TB4-07854

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 : TB4-07854 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 19, 2015 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mehran Youssefi Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre Reasons and Decision [1] XXXX XXXX XXXX XXXX, (the Appellant), a citizen of Iran, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and either find her to be a Convention refugee or order a new hearing before a different panel of the RPD. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The specifics of the claim can be found in the Appellant's Basis of Claim form (BOC), attached narrative, as well as an addendum to the BOC. Briefly, the Appellant was raised in the Islamic faith in Iran and became interested in Christianity through discussions with her siblings. When visiting Turkey, she received a Holy Bible from a presumed Evangelical Christian, and returned to Iran and continued to study Christianity. When visiting Canada to visit her ill and depressed son, she took advantage of attending a Christian parish in April 2013. The Appellant was baptized in XXXX 2013, and fears that, because she is now a Christian in Canada, she would put herself in jeopardy should she return to Iran. [4] The Appellant's addendum makes reference to a friend acquiring a gold chain from the Appellant's daughter when she was visiting Iran. In addition, the addendum makes reference to the Appellant's Iranian daughter's husband making a formal complaint about the Appellant to the security forces in Iran. A "Call-in notice" was subsequently delivered to the Appellant's home in XXXX requiring her to report to the authorities after she received the notice. [5] The Appellant's application for refugee protection was heard on May 9, 2014, May 23rd, 2014, June 9, 2014, and June 20, 2014. In a decision of August 8, 2014, the RPD rejected her claim finding that there was not a serious possibility of persecution on a Convention ground, or that, on a balance of probabilities; the Appellant would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment upon return to Iran. [6] In the Appellant's Memorandum of Appeal, the Appellant respectfully requests that the RAD set aside the decision and find that the Appellant is a Convention refugee. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD for redetermination. In that no new evidence was submitted, an oral hearing will not be held. Memorandum of Appeal [7] In the Memorandum of Appeal, the Appellant argued that the RPD erred in misconstruing and misinterpreting evidence. [8] The Appellant argued that the RPD conducted a microscopic assessment of evidence. [9] The Appellant submitted that the RPD's finding regarding a delay in claim should not be held against the claimant. ROLE OF THE RAD [10] The Appellant's counsel gives no direction as to the standard of review. [11] The RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [12] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS Identity [13] The Appellant submitted documentation to support her identity as a national of Iran. Minister's Intervention [14] The Minister identified a number of concerns raised by discrepancies between the information in the Appellant's BOC information form and her Canadian visitor's visa application files, including the timing and reason for her application for her most recent visit to Canada, and her failure to mention that her son received his permanent residence in Canada as a Convention refugee. The Minister also expressed concerns about the credibility of the Appellant due to the delay in making a claim for refugee protection in Canada and the timing of the refugee claim application. Merits of the Appeal Credibility [15] The RPD was mindful of the Appellant's educational background, noting that she is high school educated, and has traveled extensively to such countries as India, Germany, Japan, and Turkey. The RPD also acknowledged that the claimant does not have any documented work experience. [16] The Appellant argues, in both an affidavit and in submissions from her counsel, that she is a 70-year-old citizen of Iran who suffers from loss of memory, who hardly remembers dates and details accurately. The Appellant's counsel also submitted that the Appellant was an uneducated forgetful old woman who does not have a good memory, and that the panel accepted these facts but still expected her to recall detailed information, and undermined the evidence based on a lack of credibility. [17] In reviewing the DVD of the hearing, as well as reviewing the documentation available to the RAD, the RAD concurs with the RPD's findings in its decision regarding the Appellant's ability to testify coherently. The RAD, in listening to testimony, finds that the Appellant was able to answer questions with some sophistication, except when challenged on the issues of dates of major occurrences. In addition, the RAD found no documentation on the file to support the Appellant's and counsel's allegation of a medical issue affecting her memory. Misconstrued and misinterpreted the evidence: (i) Church documentation [18] The RPD drew a negative inference from the Appellant's inconsistency as to when she joined a Christian church in Canada. In the Appellant's BOC, the date was given as April 2013, a fact that was confirmed by the Minister's letter indicating that the claimant began attending in April 2013. In testimony, the Appellant stated that she began attending the church in February 2013, a date that was inconsistent with her BOC. When questioned on this inconsistency, the Appellant stated perhaps it was in error. The RPD stated, in its reasons, that the claimant had submitted additional documentation but made no effort to correct this error in the documentation submitted. The witness, who appeared for the Appellant, also stated that she joined in February 2013 and, when challenged, said that the pastor's letter was probably more accurate. When questioned by counsel, the Appellant stated that she went to the church in February 2015, and officially became a member in April 2013, an explanation that was not accepted by the RPD who noted that the pastor's letter stated that she began attending in April 2013. The RPD found that it was likely that the church letter was prepared to accord with the timeline given by the claimant in her BOC. [19] The RPD gave little weight to the baptismal certificate. The RPD noted that the Appellant testified that there was no spiritual preparation prior to the baptism and in addition was only informed by a female member of the church what she should wear during the baptism. The RPD found, given the information above regarding the inconsistencies in joining the church, and the lack of any spiritual preparation for the act of baptism itself, that the genuineness of the baptism ceremony was suspect. [20] The Appellant argues that the RPD made a finding of a lack of credibility on this issue because of other issues that lacked credibility during the hearing. The Appellant argues that the issue of fairness of the whole hearing is in doubt. The Appellant also argues that the RPD relied on previous evidence lacking credibility, to make a finding of lack of credibility on another issue. The Appellant argues specifically around the baptismal certificate being given little weight because of information regarding joining the church was found to be not credible. [21] The RAD concurs with the RPD's findings in giving little weight to the baptismal certificate. As will be pointed out later in this decision, there were many issues of credibility during this claim. In listening to the DVD, the RAD finds that the inconsistencies in testimony by the Appellant, and the witness for the Appellant, as well as the documentation presented are relevant issues in determining the lack of credibility of the Appellant. In other parts of the hearing, the Appellant indicated her fear of return to Iran because she had become a Christian in Canada. It would be reasonable to expect that the Appellant would remember significant days in her life, such as joining the Christian church in Canada. The credibility issue regarding the baptismal certificate is based on the lack of preparation, spiritual or otherwise prior to the baptismal ceremony. It is not plausible that the only preparation for baptism, a sacrament that is an integral part of Christianity, would be a female member of the congregation telling her what to wear. (ii) Call in Notice from Iran [22] The RPD found it implausible that the husband of the Appellant's daughter would file a complaint against the Appellant, that allegedly resulted in an alleged "Call in notice" being issued by Iranian authorities. The RPD's reasoning was that such a complaint could affect the whole family. The Appellant was unable to give a timeline for the very recent events noted above. In later testimony, the Appellant stated that the "Call in notice" was issued around XXXX XXXX, 2014. When the RPD asked how she was able to make a reference to this document in her addendum in her BOC on XXXX XXXX, 2014, a date prior to the "Call in notice", she stated that the complaint was made before her addendum. However, the RPD noted that the Appellant had previously testified that she was not aware of the complaint until her husband informed her after the "Call in notice" had been delivered. The RPD stated that it was not possible that the Appellant could refer to something that, while it existed, she had no knowledge of, and drew a negative inference. There was some discussion at that time regarding the Western calendar as opposed to the Gregorian calendar, and the claimant's possible confusion. When this issue had been sorted out, the Appellant did not provide any reasonable explanation, only noting that the complaint was made earlier. The RPD found that the claimant's testimony on this issue seriously undermined her credibility concerning the document and the genuineness of the document itself. The Appellant also indicated that these notices were sent first to her by email to her son, by a friend of her husband in Iran, and stated that there are no problems with the emails in Iran. The Appellant also stated that there were no concerns in sending the original documents by post because the authorities do not control packages. The RPD quoted documentation from the IRB documents, The United States of America Country Reports on Human Rights Practices for 2013, Iran, to refute the Appellant's testimony. According to the documentation presented by the RPD, the authorities, unannounced, often access electronic messaging and mail. Given the Appellant's lack of credibility regarding all aspects of these documents, the RPD found that the documentation was fraudulent. [23] The Appellant argues that the RPD ignored the "Call in notice" issued by the Iranian authorities. The Appellant argued that the RPD in paragraph 40 of its reasons; "The panel also noted that it seems strange the authorities would issue a call in notice for someone who is not in the country asking them to report three days later." The Appellant argued that the RPD was incorrect in saying that a "Call-in notice" cannot be made in absentia, quoting IRB documentation to substantiate that judgments could be made in the absence of a person. The Appellant also argued that the RPD's comments, regarding her son-in-law making a complaint, with the attendant consequences, was not reasonable. The Appellant argued that the Federal Court has ruled against stereotyping relationships in Iran. [24] The RAD concurs with the RPD's findings on the "Call in notice". In listening to testimony, the RAD finds that the Appellant's explanations and dates of the notice were inconsistent, and inconsistent with the documentation provided by the Appellant. Given this inconsistency, the RAD finds, on a balance of probabilities, that the documentation produced to support her son-in-law's complaint and subsequent "Call in notice" are fraudulent. The Appellant's testimony regarding the danger involved in sending both emails and mail were inconsistent with the documentation provided. The RAD agrees, with the Appellant, that the RPD stereotyping regarding spouses is misplaced and that, given the IRB documentation, it is possible for a person to be tried in absentia. The RAD does not find that either of these errors made by the RPD affect its finding of lack of credibility with respect to the call in notice. However, neither of these submissions by the Appellant would cause the finding by the RPD to be disturbed. Delay [25] The RPD drew a negative inference from the Appellant not submitting evidence to support her testimony that the delay in claim was reasonable and explainable. The Appellant stated that she initially stayed in Canada and extended her stay because of her son's continuing depression and later, when she became a Christian, she knew she could not return to Iran. The Appellant stated that her son advised her to first apply for an extension to her visitor's status and then file a refugee claim later. The RPD did not accept this explanation as reasonable, given the potential consequences of returning to Iran, and that the Appellant's son was a refugee himself. This issue was raised at the first sitting, and given other documentation that was provided as a result of that sitting, it would be reasonable to expect the Appellant's son to provide some sort of documentation regarding critical issues of the claim, including delay in claiming. The RPD found that it would have been reasonable for the Appellant to have made a refugee claim at the first opportunity, once she was in a place where she was freely and openly living and practicing her faith as a Christian convert. The RPD noted that the Appellant arrived in Canada on XXXX XXXX, 2013 with a temporary status as a visitor, granted until XXXX XXXX, 2013. An application to extend her temporary status made in XXXX 2013 was refused on XXXX XXXX, 2014. The Appellant filed her claim for refugee protection on March 12, 2014. [26] The Minister submitted that, if the Appellant had a subjective fear of returning to Iran due to persecution of her newfound Christian faith, she would not apply to extend her status as a temporary resident which is, by definition, not permanent, and would not have prevented her from eventually being returned to Iran. [27] The RPD found that the Appellant's actions are inconsistent with the actions reasonably expected of individuals facing such a risk of harm in persecution, and drew a negative inference as to the Appellant's subjective fear and credibility of her allegations from her delay in claiming in Canada. [28] The Appellant argues that waiting until the visitor's visa expires, before applying for refugee protection, should not be held against the Appellant, and gives several court decisions as proof. The Appellant also argues that she should not be punished for her depressive son's unreasonable advice of advising her to make a Convention refugee claim later. [29] The RAD concurs with the RPD's decisions and reasoning in this matter. The RAD finds that it is unreasonable and not credible for a person facing persecution in her home country, not to make a refugee claim as soon as possible. Given that her son was a refugee himself, and has status as a Canadian, it would be reasonable to use that experience as an example of what you could do to avoid the alleged potential persecution in Iran. In addition, the Appellant waited two months after her visa extension was denied in order to make a refugee claim. The RAD finds this is not reasonable or credible, given the alleged circumstances of the Appellant. The Appellant does not demonstrate the behavior of a person who is allegedly facing persecution in her home country for the practice of her religion, and draws a negative inference from the delay in claim. Microscopic Assessment of Evidence (i) Visa applications [30] The RPD drew a negative inference from the Appellant's unclear and confusing testimony regarding questions concerning her Canadian visa applications. The RPD also found that the Appellant's explanations were not reasonable concerning the discrepancies between dates of application and reasons for application. The Minister's documentation indicated that the Appellant's visa was filed in November 2012 because her son stated that he wished his mother to visit in January 2013 for the Iranian New Year, and her stay would not exceed three months from her date of arrival. There was no mention of the son's depression, an allegation made by the Appellant. Given the Minister's information, the Appellant amended her BOC information to match, and indicated that she applied for the visa in November 2012. The Appellant's explanation was that she had made a mistake and had given a date in the Christian calendar, testimony that was not accepted because the Appellant testified that she could not remember an exact date but it was a month or two before she received the visa. [31] The Appellant testified that her son was supposed to have surgery, and that she had planned to stay six months but there was no surgery. When questioned on this issue, the Appellant stated that it was mainly surgery, but also she had not visited in a long time. The Appellant then testified that her son was depressed because it had been a year since he had attended University. The RPD did not accept the claimant's explanation that she did not know it was necessary to mention the surgery in her BOC narrative. The RPD noted that the son's letter of invitation only mentioned a visit for the Iranian New Year and did not include any information concerning a surgery. The RPD referenced the Minister's documents that noted that, in the Appellant's 2010 visa application, a doctor's note was provided which spoke to her son's depression at that time. A visa was granted on the 2010 application but the Appellant stated that she did not travel on that visa. The Appellant was unable to consistently and clearly articulate her intentions for traveling to Canada. The RPD found that it would be reasonable for the Appellant's original intentions for traveling to Canada would be consistent throughout her oral and written testimony, in that this travel was relatively recent, and is part of the Appellant's personal experiences. The RPD drew a negative inference finding that the Appellant's evidence was shifting and inconsistent, with no reasonable explanation provided for the inconsistencies. [32] The Appellant argues that it was unreasonable to expect a 70-year-old woman to recall the exact dates and timelines. The Appellant argues that the mother cannot be blamed for the lack of pertinent information in her son's letter. The Appellant argues that the RPD only gave lip service to the age of the Appellant, and that the difference of two or three months in testimony is immaterial, and the issues surrounding the visa applications are irrelevant and immaterial. [33] The RAD concurs with the RPD's adverse finding regarding the inconsistencies between testimony and documentation regarding the visa applications. In listening to the DVD, the RAD finds that the Appellant's testimony was rambling, and inconsistent, providing no reasonable explanation for the inconsistencies pointed out by the RPD. The Minister's documentation regarding a 2010 visa application is compelling. In that visa application, a medical note was submitted to substantiate the son's depressive condition, and used by the Appellant when applying for her Canadian visa. It would be reasonably expected that such pertinent information would be included in the Appellant's latest visa application, November 2012. The RAD finds that the Appellant has not been credible regarding her most recent visa application (ii) Gold Crucifix [34] The RPD drew a negative inference from the shifting timeline for when the Appellant had wanted and requested the crucifix. The RPD noted in the BOC addendum signed on April 30, 2014 the claimant states that, "Recently I decided to buy a Gold crucifix for myself". At the first sitting, May 9, 2014, the Appellant gave a similar timeline saying that her friend was going back to Iran before XXXX (XXXX XXXX) and was planning on staying three months and coming back after XXXX. Prior to the June 9, 2014 hearing, the claimant provided an affidavit from the friend who was allegedly carrying the claimant's crucifix with her on her return from Iran. When initially asked questions regarding this arrangement, the Appellant was unable to respond. When the Appellant responded later in the hearing, the timeline was given as above. The RPD noted that the Appellant's friends traveled in late October 2013 and returned at the end of March 2014, not just a three month trip before XXXX. When questioned by the RPD on this discrepancy, the Appellant stated she did not know how the word, "recently", got into her BOC addendum. The RPD noted that the information provided, with the assistance of an interpreter, is signed is true complete and correct by the claimant. The RPD did not accept the Appellant's explanation as reasonable. [35] The RPD also questioned the plausibility of the Appellant purchasing a Gold crucifix in Iran as opposed to Canada, when the evidence suggests that the Appellant had $10,000 Canadian with her as emergency funds. The RPD also had difficulty with the Appellant's testimony that no one had any concerns about the purchase and delivery of the cross from Iran, stating in her decision that it is not reasonable given the level of monitoring and surveillance done by the Iranian authorities to ensure that Muslims do not get involved in Christianity. The RPD also stated it was unreasonable not to show concern for her friend or her sister in asking them to be involved in this enterprise, and drew a negative inference. [36] The Appellant argues that the purchase of the Gold crucifix and the attendant details is another example of how the RPD was being microscopic. The Appellant submits that the main issue is the Appellant's purchase of a crucifix to show her Christian identity, and the price and timeline for purchasing should be immaterial and irrelevant. [37] The RAD concurs with the RPD's findings on this issue. In listening to the DVD, the RAD finds it not reasonable or credible that the issue of timing of this purchase would not be remembered clearly, and given when first asked for information during the hearing. The RAD disagrees with the Appellant's submissions regarding the date and timing being immaterial and irrelevant. If, as the Appellant has stated, she had become a Christian convert, it would be reasonable that such a purchase to indicate her commitment to Christianity would be clearly remembered. The RAD also finds the Appellant's testimony indicating that she had no concern for her friend or sister, not credible, given the documentation available from the IRB and referenced in the RPD decision. The RPD decision regarding the location where the crucifix was purchased is not a sound finding, but the RAD finds that this issue does not disturb the RPD decision. The RAD finds, on a balance of probabilities, that the Appellant is not a credible witness, and continues to demonstrate her lack of credibility regarding the main issues of this claim. (iii) Christianity [38] The RPD drew a negative inference from the Appellant's inability to remember a religious holiday, the Pentecost; a holiday that was celebrated one day prior to the June 9, 2014 hearing. The Appellant had earlier identified Christmas, Easter, and Pentecost as religious activities in which she was involved with her church. When asked to identify the most recent celebration, the Appellant spoke of Good Friday, Nowruz, and Easter. When the RPD asked the Appellant why she had not identified Pentecost as the most recent religious celebration, the Appellant stated that she had mentioned the Pentecost being after Easter earlier. In continuing questioning by the RPD, the Appellant's explanation was that there was some mention of Pentecost yesterday but it was just a regular service and not a big celebration. The RPD did not accept this explanation as reasonable, given that she had mentioned it earlier as a religious celebration in her church. [39] The Appellant stated that, when questioned by the RPD, she could not remember if she had celebrated Easter prior to 2014. The RPD stated that Easter was a significant time, and the Appellant agreed. The Appellant testified that it was not fresh in her mind and that she may or may not have attended. By way of explanation, the Appellant referred to a friend visiting, and that maybe she had not attended. The significance of Easter in the Christian calendar is very important, and the RPD found it not reasonable that the Appellant would not remember such an event, especially whether she had participated or not in this religious celebration. The RPD found that the Appellant's failure to clearly answer this question brought into question the credibility of her involvement with the church in Canada. [40] The Appellant provided evidence related to her involvement with the church in Canada, including a witness from XXXX XXXX XXXX XXXX XXXX XXXX) church who corroborated the Appellant's involvement. The RPD, noting its earlier concerns with the witnesses' evidence, did not find that her testimony was sufficient to support credible and trustworthy evidence establishing the Appellant's profile as a genuine Christian convert. The RPD stated that there was little before the panel to establish that, on a balance of probabilities, the Appellant was a genuine convert to the faith as opposed to providing information to buttress or establish her claim for refugee protection. The RPD also stated that, on a balance of probabilities, the authorities in Iran would not have any knowledge of the claimant's activities while in Canada, given that the alleged report of her son-in-law was found not to be credible. [41] The Appellant argued that this finding by the RPD regarding her failure to identify the Pentecost as the most recent religious celebration was not material to the finding. The Appellant also submitted that the RPD ignored the path of assessing the implications of the Appellant returning to Iran as an apostate. [42] The RAD, when reviewing the testimony of the Appellant, finds that her testimony, regarding the religious holidays noted above, is not credible for a practicing Christian. The RAD is mindful of the court documentation, given by the Appellant, related to Christian knowledge. The Appellant also makes reference to the RPD's comments, "While the is 70 years old and as such may not have a perfect memory..." as an explanation for not remembering word for word her statements in her BOC, dates, or even the content of her son's invitation from her 2012 visa application. The RAD finds that the Appellant demonstrated fluency in the hearing, and no intellectual dysfunction. The Appellant did not demonstrate any lack of coherence until the RPD questioned her on dates of major occurrences in her life. Forgetting the celebration of major holidays in the Christian church, a religion that she allegedly took in Canada, understanding the consequences if she returned to Iran, is not credible. These dates would be reasonably remembered and articulated. Earlier in this decision, the RAD found that the Appellant's inconsistent testimony regarding her attendance at her church was not credible. The RAD also found that the genuineness of the baptism ceremony in the church was suspect. Given all these issues of credibility, the RAD finds, on a balance of probabilities, that the Appellant is not a genuine practicing Christian in Canada. The RAD concurs with the RPD's findings on this issue. The credibility issues around the evidence from Iran, timing and purpose of her visa applications, and lack of general credibility, causes the RAD to find that the Appellant is not a genuine Christian convert or practitioner, and could return to Iran. Given that the documentation regarding the alleged involvement of the Iranian authorities was found fraudulent; no probative evidence has been submitted that the authorities in Iran would be aware of any activities that she was involved with in Canada. Disposition [43] The RAD has found that the RPD decision can stand. CONCLUSION [44] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [45] This appeal is therefore dismissed. (signed) 'Robert S. Garner' Robert S. Garner February 19, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-07854