TB4-03603

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 : TB4-03603 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 XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 23, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Steven A. Morris 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 (de la) ministre Reasons and Decision [1] XXXX XXXX XXXX XXXX XXXX (the Appellant), a citizen of Iran, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and either substitute its own positive determination or refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division refers the matter to the Refugee Protection Division for redetermination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that he was the XXXX and XXXX XXXX of a business in Dubai. In XXXX of 2010, he was approached by agents of Iran's Revolutionary Guards, who wanted to XXXX XXXX XXXX XXXX XXXX XXXX to Iran in violation of international sanctions against that country. The Appellant refused, and he was threatened by the agents. He came to Canada in XXXX of 2010 on a visitor's visa, and, while he was away from his business, it was vandalized. At that time, money was illegally transferred from his company's accounts to those of an organization related to the Revolutionary Guards, and, in response, his company filed a lawsuit. In XXXX of 2011, the Guards issued a summons for the Appellant in Iran, and a second summons was issued in XXXX of 2012. Agents of the Guards have also come to the Appellant's house in Iran on two occasions, threatening to kill him. In January of 2013, the Appellant claimed refugee status in Canada. [4] The Appellant's application for refugee protection was heard on September 10 and September 18, 2013. By a decision of March 28, 2014, the RPD rejected the claim on the basis of credibility. It found that the Appellant had suffered discrimination and harassment, but not persecution, that it was implausible that his company would sue the Revolutionary Guards, that it was implausible that the Guards would select a XXXX XXXX through which to circumvent sanctions, and that the Guards could not reasonably be expected to pursue the Appellant. The RPD also drew a negative inference from the Appellant's failure to make a claim in South Korea, and found that, as the Revolutionary Guards have not targeted the Appellant's wife and children in Iran, they must not be interested in the Appellant either. Finally, the RPD found that the Appellant's delay in making a refugee claim in Canada also damaged his credibility. [5] The Appellant argues on appeal that the RPD's credibility conclusion rests almost entirely on unsustainable plausibility findings, and he submits that that panel misconstrued or ignored relevant evidence, misapplied the law, and based its decision on erroneous findings of fact without regard to the material before it. ANALYSIS Standard of Review [6] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [7] The Appellant makes no submissions on the standard of review to be applied here. [8] The Refugee Protection Division's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection. The RAD must, conversely, proceed without a hearing except in certain circumstances.1 The Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.2 The RPD has an opportunity to see and question the refugee claimant, while the RAD is infrequently in a position to do so. An appeal body normally should not substitute its own reasoning for that of the first-level tribunal which had the benefit of hearing oral testimony.3 The RPD is therefore in an advantageous position when it comes to assessing credibility and making findings of fact. [9] One of the purposes of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...."4 In Newton, the Alberta Court of Appeal noted that a failure to show deference to the first-level decision-maker could undermine the integrity of such hearings, which would in effect be reduced to a type of preliminary inquiry.5 A failure to show deference to the RPD on questions of fact would have a similar effect on the first-level refugee hearing, and this is not consistent with the purpose of IRPA or its specific provisions with respect to appeals.6 In the RAD's view, IRPA clearly signals that an appeal is not to be a de novo hearing of the refugee claim, as the RAD is restricted in accepting new evidence and holding an oral hearing, and this too suggests that deference be shown to the findings of fact made at the first level. [10] For these reasons, the RAD will show deference to the RPD on findings of fact, including credibility, and on findings of mixed fact and law.7 The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.8 [11] The appropriate standard of review for questions of fact and of mixed fact and law is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.9 In considering the reasonableness of the decision, the RAD must review and independently assess the evidence that was before the RPD, and determine whether the RPD properly considered that evidence and reasonably justified the conclusions drawn from it.10 [12] The RAD will not show deference to the RPD, however, on questions of law.11 Here, the lower and appellate tribunals have similar expertise with respect to questions of law, including those arising from their shared home statute, and this suggests that no deference is warranted. It is an appropriate function for the RAD to ensure that the RPD is applying the correct law; this approach promotes just decisions and avoids inconsistent application of the law.12 A correctness standard on questions of law ensures universality in the application of the law.13 [13] For these reasons, the RAD will review questions of law on a standard of correctness. The RAD will not show deference to the RPD's reasoning process on such issues, but will undertake its own analysis of the question to determine whether it agrees with the RPD on the matter.14 The RPD's Findings [14] The RAD finds that the RPD committed various errors in rejecting the Appellant's refugee claim. [15] Discrimination vs. persecution - The RPD set out to address the credibility of the Appellant, writing, "The panel finds the claimant's testimony not to be credible with respect to the following areas."15 The first such area was entitled "Persecution vs. discrimination or harassment," and in it the panel concluded that the difficulties the Appellant faced did not rise to the level of persecution. [16] It is a mystery to the RAD how such a conclusion could be used to impugn the Appellant's credibility. A refugee claimant cannot reasonably be expected to know the legal distinction between discrimination and persecution, and even if he inaccurately described past problems as persecution instead of discrimination or harassment, this cannot reasonably be seen to damage his credibility. Here, the RPD did not point to inconsistencies or contradictions which undermined the Appellant's credibility with respect to alleged incidents; it simply determined that the Appellant faced discrimination and harassment, and made a negative credibility finding. [17] This finding is so difficult to comprehend that the RAD has considered whether it perhaps was not intended to be a credibility finding at all. However, when the RPD's analysis is considered in context, it is clear that this was indeed a credibility determination. The persecution-vs-discrimination analysis immediately follows a statement, quoted above, about credibility concerns. The analysis is followed by further credibility assessment, beginning with the phrase, "The panel also does not find it credible...." [18] The RPD erred when it impugned the Appellant's credibility based on the panel's assessment of whether past incidents constituted persecution. [19] Findings of implausibility - The RPD cited what it referred to as "the test for implausibility" set out in Faryna v. Chorney,16 and it found a number of aspects of the Appellant's claim to be implausible. The panel did not find it plausible that the Appellant's business would sue the company linked to the Revolutionary Guards, or that the Guards would not have harmed an Iranian man who was given power of attorney in the Appellant's absence. The RPD also did not believe that the Appellant's business, "a primarily XXXX XXXX company" would be used to purchase sheets of steel, when the Guards could have enlisted another company to circumvent sanctions. The panel also found it implausible that the Revolutionary Guards would still be interested in the Appellant when they have not targeted his family members in Iran. In light of these implausibility findings, the RPD went on to draw a negative inference with respect to the Appellant's credibility and to find that he was never pursued by the Guards. [20] The Appellant argues on appeal that the RPD erred in its implausibility findings. The XXXX owner of the business operated by the Appellant lived in Dubai, and it was his decision to sue for recovery of the stolen money. The Appellant also points out that his company was not involved only in XXXX, but also in XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in any event, he submits that there is nothing implausible about the Revolutionary Guards selecting an innocuous company, such as one involved in XXXX, to assist in circumventing international sanctions. The Appellant also submits that it was unreasonable for the RPD to find that his family had not been targeted, when in fact the Guards attended at his home at least twice, served a summons, and threatened his life. [21] The RPD referred to a short extract from Faryna v. Chorney, and repeatedly cited phrases from that extract in its plausibility analysis. In the RAD's view, however, it was not entirely accurate for the RPD to describe that case as setting out a "test for implausibility." The context of the "test" referred to by the RPD is this: If the trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes axiomatic that the appearance of telling the truth is but one of the elements that enter into the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to clearly describe what he has seen and heard, as well as other factors, combine to produce what is called credibility.... A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the relatively infrequent cases in which a witness is caught in a clumsy lie. The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of a particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.17 [22] This passage is often cited in the context of an assessment of credibility. It teaches that credibility cannot be judged only by the demeanor of a witness, particularly where there is conflicting evidence. Where a decision-maker must choose between conflicting evidence, the test of truth must be its harmony with the probabilities applicable in the place and conditions associated with the evidence. [23] This jurisprudence is of limited assistance, however, where the RPD is faced with only one, uncontroverted versions of events. The RPD is also required to take into account the presumption, set out in Maldonado,18 that a refugee claimant's evidence is to be presumed true unless there are reasons to doubt its veracity, and any application of Faryna v. Chorney must take this into account. [24] It might have been better if the RPD had, when seeking a "test for plausibility", considered jurisprudence relating to the assessment of plausibility in refugee claims. The RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.19 Where the RPD finds a lack of credibility based on inferences concerning the plausibility of evidence, there must be a basis in the evidence to support such inferences.20 [25] The Federal Court has cautioned that the RPD "...must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu." Plausibility findings should only be made in the clearest of cases.21 [26] It was not implausible that the Appellant's business sued a company apparently affiliated with the Revolutionary Guards. The Appellant gave evidence, not challenged by the RPD, that the XXXX owner of the business was from Dubai. A large sum of money was illegally transferred out of the bank account of that business: it is difficult to understand why the RPD found it implausible that the owner of the company would take legal action to recover his money. The owner was not a citizen of Iran and did not live in Iran, and thus did not fear the Revolutionary Guards in the way that the Appellant did. This was not the "clearest of cases", and it was unreasonable for the RPD to make a finding of implausibility here. [27] The RPD also erred in finding it implausible that the Revolutionary Guards would target a company involved in XXXX. In the RAD's view, the RPD takes a significant risk each time it sets out to predict or analyse the thinking, methods, or operations of the agents of persecution. The RPD did not refer to any objective evidence indicating that the Guards do not target companies such as the Appellant's. Rather, the RPD simply relied on its own logic to determine that this was not plausible. Unfortunately, such logic does not withstand scrutiny. If the Revolutionary Guards sought to surreptitiously import sheets of steel, presumably for military purposes and in violation of international sanctions, could they reasonably be expected to approach a company that specializes in importing steel? It is more than plausible that the Guards would instead make use of a more innocuous business to circumvent sanctions without detection. In fact, objective evidence before the RPD stated that the Guards operate a covert trading network to "buy arms and military parts through various cover and false flag organizations."22 The RPD's finding here was devoid of evidentiary basis, without any evident logic, and was not made in "the clearest of cases". [28] The RPD also found it implausible that the agents of persecution had not harmed the Appellant's family in Iran: "The panel does not find credible the claimant's testimony that Pooria and the Revolutionary Guards would continue to pursue the claimant since XXXX of 2010 and not go after his wife and two sons." The panel then referred to objective evidence that the Guards are notorious for going to great lengths to get their way, including the targeting of family members. It moved to the conclusion that the alleged pursuit of the Appellant was not reasonable, drew a negative inference with respect to his credibility, and disbelieved the core of his story. [29] The RPD cited two documents in support of its contention that the Revolutionary Guards are known to pursue family members of their targets. However, the RAD has reviewed both documents-Items 10.1 and 10.2 in the National Documentation Package-and it can find no reference to the targeting of family members as described by the RPD. No other evidence is cited by the RPD in support of its contention that the Guards could be expected to target the Appellant's family. In fact, he testified that the Guards visited his family twice, served summonses, and threatened to kill him. It was unreasonable for the RPD to make a finding of implausibility here. [30] Documents - The Appellant submitted copies of summonses served to his family by the Revolutionary Guards. The documents were electronically scanned in Iran and sent to Canada via e-mail. The RPD gave these documents little weight because it was "unable to verify the authenticity of these summonses from e-mail copies especially since one of them was blurry."23 [31] The Appellant submits on appeal that the panel had no forensic expertise to determine the authenticity of the documents, that the blurry document was nevertheless legible, and that it was an error to require him to provide only original documents. [32] The UNHCR Handbook,24 while not binding on the RPD or the RAD, is helpful here. It notes that a refugee claimant may not be able to support his statements with documentary proof, and it suggests that "the requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which the applicant for refugee status finds himself."25 Section 11 of the RPD Rules directs a claimant to provide acceptable documents establishing identity and other elements of the claim, or explain why they cannot do so. [33] As the Handbook suggests, there are indeed situations in which a refugee claimant may not be able to provide original documents to the RPD. Here, the Appellant explained that he had his wife destroy the originals of the summonses. The RPD did not challenge the credibility of this explanation. Nor did it note any defects on the face of the documents, other than that one was blurry, though apparently legible. It simply stated that it is unable to verify the authenticity of these documents from email copies. It is unclear to the RAD how the RPD would have gone about verifying the authenticity of the documents even had the originals been provided. It is also unclear how the fact that one document was blurry-which is not inconsistent with a scanned and e-mailed copy-reduced its probative value, given that it was apparently legible and translated. [34] The RPD erred in assigning little probative value to the summons documents without providing adequate reasons for doing so. [35] The Appellant submitted numerous other documents in support of his claim, including a letter from his secretary, XXXX XXXX, indicating that she had been threatened by the agents of persecution after the Appellant left Dubai26 and documents showing the unauthorized transfer of money from his business bank account.27 He argues on appeal that the RPD erred by failing to consider this evidence. [36] The RPD is presumed to have considered all of the evidence before it, and there is no requirement for the panel to refer to each document in the record.28 However, where there is evidence which is contrary to its decision, the RPD must analyze that evidence and provide reasons why it does not consider it relevant or trustworthy, or why it chose to disregard it.29 Here, the RPD simply disregarded evidence which contradicted its conclusion, and this too was an error. [37] Failure to claim elsewhere - The RPD asked the Appellant why he did not seek refugee status in South Korea during visits in 2010 and 2011, and he explained that he did not think his difficulties in Dubai would lead to problems in Iran. He testified that he did not take the first summons, in XXXX of 2011, seriously, but he became concerned when summonsed again in XXXX of 2012. He also stated that he did not seek protection in South Korea in XXXX of 2011 because he considered Canada the best fit for him and his family. The RPD did not accept these explanations, as it expected the Appellant to make a refugee claim at the earliest possible opportunity. [38] The Appellant submits on appeal that he first entered South Korea in XXXX of 2010 and at the time was expecting a Canadian visa. Later that month, he was granted a multiple-entry Canadian visa as well as XXXX XXXX XXXX XXXX tourist visa. He travelled to Canada at the XXXX XXXX XXXX, 2010, unaware that he would have difficulties in Iran. He had no reason to make a claim in South Korea, as he could legally enter Canada. [39] The matter of failure to claim relates to subjective fear and credibility. To put it simply, an analysis of failure to claim must consider whether a claimant's actions are consistent with the fear that he alleges. In XXXX of 2010, there had been no summons issued for the Appellant in Iran, and he expected to be able to enter Canada. In these circumstances, it was unreasonable for the RPD to find that a failure to claim in South Korea at the time was indicative of a lack of subjective fear or detrimental to his credibility. [40] The Appellant visited South Korea for a second time in XXXX of 2011, when he stayed for four days before returning to Canada. He held a Canadian multiple-entry visa as well as a tourist visa. In these circumstances, a failure to make a claim during a brief visit to South Korea is reasonably explained, and the RPD erred by concluding that this was "forum shopping". [41] The RPD's decision to reject the Appellant's refugee claim is fatally flawed and cannot stand. The RPD's credibility determination rests on a misplaced analysis of discrimination versus persecution and on unreasonable and unsupported findings of implausibility. The panel failed to consider and properly weigh relevant evidence, and it drew unreasonable conclusions on the Appellant's failure to claim in South Korea. The RPD's determination of the Appellant's refugee claim does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. [42] The Appellant asks the RAD to substitute its own determination that he is a protected person. The RAD is not in a position to do so. Although the RPD erred in much of its assessment of credibility, there remains one significant credibility concern which the RPD reasonably raised. Even when the Appellant ran out of status in Canada, he did not make a refugee claim until he was arrested by police some months later. While the RPD appears to have made another error in calculating the length of this delay-three months, not the four months referred to by the panel-this does not change the fact that the Appellant, allegedly fearing persecution in Iran, did not seek Canada's protection even when out of status here. While delay in claiming may not in itself be determinative of the Appellant's refugee claim, it is a significant factor which must be considered as part of the assessment of his credibility. As such, this matter must be returned to the RPD and re-heard by a differently-constituted panel. CONCLUSION [43] This appeal is allowed. Pursuant to Section 111(1)(c) of IRPA, the Refugee Appeal Division refers the matter to the Refugee Protection Division for redetermination by a differently-constituted panel. (signed) "Edward Bosveld" Edward Bosveld July 23, 2014 Date 1 IRPA, Sections 110(3) and 110(6). 2 Khosa, para. 89. 3 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 39. 4 IRPA, Section 3(2)(e). 5 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, para. 80. 6 Iyamuremye, para 1. 7 Iyamuremye, paras. 39-40. 8 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 9 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 10 Dunsmuir, para. 47; Iyamuremye, para 3. 11 Iyamuremye, para. 2. 12 Dunsmuir, para. 50. 13 Khosa, para. 90. 14 Dunsmuir, para. 50. 15 RPD's Reasons, para. 20. 16 Faryna v. Chorney, (1952) 2 D.L.R. 354 (B.C.C.A.). 17 Faryna v. Chorney, p. 174. 18 Maldonado v. M.E.I., [1980] 2 FC 302. 19 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037, at 19. 20 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. 21 Valtchev, Rousko v. M.C.I. (F.C.T.D., no. IMM-4497-99), Muldoon, July 6, 2001; 2001 FCT 776, 2001 FCT 776, 208 FTR 267, para. 7. 22 RPD's Record, National Documentation Package (NDP) for Iran (3 May 2013), Item 10.2, Centre for Strategic and International Studies, Iran's Revolutionary Guards, the Al Quds Force, and Other Intelligence and Paramilitary Forces, 16 August 2007, p. 11. 23 RPD Reasons, para. 29. 24 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, reedited Geneva, January 1992. 25 UNHCR Handbook, paras. 196-197. 26 RPD's Record, p. 41. 27 RPD's Record, pp. 115-122. 28 Hassan v. M.E.I. (1992), 147 NR 317, [1992] FCJ No 946. 29 Nasufi, Udi v. M.C.I. (F.C., no. IMM-5925-10), Scott, May 19, 2011; 2011 FC 586; Khan, Mostafa v. M.C.I. (F.C., no. IMM-5685-02), Tremblay-Lamer, September 17, 2003; 2003 FC 1076; and Cepeda-Gutierrez, Carlos Arturo v. M.C.I. (F.C.T.D., no. IMM-596-98), Evans, October 6, 1998, [1998] FCJ No 1425. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-03603