MB7-04687

RAD File / Dossier de la SAR : MB7-04687 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision June 10, 2019 Date de la décision Panel Sasha Kiran Cragg-Gore Tribunal Counsel for the person who is the subject of the appeal Aylin Berberian Barrister and Solicitor 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 INTRODUCTION [1] XXXX XXXX XXXX XXXX XXXX XXXX (the Appellant) is a citizen of Iraq. He alleges that he is being persecuted by Shia groups, such as the Al Mahdi Army and the Tayyar al-Sadr, because of his brother's activities criticizing them and defending Sunnis at a religious celebration in 2010. His brother fled Iraq and was accepted as a Convention refugee in 2015. The Appellant alleges that the same groups came looking for him at his work and threatened to kill him in 2016 after they were tipped off by a colleague. He fled Iraq in XXXX 2017 and made a refugee claim in Canada, which was rejected by the Refugee Protection Division (RPD). He is now asking the Refugee Appeal Division to recognize him as a Convention refugee or person in need of protection, or in the alternative, to refer this matter back to the RPD for redetermination. DETERMINATION AND SUMMARY OF ANALYSIS [2] The appeal is allowed. I set aside the determination of the RPD and substitutes my own determination that the Appellant is a Convention refugee. The RPD relied too heavily on omissions and contradictions related to the port of entry (POE) interview notes and the Appellant's explanations for these issues were reasonable. Because of this and because of other errors in the RPD decision, I find that the Appellant is credible and has established his allegations. He has provided sufficient credible evidence that establishes that he would face a serious possibility of persecution, if he were to return to Iraq. CONTEXT [3] The Refugee Protection Division (RPD) rejected his refugee claim for the following main reasons: a. The Appellant did not mention in his POE interview that the authorities suspected his brother of having converted to the Sunni faith, nor that he defended Sunni friends at the religious celebration; b. The Appellant said at the POE that the religious celebration happened at the end of 2009 or the beginning of 2010, but in his BOC and testimony, he said it happened in June 2010; c. The Appellant did not mention that his brother received certain death threats in his BOC and POE interview; d. The Appellant cannot argue that he was mentally unfit at the time of the POE interview, but still assert that he remembered saying certain things that the agent did not put into his notes; e. The Appellant was unable to provide details about the nature of the religious celebration; f. The Appellant's brother, who was a witness at the Appellant's hearing, testified that the mosque where the celebration was held had one name, while the supporting letter from the mosque supervisor indicated that the mosque had another name; g. The Appellant failed to mention in his POE interview that he received death threats at his office in April 2016; h. The Appellant failed to mention in his BOC that his brother's business was burned down; i. Even if the Appellant's allegations are believed, the fact that the incident took place in 2010 and that so many years went by without incident means that he is facing a mere possibility rather than a serious possibility of persecution; j. The support letters were given no probative value because of the above negative credibility findings; and, k. The Appellant's profile in the context of the country documentation is insufficient to establish that the Appellant would face a serious possibility of persecution or a risk to his life, of cruel and unusual treatment or of torture if he were to return to Iraq today. [4] The Appellant argues on appeal that: a. The omissions and inconsistencies in the POE notes surrounding his brother's perceived conversion, his defence of Sunnis at the celebration, the date of the celebration and the omission of multiple death threats are due to the fact that he had not slept, he was in a bad mental state and the agent did not write down all of the information he provided; b. The contradiction about the date of the religious celebration is partly due to the fact that it took place many years ago and that the Appellant was in another city at the time; c. Not mentioning that his brother received a death threat on the day of the celebration, nor that his brother's business was burned down, are minor details; d. The Appellant provided enough detail about the celebration because he indicated that it was religious; e. The Appellant's brother's explanation as to why two different names for the mosque were used is reasonable; f. The Appellant mentioned in his POE interview that he was threatened in April 2016 at his office, but he did not specify that it was a death threat; g. Being pursued years after the celebration indicates just how seriously the Appellant would be targeted if he returns; and, h. The RPD failed to consider the supporting evidence and that the objective evidence shows that his profile puts him at risk due to his affiliation with his brother. ANALYSIS The RPD relied too heavily on the Appellant's POE notes [5] While POE interview notes can be used in impugning the credibility of refugee claimants, they are to be used with caution, because their main purpose is to assess the eligibility of individuals to make refugee claims, they are not expected to contain all of the relevant details like a claimant's Basis of claim form (BOC), they are often conducted in less than ideal circumstances, and often their contents are not read back to the individual in question.1 The RPD made multiple findings based on contradictions and omissions related to the POE notes and rejected the Appellant's explanation for these issues. I agree with the Appellant that the RPD erred by relying too heavily on the Appellant's POE notes in impugning his credibility and by failing to accept the Appellant's reasonable explanations for these issues. [6] For example, the RPD made a negative credibility inference because the Appellant failed to mention death threats against his brother and himself at his POE interview. The Appellant argues that he did mention the death threats against his brother at the interview, but that the officer did not record this. He also argues that he made it clear during his interview that he was also being threatened, but he did not use the word "death" in describing these threats. I have reviewed the POE notes and the Appellant was never specifically asked about death threats. In response to a general question about why he is being targeted, the Appellant laid out briefly what happened to him and his brother before he left his country. He makes it clear that both he and his brother were being pursued. The Appellant summarized why he fears returning to Iraq to the officer and it is unreasonable to impugn his credibility for failing to mention specifically the death threats he or his brother received. [7] The RPD also impugned the Appellant's credibility because he did not mention his brother's suspected conversion and that his brother defended Sunni guests at the celebration, only that his brother criticized the actions of the Al Mahdi army and the Alsadr party. The Appellant argues that he did mention these things, but that the officer did not record them in the notes. I find that the RPD erred. [8] To begin with, defending Sunni guests at a party where members of these groups are confronting them, can easily be considered a form of criticizing the actions of these groups. I do not find these two descriptions of the Appellant's brother's activities at the party to be contradictory. While the additional information about his brother's suspected conversion and his defense of Sunni guests was not mentioned in the POE notes, I accept the Appellant's explanation that he did mention this information but that the agent did not record it. [9] The POE interview notes are not a transcript of the interview and there is no assertion by the officer that they are comprehensive. The notes contain questions and answers between the officer and the Appellant but also certain comments and impressions from the officer. For example, the officer provides contextual information in brackets after certain responses from the Appellant. In these circumstances, I do not see any reason to doubt the Appellant's assertion that not everything he said was recorded. [10] I understand that the Appellant had the onus to call the officer as a witness if he intended to refute the contents of the POE notes, but simply stating that not everything was recorded does not call into question the accuracy of the information provided in the notes. I find that the Appellant also benefits from the presumption of truthfulness and as will be seen below, there is not a sufficient basis to call into doubt this presumption. For these reasons, I accept the Appellant's explanation that he mentioned this information about his brother but that the officer did not record it. The RPD erred by drawing conclusions about the Appellant's credibility based on minor contradictions [11] The RPD impugned the Appellant's credibility because of an inconsistency relating to the date of the celebration and his failure to mention the death threats against his brother on the day of the celebration and the fact that his brother's business was burned down. I agree with the Appellant that the RPD erred. [12] The Appellant said during his POE interview that the celebration took place at the beginning of 2010 but indicated in his BOC and testimony that it took place in June 2010. The Appellant argues that it took place so long ago and he was not present. I also note that the difference is a matter of months. Considering that the Appellant did not attend this celebration and it was only years later that he began being targeted for his brother's actions at the celebration, I do not find that this contradiction is major enough to make a negative credibility inference. [13] The Appellant made it clear that his brother was being targeted starting the day of the celebration and I do not find the fact the he did not mention that his brother received a death threat that day to be a significant omission, particularly considering how long ago the event took place and that he was not present at the time. The Appellant also mentioned that his brother's business was closed down and I do not agree with the RPD that failing to mention that it was also burned down is a significant omission or contradiction for the same reasons. The Appellant testified in a coherent and detailed manner about the events that he experienced [14] The Appellant has consistently described the events that led up to his escape from Iraq, including when they came looking for him at his work, changing his work shifts and going into hiding. He has provided support letters from friends who helped him escape and from a co-worker who was present when they looked for him at work. These allegations form the core of his claim, while many of the RPD findings focused on the Appellant's precision in remembering events that only involved his brother. I also note that his brother was found to be a credible witness in describing his persecution, leading to the RPD accepting him as a Convention refugee. Given the above, I find that the Appellant credible and that he has established his allegations. The Appellant would face a serious possibility of persecution if he were to return to Iraq [15] The RPD found that, even if his allegations were believed, he would only face a mere possibility of persecution if he were to return to Iraq, because they only came after him six years after they started targeting his brother. I agree with the Appellant that the fact that they came after him after six years demonstrates a significant degree of risk upon return to Iraq. The Appellant has been threatened with death by groups such as the Al Mahdi army that persecute and harass Sunnis in Iraq and those associated with them.2 There are recent examples of members of the Al Mahdi army killing Sunnis.3 I conclude that the Appellant would face a serious possibility of persecution if he were to return to Iraq. Inadequate state protection [16] The Al Mahdi army have terrorized Sunnis despite official attempts of the army's leader, Muqtada al-Sadr, to refrain from these actions.4 There are no state authorities that can offer effective protection from these actions. I find that the state cannot adequately protect the Appellant if he were to return to Iraq. No internal flight alternative [17] There is no indication that the Al Mahdi army is limited to a specific geographical area in Iraq. I also find that, as an individual who is perceived to be associated with Sunnis, the Appellant would face persecution from other Shia militias that operate throughout the country. I find that the Appellant has no internal flight alternative available to him. CONCLUSION [18] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) "Sasha Kiran Cragg-Gore" Sasha Kiran Cragg-Gore June 10, 2019 Date 1 Cetinkaya v. Canada (Citizenship and Immigration), 2012 FC 8. 2 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Iraq, Feb 2017, items 4.4 and 1.20. 3 Exhibit RPD-1, RPD Record, National Documentation Package (NDP), Feb 2017, item 1.20. 4 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB7-04687 RAD.25.02 (April 04, 2019) Disponible en français 8 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 (April 04, 2019) Disponible en français