TB5-06786

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 : TB5-06786 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 24, 2016 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Benjamin J. Liston Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the "Appellant"), a citizen of Iran, appeals a negative decision of the Refugee Protection Division (RPD) dated XXXX XXXX, 2015. DETERMINATION [2] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA or the Act), the Refugee Appeal Division (RAD) refers the matter back to the RPD for redetermination. [3] This appeal is allowed. BACKGROUND [4] The Appellant alleged before the RPD that he was XXXX XXXX and opposed the regime in Iran. He was shot at while he wrote antigovernment slogans as an independent person, as he was never a member of any political party or other organizations. He acted on his own in spreading antigovernment propaganda. He fears returning to Iran because of his political views and the principles which he espouses, which include the importance of independent thought and the lack of human rights in Iran. [5] The Appellant left Iran in approximately 2007. After spending several years in Europe including living in XXXX, XXXX, XXXX and XXXX and (visiting XXXX, XXXX and the XXXX), the Appellant arrived in Canada on XXXX XXXX, 2015, using a fraudulently-obtained Portuguese passport, which he destroyed en route. [6] The claimant made a claim for refugee protection at the port of entry (POE) on XXXX XXXX, 2015. [7] The Minister of Citizenship and Immigration (the "Minister") intervened at the RPD hearing by providing documents and by having counsel appearing in person. [8] The Appellant submitted documents for consideration as new evidence and requests an oral hearing before the RAD should credibility be an issue. The Appellant requests that the RAD find that the Appellant is a Convention refugee. In the alternative, the Appellant requests that the RAD grant the appeal and refer the matter back to the RPD for redetermination. New Documents on Appeal [9] The Appellant, on appeal, submitted the following documents to be considered as new evidence. (a) an affidavit of Mr. XXXX XXXX;1 (b) a letter from counsel, XXXX XXXX, dated March 23, 2015;2 (c) a copy of an internal email originated by the RPD member who made a determination in this claim;3 (d) an affidavit of XXXX XXXX,4 a paralegal at the Refugee Law Office in Toronto; and (e) an article from the Immigration and Refugee Board of Canada regarding treatment of failed refugee claimants returning to Iran.5 [10] In order for the RAD to consider these documents as new evidence, the Federal Court of Appeal (FCA), in Singh,6 stated: To determine the admissibility of evidence under subsection 110(4) of the IRPA, the RAD must always ensure compliance with the explicit requirements set out in this provision. It was also reasonable for the RAD to be guided, subject to the necessary adaptations, by the considerations made by this Court in Raza. However, the requirement concerning the materiality of the new evidence must be assessed in the context of subsection 110(6), for the sole purpose of determining whether the RAD may hold a hearing. [11] Section 110(4) of the Act states: (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. [12] The factors set out in Raza,7 the case mentioned by the FCA (above) was specific to the Pre-Removal Risk Assessment (PRRA) process, and the FCA has confirmed its relevance to the RAD also. [13] In this case, documents "a, d and e" arose after the rejection of the claim. The RAD finds that these documents are credible, and they are relevant. The RAD will accept these documents. Documents "b and c" arose prior to the rejection of the claim that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. Therefore, the RAD will accept all five documents as new evidence. Issues [14] The Appellant's primary issue is that the RPD breached procedural fairness in this claim. [15] The Appellant submits that he was not represented at the RPD hearing; he was shackled and handcuffed and was questioned by the RPD member and also by the counsel for the Minister as adverse party to the proceedings. The Appellant indicated prior to the hearing that he wished to have his counsel present at the hearing, that the RPD member continued the hearing without giving the Appellant the opportunity to have his counsel present at the hearing. [16] The Assistant Deputy Chair of the RAD, after careful consideration of the letter from the Appellant's counsel, Ben Liston, dated August 14, 2015, decided that the Appellant did not appreciate the nature of the RPD proceedings, and that a designated representative needs to be appointed. XXXX XXXX was eventually appointed as the designated representative for the Appellant. [17] I have considered the totality of the evidence and note that the Appellant did not understand the proceedings. The Assistant Deputy Chairperson of the RAD had already found that the Appellant needed a designated representative to represent him. It is unfortunate that the RPD panel overlooked several indicators that the Appellant needed a designated representative at the hearing. [18] The Appellant also stated during his testimony his own concern about his mental state and XXXX XXXX XXXX.8 The Appellant also stated at the RPD hearing: Unfortunately I am very bad with dates and I am being sincere in saying this. I XXXX XXXX XXXX XXXX XXXX XXXX as much as I want to tell you. I note that some days may be of significance for you but unfortunately I do not have XXXX XXXX XXXX XXXX XXXX and I may not be able to answer.9 Role/Scope of the RAD [19] The Federal Court of Appeal, in Huruglica, stated the following regarding the role of the RAD: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [20] Following the direction from the Federal Court of Appeal, in Huruglica, above, the RAD finds that the RPD denied procedural fairness to the Appellant and failed to consider the state of mind of the Appellant, even though it should have been obvious. The Appellant is a citizen of a state that is well known for human rights abuses, and the regime is authoritarian. The RPD conducted the hearing with the Appellant in shackles and handcuffs. The hearing room must have been intimidating for the Appellant coming from an authoritarian country. The hearing room included the panel, the Minister's two counsels and two guards. It is not too hard to imagine that the Appellant was not comfortable in the situation. [21] It is generally accepted that a psychological report presented by a refugee claimant does not serve to prove the alleged persecution suffered by that individual. Such a report may establish that the Appellant suffers from a condition or exhibits symptoms that are consistent with the alleged trauma. Moreover, a psychiatric report might assist the RPD in conducting the hearing in an appropriately sensitive manner or to consider whether apparent credibility problems are explained by a psychological condition. In this case the evidence now includes a report by a psychiatrist outlining the Appellant's mental health issues that need to be taken into consideration by the RPD. [22] The RAD also acknowledges that the Federal Court has commented on this issue and stated: Just because a patient is suffering from psychological problems and manifests symptoms associated with those problems does not mean that the patient's account of past persecution as the cause of those problems can be believed.10 [23] It is the RPD's responsibility to determine whether the Appellant is credible, and the RPD is not required to defer to a psychologist's report when making findings of fact with respect to alleged past persecution. However, the RPD has to provide clear reasons why it rejects the report and, in particular, how it eroded the Appellant's credibility further. [24] Based on the foregoing, the RAD finds that the RPD breached procedural fairness in this case. [25] The RAD finds that it does not have sufficient credible evidence on which to make a finding whether the RPD's findings are supportable, and whether the Appellant is a Convention refugee or a person in need of protection. In this case, the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. [26] Therefore, the RPD is directed to remit the matter to a differently constituted panel to reconsider the claim. The Appellant is to be supported by the designated representative appointed by the Board at such hearing. DISPOSITION [27] Pursuant to section 111(1)(c) of the IRPA, the RAD allows the appeal and refers the matter to the RPD for redetermination with direction. [28] This appeal is allowed. (signed) "Atam Uppal" Atam Uppal April 24, 2016 Date 1 Exhibit P-2, at p. 13. 2 Ibid., at p. 44. 3 Ibid., at p. 46. 4 Ibid., at p. 47. 5 Ibid., at p. 74. 6 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 7 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 8 Exhibit P-2, at p. 30, line 27. 9 Exhibit P-2, at p. 39, line 21. 10 Mico, Aleksander v. M.C.I. (F.C., no. IMM-6477-10), Russell, July 29, 2011, 2011 FC 964, para. 54. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-06786