TB7-24798

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 / Dossier de la SAR : TB7-24798 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, ON Appel instruit / entendu à Date of decision December 19, 2018 Date de la décision Panel James Sloan Tribunal Counsel for the person(s) who is(are) the subject of the appeal Raoul Boulakia Barrister & Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the Appellant) claims he worked as an XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. In August 2015, he prepared a list of 115 phantom employees, i.e. people who were receiving salaries but doing no work. Because of his report, the 115 phantom employees were terminated. Sixty-three of the 115 were said to work for "section 136" of the XXXX, which is commanded by the notoriously powerful XXXX XXXX. The Appellant claims that this led to him being threatened by three armed men, who were associated with section 136. They warned him not to find any more phantom employees. [2] On October 12, 2015, he, once again, prepared a list of people he suspected were phantom employees and, once again, they were terminated. Of the 130 people on his list, 55 were from section 136. On the same day, the Appellant claims that he learned men were looking for him with the aim of killing him and he immediately went into hiding. He testified that on October 16, 2015, a group of five soldiers came to his family home seeking him and when his family would not reveal his whereabouts, they beat his brother, causing him injury. While in hiding, he applied for a Canadian visa on the pretext that he would be attending a trade show in Toronto. A visa was granted and he left Iraq on XXXX XXXX XXXX XXXX. [3] The Appellant's claim for refugee protection was heard by the Refugee Protection Division (RPD) on September 29, 2017 and refused on November 3, 2017 on the basis that he lacked credibility. He now appeals to the Refugee Appeal Division (RAD). DETERMINATION [4] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. NEW DOCUMENTS AND A HEARING [5] The Appellant seeks the admission of the following ten documents: a. a copy of an administrative order dated February 11, 2014 indicating that a letter of referral from the XXXX was required in order for an employee to receive medical treatment (document 1), b. a letter from the "Ministry of XXXX," dated January 10, 2018, stating that he had worked for the Peshmerga from June 1, 2014 to October 2015 (document 2); c. three XXXX employee identity cards (documents 3, 4, 5) d. photographs from his workplace (documents 6-10). [6] Subsection 110(4) of the IRPA limits the admission of evidence in an appeal before the RAD to evidence that: 1) arose after the RPD's rejection of the claim; 2) was not reasonably available at the time of the RPD's rejection of the claim; or 3) an Appellant could not reasonably have been expected in the circumstances to have presented at the time of the RPD's rejection of the claim. If I find that the new evidence is admissible under subsection 110(4), I must then consider whether the evidence meets the factors elaborated by the Federal Court of Appeal in the Singh case, i.e. newness, credibility and relevance.1 Only then am I able to admit the new evidence. The threshold for the admission of new evidence before the RAD is high.2 Natural justice [7] One of the Appellant's arguments is that, in the circumstances of this case, it is not only reasonable for him to be allowed to submit new evidence, but that it would be a violation of natural justice not to allow new evidence. The circumstances that the Appellant highlights are connected to his claim that the RPD's decision not to verify his employee identity card-despite the Appellant indicating a willingness to consent to this-was tantamount to a representation by the RPD that the employee identity card would not be dismissed as fraudulent. Because of this, he argues, he could not reasonably have been expected to have presented the evidence before the rejection of the claim. [8] I find this line of argumentation to be mistaken. For the reasons discussed below, I find that the RPD did not indicate that the Appellant's status as a XXXX employee was not in doubt; to the contrary much of its questioning centred around his alleged employment and concerns the RPD had in this regard. As such, I find that there has been no denial of natural justice. Administrative order regarding the policy for medical treatment (document 1) [9] The administrative order showing that a referral is required for XXXX staff to get medical treatment is dated February 11, 2014 and, as such, clearly did not arise after the rejection of the claim. The question is whether it was not reasonably available or whether the Appellant could not reasonably have been expected in the circumstances to have presented it at the time of the RPD's rejection of the claim. He argues that the RPD's doubt about the policy was only raised at the hearing, that he had to rely on a former co-worker to find the policy, and that his co-workers did not believe that a Canadian authority would dismiss an official document from the XXXX. [10] First, while it is true that the RPD's doubt about the letter was raised at the hearing, he had every opportunity to submit the policy after the hearing (held on September 29, 2017) but before the claim was refused (on November 3, 2017). Second, that he had to seek the assistance of a co-worker to obtain the policy is not a reason why the document was not reasonably available or that he could not reasonably have been expected to present it to the RPD before it rejected his claim. There is no indication given as to why he could not have requested such assistance before the rejection of his claim. Finally, the assertion by the Appellant that his former co-workers in Iraq did not think it possible that a Canadian official would not accept this documentation is not a reasonable basis as to why he could not have been expected to present it. He was represented by counsel and should have sought advice from his counsel, rather than from his former co-workers. The document does not comply with subsection 110(4) and, as such, is inadmissible. Letter from the "Ministry of XXXX" (document 2) [11] As to the letter confirming his employment, he notes that it was issued on January 10, 2018 and so postdates the hearing. The date of the letter is, of course, not determinative for the purposes of subsection 110(4) in cases such as this one where there is nothing to indicate that the letter could not have been written in advance of the hearing had the Appellant requested it. [12] He argues further that he did not request it because he had mistakenly presumed that it was not available unless he was present in person to request it. That the Appellant relied on a mistaken assumption instead of taking steps to see if his assumption was true is not a basis for me to conclude that the document was not reasonably available or that he could not, in the circumstances, have been expected to present it before the RPD's rejection of his claim. I note that he was represented by experienced counsel, who should have advised him of the importance of proving that he worked for the XXXX-an essential aspect of his overall narrative. [13] Finally, he argues that his former co-workers did not believe that a Canadian decision-maker would not accept the document. For the reasons given above, this argument is rejected. The document is inadmissible. XXXX employee identity cards (documents 3-5) [14] The Appellant submitted three employee identity cards of people he describes as civilian employees in military uniforms to refute the RPD's finding that it was irregular that the Appellant's identity card showed him in a military uniform when he testified he was a civilian (see below). He acknowledges that he could have sought the identity cards during the period between the hearing and the rejection, but argues that the RPD's conduct implied it would not treat the employee card as fraudulent. Finally, he argues that his former co-workers did not think that he needed to corroborate his employment. [15] Even if the Appellant could not have predicted that the RPD would have misgivings about his evidence, he had every opportunity to submit the identity cards after the hearing (held on September 29, 2017) but before the claim was refused (on November 3, 2017). As discussed above-and explored further below-I find that the RPD's conduct did not imply that it was unlikely to treat the identity card as fraudulent. Finally, for the reasons discussed above, the views of the Appellant's former co-workers do not mean that he could not reasonably have been expected in the circumstances to have presented supporting evidence before the rejection of the claim. The documents are inadmissible. Workplace photographs (documents 6-10) [16] As to the photographs, the Appellant argues that "it had not occurred to me to submit photographs as proof."3 He also makes the same arguments he made in relation to the identity cards of his co-workers, discussed above. [17] His explanation that it did not occur to him-without more-is unreasonable on its face. As to his other arguments, for the reasons set out above in relation to the admissibility of the identity cards of his co-workers, I must reject them. I find the photographs to be inadmissible. Request for a hearing [18] Because no new evidence has been admitted, the request for a hearing pursuant to subsection 110(6) of the IRPA must be denied. DETERMINATIVE ISSUE [19] The determinative issue in this case is credibility. ANALYSIS [20] The RPD found that the Appellant lacked credibility on the following bases: a) it was not satisfied that he worked for the XXXX; b) a letter from the Appellant's cousin was inconsistent with the Appellant's testimony; c) the Appellant's testimony about a hospital letter meant to show that the Appellant's brother had been beaten was inconsistent and evolving; and, d) there was an unexplained delay in claiming refugee protection. It found that the Appellant's additional supporting evidence was insufficient to offset his credibility problems. [21] The Appellant argues that the RPD's findings were in error. In addition, he claims that there was breach of fundamental justice and that the RPD member was biased. [22] I note, at the outset, that RAD Rule 3(3)(g) deals with the contents of an appellant's record. It requires an appellant to submit a memorandum that "includes full and detailed submissions...regarding 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". In this case, the Rules were not fully complied with, with the Appellant making only infrequent reference to where the RPD's alleged errors were located. While I have made every endeavour to overcome the difficulties that this non-compliance has presented and to address each of the Appellant's arguments, I note that the Appellant's disregard for this rule has made my work considerably more difficult. a) Did the Appellant work for the XXXX? [23] In support of its determination that the Appellant was not, on a balance of probabilities, an employee of the XXXX, the RPD made the following findings: i) his testimony about how he investigated referrals of potential phantom employees was not consistent or detailed; ii) his employee ID document warranted little weight; iii) a letter addressed to a hospital indicating he worked for the XXXX was deserving of minimal weight; iv) there was a lack of supporting documents regarding the Appellant's job with the XXXX; v) he claimed to work for an organization other than the XXXX on his Canadian visa application. i) The Appellant's testimony lacked adequate detail [24] The RPD characterized the Appellant's testimony on how he performed his task of investigating who was a phantom employee to be lacking in detail and consistency. Noting that he should be able to describe his role in investigating claims, given that he had worked at the job for over a year before the first list of phantom employees came to his attention, it drew a negative inference from his lack of detailed or consistent testimony. [25] The Appellant argues that his testimony was very detailed. He argues that if the RPD member had difficulty understanding the testimony and "expected [a] more elaborate explanation than required",4 the Appellant ought not to be blamed for the RPD member's shortcomings. He notes that at one stage the RPD member stated that she was confused; this, he argues, "is simply because she is not following a detailed and perfectly reasonable explanation he has given."5 [26] I have reviewed the Appellant's testimony on this point. It is long and complex. The Appellant was asked several times about the methodology of arriving at the 115 people on the first list, including what level of proof was required. Ultimately, he stated that "the office" created the list ("The thing is that the office already knew that and we have asked and we knew these people are not the one who work there.")-or at least a first draft thereof. When asked how the office decided who was to go on the list, he said he did not know ("I don't know that. They have their own investigators [who] have worked on it."). When the RPD noted that it had understood that it was the Appellant-not the office-who had placed people on this list, he stated: Yes, I was doing the list, but when they would tell me that there is someone who is taking the salary, then I would start to focus on this person to look the previous months to see the previous months he has done or she has done, so that was why, [it's] that way. At this stage in the testimony the Appellant's counsel interrupted the proceedings to advise the Appellant to modify his approach so as to be more responsive to the RPD's questions. [27] I find that significant prompting was required by the RPD member in order to gain insight into the Appellant's role in investigating the frauds. Even with that prompting, the particular methodology used by the Appellant in determining who was a phantom employee was not clear. That the Appellant's counsel felt compelled to interrupt the line of questioning in order to ask the Appellant to be more responsive to the RPD's questioning indicates, to my mind, that the testimony was not adequately clear. In view of this implied acknowledgement by counsel of the difficulty associated with the Appellant's testimony on this point, it is regrettable that the same counsel would make an argument that any difficulty with his client's testimony was grounded in the deficiencies of the RPD member. There is no evidence that the RPD member was in need of overly elaborate explanations; moreover, it is unfortunate that such an unfounded allegation would be so casually be made. [28] I note that the RPD does not elaborate on the manner in which the Appellant's testimony was lacking in consistency. Based on my review of the record, am I unable to find any inconsistency in the Appellant's testimony in this area. [29] I find that the testimony on the Appellant's role in determining phantom employees was lacking in the level of detail I would expect in view of his having been employed at his job for over a year at the time he completed his first list of phantom employees. I do not, however, agree with the RPD that the testimony was inconsistent. ii) The Appellant's employee identity card is deserving of little weight; the RPD's decision not to attempt to have the identity card verified does not amount to a breach of justice Weight of the card [30] The RPD noted that the Appellant's employee identity card showed him dressed in a military uniform and indicated that he had a military ranking. When asked why this was the case, given his evidence that he was not military personnel, the Appellant said that the rank was for the purposes of identifying his pay grade. He also testified that he did not own a uniform, but that he wore one provided by the photographer in order to get his picture taken for his identity card. The RPD held: "As both the appearance in a uniform and the rank listed on the ID are not accurate or true, the panel finds it can put little weight in the document."6 [31] The Appellant characterizes the RPD's finding as "irrational" and "perverse" and argues that it "misconstrues his testimony." He argues that there is nothing implausible about pay grade classifications being applicable across an institution. He also notes that the card features security features (it is sealed with special plastic embossed with symbols in the shape of a globe). He argues that the objective evidence-though he does not say where in the objective evidence-shows that the XXXX only recently became a state military force and "there are all manner of things that are idiosyncratic or evolving in its practices"7 and argues that the RPD erred by not considering the objective evidence in making a plausibility finding. [32] I agree with the Appellant that it is not implausible that a civilian working for a military organisation might be assigned a putative military rank for salary purposes. However, I agree with the RPD that it is implausible that a civilian employee would be required to put on a military uniform, furnished by the photographer, in order to have his or her photograph taken for an employee identity card. I find this to be the case, even accepting that the XXXX is evolving in its practices and is idiosyncratic. I can see nothing in the objective documentation that rebuts my finding that this is improbable. [33] Finally, I have reviewed the original identity document, which I requested from the Appellant. The identity document is indeed embossed with symbols (images of a globe); however, by the Appellant's counsel's own admission, the globe symbol bears no relation to Kurdistan ("But, you know, this question about the use of this globe, which is kind of a generic symbol, it's not a symbol of the Government of Kurdistan, you know, there could be many reasons, such as that the Government of Kurdistan contracts with some security firm that supplies them with these materials and the materials are just a security feature, not a security feature if it was prepared to the order and specifications of the Government of Kurdistan.") In view of there being no connection between the symbol and the Government of Kurdistan, I find that the symbols bear little relevance to the question of whether that document was legitimately issued by the XXXX. [34] I also note that when I looked at a magnified version of the original identity document, it became clear that the photograph had been pasted onto the card before it was laminated. In addition, the banner of the card (the horizontal strip along the top) appears to have also been pasted onto the card-with part of the pasted banner being uneven due, it would appear, to the paper on which the banner was printed having been crumpled or damaged. Having said that, I am unwilling to find that the identity card was forged. I agree with the Appellant that it would be inappropriate to apply Canadian standards to the XXXX: they may have a system of making identity cards by physically pasting pictures and banners onto a card. [35] Nevertheless, I find the fact that the employee identity document depicts the Appellant, a civilian, in military dress undermines its authenticity. As such, I find the identity card alone does not prove that the Appellant was an employee of the XXXX. Natural justice [36] Next, I will address the Appellant's argument that the RPD's decision not to have the identity document independently examined in order to verify its authenticity-despite his counsel having indicated that he would consent to this-amounts to a breach of natural justice. As discussed above, the Appellant's argument seems to be that, by not opting to have the document verified, the RPD, in effect, made a representation that the document was in no way irregular. In order to address this argument, I will have regard to the Appellant's counsel's submissions at the hearing and the RPD Member's response thereto. [37] It is clear from the recording that the RPD had misgivings about the authenticity of the employee identity card and, as a result, spent a considerable amount of time on the issue during the hearing. In his submissions at the end of the hearing, the Appellant's counsel attempted to address some of the RPD's concerns. Having attempted to do so, he then stated that he and the Appellant would "entirely consent for the document to be sent to - for verification or to be kept by you and for the [Immigration and Refugee Board (the Board)] to give it to - well traditionally it's been an RCMP unit ... that verifies documents." [38] It is also clear from the recording that the RPD did not, at any time, indicate that it accepted the Appellant's counsel's arguments or that the validity of the identity card was no longer in issue. Instead, it indicated that it did not believe that attempting an authentication would be practical for the following reasons: a) "I doubt that they have a specimen of this particular card --- to compare against"; b) the Appellant's counsel's claim that the Canadian Armed forces work with the XXXX sometimes did not "mean the --- RCMP document centre in Canada would have copies of local XXXX Forces ID cards"; and, c) the RPD thought it was not practical "to send [the document] to Iraq to be verified by [Canadian] soldiers in Iraq who are working with XXXX Forces there." The fact that counsel signalled his client's willingness to consent to the identity card did not create an obligation on the RPD to do so; nor, by not doing so, did the RPD restrict its ability to find the identity card to be problematic. [39] The Federal Court case of Sivamoorthy,8 relied upon by the Appellant, is inapposite. In that case, the Board sent copies of the Applicant's Sri Lankan identity document (a National Identity Card or NIC) to the Sri Lankan authorities and it was found to be genuine. On several occasions, the decision-maker indicated that it was his understanding that "since the NIC has been confirmed [as] genuine, identity was no longer an issue."9 As such, the Court found that the Board: did mislead the Applicant to believe that the central issue of identity had been resolved and that the confirmation by the Sri Lankan authorities that the original NIC was genuine had resolved any outstanding doubts as to her identity. Any reasonable person would have also believed this to be the case.10 Clearly the facts in Sivamoorthy are materially different from those in the instant case as regards any representations made by the Board decision-maker. [40] There is no obligation on the RPD to take steps to contact governmental authorities to where it finds evidence submitted a claimant to be irregular in nature-whether or not the Appellant has indicated a willingness to consent to this. As the Federal Court held in the De Costa case, "it is trite law that the onus is on a claimant to present sufficient credible and trustworthy elements to establish the material elements of a claim."11 It is clear from the recording of the hearing that the issue of whether or not the Appellant's identity document was genuine had not been decided in his favour by virtue of the RPD's decision not to request the Canadian authorities to examine the document. [41] The Appellant relies on the fact the RPD noted that reaching a decision in this matter had been difficult because the Appellant's testimony was sometimes detailed and responsive.12 The argument seems to be that since this was a nuanced case, the RPD member had a particular responsibility to seek assistance from Canadian authorities to verify the identity card. I can see no basis in logic for this. First, the point being made by the RPD was that the difficulty with regard to the case was based on the variable quality of the Appellant's testimony; it did not link this difficulty to the supporting documentation or to the employee identity card in particular. Moreover, I do not see how the acknowledgement by the RPD that the claim was difficult to decide could be a basis to find that the RPD was obliged to seek external verification of a document, when, as here, the RPD did not consider that to be practical. [42] I find that there has been no breach of natural justice; nor was the RPD's finding in relation to the authenticity of the Appellant's employee identification card incorrect by reason of its decision not to request Canadian authorities to examine the card. iii) The support letter addressed to the hospital was of probative value [43] The RPD considered a letter dated January 13, 2015 from the Ministry of XXXX, XXXX XXXX, to XXXX XXXX indicating that the Appellant was a "civic employee" and asking that the hospital "help him and do what is necessary."13 The RPD found that his testimony regarding the letter evolved (he initially testified he had been provided with it in order to obtain medical services but later described the document as the equivalent of a sick note), that the letter did not provide specifics as to his work, and that there was no original available. Consequently, the RPD gave minimal weight to the letter. [44] The Appellant makes a variety of arguments, including that his testimony was not evolving; rather, he was simply indicating that there was a second use for the letter. [45] I find that the Appellant's testimony regarding the letter was not inconsistent. I find that the letter is of probative value. iv) Lack of supporting documentation to show the Appellant worked for the XXXX [46] The RPD held that, given the Appellant purported to have worked for the XXXX for over a year, it would have expected him to provide more supporting evidence, especially given his profession as an accountant. In particular, it mentioned the absence of photographs, emails, letters, and other official documentation. The RPD drew a negative inference from this lack of documentation. It noted that the Appellant, when asked about this, testified that he could not collect any such evidence as there was a law that no XXXX documents could be obtained by third parties; consequently, given that he was in Canada and could not request documents in person, he could not obtain any such documentation. Noting that the Appellant could not give any details of this purported law, the RPD did not accept this explanation as reasonable. [47] The Appellant argues that he provided the RPD with "ample corroboration of every aspect of his testimony."14 In particular, he objects to the fact that the RPD did not appear to take into account an affidavit sworn by his co-worker. He characterizes the RPD's finding that he had insufficient supporting evidence as amounting to a "perverse" expectation that "he would have pilfered all manner of evidence before he left" his job.15 He claims he is law-abiding and not the sort of person "who was fond of improperly copying internal documents".16 He also states that "[s]worn testimony does not require documentary corroboration."17 Finally, he concedes that the explanation he gave the RPD for not having more documentation-that the law required that such documentation be obtained in person-was in error. [48] I agree that the RPD was remiss not to have analyzed the affidavit of the Appellant's co-worker, sworn February 2, 2016,18 given how important the issue of whether or not the Appellant worked for the XXXX was and in view of the paucity of other information on this point. However, this error is not fatal because I am in a position to review the affidavit myself. In the affidavit, the co-worker states that he works at the payroll office of the finance department of XXXX XXXX XXXX XXXX XXXX; that the Appellant is a good and trusted finance employee; that in the course of his work the Appellant "realized that a group of people receives [sic] salaries illegally"; that a group of people stopped receiving their salaries on October 12, 2015 as a result of the Appellant's actions; that this group consisted of armed men who threatened to kill the Appellant and are looking for him; and that on October 12, 2015, "they"-presumably the group who stopped receiving their salaries or some of its members-asked the affiant if he knew where the Appellant was. I find the affidavit of the co-worker to be relevant and will consider it in assessing the Appellant's overall credibility below. [49] Having said, that, I agree with the RPD that the evidence of the Appellant's employment by the XXXX-the affidavit of a co-worker, the identity card and the letter from the XXXX to a hospital-was limited in nature. [50] As to the Appellant's suggestion that the RPD was faulting the Appellant for being insufficiently dishonest or for not having "pilfered all manner of documents", this is misplaced. The RPD's point was that there was insufficient evidence to show that the Appellant worked for the XXXX and that it did not find his reason for the paucity of evidence to be reasonable; no suggestion that he was at fault for not pilfering documents was made. The RPD is, of course, entitled to expect a claimant to "provide acceptable documents establishing their identity and other elements of the claim." This is required by RPD Rule 11. It is also obliged to consider a claimant's explanation as to why he or she did not provide such documents and what steps he or she took to obtain them. Once again, this is provided by RPD Rule 11. That his testimony was sworn does not obviate the need for supporting evidence.19 [51] Having found that that the Appellant did not provide adequate documentation to show he worked for the XXXX, it falls to me to consider the Appellant's explanation for not having done so, i.e. that "[b]ecause according to the law, that's not allowed." The Appellant now says he was in error when he testified that it was not legally possible to obtain supporting evidence of his employment with the XXXX. In an affidavit he submitted with this appeal, he states he was indeed able to obtain supporting documents if they were requested by an immediate relative.20 In short, the RPD's finding that the Appellant's sworn testimony that he was precluded by law from obtaining work-related supporting documentation was not reasonable has been confirmed by the Appellant himself. As a result, the Appellant has no explanation as to why he was unable to obtain supporting evidence other than his misapprehension of the law. I find that such a misapprehension-arrived at without undertaking any efforts to determine if his understanding was true-does not provide a reasonable explanation for the paucity of documentation to support his claim that he worked for the XXXX. [52] I find that the Appellant has provided insufficient supporting documentation to show that he worked for the XXXX, without a reasonable explanation. v) The nature of his employment as outlined in his Canadian visa application [53] The RPD noted that the Appellant, in his Canadian visa application, did not claim to work for the XXXX: he claimed to work at a different job at a different company. It notes that Canadian officials must have had a reason to believe what was stated on the visa application. Despite the Appellant's testimony that the information provided on the application was false and that a company aided in this fraud as a favour to him, the RPD concluded, given the credibility concerns as outlined by it, that it could not rely on his testimony that he was not being truthful about his employer on his visa application. [54] The Appellant describes this as a secondary finding, as it is "predicated on having already found he had no further evidence to corroborate his employment."21 He says that the RPD "illogically argues that he could not have gotten the visa if he did not really work for the company, as the person issuing the visa would have checked. Yet the premise of such a scheme is that the person pretending to be his employer would confirm this."22 [55] I find that the Appellant's testimony that the job outlined on the Canadian visa application was false-and supported by the company that fraudulently claimed him as an employee as a favour-provides a reasonable explanation of why his visa application does not show he was employed by the XXXX. Conclusion on whether he worked for the XXXX [56] In view of the foregoing findings, I find, on a balance of probabilities, that the Appellant has not shown that he was employed by the XXXX. b) Letter from Appellant's cousin is not inconsistent with the Appellant's testimony [57] The RPD considered an undated letter from the Appellant's cousin.23 The letter states that the cousin witnessed the Appellant being harassed by a group of men from the armed forces on August 20, 2015 on his way home; that the group also threatened the Appellant in the evening of August 20, 2015; and, that the Appellant stayed overnight at the cousin's house. The RPD noted that there was a contradiction between the cousin's claim to have witness the Appellant being abused and the Appellant's testimony that the cousin had not witnessed the abuse. [58] The Appellant objects to the RPD referring to the document written by the cousin in support of his claim as a "letter", rather than an "affidavit." The Appellant argues that the cousin was "merely stating what his understanding is of why the Appellant had to hide at his house. He was not purporting to be a witness to the abuse itself."24 The Appellant states that it is "perverse" of the RPD to dispute the letter. Finally, he argues that it is wrong to discount a document based on what it does not say, without taking into account what it does say. [59] First of all, I note that the document is indeed a letter: it has not been sworn or notarized. This is clear from its closing paragraph-"I witness that and I am willing to swear and testify the above statement in front of a lawyer"-and the absence of any notarization. It is also referred to as a letter by the Appellant's counsel himself in a letter to the Board dated February 26, 2016.25 [60] As to the ostensible contradiction, I disagree with the RPD. The letter is confusing; however, I believe that, when the Appellant's cousin stated "I witness that, on day 20/08/2015 (XXXX XXXX XXXX) was harassed by a group of armed forces men ..." he meant that, in making the statement in the letter, he was bearing witness to the facts as he stated them; not that he had actually witnessed the events in question. That the cousin used the phrase "I witness that" to mean "I swear that" is clear from the extract in the previous paragraph. As such, I do not find there to be a contradiction between the Appellant's testimony (to the effect that his cousin did not see him harassed by the group of men) and the letter. [61] I will consider this letter below in making an overall assessment of the Appellant's credibility. It provides support for the Appellant's claim to have stayed with his cousin on the evening of August 20, 2015. I note, however, that the letter is of no value in corroborating the Appellant's testimony that those events took place; it merely features the Appellant's cousin repeating information that was given to him by the Appellant. [62] As to the Appellant's argument that the RPD erred by relying on the affidavit for what it did not say, this not what happened here. The RPD did not find an inconsistency based on the omission of certain facts either from the cousin's affidavit or the affidavit; it merely noted that, because some of the cousin's evidence was based on information provided by the Appellant, it has limited value in proving the veracity of the Appellant's testimony before the RPD-a finding which, as noted, I support. c) Testimony regarding a hospital letter was inconsistent and evolving [63] The RPD referred to a letter, dated October 17, 2015,26 relating to the injury the Appellant's brother suffered October 16, 2015, said to have occurred when a group of soldiers came to the Appellant's family home. The letter states that the Appellant's brother came to the hospital "as he suffered a hit [and] we did the necessary treatments". The letter then lists three drugs that the Appellant's brother was given. The Appellant testified as follows: "The [letter was obtained] in order to get the medication and also to support my claim that the day after that my brother had been beaten up represented." [64] When the RPD asked the Appellant what he meant about the letter being obtained to get medication, he said he did not know any more details. The RPD then noted that the National Documentation Package (NDP) indicates that it was not standard for such letters to be issued in the region. In reply, the Appellant said he had no knowledge of this. He testified: "That letter's purpose is only to prove that my brother went to the hospital and received treatment." Later, when questioned by his counsel, the Appellant stated that his brother had obtained the letter more recently and that it was misdated: "...the letter [my brother] got was on January ... but when they put the date on the letter, [they] put the date of his admission to the hospital on the date." The RPD held that it would have expected the Appellant to have given this answer initially and concluded he had made up the explanation after careful reflection. It held further that even if the letter was written after the event, it was unreliable as it was not dated-other than with what was said to be a mistaken date. [65] The Appellant argues that the RPD member did not raise the content of the NDP during the hearing. He argues that his difficulty in explaining exactly why and how his brother got the letter has nothing to do with whether the information in the letter is true. He notes that the author of the letter provided his cellphone and email details and the RPD could have contacted the author to verify the letter. Finally, the Appellant argues that the RPD goaded him into providing a speculative answer and then faulted him for providing a speculative answer. [66] First, the RPD did raise the content of the NDP during the hearing: The reason I'm asking [about the letter from the hospital] is because I do have some information in the National Documentation Package about medical documents in the Kurdistan Region and that document suggests it's not sort of standard process to issue a letter like this after a visit to a hospital. So that's why I'm wondering if you know more about why this one was issued. Second, I disagree with the Appellant's assertion that the provenance of the letter has no bearing on the authenticity of its contents. If do not believe the Appellant's testimony regarding how he came to receive the letter, I am less likely to believe that the content of the letter is true. Third, it does not fall to the RPD to track down witnesses for the Appellant; it falls to the Appellant to prove his claim before the RPD. Finally, the RPD did not fault the Appellant for providing a speculative answer; it faulted him for providing testimony (that his brother obtained the letter immediately after his injury, in part, to get the medication it listed) that he later contradicted (by stating that the letter was obtained later and must have been misdated). [67] I agree with the RPD and find that the Appellant's testimony regarding the circumstances of his brother obtaining the letter was inconsistent. I conclude, on a balance of probabilities, that the letter is not genuine and that the Appellant's brother was not injured in the manner described by the Appellant. I find the Appellant's reliance on a fabricated letter undermines his credibility. d) Unexplained delay in claiming refugee protection [68] The RPD noted that the Appellant testified that, after he realized he had to flee Iraq, he arranged to obtain a Canadian visa by claiming to attend a trade show in Canada. The Appellant testified that he had actually attended the trade show. When the RPD asked why he attended, he said it was because he needed time to find out about seeking protection in Canada. The RPD suggested that the Appellant had had about a month between starting his attempts to come to Canada and arriving in Canada and, as such, had had opportunity to make inquiries before arriving in Canada. In reply, he stated that he did not know how to search for such information on the internet and that he lacked the ability to speak English well enough to do so. The RPD found it improbable that someone with the Appellant's background-he was an accountant and auditor, he had completed part of his studies in English, and he owned a smart phone-would not know how to search the internet or speak English well enough to do so. Later, the Appellant changed his testimony to indicate that the problem was that he lacked access to the internet while in hiding. The RPD did not accept the latter explanation, noting that it was only provided after the Appellant had had time to contemplate the matter. It found that his testimony in this regard detracted from his general credibility. [69] The Appellant argues that this finding is not determinative, because it was "predicated on having already found he had no further evidence to corroborate his employment."27 He argues if the RPD had recognized the content of the affidavit of his co-worker that might have "tipped the scales of this 'difficult' credibility determination in his favour."28 He also notes that the same RPD Member found another Iraqi who travelled with the same group and attended the same trade show to be a protected person. "Evidently this RPD Member could only consider this point secondary to her decision, and not determinative."29 [70] I agree with the Appellant: this finding is not determinative of the claim. As to the argument relating to the RPD's characterization of the credibility determination as "difficult," I refer to my discussion of this characterization above. Finally, the fact that the same RPD Member found another individual who attended the same trade show to be a protected person has no bearing upon this case: there is no evidence that the experiences of the other claimant were identical-or nearly so-to those of the Appellant. [71] I find that the Appellant did delay in making his claim and will consider this in assessing his credibility-though, as noted, it is not determinative. I also find the Appellant's testimony that he did not know how to search the internet was implausible, given his profile, and find further that the fact that he changed this testimony later in the hearing-such that he explained that the internet was unavailable-undermines his credibility. e) Impact of other supporting documents on the RPD's credibility finding [72] The RPD held that the remaining evidence was not sufficiently reliable or credible as to make the claim well-founded in view of its credibility concerns. The Appellant contested its treatment of i) the affidavit provided by the Appellant's brother;30 and ii) the letter provided by his part-time employer.31 i) Brother's affidavit [73] The Appellant states that the RPD discounted the Appellant's brother's affidavit simply because they are related. This, he argues, "is a completely biased and improper basis to credit evidence." [74] The Appellant has misstated the finding of the RPD on this point. It did not hold that the Appellant's brother's affidavit was to be discounted simply because they are related. It held that it gave the letter less weight than it otherwise would have because the brother was involved in obtaining a medical letter that it held not to be authentic and because the brother had been involved in assisting the Appellant to obtain his passport under false pretenses. As such, I need not examine the Appellant's argument that excluding or discounting an affidavit simply because it was from a relative raised a reasonable apprehension of bias. [75] In view of my finding above that the Appellant's brother did not suffer the injury that was outlined in the hospital letter dated October 17, 2015, I agree with the RPD that the Appellant's brother is not a reliable witness. I note further that the fact the Appellant did not make his brother available for cross-examination undermines the probative value of his evidence.32 I will not have regard to this affidavit when making an overall credibility finding below. ii) Letter from the Appellant's part-time employer [76] The RPD considered a letter from the Appellant's part-time employer. It noted that it was insufficiently detailed to be afforded much weight. It merely stated that he left work and that later his employer learned that there was an unnamed problem with his other, unnamed, job. [77] The Appellant argues that the RPD erred in disputing the letter on the basis that it lacked details about how the Appellant was persecuted. This, he argues, shows that the RPD's standards are inconsistent: unlike with its treatment of the letter from the Appellant's cousin (where the RPD was critical of the fact that the cousin had attested to things he had not witnessed), here, he argues that the RPD wants the letter's author to specify details that go beyond what he saw or to repeat hearsay. [78] The RPD did not indicate that it expected the Appellant's part-time employer to specify details that go beyond what he saw or to repeat hearsay. It merely noted that the letter was of little value as it provides little information to support the Appellant's story. I agree. Such a finding is in no way incompatible with the RPD's finding that the Appellant's cousin's letter was of limited value as some of its content related to facts that the cousin did not have first-hand knowledge of. There is no internal inconsistency. [79] Despite finding that the letter is of little value as it provides little information of value to support the Appellant's story, I will have regard to it when considering the Appellant's overall credibility below. Assessment of the Appellant's overall credibility [80] As noted above, I have found aspects of the RPD's analysis to be in error. Nevertheless, as I have outlined, I am in agreement with other, important, aspects of RPD's analysis and find that the Appellant has significant credibility problems. When I balance these problems-not including, of course, the findings described above that I have rejected as being in error-against his supporting documents, I conclude that the Appellant is generally lacking in credibility. I find, on a balance of probabilities, that the Appellant is not being pursued by members of the XXXX due to his accounting activities. [81] Consequently I find that there is not a serious possibility that the Appellant will be persecuted if he returns to Iraq. In addition, I find, on a balance of probabilities, that the Appellant will not be subjected to the harm outlined in subsection 97(1) of the IRPA if he returns to Iraq. CONCLUSION [82] I agree with the decision of the RPD and find that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "James Sloan" James Sloan December 19, 2018 Date 1 M.C.I. v. Singh, Parminder, (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para 64. 2 As noted by the Federal Court of Appeal in Singh, ibid.: "The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD..." (para 54). 3 Exhibit P-2, Appellant's Record, at p. 13, Affidavit of the Appellant, January 11, 2018, at para 8. 4 Exhibit P-2, Appellant's Record, at p. 35, Legal Memorandum, at para 12. 5 Exhibit P-2, Appellant's Record, at p. 36, Legal Memorandum, at para 13. 6 Exhibit P-2, Appellant's Record, at p. 4, Reasons and Decision, at para 5. 7 Exhibit P-2, Appellant's Record, at p. 37, Legal Memorandum, at para 15. 8 Sivamoorthy, Sivasothy v. M.C.I. (F.C.T.D., no. IMM-2112-02), Russell, March 13, 2003; Sivamoorthy, Sivasothy v. M.C.I. (F.C.T.D., no. IMM-2112-02), Russell, April 8, 2003. 9 Ibid., at para 38. 10 Ibid., at para 39. 11 Da Costa Soares, Maria Isabel Ribeiro v. M.C.I. (F.C., no. IMM-1978-06), Shore, February 20, 2007; 2007 FC 190, at para. 22. 12 "The decision in this claim was difficult, as evidence existed that both went towards believing and disbelieving the credibility of the claimant's allegations. For example, the claimant did provide some testimony that was detailed and responsive, while at other times he did not." (Exhibit P-2, Appellant's Record, at p. 3, Reasons and Decision, at para 3). This point is raised several times throughout the Legal Memorandum (see Exhibit P-2, Appellant's Record, at pp. 32, 35, 45 and 46, Legal Memorandum, at paras 1, 9, 42 and 44). 13 Exhibit RPD-1, RPD Record, Exhibit 7, at p. 274. 14 Exhibit P-2, Appellant's Record, at p. 42, Legal Memorandum, at para 31. 15 Ibid. 16 Ibid. 17 Ibid. 18 Exhibit RPD-1, RPD Record, at p. 279. 19 As noted by the Federal Court, in Murugesu: "The Board may draw a negative inference regarding a claimant's testimony if she fails to produce evidence that the Board reasonably expects should be available in the claimant's circumstances, and does not provide a reasonable explanation for failing to produce that evidence". (Murugesu, Leeladevi v. M.C.I. (F.C., no. IMM-5724-15), Fothergill, July 19, 2016, 2016 FC 819, at para 30, relying on Radics, Sandor Andras v. M.C.I. (F.C., no. IMM-4020-13), Noël, February 4, 2014; 2014 FC 110, at paras 30-32.) It described this as "an exception to the Maldonado principle." (at para 30). 20 Exhibit P-2, Appellant's Record, at pp. 11-14, Affidavit of Appellant sworn January 11, 2018, p. 2, at para 6. 21 Exhibit P-2, Appellant's Record, at p. 45, Legal Memorandum, at para 42. 22 Ibid. 23 Ibid., at p. 272. 24 Exhibit P-2, Appellant's Record, at p. 452, Legal Memorandum, at para 32. 25 Exhibit RPD-1, RPD Record, Exhibit 7, at p. 266. 26 Exhibit RPD-1, RPD Record, at p. 299, Letter from Dr. Karwan O. Mahmmod, October 17, 2015. 27 Exhibit P-2, Appellant's Record, at p. 45, Legal Memorandum, at para 42. 28 Ibid. 29 Ibid., at para 43. 30 Exhibit RPD-1, RPD Record, at p. 277, Affidavit of Bahram Ahmed Mohammed, February 2, 2016. 31 Exhibit RPD-1, RPD Record, at p. 282, Letter from Amir Ahmad Mirza, February 2, 2016. 32 In this regard, see El Bouni, Haidar v. M.C.I. (F.C., no. IMM-7627-14), Annis, June 2, 2015, 2015 FC 700, at para 25, where the Federal Court held "that confirmatory evidence of family members and friends, which is not subject to cross-examination, is not highly probative or credible evidence." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-24798 RAD.25.02 (September 18, 2018) Disponible en français 2 RAD.25.02 (September 18, 2018) Disponible en français