TB4-02110

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 : TB4-02110 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 October 20, 2015 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Evan Stringer Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Appellant, XXXX XXXX XXXX, is a citizen of Iran and appeals a decision of the Refugee Protection Division (RPD) dated January 16, 2014, rejecting his claim for refugee protection. The Appellant is submitting new evidence and is requesting a hearing. The Appellant is requesting that the decision of the RPD be set aside and the matter be referred back to the RPD or that the RAD substitutes a determination that the Appellant is a Convention refugee. DETERMINATION [2] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter back to the RPD to be heard by a differently constituted panel. Background [3] The Appellant fears returning to Iran because he will be persecuted by the authorities. The Appellant alleges that he was able to leave Iran by bribing an official but that he had to provide an undertaking that he would return to Iran within two months. Since he has broken his undertaking he fears that the authorities will persecute him upon his return. ROLE OF THE RAD [4] The RAD finds that the recent Federal Court decision in Huruglica1 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. 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". [5] 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 Alyafi,2 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. [6] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [7] The RPD found that the determinative issue in this claim is credibility. The RPD found that the Appellant was not a credible witness. NEW EVIDENCE [8] The Appellant has submitted 12 different items as new evidence. These items include affidavits that allege to support the Appellant's employment activities in Iran, medical reports which includes a diagnosis of vascular dementia and a copy of a certificate indicating that he has been baptized as a Christian. [9] The RPD found that the main issue was credibility. Since the affidavits and medical reports impact directly the issue of credibility, the Appellant's testimony needs to be re-determined. Furthermore, the Appellant has submitted new evidence which was not presented to the RPD, namely his conversion to Christianity. DISPOSITION [10] The RAD will refer the matter back to the RPD to be heard by a differently constituted panel where the new panel is to canvass the impact of the Appellant's medical condition on his credibility and his religious conversion. CONCLUSION [11] Accordingly, pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter back to the RPD to be heard by a differently constituted panel. [12] The appeal is allowed. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino October 20, 2015 Date 1 Huruglica, 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-02110