TB6-06284

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 : TB6-06284 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 27, 2016 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal M. Steven Beiles Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause 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 (the Appellant), who is a citizen of Tajikistan, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He is submitting new evidence in support of his appeal; however, he is not requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellant is asking the RAD to substitute a positive determination, or in the alternative, to remit the matter to a newly constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to section 111(1)(c) of the IRPA, the RAD allows this appeal and sets aside the decision of the RPD. This matter is remitted to the RPD for re-determination by a newly constituted panel of the RPD. Background [3] The Appellant is a 50 year old citizen of Tajikistan. In 2001, he began to work in Russia as he was unable to find employment in Tajikistan. In XXXX 2015, the Appellant was detained in Moscow due to a problem with his work permit. He was allegedly asked to pay a bribe, and when he was unable to accede to the demands, he was deported to Tajikistan. [4] On XXXX XXXX XXXX 2015, while living back home, the Appellant was called to visit the police. He was accused of being involved with anti-government activities while he was living in Moscow and the authorities attempted to force him to sign a confession. He alleges that he was tortured. [5] The Appellant was asked to return to Russia and inform on any anti-government activities among his countrymen living in Russia. He was released from detention and required medical attention due to the torture. [6] Following his release from hospital, the Appellant went into hiding. He traveled to the United States, and then to Canada in XXXX 2015. Two months later, he made a claim for refugee protection in Canada. The Appellant alleges that his home in Tajikistan was searched by police in XXXX 2015, and his son was beaten, requiring medical intervention due to this assault. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL Express statutory conditions [7] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [8] The following "new" evidence has been submitted in support of this appeal: * Medical certificate with respect to a diagnosis made on XXXX XXXX, 2015 - "Partial amnesia";1 * Photograph of extract from Appellant's Tajikistan passport indicating a deportation order to leave Russian Federation before XXXX XXXX XXXX 2015.2 [9] The Appellant submits that at his hearing, he was confused as to the location of his previous passport, which he held at the time of his deportation from Russia. Eventually, he remembered and he told the RPD that it was at home and he would try to have it sent to him in Canada within two weeks. The Appellant states that he contacted his son, who still lives in Tajikistan, and he asked him to send him the passport and the medical report diagnosing him as suffering from memory loss. Unfortunately, the Appellant states that his son was unable to find these documents until last week, whereupon he sent them to the Appellant by DHL courier. The Appellant did not believe that it would be necessary to carry his old passport, as he acquired a new one last year and used this to travel to Canada. [10] It is argued that the medical report diagnosing the Appellant with partial amnesia corroborates his argument that the deficiencies in his testimony (which were only partially held against him) were due to a medical condition, which could significantly affect the assessment of his credibility. Although he obtained the medical report detailing his physical injuries at the hands of the police in XXXX 2015 for his RPD hearing, he did not realize that he would need the report diagnosing amnesia. Following the hearing, the Appellant's counsel informed him that it was important to have a copy of this report, to demonstrate any memory problems while testifying at his hearing. Counsel submits that due to the Appellant's head injury, it is reasonable that he cannot remember his story consistently. [11] The Appellant submits that the proposed new evidence meets the test of s.110 (4) of the IRPA because the evidence is new, credible, and relevant and/or was not reasonably available to him. The Appellant argues that the evidence also meets the modified criterion of Raza3as defined in Singh.4 [12] The RAD admits the photograph of extract from the Appellant's passport indicating a deportation order, as it finds that the Appellant could not reasonably have anticipated that a copy of his old passport would be required [13] The RPD noted that the Appellant did not provide any medical evidence to support a cognitive deficiency that was impairing his ability to provide his evidence. The RAD concurs with the RPD that if the Appellant was aware that he had been diagnosed with "partial amnesia", it was incumbent upon him to bring forward that evidence to the RPD. This report could have been provided from a physician here in Canada, or efforts made to obtain this documentation from Tajikistan. [14] The RAD concludes that medical documentation to indicate cognitive or memory problems, could reasonably have been available prior to the rejection of the claim. The RAD further notes a span of approximately 6 weeks between the hearing date and the rejection of the claim. Accordingly, the RAD is not admitting this medical evidence pursuant to section 110(4) of the IRPA, as it does not meet the statutory requirements. (6) 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. [15] After careful consideration of the entire record, the RAD finds that the new evidence which it accepts would not justify allowing or rejecting the refugee protection claim. The RAD finds that the issue of deportation is not the only determinative issue in this claim. The RAD finds that there are other issues which need to be addressed and are not directly related to the issue of the Appellant's return from Russia. Accordingly, the RAD denies the Appellant's right to an oral hearing. ROLE OF RAD [16] The Appellant has made submissions in line with the recent Federal Court of Appeal decision, in Huruglica.5 However, the Appellant further argues that the RAD needs not show deference to the RPD's findings of fact. This decision provides us with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. The justices stated at paragraph 103: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [17] It is submitted that the RAD should conduct its own assessment in order to reach such a determination with respect to inconsistencies, when it reviews the entire record to determine whether the inconsistencies exist or not, and therefore whether or not they justify the general finding of lack of credibility which the RPD made. SUBMISSIONS BY THE APPELLANT * Did the RPD err in its assessment of the "sur place" aspect of this claim? * Did the RPD err in its credibility findings? Sur Place (Future risk) [18] The RPD did not dispute that persons removed to Tajikistan from other countries were subject to torture and other forms of persecutory treatment. However, the RPD discounted the evident risk faced by the Appellant, on the grounds that there was "not sufficient credible evidence" that the Appellant would not "voluntarily go home" if his claim were not accepted. The RPD found the Appellant's allegations of targeting to Tajik authorities not to be credible. Since the Appellant arrived in Canada as a visitor, the RPD found no information before it that Tajik citizens returning from Canada or other foreign countries are at risk once they return home. The RPD further stated that it had no information that Tajikistan citizens are being removed from Canada as a result of deportation proceedings.6 [19] It is submitted by the Appellant that the RPD clearly erred in fact and law in dismissing the Appellant's claim that he faced torture, or treatment amounting to persecution, if deported from Canada to Tajikistan. The Appellant submits that item 10.1 in the Board's National Documentation Package indicates credible reports that individuals forcibly returned or extradited from other countries to Tajikistan had been subjected to torture or other ill treatment upon return. In some cases, it is argued that these returns were conducted despite the request of the European Court of Human Rights to take interim measures to stay extradition pending a judgment by the court. This treatment included kidnapping, incommunicado detention and solitary confinement in the buildings of the State Committee for National Security of the Sixth Department. [20] It is argued by the Appellant that the foregoing findings, not involving credibility, clearly fall within the purview to be reviewed on a correctness standard, and therefore ought not to withstand scrutiny on any standard of review. It is submitted that there was not a shred of evidence that the Appellant would "voluntarily go home" upon final rejection of his refugee claim. Furthermore, the Appellant's counsel asserted a sur place claim, which equally clearly pre-supposed an unwillingness on the Appellant's part to return voluntarily to his country. It is asserted that the Act and Regulations provide that, if a failed refugee claimant does not leave Canada within 30 days of notification of the final rejection of his or her claim, the departure order issued to the claimant converts automatically to a deportation order. Tajikistan is not one of the countries whose citizens benefit from a TSR or ADR, and they are therefore, by operation of law, subject to removal if under deportation orders. In totality, it is submitted by the Appellant that the RAD should find that the Appellant faces more than a mere possibility of persecution in his country as a refugee sur place.7 [21] The RAD concurs with the Appellant that documentary evidence indicates widespread human rights abuses, which includes torture, extortion and kidnapping. Moreover, the RAD finds that the RPD ought not to have made comments with respect to whether or not Canada is removing individuals to Tajikistan. Nevertheless, the RAD finds that this is not the issue. The determinative issue is credibility surrounding the Appellant's allegations that he is being pursued by the Tajikistan government for his perceived anti-government activities. Credibility Erroneous treatment of corroborating evidence [22] It is submitted by the Appellant that the RPD could not, as it did, assess the credibility of the appellant's story in isolation from the documentary evidence. It is argued that it is trite law that the treatment of similarly situated persons, gleaned from country condition evidence, may be the best indicator of the credibility of a claimant's story and of the future risk he or she faces if returned home. [23] The Appellant submits that the impugned decision falls squarely within the line of authority described by Prof. Hathaway which was also stated by the Federal Court in Salibian.8 [24] Counsel in his submissions to the RPD stressed that the Appellant's account of his persecution in Tajikistan, was consistent with the widespread use of torture by police and security officials there; official intolerance of perceived anti-government activities and paranoia towards returnees from Russia, leading to persecution of those targeted on these grounds; and the use of torture specifically in order to produce false confessions from detainees. It is submitted by the Appellant that the RPD was obliged to consider before dismissing, in toto, the Appellant's evidence on the basis of perceived deficiencies in his testimony with known practices of the Tajik authorities. [25] Counsel for the Appellant cites the Federal Court decisions in support of his assertion that even if the lack of credibility finding was reasonable, it would be insufficient to save the impugned decision. It was the duty of the RPD to determine the objective basis for the risk and fears alleged by the Appellant.9 More recently, counsel submits that the decision in Joseph, 10 where Justice James O'Reilly restated the principle: The Board must be careful not to dismiss a refugee claim on the basis that it disbelieves parts of the claimant's testimony, or evidence that does not go to the core of the claim. Sometimes claimants embellish their stories, or they forget minor details. It is unreasonable for the Board to dismiss claims simply because they find evidence at the fringes not to be reliable or trustworthy. Even if the Board finds some evidence not to be credible, it must go on to consider whether there remains a residuum of reliable evidence to support a well-founded fear of persecution. [26] It is submitted that the RAD should conduct its own assessment in order to reach such a determination with respect to inconsistencies, when it reviews the entire record to determine whether the inconsistencies exist or not, and therefore whether or not they justify the general finding of lack of credibility which the RPD made. It is argued that contrary to the approach of the RPD, the RAD should re-examine the totality of the evidence, including country documentation, in order to determine whether the substance of the Appellant's claim was not credible and sufficient to demonstrate more than a mere possibility of future persecution in Tajikistan. Corroborative evidence [27] The RPD considered a medical certificate regarding medical care that the Appellant's son received in Russia in XXXX 2015. The Appellant alleges that this was a result of a beating by the police in XXXX 2015. However, given the credibility concerns, the RPD gave little weight to this report in regards to the Appellant's fear of returning to Tajikistan. As well, the RPD noted that the Appellant had stated that his son has a XXXX impairment which began in childhood, and this report does not indicate an injury. [28] It is submitted by the Appellant that the RPD gave no weight to a search report generated by the Tajik police and included in Exhibit C-711 at the hearing. It is argued that it was an error to do so "given the credibility concerns". 12 [29] Moreover, it is argued that the RPD failed to consider the fact that the Appellant's testimony was corroborated by a warrant for his arrest for "insulting the government"; the RPD instead stated that it gave no weight to this document because it had found the Appellant not to be credible. It is argued that the warrant was itself highly relevant to the credibility of the Appellant's testimony. Moreover, the Appellant submits that to discount the search report, free from error, and then find that it "could be easily created in support of a refugee claim,"13 is erroneous. It is submitted that the RPD provided no reason for this conclusion, when it identified no deficiency in the original document, which is written on letterhead, contains an official stamp and as impressive amount of detail as to the legal basis, grounds for and material seized during the search. It is submitted that the RAD ought to find the search report genuine on its face and serves as proof that the Appellant's home was searched in XXXX 2015 because the Appellant and/or his family were suspected of anti-government activities by the Tajik authorities. [30] It is further submitted by the Appellant that the RPD discounted his medical report, when it used the date on the medical report - XXXX XXXX XXXX 2015, to discredit the Appellant's testimony that he had been detained for three days and released on XXXX XXXX, 2015. [31] The RAD finds that the RPD's dismissal of the corroborative evidence cannot be sustained given the lack of reasoning on the part of the RPD. The RAD concurs with the Appellant that these documents, i.e. warrant, search report, go to the central issue of the claim. The Appellant's detention [32] The RPD noted that the Appellant testified that he was detained for three days beginning on XXXX XXXX, 2015; however, his medical report indicates that he was in hospital on XXXX XXXX, 2015.14 The RPD rejected the Appellant's explanation that he was released late on the XXXX going into the beginning of the XXXX. The RPD concluded that if the Appellant had been held from XXXX XXXX until XXXX XXXX for 48 hours, it is reasonable that his BOC would note two days instead of three. Accordingly, the RPD drew a negative inference and gave little weight to the medical report, and found that the document, on a balance of probabilities, did not support the Appellant's allegations of torture by police. [33] Although not mentioned in the Appellant's BOC, the RPD noted counsel's submission that the reason the Appellant was detained and questioned was in part due to his deportation from Russia. However, on this point, the RPD had found the claimant to be lacking in credibility. [34] The Appellant submits that the RPD conducted a microscopic analysis of his evidence regarding his detention, which led to an erroneous finding. Contrary to the RPD's view at paragraph 11 of its reasons, there is nothing inconsistent or wrong about a detainee who has been arrested on XXXX XXXX and has spent XXXX XXXX XXXX XXXX, and most of XXXX XXXX in detention, testifying that he has been detained for three days. It is argued that XXXX XXXX to XXXX, contrary to the RPD's belief, is not necessarily 48 hours but may be 60 hours or more, depending on the times of day when the detention begins and ends. The Appellant stated that he was released late on XXXX XXXX, which it is submitted confirms that the latter scenario was likely. Moreover, the Appellant could have been admitted to hospital around midnight between the XXXX and XXXX in XXXX. It is argued that the RPD's analysis was deficient and did not justify its finding that the Appellant was lying about his detention, or that the medical report did not confirm his detention. [35] With respect to the number of hours spent in detention, with due respect to the RPD, the RAD concurs that the RPD was "splitting hairs" in its finding in this regard. The RAD concurs that this finding cannot justify the RPD's conclusion that the Appellant was untruthful with respect to his detention. [36] Finally, it is submitted that the medical report described extensive and serious injuries which were not only consistent with a long hospital stay of two weeks, but also consistent with the Appellant's description of suffering severe beatings in detention. [37] The RAD finds that the RPD erred when it assigned little weight to the medical report without providing any reason other than it disbelieved the Appellant's evidence surrounding his detention. Passports [38] The Appellant's passport was issued in XXXX 2015, following his deportation from Russia. The RPD asked the Appellant if he had his old passport, whereupon he provided different responses. Initially, he stated that he had left it behind, later said that he actually did not know where the passport was; it was taken out of the airport so the authorities must have it. In response to the change in his evidence, the Appellant testified that he had renewed his passport because he had lost his passport, and he had obtained a new passport in 2004 or 2005. He said that his old passport was taken by police. However, the Appellant changed his evidence again and stated that he would provide his old passport within weeks. The RPD found the existence of the old passport was material to the claim, as there would be an indication that the Appellant was in Russia, and it might also note that he was deported from Russia. Since this allegedly led to the incident in Tajikistan, this was also significant. The RPD found that it was reasonable to expect that the Appellant would be able to recall where his old passport is with consistency, and therefore, drew a negative inference regarding the Appellant's credibility. [39] With respect to the Appellant's new passport, he testified that he obtained this in XXXX 2015 in order to travel to Canada. However, given that his BOC states that it was not until after XXXX 2015 that an agent advised him to come to Canada, the RPD pointed out to the Appellant that he had no reason to travel to Canada in XXXX 2015. The Appellant just shook his head and asked for a break, following which he changed his evidence and said that he got a new passport in XXXX because the Tajikistan authorities requested that everyone get a new passport with a chip. The RPD rejected the Appellant's explanation on the basis that if the Appellant was planning on coming to Canada at the time he got his new passport, then his story of fleeing after police abuse in XXXX is undermined. Moreover, the RPD found it would be reasonable to expect that the Appellant would be able to recall why he was obtaining a new passport in XXXX with consistency. Accordingly, the RPD drew a negative inference regarding the Appellant's credibility. [40] The Appellant submits that although the RPD's reasons acknowledge confusion over the Appellant's prior passports, nevertheless, the RPD finds the Appellant to be inconsistent and therefore not credible. Likewise, the Appellant argues that there was further confusion in the Appellant's testimony about his new passport, which ought not to have led to a negative credibility finding. [41] The RAD concurs with the RPD that the Appellant provided inconsistent testimony with respect to this issue. The RAD finds, although not determinative, that the Appellant's credibility was impugned given his ever changing testimony. Deportation from Russia [42] The Appellant provided his Russian work permit which was valid until XXXX 2015. 15 According to the Appellant, the Russian authorities had a problem with the spelling of the patronymic of the Appellant's name and due to the fact that he could not pay a bribe. The Appellant indicated that his employer was hoping to work something out. In the Appellant's BOC, he states that he was detained in Russia and put on a plane and the authorities seized his residence permit and accused him of impersonating another individual. The Appellant further testified that his passport was given to the flight attendant. The RPD found that if the Appellant's residency was cancelled and his documents seized, it is reasonable to expect that he would not still have in his possession a valid Russian residency permit, and therefore drew a negative inference. [43] The Appellant submits that the RPD, failed to put the discrepancy to the Appellant, when the Appellant stated in his BOC that his permit had been seized, but he did not say so in testimony. The Appellant testified that his employers wanted to allow him until XXXX 2015 to return to work; however his residency card was seized in XXXX 2015 when he was deported. [44] The RAD concurs with the RPD that it is implausible, given the Appellant's alleged deportation, that he would still retain his residency card, which was submitted in evidence to the RPD. Nevertheless, the inconsistency with respect to this issue in the BOC, after reviewing the transcript, was never put to the Appellant. Accordingly, this finding cannot be sustained. Appellant's wife [45] At the commencement of the hearing, the Appellant testified that his wife was working as XXXX at a XXXX XXXX in Tajikistan. However, later in the hearing, when questioned as to why she would still be working for a XXXX employer, when she was considered to be a person involved in antigovernment activities, the Appellant changed his evidence and stated she had been living in Russia since XXXX 2015. The RPD did not accept the Appellant's explanation that he was thinking of the past when his wife was still working. Moreover, the RPD considered the fact that the Appellant's BOC indicates that his wife is living in Tajikistan and it was signed on XXXX XXXX, 2015. The RPD rejected the Appellant's explanation that he did not know why the correct information was not in his BOC. [46] The Appellant acknowledges that, prior to his hearing, he did not state that his wife was in Russia and no longer working as a XXXX XXXX. However, it is argued that this omission was in no way central to his claim. [47] The RAD concurs that this is not a central issue of the claim. Nevertheless, upon review of the audio recording, the RAD finds that the Appellant fears for his entire family and therefore, this inconsistency certainly impugns the Appellant's credibility and would appear to contradict any fears on behalf of his wife, although she is not a party to this claim. RAD'S CONCLUSIONS [48] The RAD has indicated where it cannot sustain the credibility findings. It finds that this, along with the new admitted evidence, requires a further analysis of this claim. The RAD finds that it cannot substitute a positive determination as it would require rehearing evidence already heard by the RPD. [49] The Appellant asks the RAD to quash the decision of the RPD and substitute a positive determination, or in the alternative to return the matter for a new hearing pursuant to section 111(1)(c) of the IRPA. Section 111 of the IRPA allows the RAD to refer a matter back to the RPD only if it is wrong in law, in fact, or in mixed law and fact, and if the RAD cannot make a decision to confirm the determination or to substitute another determination without hearing evidence that was presented to the RPD. [50] Section 110(6) gives the RAD discretion to hold a hearing if there is new documentary evidence which meets certain requirements, including that it is central to the decision with respect to the refugee claim.16 . The RAD finds upon review of the entire record that the evidence submitted by the Appellant would not, in and of itself, justify allowing or rejecting the claim. [51] Pursuant to section 111(1)(c) of the IRPA, the RAD allows this appeal and sets aside the decision of the RPD. This appeal is allowed. The matter is remitted to the RPD for re-determination by a newly constituted panel of the RPD. (signed) "Roslyn Ahara" Roslyn Ahara July 27, 2016 Date 1 Exhibit P-2, Appellant's Record, p.55. 2 Ibid., pp. 52-54. 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 Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022. 5 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 6 Exhibit RPD-1, RPD's Record, RPD's Reason, para. 19. 7 Ghasemian, Marjan v. M.C.I. (F.C., no. IMM-5462-02), Gauthier, October 30, 2003, 2003 FC 1266. 8 Salibian, Vahe v. M.E.I. (F.C.A., no. A-479-89), Hugessen, MacGuigan, Décary, May 24, 1990. Reported: Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.); 11 Imm. L.R. (2d) 165 (F.C.A.). 9 Sivalingam, Jegathas v. M.C.I. (F.C., no. IMM-5919-05), Mactavish, June 19, 2006, 2006 FC 733; Satkunarajah, Santhakumar v. M.C.I. (F.C., no. IMM-5200-03), Kelen, January 13, 2004, 2004 FC 37, at para. 5; Mylvaganam, Thayaparan v. M.C.I. (F.C.T.D., no. IMM-3457-99), Gibson, July 24, 2000, at para. 10; 10 Joseph, Rasamalar v. M.C.I. (F.C., no. IMM-5389-10), O'Reilly, May 16, 2011, 2011 FC 548, at para. 11. 11 Exhibit RPD-1, RPD's Record, pp. 137-138. 12 Kabongo, Johnson Mili Tshibola v. M.C.I. (F.C., no. IMM-5355-11), Rennie, March 19, 2012, 2012 FC 313, para. 11. 13 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 17. 14 Exhibit RPD-1, RPD's Record, p. 120. 15 Exhibit RPD-1, RPD's Record, pp. 102-104. 16 IRPA, section 110(6). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-06284