TB4-05524

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 : TB4-05524 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 9, 2014 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Eve Sehatzadeh 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 XXXX (the Appellant), a citizen of Iran, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] The Appellant submitted new documents to be considered as new evidence pursuant to s. 110(4) of the Immigration and Refugee Protection Act (the Act), and seeks a hearing before the Refugee Appeal Division (RAD) pursuant to s. 110(6) of the Act. [3] The Appellant requests that the appeal be allowed and that either the Appellant be found to be a Convention refugee or a person in need of protection. The Appellant further seeks a hearing under section 110(6) of the IRPA. DETERMINATION [4] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act, the RAD sets aside the determination of the RPD and substitutes a determination that the Appellant is a Convention refugee. This appeal is allowed. Background [5] The Appellant alleged before the RPD that he was involved with a woman named XXXX, in late 2010, and learned in 2011 that XXXX was married and her husband, XXXX XXXX, was in jail. The claimant ended the relationship. XXXX called him to inform him that her husband became aware of the Appellant's relationship with her. The Appellant decided to flee from Iran because having relations with a married woman is against the law in Iran. He hid until he was able to flee to Turkey and then on to Greece. Later on, his family informed him that XXXX XXXX had filed a complaint against him and the authorities went to his house with a warrant for his arrest. [6] The Appellant claimed protection upon arrival in Canada, and his claim was heard in two sittings - on February 21, 2014 and on March 21, 2014. [7] The RPD rendered a written decision on May 23, 2014. The RPD's determinative issue in denying the claim was credibility and subjective fear. [8] Issues as stated by the Appellant: A. Did RPD err in its determination that the claimant was not credible and lacked subjective fear? B. Did the Refugee Protection Division err in its determination that the claimant was not a sur place refugee? Did the Board err in failing to conduct a separate analysis under section 97 of the Immigration and Refugee Protection Act (herein "IRPA")? C. Should new evidence be admitted under s. 110 (4) of the IRPA? Jurisprudence: [9] The Appellant's submissions are based on three recent Federal Court decisions respecting the RAD decisions. However, the Appellant seems to rely heavily on the Huruglica1 decision by The Honourable Mr. Justice Phelan. [10] Huruglica2 guides me in the following: [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 a "palpable and overriding error". Merits of the Appeal [11] I am going to consider the issue of the sur place claim first. [12] A sur place refugee is defined in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status3 at paragraph 94, which states that a refugee sur place is a person "who was not a refugee when he left his country, but who becomes a refugee at a later date". The Handbook also describes two situations in which a sur place claim may arise: A change in circumstances in the country of origin during the person's absence, or as a result of a person's own actions such as associating with refugees already recognized or expressing political views in the new country of residence. Another element in the sur place analysis is whether the authorities will be aware of the activities of the Appellant after he left his country of nationality. [13] In this case, having considered all the evidence, I am of the opinion that the uncontested evidence is that the Appellant repeatedly lied to authorities in different countries - including Canada - intentionally misrepresented his identity in Greece, did not provide his own Iranian passport that would likely show where he has been and for how long he has been able to procure and use false documents. The RPD found several concerns about his credibility and also noted that the Appellant's "answers were evasive, embellished, fabricated or just plain lies.4" The RPD is correct in carrying the credibility issues into the sur place analysis. The court in Sanaei5 stated: [55] On the sur place claim, Justice Zinn stated that the real question was whether the Board was entitled to and reasonably imported its findings in relation to the fraudulent claim into the applicant's sur place claim, namely to impute that the applicant was not a genuine Falun Gong practitioner: [27] In my view, the Board must be entitled to import its credibility findings into its assessment of an applicant's sur place claim. The Board here found that the applicant had fabricated her story to claim refugee protection. [14] The RPD, in considering the sur place claim, stated, in paragraph 35, of the reasons: The panel finds that the evidence the claimant has submitted to establish his sur place claim is not reliable. This fact, coupled with the fact that the panel has found the claimant himself to be neither a reliable or credible witness, and one who is able to produce fraudulent documents in order to facilitate his moving between safe countries, leads the panel to the conclusion that, on a balance of probabilities, the website produced by the claimant where he is identified, is likely fraudulent. The panel finds that the evidence in this case is not sufficient to establish a sur place claim. [15] The RPD also stated in its paragraph 29: "... the claimant has submitted extensive documentary evidence to the panel, both video and photographic, of him participating in numerous demonstrations against Iran while he was in England." The RPD accepted the fact that the Appellant participated in demonstrations against the Iranian regime in the UK. The RPD's concern about the sur place claim seems to be that the Appellant is not credible and that he was not politically active in Iran prior to his departure in 2011, and that the evidence provided by the Appellant that Iranian authorities monitor activists against Iran in foreign lands is not credible. [16] I am to give some degree of deference to the RPD; after all, the RPD had the advantage of having the Appellant before it. Moreover, having considered all the credibility related issues, his explanation and the counsel's submissions, I am able to find that the Appellant is not credible, however I am not going to go into a detailed analysis of credibility. It is trite law that even a liar may be refugee.6 [17] I also agree with the RPD that the Appellant was not a known activist and was not perceived to be a political opponent of the regime. The RPD may be correct in considering that the Appellant demonstrated in the UK to bolster his claim. The Federal Court in Ghasemian7 stated, "I find its reasoning quite persuasive and agree that opportunistic claimants are still protected under the Convention if they can establish a genuine and well-founded fear of persecution for a Convention ground", as it relied on arguments in Danian v. Secretary of State for the Home Department, [1999] E.W.J. No. 5459. The court continued, "I note, however, that, in Danian, above, the Court also said that the fact that a claimant has manipulated his or her situation in order to make a refugee claim may still be relevant to the issue of credibility". [18] It is uncontested that the Appellant openly participated in demonstrations which may be perceived as political in nature against the Iranian regime, thus the remaining issue is whether he may come to the attention of the authorities and whether there is a serious chance of persecution by the authorities due to his participation in such demonstrations. [19] The RPD found in paragraph 30 of the reasons that: "There is evidence before the panel about the claimant's anti-Iran activities in England, including numerous photographs and video clips. However, it takes more than simply demonstrating against the regime in Iran to establish a sur place claim. The activities must have come to the attention of the authorities". [20] Giving due deference to the RPD on the issue of credibility where the RPD has an obvious advantage, and a thorough review of the record, I confirm RPD's finding that the Appellant is not credible. However, the RPD established that he participated in anti-Iran activities and was photographed and video'ed. Thus, the issue is - is there a serious chance that he may come to the attention of the Iranian authorities. [21] The RPD in its reasons at paragraph 31 stated: There are many photos of the claimant protesting against Iran while he was in the UK. It appears as those these photos have been published on the Facebook page of the XXXX XXXX XXXX XXXX XXXX The panel has no evidence before it that the Iranian regime monitors the Facebook activity of the XXXX XXXX XXXX. [22] And further, in paragraph 34, the RPD states: "The panel has no way of knowing whether the webpage submitted by the claimant where he is allegedly sought by the authorities, is legitimate. The panel has no way of verifying that the webpage is actually a vehicle by which the Iranian regime looks for its nationals. The panel has no way of knowing if the page has been altered or tampered with. Finally, the panel has no other evidence that the regime within Iran has identified the claimant or would be able to identify him were he to return to Iran." [23] In paragraph 35, the RPD states: "The panel finds that the evidence the claimant has submitted to establish his sur place claim is not reliable...." [24] After a review of the objective evidence, I find that the Appellant's allegations that the Iranian state authorities monitor protests and demonstrations and that the information is sent to Iran is supported by objective evidence. The following extracts are from the UK report,8 which is item 2.2, in the Board's NDP disclosed to the Appellant: 9.04 "The Ministry of Intelligence and Security (MOIS) is Iran's intelligence and state security service. The agency is responsible for fighting opposition to the regime not only at home but also abroad. Some Iranian intelligence agents have operated in foreign locations under diplomatic cover, as part of a drive to collect intelligence on Iranian opposition elements operating outside Iran. "The MOIS has a role in defending Iran against cyber attack and in monitoring and censoring the internet. 7.02 military resources were increasingly used to monitor and restrict internet usage. Political dissidents outside Iran 15.16 Demonstrations against the June 2009 presidential election results also occurred beyond Iran. A Times article dated 11 July 2009 reported that there had been protests outside the Iranian Embassy in London. The article observed: "From the rooftop of the Iranian Embassy in London an unmanned video camera records the faces of the angry crowd gathered in Knightsbridge, emboldened by their fury over what they believe was a rigged election. A Metropolitan police officer who has been patrolling the demonstrations since they began three days after the close of polls in mid June, told The Times: 'They're filming quite a lot. Any intelligent person would assume they're sending the footage back to Iran.'" [15d] 15.17 The Times article also reported that many of the demonstrators in London had covered or disguised their faces with sunglasses, hats, wigs and paint to avoid being recognised in Iran. In addition "Local activists are developing fresh ways of dodging the regime's dissent radar by developing secret communication methods with their counterparts back home. Their greatest weapon has been cyberspace, despite the Iranian Government's attempt to monitor websites and personal e-mails." [15d] 15.19 "While Britain and the US possess advanced facial recognition-enabled CCTV networks that allow for the automatic identification and tracking of suspects, Iran is not known to have acquired such an ability. "Shoddy file-keeping and other security practices at the intelligence ministry were corroborated by a Dubai-based activist who was detained during the summer in one of the post-election demonstrations. His worries that a previous detention would lead to harsher punishment dissipated after he realized that, even assuming his prior stint had been registered, poor information-sharing between different intelligence branches still shielded him from discovery. Last month, he successfully tested this theory when he returned to Iran to participate in demonstrations timed for Ashura and entered and exited the country unhindered." 16.06 The authorities consequently amended the 2000 Press Law to clearly cover online outlets, and adopted sophisticated methods of filtering, monitoring, and persecuting online reporters." 16.27 According to the OpenNet Initiative (ONI), the Iranian government has become one of the most sophisticated and pervasive filterers of online content in the world. It now has the technological capability to produce its own monitoring and filtering software." 16.29 The Freedom on the Net 2011 report observed: "The Iranian authorities have taken a range of measures to monitor online communications and use them as a basis for criminal punishment. A number of protesters who were put on trial after the [June 2009] election were indicted for their activities on Facebook and Balatarin, a Persian site that allows users to share links and news. Many arrested activists reported that interrogators had confronted them with copies of their e-mails, asked them to provide the passwords to their Facebook accounts, and questioned them extensively on their relationships with individuals on their 'friends' list. [25] Based on these objective documents, I disagree with the RPD's finding in this regard, as some of the RPD statements stated above are not based on objective evidence provided by the Board. I find that the Iranian state authorities monitor demonstrations and protest rallies and such activities of her subjects in foreign countries; in particular, the UK, where the Appellant was pictured numerous times. Thus, there is a serious chance that the authorities may be able to identity him. [26] The remaining issue is whether there is a serious chance of persecution, should he return to Iran, for expressing his anti-regime sentiments in the UK and thus may be perceived as a political opponent or dissident in Iran. [27] Documentary evidence is overwhelming that Iran does not tolerate political dissent and persecutes those it perceived to be political opponents of the regime.9 New Evidence to be considered as New Evidence: [28] Since the RAD is able to dispose of this appeal without relying on new documents, there is no need to consider these documents. Therefore, the request for a hearing before the RAD is moot and thus dismissed. [29] Considering the totality of evidence, I find that, should the Appellant return to Iran, there is a serious chance of persecution due to his real or perceived political opinion. I find, even though the Appellant is not credible, he is a refugee sur place. DISPOSITION [30] Pursuant to Section 111(1)(b) of IRPA, the RAD sets aside the decision of the RPD and finds that the Appellant is a Convention refugee. [31] This appeal is therefore allowed. (signed) 'Atam Uppal' Atam Uppal October 9, 2014 Date 1 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799 (CanLII), 2 Huruglica v. M.C.I. 2014 FC 799 3 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees 4 Appellant's Record, page 7, para 17 5 Sanaei v. Canada (Citizenship and Immigration), 2014 FC 402 (CanLII) 6 Canada (Public Safety and Emergency Preparedness)v. Gunasingam, 2008 FC 181 (CanLII), 7 Ghasemian v. Canada (Minister of Citizenship and Immigration), 2003 FC 1266 (CanLII) 8 RPD Record, NDP Index Iran, Item 2.2 Country of Origin Information (COI) Report: Iran 9 RPD Index at Page 36 of the RPD Record, item 3, article 2.1 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05524