TB6-13169

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 : TB6-13169 TB6-13170 TB6-13171 TB6-13172 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 14, 2016 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Rezaur Rahman Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the "male Appellant"), his spouse, XXXX XXXX XXXX XXXX (the "female Appellant"), and their children, XXXX XXXX XXXX and XXXX XXXX XXXX (the "minor Appellants"), are citizens of Iraq. They appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. [2] They have submitted new evidence in support of their appeal but are not requesting an oral hearing. The Appellants ask that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own decision that the Appellants are Convention refugee or persons in need of protection or, in the alternative, refer their claims back to the RPD for redetermination. DETERMINATION [3] Pursuant to s. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [4] The Appellants alleged before the RPD that the male Appellant's brother, XXXX, approached him in XXXX 2015 and demanded that they agree to the marriage between the brother's fifteen-year-old son and the ten-year-old female minor Appellant according to custom. When the male Appellant refused to agree, he was beaten by his brother. His brother threatened to kill him and have the marriage performed without his permission and also insisted that the female minor Appellant should undergo female circumcision. The Appellants left Iraq and traveled to the United States (US) on legally issued travel visas. They entered Canada illegally and filed refugee claims. [5] The Appellants' application for refugee protection was heard on June 22, 2016. In a decision of July 7, 2016, the RPD rejected the Appellants claims finding that the Appellants' were not credible. [6] The Appellants submit that the RPD's findings on credibility were not reasonable. ROLE OF THE RAD [7] The RAD finds that the recent Federal Court of Appeal's decision, in Huruglica,1 provides the RAD 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. In accordance with the decision of the Federal Court, the RAD will conduct its own analysis of the evidence to determine if the RPD erred and come to its own determination whether the Appellants are Convention refugees or persons in need of protection. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [8] As provided for in s. 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Section 110(4) of the IRPA provides that 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. [9] The Appellants have submitted a number of news reports and a research article on the issue of female circumcision in Iraq as proposed new evidence with the Appellant's Record. [10] The Appellants submit that the proposed new evidence meets the test of s. 110(4) of the IRPA because it arose after the refugee claims. [11] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4). While the RAD agrees with the Appellants that further analysis of the evidence is required before the RAD can accept the proposed new evidence, the analysis as set out in Raza2 is not entirely appropriate for the purpose of assessing evidence submitted to the RAD. In this regard, the RAD is guided by the Federal Court of Appeal decision in Singh.3 [12] Accordingly, the RAD has adapted the analysis in Raza4 to the assessment of evidence submitted to the RAD. [13] In assessing whether the proposed new evidence meets the statutory provisions of s. 110(4), the RAD considered the following: (a) First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim.5 (b) The RAD will consider not only the date on which the document came into existence, but the timing of the event or circumstance which the document seeks to prove.6 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. (c) It is important to note here that s. 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. (d) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and materiality of the document.7 (e) Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in s. 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim,8 or that it proves a fact that was unknown to him at the time of the hearing?9 If so, the RAD will proceed to assess the newness, credibility and relevance of the evidence. (f) Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection, it must consider the final part of the s. 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of the refugee claim? If so, the evidence need not be considered.10 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the newness, credibility, and relevance of the evidence. (g) If the proposed new evidence meets the tests set out in the statutory requirements and in Raza,11 the evidence will be admitted as evidence in the appeal. The materiality of the evidence will be considered in the context of the assessment made under section 110(6) of the IRPA. [14] The Appellants argue in the accompanying affidavit of the male Appellant12 that he did not tender this evidence for his RPD hearing because he was not aware of the availability of this evidence at the time of the hearing. Furthermore, he submits that he was not advised by his previous counsel to submit any evidence to prove that female genital mutilation (FGM) was still practiced in Erbil. He argues that, due to his lack of knowledge of FGM, he was not able to represent his daughter's interests adequately. [15] The RAD is not persuaded by the Appellants' argument in this regard. The RAD notes that all of the documents proposed as new evidence in this appeal pre-date the RPD hearing. The RAD also notes that there is reference to the practice of FGM in Iraq. The Appellants were represented by experienced counsel for their RPD hearing. There is no allegation that counsel was incompetent. The RAD finds the fact that the Appellants' counsel chose not to tender any additional evidence on the issue of FGM was a strategic decision. The RAD finds that the evidence was readily available to the Appellants at the time of their hearing and that they have not established that they could not have reasonably tendered the evidence. Accordingly, this evidence is not admitted as new evidence in this appeal. As no new evidence has been admitted as evidence in this appeal, the RAD has no discretion to hold a hearing. ANALYSIS OF THE MERITS OF THE APPEAL Assault in XXXX 2015 [16] The RPD found that the male Appellant did not establish that he had been assaulted by XXXX in XXXX 2015. The male Appellant testified that he suffered a broken nose and other injuries from his brother's assault in XXXX 2015. He alleged that he traveled to Turkey to undergo corrective surgery for his broken nose. The RPD noted that the medical document tendered by the Appellants states that the male Appellant underwent a rhinoplasty and that the pre-operative and post-operative diagnosis indicated "acquired deformities of musculoskeletal system and connective tissue". The RPD found it a major contradiction that the medical report did not indicate trauma. As a result of this perceived contradiction, the RPD questioned the male Appellant about his lack of medical documentation with regard to his treatment in Iraq. The RPD rejected the male Appellant's explanation that no medical records are provided for emergency visits. The RPD found it was reasonable to expect that there would be medical records made for his seven-hour stay in the hospital emergency and did not accept that there would be a rule that records would not be provided. [17] The RPD found, on the basis of the contradicting evidence and the lack of medical documentation for treatment in Iraq, that the male Appellant had not established that he was assaulted by his brother, XXXX. [18] The Appellants submit that the RPD erred by applying its own conjecture that there would not be a rule that records of hospital emergency treatments would not be provided to patients. The Appellant further argues that the RPD's reasons remain unclear because the RPD fails to draw conclusions about its observations. [19] After its own review and assessment of the evidence, including the recording of the hearing the RAD finds that the Appellant's argument has merit. The RAD notes that the RPD acknowledged that medical facilities in Iraq may not be consistent with countries that have more resources, but, nonetheless, it did not accept the male Appellant's testimony that medical documentation is not provided for emergency treatments in Iraq. The RAD finds that the RPD failed to explain on what basis it concluded that the Appellant's testimony was not credible in this regard. The RAD finds that the RPD's conclusion is not underpinned by the evidence in the record but simply relies on supposition. [20] Furthermore, the RAD finds the RPD's finding that the absence of reference to trauma in the medical report tendered by the Appellants undermines the report and is not sustainable. The RAD notes that the male Appellant has testified that he did not disclose to the medical facility that he was assaulted. There was nothing in the evidence before the RPD that rendered that explanation implausible. Furthermore, there was no evidence relied upon by the RPD that suggested that such a medical report would indicate that trauma ought to be included in the medical report. [21] On the basis of the foregoing, the RAD finds that the RPD's finding in this regard cannot be sustained. Hesitation and Lack of Spontaneity [22] The male Appellant submits that the RPD drew an adverse credibility finding based on hesitation and lack of spontaneity in his responses. They argue that the RPD misinterpreted his speech impediment as hesitation and lack of spontaneity. [23] The RPD found that the male Appellant testified hesitantly and lacked spontaneity in his answers and that his answers were not precise or consistent with his allegations. Although the RPD indicated in its Reasons that it would provide examples of the foregoing, there were no examples provided to establish that the male Appellant testified in a hesitant manner or that he lacked spontaneity in his responses. The RAD also notes that the issue of the Appellant's speech impediment was identified by the RPD panel member at the outset of the hearing. The RPD showed sensitivity to the male Appellant's speech impediment and offered accommodation. Regardless, the RAD notes that there was no justification for the RPD's finding in this regard, and, as such, this finding cannot be sustained. Inconsistency [24] The RPD found there was an inconsistency in the stated timeline of the male Appellant's allegations. The RPD noted that the male Appellant testified that he started to fear his brother in XXXX 2015; however, he alleged in his Basis of Claim (BoC) narrative that he was assaulted by his brother in XXXX 2015 and severely injured. The RPD also noted that the Appellant later testified in the hearing that he began to fear his brother in XXXX 2015. [25] Although the Appellants seem to identify this finding as a contested finding, they have not provided any argument to establish that the RPD's finding was in error. The RAD notes that Rule 3(3)(g) of the RAD Rules requires the Appellant's memorandum to include the following, among other things: (i) the errors that are the grounds of the appeal, (ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing. [26] The Appellants have not provided full and detailed submissions regarding the errors they allege the RPD made. The RAD finds that the Appellant has not established that the RPD erred in this regard. The RAD is supported in this argument by the decision of Justice René Leblanc in Dhillon.13 [27] The RAD notes, after its own review, that the Appellant's testimony about when he first began to fear for his and the safety of his family was inconsistent. The RAD finds that this inconsistency undermines the male Appellant's allegations in this regard. Hiding in Erbil [28] The RPD drew an adverse credibility finding based on the Appellants' decision to remain in Erbil after being threatened by the male Appellant's brother, XXXX, in XXXX 2015. The RPD noted that the male Appellant testified that his brother called him in XXXX 2015 and told him that he was bringing an imam to his home to celebrate the marriage of his son to the minor female Appellant. When the male Appellant refused, he alleged that XXXX said that he was coming to kill them. The male Appellant testified that they went to hide at the home of a friend in Erbil twenty-five minutes from their home. [29] The Appellants submits that the male Appellant provided a reasonable explanation that the place where they were hiding was close to the airport implying that the RPD ought to have accepted that explanation. [30] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the male Appellant alleged that he feared XXXX would kill him and force the minor female Appellant to marry his son. The RAD further notes that the male Appellant testified that he kept his daughter out of school because he feared she would be abducted and forced into the marriage and subjected to FGM. As noted by the RPD, all of the Appellants were in possession of visas to the US and to Europe at the time and could have left Iraq on the strength of those visas. The RAD finds the Appellants' decision to remain in Iraq for an additional three weeks at a time they allege they were at risk of harm when they had the means to leave the country undermines their subjective fear and the credibility of their allegations that they were at risk. The fact that they were near the airport is not a reasonable explanation for remaining in the area where they were at risk when they had other options available to them. Sending Brothers as Emissaries [31] The RPD found that the male Appellant's allegation that he sent his brothers to act as his emissaries with his other brother, XXXX, was illogical given that his brothers sided with XXXX. When asked by the RPD why he would send his brothers when they agreed with XXXX, the Appellant implied that he had no other option available to him. The RPD found that the male Appellant was so illogical that it rendered his testimony in this regard incredible. [32] The Appellants submit that the written narrative explains the reason why the male Appellant sent his brothers as his emissaries to XXXX. The narrative states that even though they seemed to be on [XXXX] side, seeing how he had beaten [the male Appellant] up, they agreed to speak with [XXXX]. The Appellants argue that it was completely reasonable and logical for the male Appellant to send his brothers in an effort to influence XXXX under the circumstances. [33] The RAD finds, after its own review and assessment that it agrees with the RPD that the male Appellant's explanation makes little sense. The male Appellant testified that his brothers sided with XXXX and felt he should comply with XXXX request. If such was the case, it made little sense that he would use his brothers as emissaries to convince XXXX to change his mind. The RAD agrees with the RPD and finds that this finding undermines the Appellants' allegations that they were at risk of harm. Failure to Report to Authorities [34] The RPD drew an adverse credibility finding from the male Appellant's failure to provide a reasonable explanation for why he did not contact the Iraqi authorities. [35] The Appellants submits that the male Appellant did provide a reasonable explanation when asked by the RPD. They argue that the male Appellant explained that XXXX is an influential politician and that he was affiliated with the Kurdistan Democratic Party (KDP) having supported them in the election. The male Appellant went on to explain that members of the police belong to the party and are partisan. He also testified that the police would not interfere because his brother was an influential member of the party, and they would regard this as a family honour matter. [36] The RAD finds, after its own review and assessment, that the Appellant's argument has merit. A review of the information on policing in the national documentation package reveals that the male Appellant's explanation is consistent with the objective evidence. The national documentation package states that the two main Kurdish political parties, the KDP and PUK, maintained their own security apparatuses. The same document indicates that problems persisted with the police regarding sectarian divisions, corruption, ties to tribes, and unwillingness to serve outside the areas from which they were recruited.14 The RPD has not established that the male Appellant's explanation was unreasonable. Lack of Subjective Fear [37] The RPD drew adverse credibility findings with regard to the Appellants' subjective fear. The RPD noted that the male Appellant testified that he feared for his safety and the safety of his family. He testified that he feared his daughter would be abducted and forced into marriage with the son of his brother and that she would be subjected to FGM. Despite these allegations, the RPD noted that the male Appellant continued to live and work in Erbil where his brother, XXXX, the agent of persecution, lived. [38] Furthermore the RPD noted that the male Appellant traveled out of Iraq several times and returned to Erbil where he alleged he feared harm. In addition, he testified that all of the Appellants traveled to Turkey for a vacation in XXXX 2015 but returned to Iraq. The RPD also noted that the Appellants all possessed both US and Schengen visas at the time they alleged they were at risk in Iraq but did not exercise the use of these visas to escape the risk of harm. The RPD rejected the Appellant's explanation for returning to Iraq when he feared harm and for failing to exercise the use of the visas in his possession to escape persecution. [39] The RAD notes that the Appellants have not contested this finding of the RPD. The RAD agrees with the RPD's finding in this regard and finds the Appellants' reavailments not only undermine their subjective fear but also the credibility of their allegations. Failure to Claim in the US [40] The RPD drew an adverse credibility finding based on the Appellants' failure to claim refugee protection in the US. The RPD noted that the Appellants were in the US for approximately one month before illegally entering Canada. The RPD rejected the Appellants' explanation that they had no one to help them make a claim in the US. The RPD noted that the Appellants testified that they do not have any relatives in Canada or other pressing need to be in Canada and that their failure to claim in the US amounts to asylum shopping. The RAD notes that the Appellants have not contested this finding of the RPD. [41] The RAD notes that the Minister intervened before the RPD with information suggesting that the Appellants did file a refugee claim in the US. The RAD finds, however, that the evidence tendered by the Minister is insufficient to establish that the Appellants did make a refugee claim in the US. The RAD agrees with the RPD and finds it reasonable to expect that, if the Appellants truly feared for their safety, they would have made efforts to claim asylum in the US. Their failure to do so undermines their subjective fear and the credibility of their allegations. Credibility Summary [42] The RAD finds that notwithstanding the findings of the RPD which were not sustained, the RAD finds the totality of the sustained adverse credibility findings undermine the Appellants' central allegations. The RAD finds, on a balance of probabilities, that the Appellants' allegation that the male Appellant was assaulted by his brother because he refused to allow the minor Appellant to marry the brother's son is not credible. The RAD further finds that the Appellants' allegation that XXXX and the male Appellant's brothers are demanding that the minor Appellant be subjected to FGM is not credible. Risk of Female Genital Mutilation [43] The RPD found that the Appellants had not established that female genital circumcision is prevalent in Erbil and did not establish a serious possibility of persecution if they refuse to submit the minor female Appellant to FGM. [44] The Appellants submit that the Board erred in making this finding. They argue that the RPD based its finding on the adult female Appellant's inability to explain how the procedure was done to her or who and how it is performed today rather than the evidence in the record. [45] The RAD finds that, after its own review and assessment of the evidence in the record, that despite laws outlawing the practice, it is clear that the incidence of FGM in Erbil is prevalent particularly in the rural areas.15 The RAD notes that the evidence indicates that FGM is predominately imposed by male relatives; however, there was no indication that it could be imposed against the wishes of the parents. The RAD finds that the male Appellant and female adult Appellant have made it clear that they do not support FGM and would not subject their daughter to the practice. The RAD finds that, given the allegations with regard to XXXX have been found not to be credible, the RAD finds that the minor female Appellant is not at risk of forced FGM if she were to return to Iraq. IN SUMMARY [46] Accordingly, the RAD finds that the Appellants have not satisfied their burden of establishing that there is a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, they would be personally subjected to a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture. CONCLUSION [47] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeals. (signed) "L. Favreau" L. Favreau November 14, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 3 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 4 Raza, 2007 FCA 385. 5 Raza, 2007 FCA 385, para. 13.3(a). 6 Raza, 2007 FCA 385, para. 16. 7 Raza, 2007 FCA 385, para. 13.5(b). 8 Raza, 2007 FCA 385, para. 13.5(a). 9 Raza, 2007 FCA 385, para. 13.3(b). 10 Raza, 2007 FCA 385, para. 13.5(a). 11 Raza, 2007 FCA 385. 12 Exhibit P-2, Appellant's Record, Affidavit of XXXX XXXX XXXX, p. 16. 13 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, paras.14 to 24. 14 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for Iraq (April 29, 2016), item 10.1, Center for Strategic and International Studies, Burke Chair in Strategy, The Iraqi Police and Security Forces. Shaping Iraq's Security Forces, 12 June 2014. 15 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for Iraq (April 29, 2016), item 5.1, United Nations, Committee on the Elimination of Discrimination against Women, Concluding Observations on the Combined Fourth to Sixth Periodic Reports of Iraq, 10 March 2014; item 5.2, Minority Rights Group International; Ceasefire Centre for Civilian Rights, The Lost Women of Iraq: Family-based violence during armed conflict, November 2015; and item 5.5, United Nations, Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Iraq, 3 March 2015. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-13169 TB6-13170 TB6-13171 TB6-13172