TB4-05331

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 : TB4-05331 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(a.k.a. XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 28, 2014 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Lilyan Shaba Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a 46-year-old male, a citizen of Jordan, appeals a negative determination of the Refugee Protection Division (RPD). [2] The Appellant submitted documents to be considered as new evidence pursuant to section 110(4) of the Immigration and Refugee Protection Act (the Act). The Appellant also seeks a hearing before the Refugee Appeal Division (RAD) pursuant to section 110(6) of the Act. [3] The Appellant wants the RAD to allow the appeal and refer the matter back to the RPD for rehearing before a differently-constituted panel. DETERMINATION [4] Pursuant to section 111(1)(a) of the Act, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [5] The Appellant alleged before the RPD that he was raised as a Muslim in Jordan. He came to Canada on a Canadian Visitor's Visa (CVV) on XXXX XXXX, 2011 to attend his mortally-ill sister, who died XXXX XXXX XXXX 2011. The Appellant decided to remain in Canada and started attending church in October 2013, and converted to Christianity on March 20, 2014. His claim was heard on May 22, 2014 and the RPD rendered a negative written decision dated May 30, 2014. New documents Submitted on Appeal: [6] The Appellant provided no explanation as to why these documents were not available prior to the rejection of the claim. The Appellant has also included some evidence that he says was not accepted by the RPD. I note that some of that evidence does appear to be in the RPD record, was commented on by the RPD in its reasons at paragraph 10. The Appellant has not argued why the RPD was in error in refusing to accept the other evidence, possibly because the evidence is not material to the Appellant's claim. The Appellant was represented at the hearing by an experienced counsel and ought to have known the importance of the documents to establish the claim. I have considered all of the documents submitted and find that they do not meet the statutory requirements of s. 110(4) of the Act as discussed below. [7] The Appellant provided an affidavit from the XXXX XXXX XXXX in XXXX that states that the Appellant was baptized in the church on XXXX XXXX, 2014. There is also a letter from the pastor of the XXXX XXXX XXXX (at p 75 of the record) that, in addition to mentioning the Appellant's baptism on XXXX XXXX, 2014, it also gives other details about his attendance at the church. These documents do not meet the express statutory requirements as the information contained herein did not arise after the rejection of the claim, and could reasonably have been expected in the circumstances to have been provided to the RPD prior to the rejection. These documents explain the events that took place prior to the rejection. Therefore, these documents are not in evidence. [8] The second document submitted by the Appellant is the sworn declaration of his nephew stating that he introduced the Appellant to Christianity and took the Appellant to church in XXXX 2013. This document also does not meet the express statutory requirements as the information contained herein did not arise after the rejection of the claim, and could reasonably have been expected in the circumstances to have been provided to the RPD prior to the rejection. Therefore this document is not in evidence. [9] The third document is a transcript of some conversation with someone named XXXX XXXX1 There is no information as to who is this XXXX XXXX when the conversation took place and why, who recorded it, etc. Thus, I am unable to find that it arose after the rejection of the claim, and thus it does not meet the statutory requirements of the Act. The un-translated page shows a date of June 19 of an unknown year but there is no reference to any date on the translated copy in one of the Canadian official languages, the only document I can consider. Therefore, this document is not in evidence. Even if I were to consider this un-translated document, I have several concerns arising from Raza2 that include credibility and materiality and thus I would reject this document. [10] Therefore, the appeal will be considered on the basis of evidence on record. Since no new evidence was accepted, the Appellant's request for a hearing before the RAD pursuant to subsection 110(6) of the Act cannot be allowed. ISSUES: The Appellant's issues (in his words) are as follows: 1. Did the Panel ignore some relevant information and material facts presented before them? 2. Did the IRB Panel base its decision on an erroneous finding of fact? 3. Did the Panel err in determining this refugee claim as rejected? [11] I will focus on whether the RPD erred in credibility, finding that the Appellant's conversion is not genuine. The Appellant and the RPD did not raise an issue of sur place claim, but I will consider it also. The Role of the RPD: [12] In assessing the appeal, I am guided by the recent Federal Court decision in Huruglica3 that outlines the approach for the RAD to follow as an appellate body in reviewing the decisions of the RPD, the first level tribunal. In this case, the court stated that the RAD is to conduct a hybrid appeal and is required to review all aspects of the RPD decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The court also stated that this authority of the RAD comes from the broad remedial powers including the power to set aside and substitute the RPD determination that, in its opinion, should have been made pursuant to s. 111(1)(b) of IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusion; however, the RAD has equal or greater expertise to the RPD in the interpretation of country condition evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. [13] In Huruglica, the court stated the following: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error". Merits of the Appeal: [14] The RAD Rule 3(g) states: (g) a memorandum that includes full and detailed submissions regarding (i) the errors that are the grounds of the appeal, (ii) 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. [15] The Appellant makes allegations such as: * The panel made a reviewable error in reaching its decision on the basis of ignoring the particular evidence and circumstance of the Appellant's case; * The panel based its decision on erroneous findings of fact * The panel failed to consider all the other evidence before them; * The Appellant is a credible witness and he provided a satisfactory explanation. [16] The Appellant did not state where and how the RPD made these errors. Therefore, there appears to be that there is little merit in this appeal. However, guided by Huruglica, I reviewed all the evidence and find that, while the RPD's wording could have been more direct in dealing with the sur place nature of the claim, my findings also confirm the RPD's determination that the Appellant's conversion is not genuine. [17] The RPD's credibility findings are based on "the very lengthy delay in making a claim". The Appellant arrived in Canada on XXXX XXXX 2011 to attend to his sister who died two days later. The Appellant's other sister, who also accompanied the Appellant from Jordan, left shortly after her sister's death, but the Appellant stayed back and claimed protection in February 2014. The RPD found his explanation confusing and unreasonable. [18] The Appellant testified before the RPD that he had "only recently become a Christian (and thus only recently has possessed a fear of persecution)". [19] The Appellant was not a Convention refugee when he left his country and thus his conversion created a sur place situation. [20] The RPD considered the evidence and noted the baptismal certificate. However, the RPD found that the conversion was not genuine. The RPD noted, in its reasons at paragraph 9: ...very late conversation to Christianity (following his nephew's conversion and successful protection claim and the expiry of his TRP) was merely a way to attempt to obtain refugee protection to enable him to remain in Canada. [21] Moreover, the RPD noted at paragraph 10: ...claimant's conversion to Christianity is not genuine and only a means to stay in Canada. The timing of his conversion (after his visa has expired, after his nephew was successful in obtaining refugee status for the same reason and after three and a half years in Canada) raises plausibility concerns. In addition, his own documentary evidence provided to the Board shows he has been attending Church only since mid-February 2014 and after he made his protection claim. [22] The RPD also considered the following in finding that he was not credible and noted that he "lives with a relative who has been through the protection determination system process in Canada within the past six months"; his nephew also was declared a Convention refugee just a couple of months prior to his hearing; his brother also made a claim in 2012 but withdrew his claim three months after making a claim. The Appellant claimed protection after he had no status and had exhausted extensions to his visa. [23] The RPD is due some degree of deference where the RPD has an advantage.4 Based on the foregoing, I find that the credibility findings are supportable. I am aware that a delay in claiming is not normally determinative (Huerta)5 and that the RPD's determination is supportable as the RPD's reasons go beyond the mere delay. In addition to the delay, which, in itself, is significant, but the timing is suspicious as well. [24] I also note that religious conversion is not a matter that can be considered lightly. People sometimes change their religion because of some major life altering event or some other compelling reason. In this case, the Appellant did not have any such events except that his nephew, who had been accepted by the RPD as a Convention refugee in XXXX 2013 due to his conversion to Christianity, persuaded him. [25] Considering the totality of evidence, I have insufficient evidence on the record to support the Appellant's allegations that he is a genuine convert to Christianity. Since he was wanted by the Jordanian authorities prior to coming to Canada, the only thing I have to consider is whether there is a serious chance of persecution in Jordan should he return. [26] The Appellant was found to be not credible by the RPD and, after careful consideration of the evidence, I am able to confirm that. In Sheikh,6 the court stated that a lack of credibility extends to all aspects of their claim, including his claim of being a genuine convert to Christianity or practice in Canada. [27] While it would have been preferable for the RPD panel to have provided a separate sur place analysis, it is not fatal. [28] The RAD is empowered to supplement the RPD's determination. In that context, I note that in Liu,7 a case very similar to this case, the Federal Court, at paragraph 25, stated: Since it was convinced that the Applicant was not a genuine Christian, however the Board attached little weight to photographs and documents from the church in Toronto. The Applicant was seen as participating in these activities and obtaining the documents to bolster his claim. As the Board reasonably concluded "they alone do not corroborate that the claimant actually is or ever was a genuine Christian". [29] In the case of Liu (above), the person had provided not only photos but also a letter from the Church, and the Court dismissed the application for judicial review. [30] I acknowledge that the factual context for sur place claim for a Christian convert returning to an Islamic country that may punish apostasy is very different. In the Chinese cases, the issue is generally if they would continue to practice Christianity if they returned to China. In this case, the issue is whether it will become known that he converted and/or was baptized (even if the baptism was not genuine). Therefore, I considered whether his non-genuine baptism become known and, if it becomes known, what would be the risk for an apostates in Jordan? Documentary evidence8 states the following on this issue: As the government does not allow conversion from Islam, it also does not recognize converts from Islam as falling under the jurisdiction of their new religious community's laws in matters of personal status. Under Islamic law, these converts are considered to be Muslims and generally regarded as apostates. Any member of society may file an apostasy complaint against them. In cases that an Islamic law court decides, judges can annul converts' marriages, transfer child custody to a non-parent Muslim family member or declare them "wards of the state," convey an individual's property rights to Muslim family members, and deprive individuals of many civil rights. [31] The RAD considered the Appellant's motive for his conversion in Canada based on an analysis of the full context of what the Appellant has done since coming to Canada. The RAD finds that the particular situation of the Appellant is distinguishable from that in Chen;9 the Appellant did not have a "long and persistent practice in Canada". [32] The Appellant did not provide any evidence to support an event or something else which could make him change his faith in Canada that would support his claim. The RAD is cognizant that the RPD is entitled to take its negative credibility findings into account when assessing the sur place claim, as per Su. [33] I am guided by a decision by Madam Justice Gleason (Li)10 where she concluded that a claimant must satisfy the RPD that he or she will continue to practice his or her faith in China. Justice Gleason indicates that: "proof of joining a church and knowledge of its precepts, however, does not equate to proof that the individual would be at risk if returned to his or her country or origin. In the context of a country such as China, where persecution is practiced against Christians not for apostasy but for the practice of their religion, the claimant must satisfy the RPD that he or she will continue to practice his or her faith in China". In Jordan, as stated an apostate does not have a serious chance of persecution or likelihood of risks pursuant to ss. 97(1) of IRPA. [34] Given the finding that the Appellant was found to be not credible and given the lack of sufficient credible and trustworthy evidence attesting to a genuine Christian convert in Canada, the RAD is not persuaded that the Appellant is genuine and would continue to practice Christianity upon his return to Jordan. In this case, because the conversion is not genuine, I am not satisfied that the Appellant is likely to practice Christianity upon return to Jordan. CONCLUSION [35] Based on the totality of the evidence cited above, the Appellant was found not to be a genuine Christian convert in Canada and therefore he does not have a well-founded fear of persecution in Jordan. [36] I find that the Appellant is not a refugee sur place, and is not a person in need of protection. DISPOSITION [37] The RAD confirms the RPD's determination that the Appellant is neither a Convention refugee nor a person in need of protection, as per s. 111(1)(a) of IRPA. [38] The appeal is therefore dismissed. (signed) 'Atam Uppal' Atam Uppal October 28, 2014 Date 1 Appellant's Record, Page 79. 2 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 3 Huruglica, Bijar et. al. v. M.C.I. (F.C. no., IMM-6362-12), Phelan, August 22, 2014; 2014 FC 799. 4 Huruglica, Bijar et. al. v. M.C.I. (F.C. no., IMM-6362-12), Phelan, August 22, 2014, 2014 FC 799. 5 Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.) 6 Sheikh, Abdulhakim Ali v. M.E.I. (F.C.A., no. A-521-89), MacGuigan, Iacobucci, Desjardins, July 4, 1990; Reported: Sheikh v. M.E.I., [1990] 3 F.C. 238 (C.A.); 11 Imm. L.R. (2d) 81 (F.C.A.) 7 Liu, Guikun v. M.C.I. (F.C., no. IMM-5601-11), Near, April 17, 2012; 2012 FC 440. 8 Ex RPD 1 page 70 item 12.1 9 Chen, Hongzhen v. M.C.I. (F.C., no. IMM-1956-13), Russell, July 28, 2014; 2014 FC 749. 10 Li, Shi Jie v. M.C.I. (F.C., No. IMM-8521-11), Gleason, August 15, 2012; 2012 FC 998. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05331