TB8-16503

RAD File / Dossier de la SAR : TB8-16503 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision June 12, 2020 Date de la décision Panel J. Lourenço Tribunal Counsel for the person who is the subject of the appeal Lily Luwam Tekle Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX XXXX (Appellant) is a citizen of Iraq. He appeals a decision of the Refugee Protection Division (RPD), dated June 11, 2018, rejecting his claim for refugee protection. The Appellant alleges that he faces persecution and a risk to life at the hands of ISIS. The RPD found that the Appellant was not credible. In the alternative, it also found he had a viable Internal Flight Alternative (IFA). [2] For the reasons that follow, I disagree with the RPD. The appeal is allowed and I find the Appellant is a convention refugee. BACKGROUND [3] The Appellant is an Iraqi Kurd who resided in Iraqi Kurdistan. The Appellant alleges that he owned and operated XXXX XXXX in Erbil. The Appellant alleges that while he was in Dubai, he received a phone call from his brother who was looking after XXXX XXXX. The Appellant's brother informed him that a XXXX XXXX had become irate and abusive and the Appellant alleges he instructed his brother to call the police. The Appellant alleges that the police attended XXXX XXXX and arrested XXXX XXXX XXXX [4] The Appellant alleges that after he returned to Iraq, he was contacted by authorities who told him that XXXX XXXX XXXX was in fact an XXXX XXXX who was on a terrorist mission in Erbil. The Appellant alleges that a number of months later, while he was in the United States (US) for business purposes, he received a phone call from his brother advising him that they had received a threatening letter from ISIS at XXXX XXXX. The Appellant alleges that he told his brother, as well as his wife and children, to go into hiding as he feared for their safety. [5] The Appellant alleges that he decided to come to Canada to seek refugee protection instead of pursuing asylum in the United States because he had heard reports of ISIS initiating terrorist attacks in the US. As such, the Appellant entered into Canada and initiated a refugee claim in XXXX 2016. [6] The Appellant alleges that after his initial refugee hearing, he learned that the XXXX XXXX and his brother had been attacked. He alleges that the XXXX had been murdered and that his brother was hospitalized due to serious injuries as a result of the attack. The Appellant alleges that because his hearing had concluded, he did not bring this evidence forward to the RPD as he believed he would receive a positive decision. He alleges that he was able to obtain corroborating evidence of this attack following the rejection of his claim in XXXX 2016. Further, the Appellant alleges that in XXXX 2016, his son was involved in an attempted abduction during which he was injured. The Appellant alleges that his family has approached the authorities in Iraqi Kurdistan, but the authorities are unable to protect them. The Appellant fears persecution on the basis of his imputed political opinion as well as a risk to life at the hands of ISIS. ROLE OF THE REFUGEE APPEAL DIVISION [7] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which in particular cases, attracts deference. Unless specifically stated below, I have applied a correctness standard.1 ANALYSIS [8] In the Appellant's case, a review of the procedural history of his claim is helpful. A brief synopsis of the Appellant's claim is as follows: (a) The Appellant arrived in Canada on XXXX XXXX, 2015. (b) The Appellant's Basis of Claim (BOC) form was signed on XXXX XXXX, 2016. (c) The Appellant's refugee protection hearing took place on March 14, 2016 and April 7, 2016. (d) The Appellant's claim was rejected by the RPD in writing on April 19, 2016 as the RPD found that the Appellant had not rebutted the presumption of state protection. (e) The Appellant appealed this decision to the RAD and filed new evidence in support of his appeal. This evidence consisted of the documents the Appellant alleges he obtained after the second sitting of his RPD hearing but did not provide to the RPD. The RAD did not allow the Appellant's new evidence, however, the RAD found that the RPD erred in its state protection analysis and allowed the appeal, returning the matter to the RPD for redetermination. (f) The RPD re-heard the Appellant's claim on April 26, 2018. At this time, the RPD allowed the Appellant to submit the evidence that the RAD had dismissed with his appeal. The Appellant also submitted additional evidence before the RPD. (g) The RPD rejected the Appellant's claim on June 11, 2018 as it found that the Appellant had not credibly established his allegations. In the alternative, the RPD also found that the Appellant had a viable IFA in Chineran or Sulimaniya. (h) The Appellant appeals this decision of the RPD to the RAD and submits new evidence related to conditions in northern Iraq. Appellant's Arguments [9] The Appellant argues that the RPD erred in its credibility assessment. The Appellant argues that the RPD was unreasonable when it found that the Appellant's failure to claim in the United States undermined his credibility and subjective fear. The Appellant also argues that the RPD erred in finding it would be implausible for ISIS to have waited close to a year before threatening the Appellant. The Appellant also argues that the RPD erred in finding that his police documents were not authentic. Further, the Appellant argues that the RPD failed to fully consider his supporting documents. In reference to the RPD's IFA findings, the Appellant argues that the RPD failed to consider the objective evidence regarding the ongoing presence of ISIS in Iraqi Kurdistan. New evidence [10] Section 110(4) of the Immigration and Refugee Protection Act (IRPA)2 sets out that an appellant may only present evidence that arose after the rejection of their claim, or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented at the time of the rejection. Where evidence meets the requirements of section 110(4), the RAD will then go on to consider the factors affirmed by the Federal Court of Appeal in Raza and Singh.3 [11] The Appellant submits a number of documents as new evidence with his appeal. Essentially, the Appellant submits five new documents which are more recent news articles about the conditions in northern Iraq. These articles are dated between June 26, 2018 and July 17, 2018. [12] In considering the admissibility of these documents, I find that the documents meet the requirements set out in section 110(4). These articles postdate the rejection of the Appellant's claim and therefore the information contained in them is new. In considering the factors in Singh, I find that the documents are credible on their face given the source of the information. Further, these articles are relevant as they deal with conditions in northern Iraq as well as the presence of ISIS in the region. As such, they will be admitted and considered with the appeal. Analysis The RPD erred in its credibility findings [13] The RPD found that the Appellant was not credible on the central aspects of his claim. The RPD found that the Appellant's failure to claim in the United States demonstrated a lack of credibility and subjective fear. The RPD did not accept the Appellant's explanation that he did not make a claim in the United States because he had seen news stories about ISIS affiliated attacks in that country. The RPD found that the Appellant's choice in coming to Canada amounted to forum shopping and was reflective of a lack of genuine subjective fear.4 [14] The RPD also found that it was unlikely that the Appellant would have received a threat from ISIS many months after the initial incident had occurred. As such, the RPD found that the timing of the threat was likely fabricated. [15] The RPD also found that some of the Appellant's supporting documents were fraudulent. The RPD took issue with the wording of the police documents and found that it would be "highly suspect"5 for government security institutions to write that they would be unable to protect their citizens. Furthermore, the RPD found that the documents "look[ed] fraudulent to the admittedly untrained eye of the panel."6 The RPD found that the documents looked plainly photocopied and were missing watermarks and other security features. The RPD also noted that the documents did not appear to show any signs of wear and tear as would be expected. Finally, the RPD indicates that it considered all of the other documents tendered into evidence, but found that they did not credibly establish the Appellant's allegations as they did not mention a connection between the attacks on his family and ISIS. [16] The Appellant argues that the RPD erred in determining that his failure to claim in the United States demonstrated a lack of credibility or subjective fear. The Appellant argues that the RPD failed to consider the news articles that he provided which substantiated that ISIS had, in fact, coordinated an attack on American soil. As such, the Appellant argues that the RPD did not give adequate consideration to his reasoning for not advancing an asylum claim in the United States. [17] The Appellant argues that the RPD erred when it concluded that it was unlikely that ISIS would have threatened him so long after the initial incident. The Appellant argues that the RPD's conclusion is problematic as it rests on the panel's own view of what ISIS would be expected to do in the circumstances. The Appellant argues that terrorist groups can often act irrationally and that the delay in ISIS threatening the Appellant did not undermine the credibility of his allegation. [18] The Appellant also argues that the RPD erred in finding the documents from Kurdish security services to be fraudulent. The Appellant argues that the RPD imported a Western expectation in its analysis of the documents. The Appellant also indicates that it's relevant to note that the RPD acknowledged that it came to these determinations through an untrained eye and failed to consider any expert evidence which might set out the expected appearance of an appropriate or official police report from Kurdistan. The Appellant also notes that although the RPD submitted the documents in question to the forensic analysis unit for further testing, the results were not disclosed to the Appellant or referenced in the RPD's decision. [19] Having independently review the record, I agree with the Appellant's arguments. I find that the RPD's credibility assessment is incorrect. I agree that the Appellant's failure to claim in the United States is not an indication of a lack of credibility or subjective fear. I agree with the Appellant that the RPD failed to consider the supporting documents and news articles submitted by the Appellant which demonstrated attacks in the United States that were linked to ISIS. Furthermore, I note that the Appellant was in the United States for a very short period of time after learning about the threats against his family before entering Canada and making a refugee claim. According to the Appellant's evidence, he received a phone call from his brother advising him of the threatening letter from ISIS on XXXX XXXX, 2015.7 The Appellant entered Canada eight days after he received this phone call. Therefore, I find that the Appellant acted swiftly to advance a refugee claim which supports his assertion of subjective fear. I find that the Appellant's failure to claim in the United States is not determinative of his credibility in view of the circumstances. [20] In considering the RPD's finding that it would be unlikely that ISIS would issue a threat against the Appellant approximately one year after the initial incident in XXXX XXXX, I agree with the Appellant's argument that the RPD's conclusion is unreasonable. Essentially, the RPD made a finding that it was not plausible that ISIS would wait for approximately one year before threatening the Appellant. I am mindful of the court's guidance that plausibility findings should only be made in the clearest of cases. I find that in the Appellant's case, there is nothing in the objective evidence to suggest that ISIS would be expected to make such a threat immediately. I find that the delay in ISIS making a written threat against the Appellant and his family does not undermine the credibility of his allegations given the other evidence that the Appellant has provided. [21] I also find that the RPD erred in concluding that the documents from Kurdish security and police services were fraudulent. I agree with the Appellant that the RPD's conclusions are not based on a comparison to any specimens or examples in the objective evidence. The RPD's conclusion that the documents are missing security features fails to establish that such security features are commonly present on documents from security and police personnel in Kurdistan. I also find that the content of these documents does not undermine their credibility. I would note that the dates in the documents and the references to incidents are consistent with the Appellant's other evidence including his narrative, oral testimony and supporting medical documents. I find that it is not implausible that security and police forces in Kurdistan would advise the Appellant that, in the absence of details of his family's attackers, they were unable to protect him. Therefore, I find that the RPD erred in rejecting this evidence. [22] Finally, I find that the RPD failed to give adequate consideration to the Appellant's other supporting documents. The Appellant provided a number of supporting documents that were consistent with his evidence, including: medical reports establishing his brother's injuries, a XXXX XXXX for another XXXX employee, medical documents and photographs regarding his son's injuries, and documents relating to his XXXX XXXX I find that taken in its entirety, the Appellant's evidence credibly establishes that he and his family were threatened by ISIS as a result of an incident in his XXXX XXXX The evidence also establishes that the Appellant's brother and son have been targeted. I am mindful of the principal in Maldonado establishing the presumption of truthfulness to be given to an Appellant's evidence. As such, after reviewing the record, I find that the Appellant has credibly established his allegations. The Appellant does not have an IFA or access to adequate state protection [23] The RPD found that the Appellant has a viable IFA in Chineran or Sulimaniya. The RPD noted that the Appellant's brother had been directly threatened by ISIS, but had worked odd jobs outside of the home since relocating to XXXX XXXX Therefore, the RPD rejected the Appellant's explanation that he could not relocate to XXXX as it was a small village and he would be highly visible. The RPD noted that the Appellant was asked if he could relocate to Sulimaniya and the Appellant testified that he could not as he would face a risk at the hands of ISIS anywhere in Iraq. The RPD indicated that it reviewed the objective evidence and determined that ISIS had diminished in strength in Kurdistan over the last few years. The RPD made reference to reports which indicated that people who originate from Kurdistan will generally be able to return and relocate to another area. The RPD indicated that recent documents and evidence referred to Kurdistan as a safe or secure area of Iraq, and noted that the objective evidence indicated that security forces, including the Peshmerga, have effective control of the area. [24] The Appellant argues that the RPD's IFA analysis is flawed because it did not consider or address the objective evidence which contradicted its findings of fact. Specifically, the Appellant argues that the RPD completely ignored objective evidence from its own National Documentation Package (NDP) setting out the continued activities of ISIS in the Kurdistan region. The Appellant points to objective evidence in the NDP, which indicates that ISIS sleeper cells are reported to exist in Erbil and other regions of Kurdish held territory. The Appellant also notes that a report from the United Nations (UN) Security Council in the NDP indicates that since ISIS continued to lose control of the territory, it increasingly targeted civilians and resorted to gorilla type actions resulting in civilian casualties. The Appellant also relies on his new evidence, which he argues indicates that ISIS is making a comeback in Kurdistan. [25] Having independently reviewed the record, I agree with the Appellant. Firstly, I find that the objective evidence that was before the RPD was mixed on the continuing strength and presence of ISIS in Iraqi Kurdistan. I agree with the Appellant that the RPD failed to reference and consider the objective evidence which suggested that ISIS continues to operate in the region. [26] I also find the determinative issue in my current IFA analysis is whether there is a forward-looking risk to the Appellant in the proposed IFA locations. In considering the current objective evidence and most recent NDP, I find that the Appellant faces a serious possibility of persecution throughout Kurdistan at the hands of ISIS. [27] I note that the United Nations High Commissioner for Refugees (UNHCR) report titled "International protection considerations with regard to people fleeing the Republic of Iraq", dated May 2019, indicates that while the security situation in the Kurdistan region remains relatively stable, the risk of ISIS attacks persists. The report indicates that security forces have reported the presence of homegrown sleeper cells of ISIS in the region.8 [28] I also find that the most recent report from the European Asylum Support office dated March 2019 sets out continued attacks against Kurds at the hands of ISIS. The report references several attacks against Kurdish villages, as well as the ambushing and killing of policemen and members of the Peshmerga within Kurdish villages. The report also references Kurdish villages being evacuated in 2018 following waves of ISIS killings. The report also notes an attack on a government building in Erbil in July 2018 which was suspected to have been carried out by ISIS. The report also indicates that ISIS routinely targets civilians which it perceives to be opponents, and that civilian targets have included a number of public spaces where civilians gather.9 [29] The US Department of State Iraq 2019 Crime and Safety report also indicates that ISIS continues to operate in Kurdistan. The report indicates that there continues to be a serious risk from terrorism in the region. The report notes that although ISIS no longer holds physical territory, the group has shown resilience and that remaining ISIS elements have transitioned to recruitment, fundraising and insurgency operations. The US report indicates that ISIS maintains lethal capabilities and frequently carries out asymmetric attacks targeting Iraqi civilians and the Kurdistan regional security forces. The report indicates that ISIS remains capable and extremely dangerous.10 [30] In reviewing the objective evidence, I find that it establishes that although the physical territory of ISIS in Kurdistan has been reduced, the group remains active. The objective evidence establishes that ISIS continues to be a significant threat and continues to carry out attacks against civilians and security forces throughout the region. I find that the objective evidence in the current NDP, as well as the news articles submitted by the Appellant, established that ISIS has been able to infiltrate security forces and target civilians in Kurdistan. Considering the ability and willingness of ISIS to target individuals it views as opponents, I find that the group has the means and motivation to locate the Appellant throughout Kurdistan. [31] Although no determination was made about state protection in the most recent RPD decision, I find that I'm able to come to a conclusion based on the record before me. Given the attacks against security forces, as well as the ability of ISIS to infiltrate law enforcement in Kurdistan, I find that the Appellant does not have access to adequate state protection. I also note that the Appellant and his family have approached the authorities in the past and law enforcement in Kurdistan has been unable to protect the Appellant's brother or son from significant harm. CONLUSION [32] For these reasons, the appeal is granted and I substitute a determination that the Appellant is a Convention Refugee. (signed) "J. Lourenço" J. Lourenço June 12, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157, at para 103. 2 Section 110(4), Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 3 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385; Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230. 4 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 7, para 9. 5 Exhibit RPD-1, RPD Record, RPD Reasons, at p.8, para 15. 6 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 8, para 16. 7 Exhibit RPD-1, RPD Record, Exhibit 7, Appellant's Supplemental Narrative, at p. 29, para 12. 8 National Documentation Package (NDP) for Iraq, 31 March 2020, Item 1.7, United Nations High Commissioner for Refugees (UNHCR), May 2019, HCR/PC/IRQ/2019/05, at p. 22. 9 NDP for Iraq, 31 March 2020, Item 1.11, European Union. European Asylum Support Office, March 2019, at pp. 120-121. 10 NDP for Iraq, 31 March 2020, Item 7.8, United States. Overseas Security Advisory Council, 1 Macrh 2019, at pp. 2-3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-16503 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français