TB8-06516

RAD File / Dossier de la SAR : TB8-06516 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 XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 25, 2019 Date de la décision Panel D. Goff Tribunal Counsel for the person(s) who is(are) the subject of the appeal Jason Currie Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] The appellant, XXXX XXXX XXXX XXXX XXXX XXXX, a citizen of Iraq, appeals a decision of the Refugee Protection Division (RPD), rejecting his claim for refugee protection. The appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and substitute a positive determination or, refer the matter back to the RPD for redetermination before a differently constituted panel. He has not submitted new evidence. He has not asked for an oral hearing. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (the "Act")1, 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] In or about January, 2015, the appellant travelled to Canada under a false identity and with the fraudulent use of a Greek passport. Upon questioning by immigration officials, he stated that he could not remember the name in the passport and that he had destroyed all relevant documents that he used to travel to Canada. [4] The appellant initiated a claim for protection alleging a fear of persecution in Iraq by militants affiliated with Muqtada Al-Sadr due to his perceived employment for the XXXX XXXX. The appellant alleged he worked as a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, 2007. The militants assumed he was working for the XXXX and threatened him to stop. The appellant fled the country. [5] The appellant resided in Syria sometime between 2008-2011, inclusive. [6] The appellant resided in Norway sometime between 2008-2015 or 2011-2015, inclusive. His asylum claim in Norway was denied. [7] The appellant's hearing before the RPD was originally scheduled for March 3, 2015. It was postponed a number of times. The hearing was finally heard on November 15, 2017. The appellant's written submissions2 were received by the RPD on December 1, 2017. [8] By a decision dated January 11, 2018, the RPD rejected the appellant's claim. The determinative issue was credibility. [9] The appellant argues the RPD erred in failing to identify him as a "vulnerable person" and in failing to consider psychological factors in its assessment of his credibility. He also argues the RPD relied on selective evidence in assessing his residual profile. [10] The RAD is not persuaded the RPD erred. The RPD correctly concluded the appellant failed to credibly establish his claim. ANALYSIS The Role of the RAD [11] The responsibility rests with the appellant to raise any potential grounds of appeal.3 [12] The role of the RAD is not to undertake a microscopic search for errors. [13] The RAD is to review RPD findings of law, fact (and mixed fact and law), which raised no issue of credibility of oral evidence, applying the correctness standard.4 The RPD's Findings [14] The onus is on the appellant to establish his claim for protection. The RPD determined the appellant failed to meet his onus to do so. [15] The onus is also on the appellant to provide full and complete submissions on how the RPD erred. The appellant has failed to do so. Instead, the appellant has provided submissions on alternative interpretations of the evidence. He is thus essentially asking the RAD to reweigh the evidence in their favour. This is not the role of the RAD. The appellant has already enjoyed a full hearing before the RPD. The RPD had the opportunity to test the credibility of the allegations at the hearing and clearly did so. Having reviewed the RPD's questions and the appellant's answers, as well as the RPD's reasons for decision, it is clear that the RPD assessed the evidence and weighed the evidence accordingly. The appellant has failed to demonstrate how the RPD erred in doing so. [16] Having nevertheless independently reviewed the evidence, the RAD has addressed the appellant's main arguments below. Psychological Assessment; Designation as "Vulnerable Person" [17] The appellant argues the RPD erred in its credibility assessment by not considering his psychological assessment report5 and also by failing to designate him as a "vulnerable person". [18] Having independently reviewed the evidence, including the appellant's testimony at the hearing, the RAD does not agree with the appellant's argument. [19] To begin with, the RAD finds no evidence the RPD ignored and/or failed to give adequate weight to the psychological assessment report. Furthermore, the appellant was represented by counsel before the RPD, yet no special accommodations were requested and counsel did not raise any concern during the hearing (nor in his written submissions) that the appellant should be designated as a "vulnerable person". [20] Having also reviewed the appellant's testimony, the RAD notes he testified in a clear and coherent manner. There appeared to be no issues with his mental faculties. [21] Moreover, the appellant's psychological assessment report does not identify any accommodations required for his refugee proceedings and does not recommend the appellant be designated a "vulnerable person." [22] The RAD also notes the author of the report, Dr. XXXX XXXX XXXX, met with the appellant for one session only on XXXX XXXX, 2015 for the purposes of his refugee hearing. As noted, the appellant's hearing was held on November 15, 2017. There is no indication the appellant followed up and/or required any further session(s) with Dr. XXXX XXXX XXXX after XXXX, 2015. Indeed, the report does not include any medical diagnosis of the appellant, including that of a mental illness. [23] Finally, the RAD notes the bulk of the information contained in the report is a summary of allegations and symptoms self-reported by the appellant. However, this does not necessarily corroborate the situation as the appellant alleges. As the Court stated in Danailov, "opinion evidence is only as valid as the truth of the facts on which it is based."6 As the underlying facts in this case were found not to be credible, the RAD finds the RPD was correct to give little weight to the very general conclusions in the report, particularly in addressing the shortcomings in the appellant's evidence, which went beyond credibility concerns with the testimony only. The appellant's oral and documentary evidence was clearly inconsistent and contradictory. Further, he failed to provide a reasonable explanation for the various problems in his evidence. Finally, reports such as the one provided by the appellant cannot possibly serve "as a cure-all for deficiencies in the Applicant's evidence" in a RPD (or RAD) decision.7 Residual Profile - Generalized Risk" Exception - subparagraph 97(1)(b)(ii) of the Act [24] The appellant also argues the RPD erred by relying on selective evidence in assessing his residual profile as a Shia. [25] Having reviewed the evidence, the RAD does not agree with the appellant's argument. It is trite to note the RPD is presumed to have considered all of the evidence before it. There is no evidence to indicate otherwise. Indeed, the RPD demonstrated a thorough review of the evidence, particularly the appellant's testimony (including about any threats/risks experienced by his family residing in his home city of Basra, a city predominately controlled by Shia militias) and the objective country conditions documents on the situation for Shi'ite Muslims. [26] Moreover, the RAD agrees with the RPD that the risk described by the appellant is both speculative and that of a general risk of crime from militia groups faced generally by other persons in Iraq (specifically, in Basra). As the jurisprudence also indicates, refugee claimants may face a generalized risk of harm even though they may have been repeatedly victimized and faced escalating violence; continued to be pursued after not complying with the demands of the criminals; and face reprisals for not complying with the demands of the criminals or after reporting them to the police. [27] In light of the foregoing, the RAD concludes the risk the appellant may face is not different than the generalized risk of criminality faced by all citizens in Iraq.8 Therefore, pursuant to subparagraph 97(1)(b)(ii) of the Act, which excludes a risk that is "faced generally by other individuals in or from that country," the appellant is not a person in need of protection. [28] The RAD therefore finds there is not a serious possibility the appellant would be persecuted if he was returned to Iraq pursuant to section 96 of Act. The panel similarly finds that, on a balance of probabilities, the appellant would not be personally subjected to a danger of torture or face a risk to life or risk of cruel and unusual treatment or punishment in Iraq pursuant to section 97 of the Act. DISPOSITION [29] On the basis of the findings noted above and after its own assessment of all the evidence in the record, the RAD finds that the RPD's refugee determination is correct. [30] Pursuant to paragraph 111(1)(a) of the Act, the RAD confirms the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. [31] The appeal is dismissed. (signed) "D. Goff" D. Goff February 25, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on December 12, 2017. 2 Exhibit RPD-1, RPD's Record, Exhibit 9, at pp. 217-225. 3 Ilias, Mohammed Kamal Deen v. M.C.I. (F.C., no. IMM-5152-17), Bell, June 27, 2018, 2018 FC 661, at para 39. 4 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 5 Exhibit RPD-1, RPD's Record, Exhibit 5, at pp. 169-172. 6 Danailov, Vasco Valdimorov v. M.C.I. (F.C.T.D., no. T-273-93), Reed, October 6, 1993, at p. 2. 77 Khatun, Sayeda Hasina v. M.C.I. (F.C., no. IMM-2124-11), Russell, February 6, 2012, 2012 FC 159, at para 94; Mahari, Aden v. M.C.I. (F.C., no. IMM-404-12), Mandamin, August 16, 2012, 2012 FC 999, at para 25. 8 Acosta, Dunis Joel Acosta v. M.C.I. 2009 FC 213; De Munguia v. M.C.I., 2012 FC 912; Cortes v. M.C.I, 2012 FC 1378. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-06516 RAD.25.02 (September 18, 2018) Disponible en français 7 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 (September 18, 2018) Disponible en français