, RPD Record, at p. 9, para 37. 12 Ibid., at para 38. 13 Transcript, p. 71. 14 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-23496 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