TB4-12079

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 : TB4-12079 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(s) of hearing September 24, 2014 April 27, 2015 June 1, 2015 Date of decision January 7, 2016 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of Afghanistan, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] The Appellant is relying on new evidence pursuant to section 110(4), and he is requesting an oral hearing1 pursuant to section 110(6) of the Immigration and Refugee Protection Act (IRPA or the Act).2 [3] The Minister is not intervening in this appeal. DETERMINATION [4] Pursuant to section 111(1)(b) of the IRPA, the Refugee Appeal Division (RAD) substitutes the decision of the RPD, and determines that the Appellant is a Convention refugee. This appeal is allowed. BACKGROUND/ALLEGATIONS [5] The Appellant alleged at the RPD that he comes from a XXXX XXXX XXXX Shia Muslim family in Afghanistan. The Appellant's father had to flee Afghanistan due to religious persecution before the Appellant was born. The Appellant was born and raised in Syria. The Appellant did not obtain Syrian citizenship. He has never been in Afghanistan and does not speak the language. The Appellant alleged that he fears persecution upon return to Afghanistan due to his perceived political opinion and membership in a particular social group (those who violate the social norms). Since the Appellant has never lived in Afghanistan, he alleged that as a Shia Muslim, he does not know the moral code and the norms of the society in Afghanistan. [6] The Appellant's application for refugee protection was heard on September 17, 2014 and on October 3, 2014. In the Notice of Decision dated November 18, 2014, the RPD rejected the claim. The RPD found that the Appellant's claim was largely an exercise regarding the experience of similarly situated persons in Afghanistan.3 The RPD found that the Appellant's fear is not objectively well founded. [7] The Appellant submits at the RAD that he also fears persecution on religious grounds as his family has been persecuted in Afghanistan because of them being XXXX. The Appellant alleged that his last name "XXXX" translates to XXXX. Therefore, the Appellant submits that he would be targeted and persecuted upon return to Afghanistan. COUNTRY OF REFERENCE [8] The RPD found the Appellant to be a citizen of Afghanistan and no other country. Based on the evidence in this case (i.e. his Afghani passport),4 the RAD concurs with the RPD in finding that the Appellant is a citizen of Afghanistan and no other country. APPLICATION FOR AN ORAL HEARING [9] The Appellant requests that an oral hearing be held pursuant to section 110(6) of the IRPA. Section 110(3) of the IRPA requires that the RAD "...must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal...." Section 110(4) of the IRPA indicates that "...the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." [10] The Appellant submitted new evidence pursuant to section 110(4) of the IRPA.5 [11] RAD Rule 3(3)(g)(iii) directs Appellants to include an explanation of how the documentary evidence submitted to the RAD meets the requirements of section 110(4) of the IRPA. The Appellant has provided an explanation regarding why his new evidence should be allowed at the RAD.6 Appellant's New Evidence [12] The following evidence was submitted by the Appellant to the RAD. Evidence submitted with the Appellant's record * Appellant's affidavit, dated December 21, 2014;7 * Letter from the Appellant's father;8 * Letter from M. XXXX - neighbour of the Appellant's uncle;9 * Letter from the Afghanistan XXXX Association of Iran;10 * Notice of burial services for the Appellant's uncle;11 * Partial translation of an article;12 * Letter from the Canadian Centre for XXXX XXXX XXXX;13 * Letter from a social worker;14 and * News articles15 Documents submitted on February 10, 2015 * Affidavit of XXXX XXXX;16 * Appellant's affidavit dated January 26, 2015;17 * Article on the killing of Azizollah Najafi;18 and * Taliban letter19 Documents submitted on April 16, 2015 * Psychiatric Assessment Report;20 and * Letter from the Canadian Centre for XXXX XXXX XXXX 21 Admissibility of the Appellant's New Evidence Appellant's affidavits, dated December 21, 201422 and January 26, 2015,23 and the affidavit of XXXX XXXX24 [13] The RAD finds the Appellant's affidavit, dated December 21, 2014, includes some facts that arose after the RPD's hearing; and the affidavit of XXXX XXXX and the Appellant's affidavits, dated December 21, 2014 and January 26, 2015, explain delays in filing some of the Appellant's evidence at the RAD. Moreover, the RAD finds these affidavits include the explanation for the provision of new evidence, which the RAD requires in order to assess the Appellant's new evidence; the RAD finds these documents satisfy the criteria set out in section 110(4) of the IRPA and RAD Rule 29(4). [14] Therefore, the RAD finds all affidavits, the Appellant's affidavits and the affidavit of XXXX XXXX, satisfy the criteria set out in section 110(4) of the IRPA; the RAD accepts these as new evidence. Letter from the Appellant's father [15] The RAD finds the letter from the Appellant's father includes a lot of new information. The evidence in this case shows that all members of the Appellant's family, including him, have been on the run. Further, considering that the Appellant had lost contact with his father after the Appellant left Turkey, and reconnected with him only after the rejection of his claim, the RAD finds this evidence was not reasonably available to the Appellant before the rejection of his claim. Therefore, it was not reasonable for the Appellant to have presented this evidence at the time of the rejection of his claim. The Appellant's father provides information regarding what had transpired since they lost contact with each other. The incidents described in the Appellant's father's letter are relevant to the Appellant's refugee claim. [16] Based on the above, the RAD finds the Appellant's father's letter satisfies the criteria set out in section 110(4) of the IRPA; the RAD accepts it as new evidence. Letter from M. XXXX - neighbour of the Appellant's uncle, and notice of burial services for the Appellant's uncle [17] The RAD finds Mr. XXXX letter corroborates the Appellant's allegations of persecution of members of his family due to their religion. The Appellant's own uncle had been killed due to his religious practice as a Shiite Muslim and a XXXX. The burial notice corroborates the information in Mr. XXXX letter and the Appellant's allegations of persecution of members of his family. The RAD finds these documents are relevant. As per the reasons cited above, the Appellant could not obtain these documents prior to the rejection of his claim because he had lost all contact with his family. Therefore, the RAD finds these documents also satisfy the criteria set out in section 110(4) of the IRPA; the RAD accepts it as new evidence. Letter from the Afghanistan XXXX Association of Iran [18] The relevance of this document came to the Appellant's attention after he had re-established his contact with his family. Since the Appellant was only able to do that after the rejection of his claim, this evidence was not reasonably available to the Appellant prior to the rejection of his claim; thus, he could not reasonably have been expected under the circumstances to have presented this evidence to RPD prior to the rejection of his claim. The RAD finds this evidence is directly related to the Appellant's alleged profile. The RAD accepts this evidence. News articles [19] These documents post-date the Appellant's departure from Turkey, and considering the Appellant could not reconnect with the family until after the rejection of his claim, the RAD finds the Appellant could not have presented these documents prior to the rejection of his claim. These articles provide further corroboration of the Appellant's allegations relating to the plight of religious leaders and tribal leaders in Afghanistan. The full translation of the article on the killing of Azizollah Najafi, an influential Shiite clergy from the XXXX XXXX XXXX XXXX XXXX, shows that those in the particular situation and circumstances of the Appellant's family, including the Appellant himself, are at risk of harm in Afghanistan. The RAD finds these articles are relevant to the present case. The RAD accepts these documents as well. [20] The RAD finds the Appellant's above-mentioned proposed new evidence satisfies the criteria set out in section 110(4) of the IRPA; the RAD accepts this evidence. Letters from the Canadian Centre for XXXX XXXX XXXX, and letters from the social worker and the psychiatrist [21] The RAD finds these letters establish that the Appellant has been under continued stress and has been undergoing consultation on an ongoing basis; in this context, the RAD finds the letters to be relevant and form new evidence. These letters provide information regarding the Appellant's psychological health over time and provide a basis for his subjective fear. Taliban letter [22] This letter was submitted after the Appellant's Record was filed with the RAD. The RAD finds the Appellant's affidavit and affidavit of XXXX XXXX provide an explanation as to why the Appellant was not able to provide the Taliban letter with the appeal record. The RAD is satisfied with the Appellant's explanation and accepts this evidence. [23] The RAD accepts all of the Appellant's new evidence submitted with the appeal, and thereafter, pursuant to section 110(4) of the IRPA and RAD Rule 29(4). Oral Hearing Allowed [24] Sections 110(3), (4), and (6), when read together, establish that the RAD must not hold a hearing in an appeal unless there is new (section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [25] The oral hearing was conducted in order to deal with the Appellant's new evidence. ANALYSIS Role of the RAD [26] The Appellant has made submissions regarding the role of the RAD in reviewing the appeal of an RPD's decision;25 the RAD considered the Appellant's submissions. [27] In assessing the appeal, the RAD is guided by Canadian jurisprudence, including the Huruglica26 decision, which outlines the approach that the RAD should take as an appellate body in reviewing the first level decisions of the RPD. Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to 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. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD's determination that, in its opinion, should have been made as per subsection 111(1)(b) of the 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 conditions 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. [28] The RAD adopts and applies the Huruglica case law in this appeal. Hearing at the RAD [29] Section 110(6) of the IRPA provides: (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and, (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [30] The new evidence submitted with this appeal, and afterwards, meets the criteria of section 110(6). Therefore, a hearing was held; the following issue was addressed at the RAD hearing: * Does the new evidence, together with the evidence in the RPD record, establish a well-founded fear of persecution on a Convention ground in Afghanistan? OR * Does the new evidence, together with the evidence in the RPD record, establish that the Appellant would personally be subjected to a risk to life or to a risk of cruel and unusual treatment or punishment, or to a danger of torture in Afghanistan? [31] In assessing the Appellant's new evidence, the RAD considers the Appellant has no personal first-hand living experience in Afghanistan. The Appellant, however, provided abundant personal and country documentary evidence showing that there is a serious possibility that he would be persecuted on a Convention ground, in his particular situation and circumstances. The RAD finds no credibility concerns regarding the genuineness of the Appellant's new evidence. The RAD also finds the Appellant was candid in providing answers to all questions at the RAD hearing, relating to how and from whom the Appellant received the proposed new evidence. [32] The RAD finds the Appellant's personal documents show that his subjective fear is well founded. The Appellant has provided medical reports, and has thus shown that he needed counselling on an ongoing basis to deal with his psychological issues. [33] Counsel submitted that the Appellant is traumatized and vulnerable. Members of his family had been targeted and harmed. Counsel added that the evidence submitted/adduced should be assessed on cumulative grounds. The RAD considered the totality of the evidence, including the recording of the hearings at the RPD and the RAD, and counsel's submissions. [34] The RAD finds the Appellant, as a member of a XXXX XXXX XXXX Shiite Muslim family, and being in the situation and circumstances of similarly-situated persons who have been and continue to be targeted and persecuted by the alleged perpetrators, provided sufficient reliable and satisfactory probative personal documents and country documentation in support of his allegations. The RAD does not agree with the RPD's finding that there was no objective basis to his claim. The RAD finds the Appellant has successfully established the objective basis to his claim for refugee protection. The RAD finds the Appellant to be a credible witness. [35] The RAD finds the Appellant's family name is "XXXX", which translates to XXXX. The Appellant provided sufficient reliable and satisfactory probative evidence showing that male members of his family, who are/were XXXX, have been and continue to be targeted. The Appellant's uncle, XXXX XXXX XXXX, was killed in 2014. His whole family is in hiding and/or are on the run; they have fled Afghanistan and are seeking refuge elsewhere. The documentary evidence supports the Appellant's allegations of persecution of tribal elders and religious leaders in Afghanistan, and of persons in this Appellant's particular situation and circumstances.27 [36] The RAD also assessed if the Appellant, in his particular situation and circumstances, would receive adequate state protection from the authorities in Afghanistan if he were to need it. The documentary evidence28 shows that the local militias in Afghanistan operate without fear of the security forces and, at times, operate in collusion with them. Based on the totality of the evidence in this case, the RAD finds adequate state protection from the state authorities would not be reasonably forthcoming to this Appellant, in his particular situation and circumstances. [37] Further, due to the wide geographic reach of the alleged perpetrators in this case, and the Appellant's inability, in his particular situation and circumstances, to access community structures of Afghan society, and a lack of traditional extended family support that constitutes the main protection and coping mechanism in Afghan society,29 the RAD finds the Appellant would not be safe anywhere in the country. The RAD finds there is no viable internal flight alternative for this Appellant, in his particular situation and circumstances, anywhere in Afghanistan. [38] Based on the foregoing analysis and reasons, the totality of the evidence in this case, including the Appellant's personal and country documents, and having considered the tribal nature of conflict tactics in Afghanistan, the violence against Shia leaders generally, threats from the Taliban in particular, and the fact that the Appellant's family is on the run, the RAD finds there is more than a mere possibility that the Appellant, in his particular situation and circumstances, would be persecuted on several Convention grounds, i.e., religion (Shiite Muslim known/perceived to be XXXX); imputed political opinion (his father and others threatened by the Taliban); and a member of a particular social group (a Shia Muslim not following the moral code and the norms of the society in Afghanistan). [39] Based on the above analysis and reasons, the RAD finds the evidence in this case establishes that the Appellant's fear is subjectively, as well as objectively, well founded and there is a nexus to the Convention grounds. CONCLUSION [40] Based on the assessment of all of the evidence in this case, the RAD finds the Appellant has successfully established that there is more than a mere possibility that he would be persecuted on a Convention ground upon his return to Afghanistan. Disposition [41] Pursuant to section 111(1)(b) of the IRPA, the RAD substitutes the decision of the RPD and determines that the Appellant is a Convention refugee. [42] This appeal is allowed. (signed) "S.S. Kular" S.S. Kular January 7, 2016 Date 1 Exhibit P-2, Appellant's Record, Statement, at p. 10. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 3 Exhibit RPD-1, RPD's Record, Reasons and Decision, at p. 6, para. 7. 4 Exhibit RPD-1, RPD's Record, pp. 171-174. 5 Exhibit P-2, Appellant's Record, at pp. 10-46; Exhibit P-3, Application Record of Appellant to File New Documents, dated February 10, 2015, at pp. 1-10; and Exhibit P-4, Application Record of Appellant to File New Documents, dated April 16, 2015, at pp. 1-9. 6 Exhibit P-2, Appellant's Record, Appellant's Affidavit , dated December 21, 2014, at pp. 11-15; Exhibit P-2, Appellant's Record, Memorandum of Argument, paras. 2-5, at pp. 47-49; Exhibit P-3, Application Record of Appellant to File New Documents, dated February 10, 2015, Affidavit of XXXX XXXX, dated February 10, 2015, at pp. 2-3; Exhibit P-3, Application Record of Appellant to File New Documents, dated February 10, 2015, Appellant's Affidavit, dated January 26, 2015, at pp.4-5; Exhibit P-4, Application Record of Appellant to File New Documents, dated April 16, 2015, at p. 1. 7 Exhibit P-2, Appellant's Record, Appellant's Affidavit, at pp. 11-15. 8 Exhibit P-2, Appellant's Record, at pp. 16-22. 9 Exhibit P-2, Appellant's Record, at pp. 23-25. 10 Exhibit P-2, Appellant's Record, at pp. 26-27. 11 Exhibit P-2, Appellant's Record, at pp. 28-29. 12 Exhibit P-2, Appellant's Record, at pp. 30-32. 13 Exhibit P-2, Appellant's Record, at p. 34. 14 Exhibit P-2, Appellant's Record, at pp. 35-40. 15 Exhibit P-2, Appellant's Record, at pp. 41-46. 16 Exhibit P-3, Application Record of Appellant to File New Documents, dated February 10, 2015, Affidavit of XXXX XXXX, at pp. 2-3. 17 Exhibit P-3, Application Record of Appellant to File New Documents, dated February 10, 2015, Appellant's Affidavit, at pp. 4-5. 18 Exhibit P-3, Application Record of Appellant to File New Documents, dated February 10, 2015, at pp. 6-8. 19 Exhibit P-3, Application Record of Appellant to File New Documents, dated February 10, 2015, at pp. 9-10. 20 Exhibit P-4, Application Record of Appellant to File New Documents, dated April 16, 2015, at pp. 2-6. 21 Exhibit P-4, Application Record of Appellant to File New Documents, dated April 16, 2015, at pp. 7-9. 22 Exhibit P-2, Appellant's Record, Appellant's Affidavit, at pp. 11-15. 23 Exhibit P-3, Application Record of Appellant to File New Documents, dated February 10, 2015, Appellant's Affidavit, at pp. 4-5. 24 Exhibit P-3, Application Record of Appellant to File New Documents, dated February 10, 2015, Affidavit of XXXX XXXX, at pp. 2-3. 25 Exhibit P-2, Appellant's Record, Memorandum, at paras. 6-10, pp. 49-51. 26 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 27 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Afghanistan (14 March 2014), items 1.5 and 1.6. 28 Exhibit RPD-1, RPD's Record, NDP for Afghanistan (14 March 2014), Section 2: Human Rights. 29 Exhibit RPD-1, RPD's Record, NDP for Afghanistan (14 March 2014), item 1.6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : TB4-12079