TB4-03809

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 : TB4-03809 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX 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 June 18, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Nico G Breed Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX, a citizen of Turkey, is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has requested that the Refugee Appeal Division (RAD) set aside the determination of the RPD and allow the appeal. In the alternative, the Appellant has requested an oral hearing and, in the alternative, the Appellant has requested that the matter be referred back to the RPD for re-determination by a differently-constituted panel. DETERMINATION [2] Pursuant to ss. 111(1) (a) of IRPA, the Refugee Appeal Division (RAD) confirms the determination of the RPD and dismisses the appeal. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL: EXPRESS STATUTORY CONDITIONS: [3] Section 110(4) of IRPA provides that the Appellant may present only the evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [4] If the statutory requirements have been met, the panel must then consider the factors in Raza,1 in which the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA Section 110(4), it is based on the very similar wording of Section 113(a) for the IRPA. The Court held that new evidence should be considered for its newness, credibility, relevance, and materiality, in addition to any express statutory provisions. NEWNESS; [5] Is the evidence new in the sense that it is capable of: A) Proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or B) Proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or, C) Contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. CREDIBILITY [6] Evidence that passes the test in Section 110(4) must be assessed for credibility. The RAD must determine whether the evidence is credible, considering its source and the circumstances in which it came into existence. RELEVANCE [7] The RAD must consider whether the evidence is relevant to the appeal. Is it capable of proving or disproving a fact that is relevant to the claim for protection. If not, the evidence need not be considered. MATERIALITY [8] Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been available to the RPD? If not, the evidence need not be considered. [9] The following new evidence was submitted to the RAD. It is submitted by the Appellant that the following documentation was not reasonably available to him, and it was only shortly before the hearing that his counsel advised him of the importance of submitting this documentation. He then began to search for supporting documentation but could only find what was submitted to the RPD, namely, the online Court case in XXXX 2013. The RAD does not accept the Appellant's explanation as he was represented by counsel and the BOC clearly states that the claimant should provide any corroborative evidence surrounding his claim. * New York Times article "Weary Public Pleads for End to Clan Violence in Turkey", dated April 28, 2011, and could reasonably have been available prior to the rejection of the claim. It, therefore does not meet the Statutory requirement. * "Tragedy in Mardin turns spotlight on blood feuds", dated September 20, 2013, which pre-dates the rejection of the claim on February 14, 2014 and could reasonably have been available prior to the rejection of the claim. It, therefore, does not meet the Statutory requirement. * "Retired Cop arrested for murder" - Haber Vaktim, dated November 18, 2009, which pre-dates the rejection of the claim on February 14, 2014 and could reasonably have been available prior to the rejection of the claim.. Therefore, it does not meet the Statutory requirement. * "Retired Cop murder suspect" dated November 11, 2009 which predates the rejection of the claim on February 14, 2014, and could reasonably have been available prior to the rejection of the claim. It, therefore does not meet the Statutory requirement. * "Turkish Republic Karal, dated April 3, 2012, which predates the rejection of the claim on February 14, 2014, and could reasonably have been available prior to the rejection of the claim. It, therefore, does not meet the Statutory requirement. * The Appellant further submits that an oral hearing be held pursuant to section 110(6) of the IRPA, with respect to the credibility of the claimant. The Appellant submits that this new evidence is directly related to the credibility of the claimant, which was central to the refusal of the refugee claim. CONCLUSION [10] The RAD concludes that none of the "new" evidence meets the statutory requirement as the RAD does not accept the Appellant's explanations as to why these documents were not reasonably available to the RPD prior to the rejection of the claim. Moreover, an examination of these documents does not reveal why they would not have been available to the Appellant prior to the rejection of the claim. [11] Section 110(6) requires that there be "new" evidence which has been admitted by the RAD, to allow for an oral hearing. Therefore, this request is denied. Background: [12] The Appellant fears persecution due to his Armenian heritage, because of his Alevi faith and because his family is involved in a blood feud. STANDARD OF REVIEW [13] The Federal Court in Iyamuremye2 addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. The reasonableness standard is concerned with the "existence of justification, transparency and intelligibility in the decision-making process" and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law as per Dunsmuir.3 The correctness standard is applicable to questions of law and issues of general legal importance, e.g. principles of natural justice and procedural fairness which fall outside the specialized area of expertise of the RAD.4 COUNSEL'S SUBMISSIONS [14] Counsel submits that the RPD made erroneous credibility findings when it found that the contradictions, omissions and inconsistencies lead to a negative decision. DETERMINATIVE ISSUE [15] The determinative issue in this claim is credibility. Failure to include blood feud in the Appellant's Basis of Claim Form (BOC) [16] The Appellant testified to the RPD that members of his family wanted to force him to kill the murderer or another family member of the person who was convicted of killing his brother, as a matter of family honor. The RPD found that this omission in the BOC was significant. Counsel submits that the Appellant only recently found evidence on the internet relating to the blood feud in a court case file which was started on XXXX 3, 2013. The RPD found that this was "hardly" proof that a blood feud exists between the two families. The RPD found that this was a serious omission, as it is central to the reason the Appellant is applying for refugee protection in Canada. The Appellant further submits that the RPD erred in not accepting his explanation that, in the absence of corroborative evidence, he did not provide this information. The Appellant further submits that it is not reasonable for the RPD to accept the National Document Packages (NDP) as the Alfa and Omega of evidence on "Blood Feud", as if it is not mentioned in the NDP, the issue does not exist. While silence on an issue in the NDP materials may be queried, it is incumbent on the Appellant to provide evidence that would counter this silence. The RAD finds that the RPD gave full reasons for rejecting the explanation for the Appellant not referring to the blood feud in the BOC, given the significance of this issue to the Appellant's claim and the consequence of omitting a significant aspect of an Appellant's fear of harm from the BOC. Inability to Obtain State Protection [17] The Appellant had testified to the RPD that there is no state protection for people in his circumstances, yet the RPD found that this was contrary to his testimony that a perpetrator was convicted and is serving time in prison for the murder of the Appellant's brother. The RPD further found that, since the perpetrator's wife is seeking redress against alleged accomplices, this also demonstrated that the Appellant's statement, with respect to lack of state protection, undermined the Appellant's credibility. The RAD finds that the foregoing findings by the RPD are reasonable, given the statements that support that the rule of law prevails. Alevi Faith [18] The Appellant was asked why he feared persecution due to his faith as an Alevi, when his BOC indicates that he is an atheist. He acknowledged that he was born Alevi but doesn't believe in it. Counsel for the Appellant submits that the Appellant, nevertheless, was perceived to be of the Alevi faith. However, the RPD concluded that the claimant has not in the past and would not in the future be perceived to be an Alevi. The RAD finds that, given the fact that the Appellant was born Alevi, he could be perceived to be of Alevi faith, and therefore the conclusions by the RPD are unreasonable. Nevertheless, the RAD finds that the conclusions reached by the RPD with respect to past persecution are reasonable as there was insufficient persuasive evidence to the contrary. Armenian Heritage [19] The RPD asked the Appellant why his fears due to his heritage were not included in his BOC. His response was that he keeps his heritage hidden and does not speak about it. Moreover, the RPD found that he had, therefore, never been persecuted due to his Armenian faith. Counsel submits that this is not an issue and that is why it was not included in the BOC. However, the RAD refers to the transcript of the proceedings (page 31), wherein the Appellant indicates his fears as an Armenian, but states that his grandfather told him not to indicate this. The RAD finds that there was insufficient credible evidence that the Appellant's heritage as an Armenian was a ground for his claim. However, since, as acknowledged by counsel, that this is not an issue, then the RPD improperly made a credibility finding in this regard. Appellant's arrest [20] The RPD found that the Appellant's arrest by the police in 1993 and his subsequent torture was believable. This evidence was also corroborated by a medical note and photos. However, having found this, the RPD concluded that, since the Appellant remained in Turkey for another 20 years, worked and raised a family, he could not have had further encounters with the police. When confronted with this from the RPD, the Appellant's explanations that "they kept taking him and hitting him" until he came to Canada, was not accepted by the RPD as a reasonable response, particularly since nothing was indicated in his BOC. Even counsel submits that the reason the Appellant did not mention police beatings during the years 1993-2012 was because there were none. From the transcript, the RAD finds that there was insufficient persuasive evidence surrounding attacks after the Appellant went to live in Istanbul, and, therefore, the RAD finds that the conclusion by the RPD was reasonable that the Appellant himself had not been targeted subsequently. CREDIBILITY FINDINGS IN TOTAL [21] The RPD found that the contradictions, inconsistencies and omissions in this claim, and the lack of reasonable explanations, lead it to conclude that the Appellant was generally lacking in credibility. The RPD went on to make a finding that it did not believe that any of the significant events that the Appellant alleged occurred. After carefully reviewing the transcript of the proceedings and the Reasons, the RAD concludes that based on significant omissions in the BOC and contradictions, the RPD's credibility findings for the most part are reasonable. [22] The RAD concludes that the RPD's decision to reject the Appellant's refugee claim falls within the range of possible, acceptable outcomes defensible in regard to the facts and the law. [23] Pursuant to ss. 111(1) (a) of IRPA, the Refugee Appeal Division (RAD) confirms the determination of the RPD and dismisses the appeal. (signed) 'Roslyn Ahara' Roslyn Ahara June 18, 2014 Date 1 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 2 Iyamuremye c. Canada (Citoyenneté et Immigration), 2014 CF 494 - 2014-05-26 [ French ] 3 Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47 4 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-03809