TB8-23186

RAD File / Dossier de la SAR : TB8-23186 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 4, 2020 Date de la décision Panel M. Lee Tribunal Counsel for the person who is the subject of the appeal Shandana Sohail 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 OVERVIEW [1] XXXX XXXX XXXX XXXX XXXX XXXX XXXX (Appellant), a citizen of Iraq, appeals a decision from the Refugee Protection Division (RPD) dated August 22, 2018 rejecting her claim for refugee protection. DETERMINATION [2] The Refugee Appeal Division (RAD) dismisses the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant alleges to fear persecution in Iraq because of her family connection to her husband, who was a former member of the Ba'ath Socialist Party. She also fears returning to Iraq alone as a woman. The Appellant came to Canada on XXXX XXXX XXXX 2016. She claimed refugee protection seven months later. [4] The RPD heard the refugee claim on August 21, 2018. The RPD rejected the claim on August 22, 2018, on the determinative issue of credibility. [5] The Appellant was represented by two different representatives at her hearing and on appeal. The Appellant submits that the RPD erred in its decision. The RAD carefully considered the merits of the appeal in its decision below. Role of the RAD [6] According to the Federal Court of Appeal's ruling in Huruglica,1 the RAD will review decisions of the RPD on a standard of correctness after conducting an independent analysis of the evidence. ANALYSIS New evidence application [7] The Appellant is making an application to submit new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). As new evidence, the Appellant submits a psychological report, four support letters from friends and family members, and country-related documentary evidence. The RAD will assess each of these items below. [8] In order for new evidence to be accepted on appeal, the new evidence must meet at least one of the three requirements listed under subsection 110(4) of the IRPA (emphasis added): (4) On appeal, 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.2 [9] An appeal is not an opportunity for a fresh hearing, nor is the purpose of a RAD appeal to correct deficiencies in the RPD hearing. Respectfully, the RAD cannot simply accept new evidence on appeal because the Appellant thinks the new evidence is important. It must meet one of the three criteria listed above. It is up to the Appellant to explain why the evidence meets these criteria, in accordance with the law. [10] The Appellant did not include any submissions on why any of the new evidence meets the specific criteria. Nonetheless, the RAD will consider the criteria in assessing the evidence in its decision. Psychological report rejected [11] The RPD rejected the Appellant's claim on August 22, 2018. The psychological report is dated XXXX XXXX XXXX 2018.3 In the report, the psychologist indicates that the Appellant was seen on XXXX XXXX XXXX 2018. The RAD finds that the psychological report was written and the Appellant's appointment was made after the RPD claim was rejected. In the Appellant's submissions regarding her new evidence, no explanation is given regarding why this report meets the criteria of subsection 110(4). Rather, the submissions simply explain the purpose and significance of the report.4 As indicated above, new evidence can only be accepted by the RAD if it meets one of the above cited three criteria. [12] The RAD finds that it is unclear why the Appellant could not have seen a psychologist before the time of rejection. The Appellant had the benefit of legal representation at her hearing. If a psychological report could have been helpful in informing the RPD about the impact of her psychological state at the hearing, the RAD finds that the Appellant could have submitted such a report sooner. The RAD finds that the Appellant could have been reasonably expected to have provided this report at the time of rejection. Furthermore, no application for post-hearing documents was made after the RPD hearing. Given that the report does not meet any of the three criteria under subsection 110(4) of the IRPA, the report is rejected. Support letters are rejected [13] The Appellant also submits support letters from her son, her daughter and two friends.5 Once again, the Appellant described the importance of these letters, but did not provide any submissions regarding why these letters meet the criteria under subsection 110(4) of the IRPA. [14] Each of these four letters are undated and unsworn. Therefore, it is uncertain when these letters were written, and when the Appellant received them in Canada. The son has been regularly residing in Canada since 2015, and so it is unclear why a support letter from him could not have been provided before August 22, 2018, prior to the rejection of the claim. No explanation is given in the letter regarding why it was only available after the rejection of the claim. The other letters from the daughter and the friends were submitted to the Appellant from their mobile phones.6 Given the immediate receipt of these letters by phone, it is also unclear why these letters could not have been provided prior to the rejection of the claim, or why they would not have been available earlier. Also, at the hearing, the Appellant indicated she lost contact with her daughter, so it is unclear at what point they resumed contact and reconciled their relationship in order for this letter to be written. The letter itself does not address this. [15] The RAD also finds that the Appellant could have reasonably been expected to have provided these documents prior to rejection. These letters are from people who lived with her and knew about her situation in Iraq. The letter-writers describe aspects of the Appellant's allegations that are core to her claim. As indicated above, the Appellant had legal representation at her hearing and would have been informed about the importance of providing corroborating documents at that time. No application for post-hearing documents was made at the end of the hearing. Therefore, the RAD finds that the letters do not meet any of the three criteria under subsection 110(4) of the IRPA, and they are rejected. Supporting country documentation rejected [16] The Appellant also provided copies of reports and articles which discuss country conditions in Iraq, relating to the Appellant's allegations.7 Once again, no explanation is provided in the Appellant's submissions regarding why these documents meet any of the three criteria under subsection 110(4). [17] Each of the reports are articles which were published between 2014 and 2016; years before the RPD hearing took place in 2018. These documents are publicly available, and they contain objective information that directly relates to the core of the Appellant's allegations. Therefore, the RAD finds that these documents could have been submitted prior to the rejection of the claim, the documents were available at the time of rejection, and the Appellant could have reasonably been expected to have provided them at the time of rejection. Therefore, these reports and articles are also rejected. [18] The RAD notes that the Appellant relies significantly on these items of new evidence in its memorandum. However, as the new evidence has been rejected for the above reasons, the RAD cannot consider any submissions related to the new evidence and will rely on the remaining portions of the memorandum, which do not rely on the new evidence. Rule 29 Application (labeled as "Submissions 2") rejected [19] The Appellant submitted additional evidence and submissions on November 22, 2018.8 These documents arrived after the date of perfection, therefore the RAD must assess whether it will accept these documents in accordance with Rule 29 of the Refugee Appeal Division Rules. [20] No submissions nor any references were made as to why these documents meet the requirements of Rule 29. Nonetheless, the RAD still considered the criteria of Rule 29 in its decision. [21] The Appellant's submissions included eleven paragraphs of references to the oral recording of the hearing.9 The Appellant also provided two articles respectively dated May 24, 2007 and May 20, 2003.10 There is also a translated document with a brief paragraph in reference to the Appellants' daughters' refugee claim decision in Sweden.11 [22] In order for evidence to be accepted after perfection, it must meet the following three criteria under Rule 29 (4): (4) In deciding whether to allow an application, the Division must consider any relevant factors, including a. the document's relevance and probative value; b. any new evidence the document brings to the appeal; and c. whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the Appellant's record, respondent's record or reply record. [23] The RAD will assess each part of the new evidence in accordance with the above criteria. New written submissions rejected [24] In the new written submissions for paragraphs 1 to 4, the Appellant provides further elaboration on the fact that she was kept uninformed by her husband and the danger she faces as a single Shiite woman with connections to the Ba'ath party, returning to Iraq.12 [25] While these submissions are relevant to the Appellant's claim, the contents of these submissions do not contain any reference to new evidence. These points have already been discussed in the initial Appellant record, and are now simply elaborated upon in greater detail in this new set of submissions. There is no indication why the Appellant could not have provided fulsome submissions at the time of perfection. The RAD finds that with reasonable effort, the Appellant could have done so. Therefore, these submissions are rejected. [26] Paragraphs 5 and 6 describe the contents of the new evidence documents and why they should be accepted.13 The RAD rejects those documents and these submissions, and will provide reasons in the next section below. [27] In the new written submissions for paragraphs 7 to 11, the Appellant explains that she listened to the oral recording of the hearing and would like to emphasize on points of the hearing that she believed were not given enough consideration.14 [28] While submissions on the oral evidence given at the hearing is relevant to the appeal, this is not new evidence on appeal. There is no indication that the oral recording of the hearing was not available to the Appellant before perfection. The recording of the hearing itself is not new evidence. There is no explanation regarding why the Appellant could not provided her commentary on the oral recording at the time of perfection, along with the rest of the Appellant record. The Appellant is represented by the same consultant both before and after the perfection of the appeal and would have reviewed all of the evidence before submitting their Appellant record. Therefore, these written submissions are rejected as it does not meet the criteria of Rule 29. News articles rejected [29] The Appellant provided two news articles regarding country conditions in Iraq and treatment of former Ba'ath party members.15 In submissions, the Appellant simply asked the RAD to consider the country condition documents and highlighted the most important parts of the articles.16 [30] While the articles have some relevance to the Appellant's claim, both these articles were written over a decade before the hearing took place. The RAD does not find that these articles are new evidence as the contents of the articles deal with events from 2003 and 2007. The Appellant did not explain why these articles could not have been provided earlier, at the time of perfection, along with the other articles they also provided with the initial Appellant Record. The RAD finds that with reasonable effort, the Appellant could have provided these articles earlier. Therefore, they are rejected. Refugee claim document from daughter rejected [31] The Appellant also provided a page of her daughters' refugee claim decision from Sweden and translation.17 [32] The RAD finds that the document lacks probative value. The Appellant does not provide an explanation for why only one page of this decision is provided. The paragraph that appears in this decision cannot be read in context without the rest of the decision. The document is undated and there are no visible security features, letterhead or logo on the document, or any signature from a decision-maker to show that this document came from the Swedish government.18 There is also references made to whether the daughters had passports, and how the evidence in the claims shows that the "family lacks a sponsor".19 According to the Appellant, her family members fled to Sweden for the very same reasons that she did. However, from this one paragraph alone, it appears that the daughters' alleged claim dealt with very different issues. However, it is impossible to test the probative value of a refugee decision without the rest of the pages available, as the RAD cannot properly assess it. [33] It is unclear what new evidence this brings to the claim. While there are some references to immigration and refugee law vocabulary, the document itself does not clearly specify that it is a part of a refugee claim decision. [34] The Appellant was able to obtain a support letter from one of her daughters when the initial Appellant record was submitted. That document has been rejected for the above reasons. However, if the Appellant was in touch with her daughter at that time, it is uncertain why this document was only available after perfection, as this was not explained in the submissions. The RAD finds that with reasonable efforts, the Appellant could have provided this document at the time of the initial Appellant record. [35] Consequently, the RAD finds that this document does not meet any of the criteria under Rule 29 and it is rejected. Oral hearing rejected [36] According to subsection 110(6) of the IRPA, an oral hearing can only be granted where new evidence has been accepted. In this case, the new evidence provided by the Appellant has been rejected for the reasons provided above. Once again, an oral hearing is not granted by the RAD simply in the case where the Appellant wishes to have a fresh hearing. Such a request must be made in accordance with the criteria set out in subsection 110(6). Therefore, in this particular instance, the RAD is unable to hold an oral hearing. [37] On June 15, 2020, the RAD provided the Appellant's counsel with a notice related to the COVID-19 pandemic. This notice advised that they had 30 days from the date that the notice was received to submit any document or written submission in support of the appeal. Counsel was also advised that the other requirements of Rule 29 and 110(4) continue to apply. To date, no documents or written submissions were provided in response to this notice. RPD was correct in assessment of delay [38] The RPD found that the Appellant waited eight months after her arrival in Canada before making a refugee claim and drew a negative inference to her credibility.20The Appellant overstayed her visitor's visa and made a claim once she was out of status.21The RPD found that the Appellant's actions were inconsistent with subjective fear, as it is expected that she would avail herself of the first opportunity to claim protection.22Furthermore, the Appellant was not alone in Canada and had the assistance of her son and daughter-in-law. The Appellant also has family members who made successful refugee claims in other countries, and so she would not have been unfamiliar with the option of making a refugee claim.23 [39] The Appellant submits that she did not avail herself of the first opportunity to claim protection because she initially wanted to join her husband and her daughters in Sweden.24 The Appellant further submits that her wish for family reunification should be considered.25 [40] The RAD disagrees with the Appellant. While family reunification may be a factor for consideration in other avenues of immigration law, this is not a factor that can be considered in a refugee appeal. In the memorandum, no submissions are given for why she waited until she was out of status on her Canadian visitor's visa before she made a refugee claim, putting herself at risk of deportation to Iraq, where she allegedly fears persecution. While the Appellant may lack language skills and familiarity with processes in a foreign country, she lives with her son and daughter-in-law in Canada, who are at least familiar with the immigration and sponsorship process. [41] The RAD finds that the Appellant had the wherewithal to have made a refugee claim at a much earlier point in time if she truly feared for her life. The RAD agrees that that the delay in claiming demonstrates a lack of subjective fear and the RPD was correct to draw a negative inference to the Appellant's credibility. Appellant does not face persecution because of husband's former membership in Ba'ath party [42] The RPD found that the documentary evidence indicated that Sunni Muslims are most likely at risk of harm in Iraq.26 The Appellant identifies as a Shia Muslim. The documentary evidence further found that a person will not be at risk of serious harm or persecution because of previous involvement with the Ba'ath party.27 The Appellant provided her husband's expired Ba'ath party membership card from 1989. She was unable to provide any other documents or information regarding the extent of her husband's involvement in any leadership role within the party.28 [43] The Appellant submits that Shia Muslims are also subject to mass attacks and nobody is safe in Iraq, as all groups face discrimination, persecution and endangerment.29 Iraq remains a war zone and any ethnic and religious group is at risk.30 The Appellant further submits that although she has limited knowledge of her husband's involvement in the party, it is possible that he could have had greater dealings that she was unaware of.31 Simply because she cannot prove her husband's involvement does not mean she is not in danger.32 [44] The RAD disagrees with the Appellant. The RAD notes that the Appellant herself is not a member or former member of the Ba'ath party. While Iraq may have its political and societal challenges in general, the Appellant still has the responsibility to prove her allegations and to explain why she would face any risk of persecution. According to her Basis of Claim (BOC), she is alleging persecution because of her relationship to her husband, who was a former member of the Ba'ath party, allegedly until 2012. The Appellant's entire claim relies on her husband's involvement in this former political party. [45] The documentary evidence specifically indicates that persons who claim they are at risk because they are related to someone involved in the Ba'ath party will generally not be at irks of serious harm because of this reason; however, each case must be assessed individually.33 For instance, it must be considered the role that the relative played in the Ba'ath party to assess whether any family members will be at risk on account of their activity.34The only evidence of her husband's involvement is an expired membership card from 1989 that the Appellant alleges she coincidentally found in her belongings when she came to Canada.35The RAD finds that it is speculation that the husband's involvement in the party could have been greater than she realized. There is no objective evidence to indicate her husband's position, level of involvement, or length of involvement. The Appellant indicated that she knew her husband attended meetings while he was involved with the Ba'ath party, but that was it. The Appellant further testified that she does not know the whereabouts of her husband presently. Therefore, the RAD does not have any evidence directly from the husband, and can only base its findings on the limited evidence provided by the Appellant. [46] The RAD finds that the objective evidence does not indicate that simply being a Shia Muslim in and of itself would provide an individual with a risk profile. Furthermore, the Appellant did not allege that she faced any persecution solely for being a Shia Muslim in her BOC or at her hearing. Shia Muslims are the majority religious group in Iraq, constituting 55 to 60 percent of the population.36 The documentary evidence indicates that being both Sunni and a former member of the Ba'ath party could put an individual at risk.37 This is not the profile of the Appellant's husband. The same article indicates that former affiliation to the Ba'ath party could add to a person's insecurity. However, being targeted solely with reference to former Ba'ath association is not likely, as everyone employed by the previous regime had to be a member of the Ba'ath party.38 [47] There were a number of material inconsistencies found by the RPD that were not addressed in the Appellant's memorandum. For instance, in its decision, the RPD found that the Appellant's visa application dated XXXX XXXX XXXX 2016, indicated that her husband and daughters were living in Iraq.39 This is inconsistent with the Appellant's testimony that she did not know where her husband was, and that her daughters remained in Sweden. There was no satisfactory explanation regarding the whereabouts of the Appellant's husband and daughters, and whether they returned to Iraq in spite of her husband being the alleged target of persecution due to his former political ties. The RAD agrees with the RPD for drawing a negative inference to the Appellant's credibility. [48] The RAD accepts that the husband was a former member of the Ba'ath party. However, the RAD considers the limited evidence provided regarding the husband's role and level of involvement in the Ba'ath party. The RAD also considers the documentary evidence which indicates that relatives of former Ba'ath party members are generally not at risk of persecution, and neither are persons who are simply associate with the Ba'ath party. As well, the RAD considers that the Appellant delayed in claiming when she came to Canada, and only made a refugee claim once she was out of status. The RAD further considers that there is inconsistent evidence regarding whether the husband and daughters are currently still outside of Iraq for safety reasons, or if they have in fact returned, in spite of the husband being persecuted for his former political ties. [49] After carefully considering all of the evidence collectively, the RAD finds that the RPD was correct in its assessment. The RAD finds on a balance of probabilities, that the Appellant would not be targeted by militias or any other group in Iraq for being the wife of a former Ba'ath party member, on a balance of probabilities. Insufficient credible evidence to indicate that Appellant would have to live alone in Iraq [50] The Appellant submits that she would have to return to Iraq and live alone as a woman, since her husband and daughters are in Sweden.40 The Appellant further submits that this would be considered improper and disrespectful.41 [51] The RAD considered whether the Appellant had a risk profile as a woman who would live alone in Iraq. As indicated above, the Appellant provided inconsistent evidence regarding the whereabouts of her husband and daughters. As of XXXX XXXX XXXX 2016, the Appellant's visa application indicated that her husband and daughters were living in Iraq. At the hearing on August 21, 2018, the Appellant testified that they did not return to Iraq and that her daughters remained in Sweden and she did not know the whereabouts of her husband.42 At the time of this appeal, it is uncertain whether these members of the Appellant's family are still in Sweden or Iraq, or somewhere else altogether. Furthermore, the Appellant currently has other relatives living in Iraq. The RAD has already found that the Appellant would not be targeted for being the wife of a relative of a former Ba'ath member, and so the RAD further finds that the Appellant would not be putting her family members' lives at risk if she were to reside with them. The RAD does not find that there is sufficient credible evidence to indicate that the Appellant would truly be living by herself as a woman in Iraq if she returned, on a balance of probabilities. In summary [52] The RAD has carefully considered all of the evidence in this appeal. The RAD considers that the Appellant waited until she overstayed her visitor visa before making a refugee claim, despite explaining that she came to Canada for the very purpose of seeking protection. The RAD also considers that the documentary evidence indicates that relatives of former Ba'ath party members are generally not at risk in Iraq, although this depends on what the Ba'ath party member may have done during their time within the party. The Appellant had very limited knowledge of her husband's involvement and role in the party, and the RAD finds that she did not meet her burden of proof to show that she would be in danger if she were to return. The RAD finds on a balance of probabilities that the Appellant would not face a serious possibility of persecution because of her husband's former political ties, and she would not be a person in need of protection because of any personalized risk to her life, of torture, or of cruel and unusual treatment or punishment. Therefore, the RPD's decision is correct and it is upheld. CONCLUSION [53] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) M. Lee M. Lee August 4, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93, paragraph 78. 2 Immigration and Refugee Protection Act (S.C. 2001, c. 27). 3 Exhibit P-2, Appellant Record, at pages 31-35. 4 Exhibit P-2, Appellant Record, at page 8, Section III. 5 Exhibit P-2, Appellant Record, at pages 36-40. 6 Exhibit P-2, Appellant Record, at pages 37-40. 7 Exhibit P-2, Appellant Record, at pages 44-55. 8 Exhibit P-3, Submissions 2- perfecting appeal. 9 Exhibit P-3, Submissions 2- perfecting appeal, at pages 1-7. 10 Exhibit P-3, Submissions 2- perfecting appeal, at pages 8-17. 11 Exhibit P-3, Submissions 2- perfecting appeal, at pages 18-20. 12 Exhibit P-3, Submissions 2- perfecting appeal, at pages 1-2, paragraphs 1-4. 13 Exhibit P-3, Submissions 2- perfecting appeal, at page 3, paragraphs 5-6. 14 Exhibit P-3, Submissions 2- perfecting appeal, at page 3, paragraph 7. 15 Exhibit P-3, Submissions 2- perfecting appeal, at pages 8-17. 16 Exhibit P-3, Submissions 2- perfecting appeal, at page 3, paragraph 5. 17 Exhibit P-3, Submissions 2- perfecting appeal, at page 18. 18 Exhibit P-3, Submissions 2- perfecting appeal, at page 20. 19 Exhibit P-3, Submissions 2- perfecting appeal, at page 18. 20 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 6, paragraph 6. 21 Ibid. 22 Ibid. 23 Ibid. 24 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 14, paragraph 1. 25 Ibid. 26 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 8, paragraph 11. 27 Ibid. 28 Ibid. 29 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 17, paragraph 8. 30 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 16, paragraph 7. 31 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 18, paragraph 11. 32 Ibid. 33 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentary Package (NDP) for Iraq, version 30 April 2018, item 1.8, Country Policy and Information Note. Iraq: Ba'athists. Version 1.0. United Kingdom. Home Office. November 2016. 34 Ibid. 35 Exhibit RPD-1, RPD Record, Exhibit 4, at page 126; RPD Hearing Recording, August 21, 2018, at 36:25. 36 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentary Package (NDP) for Iraq, version 30 April 2018, item 12.1, Iraq. International Religious Freedom Report for 2016, 15 August 2017, at page 3. 37 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentary Package (NDP) for Iraq, version 30 April 2018, item 1.8, Country Policy and Information Note. Iraq: Ba'athists. Version 1.0. United Kingdom. Home Office. November 2016. 38 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentary Package (NDP) for Iraq, version 30 April 2018, item 1.8, Country Policy and Information Note. Iraq: Ba'athists. Version 1.0. United Kingdom. Home Office. November 2016, at page 30. 39 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 7, paragraph 8. 40 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 19, paragraph 12. 41 Ibid. 42 RPD Hearing Recording, August 21, 2018, at 18:22-19:45. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-23186 RAD.25.02 (January, 2020) Disponible en français 2 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 (January, 2020) Disponible en français