TB4-05842

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 : TB4-05842 TB4-05843 TB4-05844 TB4-05845 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX 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 October 28, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Chantal Desloges Barrister & 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 ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and XXXX XXXX, (the Appellants), citizens of Belarus, appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have submitted no new evidence in support of their appeals. The Appellants ask the Refugee Appeal Division (RAD) to set aside the determination of the RPD and find them to be Convention refugees. DETERMINATION [2] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellants are Convention refugees. Background [3] The Appellants alleged before the RPD that they are Pentecostal Christians, and that the principal Appellant is a XXXX pastor. They claimed that the government of Belarus prohibits them from practicing their faith: they may not build a church, conduct public baptisms, provide or receive theological training, hold church meetings or Bible studies in their homes, or publicly proselytize. [4] The Appellant's application for refugee protection was heard on May 13, 2014. It was rejected by a decision of June 9, 2014. The RPD concluded that the Appellants face discrimination, not persecution, because of their faith. The panel also found that the Appellants' ten-year delay in making a refugee claim is indicative of a lack of subjective fear. [5] The Appellants submit that the RPD erred in applying a restrictive definition of religious freedom and persecution, ignored evidence of the persecution of similarly-situated persons, disregarded key testimony outlining specific forms of feared persecution, and wrongly concluded that the authorities are only interested in Christians who are politically active against the regime. They argue further that their delay in claiming cannot in itself be a reason to reject their claims, particularly as the RPD did not question their credibility. ANALYSIS Role of the RAD [6] What is the role of the RAD in considering an appeal against a decision of the RPD? [7] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [8] Although the RAD is a relatively new body, it now has the benefit of some Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [9] In Iyamuremye, the Court found itself "...entirely in agreement with the RAD that the standard of review to be applied to findings of fact made by the RPD is reasonableness. It is well established that an appellate body must review the findings of a trial court by applying a correctness standard to findings that involve questions of law and by applying a reasonableness standard to those involving questions of mixed fact and law...."1 The Court went on to hold that the RAD must review the evidence that was before the RPD and conduct its own, independent assessment of that evidence to determine whether the lower tribunal had properly considered the evidence and "reasonably justified its conclusion".2 [10] In the subsequent case of Alvarez, the Court clarified the role of the RAD in relation to the RPD.3 It held that the RAD is not to undertake a process of judicial review, but rather must perform its own assessments of the facts in order to determine whether the RPD made an error of law or misassessed the facts to the point of making a "palpable and overriding error."4 In the Court's view, the lower tribunal's ability to hear evidence viva voce makes it better situated than the RAD to make findings of fact, and therefore the appeal tribunal should show deference to the RPD's findings of fact and mixed fact and law. In contrast to its ruling in Iyamuremye, here the Court found that the RAD erred by assessing the decision of the RPD against a standard of reasonableness-but then required the use of a higher standard. [11] In Malhotra,5 issued after Alvarez and Eng, the Federal Court considered another decision of the RAD, in which the tribunal applied a standard of reasonableness to the RPD's decision under appeal. Although the Court did not specifically address the RAD's selection of the standard of review, it observed that the RAD had applied a standard of reasonableness and concluded that the RAD's decision did not contain any error which justified the intervention of the Court. [12] Recently the Court, in Huruglica, considered the appropriate relationship between the RAD and the RPD.6 It found that the RAD erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.7 [13] While the Court had endorsed the standard of reasonableness in Iyamuremye, and accepted it in Malhotra, it found in Huruglica that the application of such standard was in error. In contrast to Alvarez and Eng, the Court held that the RAD is not restricted to intervening only in the event of a palpable and overriding error. [14] The Appellants submit that the RAD is mandated to make its own assessment of the evidence, and to make its own independent determination of whether they are Convention refugees. [15] In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". The RAD will therefore review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. The RPD's Findings [16] While the RPD acknowledged that Belarus is governed by an authoritarian regime which is "effectively targeting and combating independent thinking,"8 and that the "the Government of Belarus is very authoritarian and views religious communities as a challenge to its rule,"9 it also found that the Appellants face only discrimination there, and not persecution. It reached this conclusion because the Appellants were able to obtain a permit for a baptism, because they were able to walk to another church when they could not get permission to build their own, because the government had relaxed restrictions on religious activity, and because "the government is interested in those who have a political agenda."10 [17] There are numerous problems with the RPD's decision. First, while it concluded that the Appellants do not face risk because they do not have a political agenda, it disregarded evidence that "officials are particularly hostile towards followers of faiths they see as a threat, particularly the Protestantism of many of the regime's political opponents."11 The RPD actually cited this evidence, but failed to explain how it nevertheless concluded that the Appellants are not at risk of persecution because they will not become political activists. The evidence cited does not say that only political opponents are at risk of religious persecution; rather, it states that the regime is hostile towards followers of faiths they see as a threat, and that Protestantism is particularly seen as a threat. It was an error for the RPD to conclude that the Appellants would only face persecution if they became politically active. The evidence indicates otherwise. [18] The RPD also ignored the Appellants' testimony about key aspects of their religion. They testified that, in their faith, proselytizing is extremely important: "the first place above anything." They also testified that they are not allowed to proselytize in Belarus.12 The RAD notes that the RPD made no explicit credibility finding. The Appellants were entitled to the presumption of truthfulness,13 and therefore the RAD concludes that the RPD found them to be credible, and believed their evidence. The RAD has reviewed the evidence, including the recording of the RPD proceeding, and has no reason to doubt the credibility of the Appellants. [19] The RPD failed to explain why a prohibition against practicing the core element of the Appellants' faith does not amount to religious persecution. It cited the UNHCR Handbook, which explains that religious discrimination will amount to persecution where such measures lead to "consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to... practice his religion,"14 but it failed to apply this to the Appellants' evidence. [20] Similarly, the Appellants testified that their faith requires them to baptise in public: [B]ecause we as Pentecostal want as many people as possible to learn about our belief about our faith, about salvation, we wanted the baptism to take place at the lake in the village so that people could be invited, the ones who are not members of the church, who were not the believers so they could come and see to conduct, for us to conduct the service there with the songs, the music. But we were denied that.15 They went on to explain that the children were instead baptised in secret. Having heard this evidence, the RPD concluded that the Appellants were able to obtain permission to baptise before, "and there is no evidence to suggest that if in the future the claimant applies for permission to baptise again, it will be refused."16 This reasoning is troubling. The RPD did not appear to understand or acknowledge the Appellants' evidence that they were not able to publicly baptise-a ritual which, according to the Appellants' testimony, was linked to their desire to proselytize. Further, the RPD did not appear to consider objective evidence about the difficulty in obtaining permission for public events: "All public exercise of freedom of religion or belief must have state permission. For disfavoured religious communities - usually Protestant - such regulations combine to make nothing possible, as they find state permission unobtainable in practice."17 [21] The RPD wrote that "[t]here is no doubt that in Belarus, Pentecostals and many other religious groups are subject to administrative bureaucracy, and need to register and obtain permits."18 It is unfortunate that the RPD failed to refer to much more severe restrictions on religious freedom, described in evidence that was before the panel. That evidence indicates that unregistered religious activity is a criminal offence which can result in heavy fines or imprisonment.19 [22] The RPD also erred when it concluded that the Appellants would benefit from a reported decrease in religious restrictions: "[Evidence] reports that even if discrimination against certain religious groups still exists, it has decreased recently...."20 In reaching this conclusion, the panel ignored recent evidence of police raids and fines,21 as well as a 2014 report that "because the numbers of Evangelical and Pentecostal Christians are growing, persecution is getting more intense for them."22 The RPD was not required to accept this evidence, but if it had reason to prefer other, contrary evidence, it was obligated to explain its reasons for preferring one document over another. [23] In Fosu, the Federal Court observed that religious persecution could take various forms, such as prohibitions on worshipping in public or in private, in giving or receiving religious instruction, or in the implementation of seriously discriminatory policies against persons on account of their religion.23 The RAD notes that the International Covenant on Civil and Political Rights (ICCPR) defines the right to freedom of thought, conscience, and religion as including an individual's "freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching."24 Similarly, the Universal Declaration of Human Rights (UDHR) holds that "everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance."25 [24] Here the Appellants' evidence, unchallenged by the RPD, was that their faith required them to publicly share and demonstrate their beliefs. Ample objective evidence supports their testimony that such practices are prohibited in Belarus. The RPD concluded that, despite the inability to publicly practice their faith, the Appellants face no discrimination upon return to their country. In doing so, the RPD applied a narrow and erroneous understanding of religious freedom. Such freedom is not comprised only of the absence of detentions, beatings, or torture. Freedom of religion includes the freedom to demonstrate one's religion or belief in public or in private by teaching, practice, worship and the performance of rites.26 Disposition [25] The RPD's determination is wrong and must be set aside. The Appellants ask the RAD to substitute its own determination that they are Convention refugees. [26] The RPD did not make a credibility finding in respect to the Appellants, and appeared to accept that they are indeed practicing Pentecostal Christians. The RAD respects and recognizes that finding. Even if the RAD did not defer here, however, it would reach the same conclusion based on the evidence in the RPD record. [27] Having carefully reviewed the RPD record, including objective evidence about religious freedom in Belarus, the RAD finds that there is a serious possibility that the Appellants will be persecuted because of their religion upon return to Belarus. As an authoritarian regime is the agent of persecution, the Appellants cannot expect state protection, nor can they avail themselves of a viable internal flight alternative. [28] There remains the matter of the Appellants' lengthy delay in claiming refugee status in Canada. The Appellants explained to the RPD that they were never out of status, and that they were working with a lawyer to obtain status in Canada through the immigration process. When that failed, they filed refugee claims. The RPD examined this issue and rejected the Appellants' explanation, noting that they could not be guaranteed success in their permanent residency applications, and finding that they lacked subjective fear. It is not clear how this analysis fits into the RPD's reasons, in which it had already dismissed the claims on the basis that the Appellants were not at risk of persecution. The RPD did not make a credibility finding on the basis of its subjective-fear analysis, nor did it proceed to analyze the claims under Section 97, as it should have if they failed Section 96 for a lack of subjective fear. [29] While the delay in claiming is indeed lengthy, the RAD finds the Appellants' explanation to be reasonable in the circumstances. At no point were they out of status; they were working toward status and following counsel's advice about how to do so.27 They were at no risk of being returned to their home country. Even if the explanation was not reasonable, however, the RAD notes that delay cannot normally be determinative of a refugee claim. In this matter, the Appellants have established their religious identity, and objective evidence establishes that practitioners of their faith face religious persecution in Belarus. CONCLUSION [30] Pursuant to Section 111(1)(b) of IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellants are Convention refugees. These appeals are allowed. (signed) "Edward Bosveld" Edward Bosveld October 28, 2014 Date 1 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 2 2 Iyamuremye, para. 3. 3 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 FC 702; the same reasons are given in Eng, Sengloem v. M.C.I. (F.C., no. IMM-7281-13), Shore, July 17, 2014; 2014 FC 711. 4 Alvarez, para. 33. 5 Malhotra, Sunil v. M.C.I. (F.C., no. IMM-6899-13), Bédard, August 1, 2014, 2014 FC 768. 6 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 7 Huruglica, para. 45. 8 RPD's Reasons, para. 10. 9 RPD's Reasons, para. 23. 10 RPD's Reasons, para. 27. 11 RPD's Record, National Documentation Package (NDP) for Belarus, March 2014, Item 12.3, preface. 12 Appellants' Record, Page 30, Transcript. 13 Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302. 14 RPD's Reasons, para. 7, citing UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, para. 54. 15 Appellants' Record, Page 23, Transcript. 16 RPD's Reasons, para. 15. 17 RPD's Record, NDP, Item 12.3, Page 1. 18 RPD's Reasons, para. 14. 19 RPD's Record, Page 556, Open Doors, Page 7. 20 RPD's Reasons, para. 24. 21 RPD's Record, Page 572. 22 RPD's Record, Page 556. 23 Fosu v. Canada (Minister of Employment and Immigration), [1994] 90 F.T.R. 182. 24 International Covenant on Civil and Political Rights, Article 18.1. 25 Universal Declaration of Human Rights, Article 18. 26 Ibid. 27 See, for example, Papsouev v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 48 (F.C.T.D.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05842 TB4-05843 TB4-05844 TB4-05845