TB5-00287

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 : TB5-00287 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXXX (a.k.a. XXXXXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 8, 2015 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Christopher G. Veeman 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 ministre Reasons and Decision [1] XXXXXXXX (the Appellant), a citizen of Pakistan, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and refer the matter back to the RPD for redetermination by a differently constituted panel. Determination [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant alleged before the RPD that he converted from the Sunni sect of Islam to the Shia sect of Islam and that he faces persecution at the hands of religious extremists as a result. [4] The Appellant traveled to Canada in September 2013 on a work/study permit. In December 2013, he learned that his brother had been murdered by the Mungiki and that they had threatened to kill him. The Appellant made his refugee claim in September, 2014. [5] The Appellant's application for refugee protection was heard on October 15, 2014. In a decision of November 27, 2014, the RPD rejected the claim finding the Appellant was not credible. [6] The Appellant submits that the RPD erred in making its credibility findings. The RAD is not persuaded by the Appellant's arguments and agrees with the RPD's credibility findings. ROLE OF THE RAD [7] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [8] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [9] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. THE MERITS OF THE APPEAL [10] The RPD found that the determinative issue in this claim was credibility. The RPD found that the Appellant was not credible with regard to the material elements of his claim, including the agents of persecution, his return to Daska, his failure to disclose religious conversion to the Minister's Delegate Review (MDR) upon claiming protection at the port-of-entry (POE) and his religious conversion from the Sunni sect to the Shia sect of Islam. The RPD further afforded no weight to a newspaper article submitted by the Appellant. The Appellant submits the RPD's credibility findings are flawed but does not contest the RPD's treatment of the letter by XXXXX and the newspaper article submitted by the Appellant. CREDIBILITY Agents of Persecution [11] The RPD drew an adverse credibility finding based on having found that the Appellant's testimony concerning the agents of persecution was inconsistent with the allegations in his Basis of Claim (BoC) form. [12] The Appellant submits that the RPD misapprehended the evidence in coming to this credibility finding. The Appellant argues that a fair reading of the BoC does not lead to the conclusion that he was attempting to specifically list the extremist groups who had targeted him. He argues his evidence in his BoC was that it was extremist groups associated with the Inman who had persecuted him. He further argues that, in response to questions from the RPD panel member, he deduced the identity of the groups of extremists who were targeting him based on their appearance. He argues he never gave evidence that he had positively identified those targeting him and that his generalized response to their identity was appropriate given the circumstances. [13] The RAD is not persuaded by the Appellant's argument in this regard. [14] The RAD finds, following its review and analysis of the evidence in the record, that it is clear that the Appellant was specifically identifying those extremist groups that he feared would harm him in his BoC. The RAD agrees with the RPD that it is reasonable to expect that, when completing his BoC, the Appellant would have included the name of one of the extremist groups whom he knew or believed had specifically targeted him. His argument that he had not positively identified the extremist groups who had targeted him is without merit. The RAD notes that the record reflects that the Appellant not only identified the extremist groups based on their appearance but drew a further connection from information he received from his friend that these three groups had visited with the Inman. The RAD finds it clear from the testimony that the Appellant was confident in their identities. Regardless, even if the Appellant had only suspected that it was these three groups who had targeted him, it is reasonable to expect that he would have included all three names of these groups in his BoC when identifying whom he feared in Pakistan. [15] The RAD also notes that the Appellant had the opportunity during the hearing to address this inconsistency. Although the Appellant argues in this appeal that he was essentially speculating as to the names of those individuals who had targeted him, he failed to provide that explanation when provided the opportunity during the hearing. When confronted with this inconsistency during the hearing, the Appellant provided the explanation that he forgot to include the name because he was upset at the time of filling out his claim form. The RAD finds that it was open to the RPD to reject the Appellant's explanation because, as noted by the RPD, the Appellant completed his BoC with the assistance of his counsel nearly two weeks after he made his initial refugee claim, and the Appellant declared at the onset of the hearing that the information in the BoC was complete, true and correct. [16] The RAD also notes that the Appellant provided an alternative explanation when asked why there was a difference between his BoC and his testimony as to the identity of these organizations. The Appellant explained that he did not mention Dhawat-e-Islami in his testimony because it is another name of Sipa-e-Sahaba. The RAD notes, however, that there is no evidence in the record which supports the Appellant's explanation that these two names are synonymous. The RAD also notes that the Appellant had the opportunity to provide evidence to support this explanation as post-hearing documents or as new evidence in this appeal; however, there is no evidence that the Appellant made any such effort to do so. [17] The RAD finds, after its own review and assessment of the evidence, that the Appellant's argument has not established why the RAD should not recognize and respect the findings of the RPD in this regard. As such, the RAD finds the Appellant's argument fails. [18] The RAD further finds that the RPD's finding in this regard undermines the Appellant's allegation that he was targeted by and continues to be at risk from extremists in Pakistan due to his conversion from the Sunni to Shia sect of Islam. Appellant's Return to Daska [19] The RPD drew an adverse credibility finding based on having found that the Appellant's testimony concerning the explanation for his return to Daska was inconsistent with the explanation he provided in his BoC. [20] The Appellant submits that there is no inconsistency in his explanations. He argues that he provided two reasons for his return: 1) to attend his religious conversion ceremony at the invitation of his new religious leader; and 2) because he hoped that the situation would have calmed down in the preceding two months that he had been in Lahore, but even if there was a risk, he was prepared to take the risk The Appellant argues that these reasons are not contradictory but in fact support one another. [21] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds, after its own review and assessment of the evidence, that the Appellant's statements are inconsistent. The Appellant stated in his BoC that he organized his conversion ceremony with his Inman and that he believed he "would be able to return to Daska and live like other Shia without being targeted".3 However, when questioned in the hearing regarding why he would return to Daska given that his life was in danger, he testified that despite the danger, he returned to Daska because he was asked to return by his Inman so that he could attend his conversion ceremony. [22] The RAD agrees with the RPD that these two statements are contradictory. In his BoC, the Appellant states that he helped to plan the ceremony and that he believed that he was no longer at risk in Daska. However, in his testimony, he implies that he was compelled to attend because his Inman asked him. The RAD further finds that it is clear that his testimony reveals that he believed his life was still at risk. [23] The RAD also agrees with the RPD that it is reasonable to expect that, if the reason the Appellant truly returned to Daska because of the wishes of his Imam and despite the danger, he would have explained this in his BoC instead of expressly explaining contrarily that he felt that he would not be targeted. [24] The RAD finds, after its own review and assessment of the evidence, that the Appellant's argument has not established why the RAD should not recognize and respect the findings of the RPD in this regard. As such, the RAD finds the Appellant's argument in this regard fails. [25] The RAD further finds that the Appellant's behaviour of returning to the city in which he alleges that he was targeted and alleges he is still at risk to his life in order to attend an open conversion ceremony is inconsistent with his allegations that he feared for his life, particularly in light of the objective evidence which states that Shia in general are at risk of harm in Pakistan4 and that apostates are particularly at risk from extremists in Pakistan.5 The RAD finds that his alleged return to Daska undermines his allegation that he was at risk in Daska because of his conversion from the Sunni sect to the Shia sect in Pakistan. Failure to Disclose Religious Conversion at POE [26] The RPD found that the Appellant's allegation that he feared persecution due to his conversion from the Sunni to the Shia sect of Islam was not credible because the Appellant failed to mention at the POE that his conversion was the reason he feared persecution. [27] The Appellant submits that the RPD erred in its finding on this issue. The Appellant argues that the RPD's finding was based on its own speculation of the circumstances of the interview and not on the evidence in the record. [28] The RAD finds that the Appellant's argument in this regard has merit. The RAD finds that the Appellant's responses to the questions put to him at the POE were not inconsistent with the allegations in his BoC. The questions put to the Appellant at the POE were few and limited in scope. The RAD notes that the Appellant was asked whom he was afraid of, but he was never asked why he feared the agents of persecution. The Appellant was not asked to provide further details. The RPD seems to hold the Appellant responsible for his failure to answer a question that was never put to him. [29] The RAD finds, after its own review and assessment of the evidence, that the Appellant's argument has established why the RAD should not recognize and respect the findings of the RPD in this regard. Accordingly, the RAD finds that little deference can be afforded the RPD's finding in this regard. Conversion from Sunni to Shia [30] Although the Appellant was able to demonstrate basic religious knowledge and his testimony about why he converted from Sunni to Shia was consistent, the RPD found, based on the totality of its credibility findings, that the Appellant's allegations that he converted from the Sunni to the Shia sect of Islam was not credible. [31] The Appellant submits that the RPD's finding is flawed. The Appellant argues that his conversion from Sunni to the Shia sect of Islam is supported by his consistent testimony and his religious knowledge. [32] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that, despite the credibility finding of the RPD which could not be sustained, there are sufficient sustained credibility findings, as outlined above, which undermine the Appellant's allegations that he converted from Sunni to the Shia sect of Islam and that he is being persecuted on that basis. [33] The RAD finds, after its own review and assessment of the evidence, that the Appellant's argument has not established why the RAD should not recognize and respect the findings of the RPD in this regard. As such, the RAD finds the Appellant's argument in this regard fails. CONCLUSION [34] On the basis of the findings noted above and after its own assessment of all the evidence in the record including the recording of the hearing, the RAD agrees with the RPD's finding that the Appellant has not satisfied his burden of establishing a serious possibility that he would be persecuted or that he would be personally subjected to a risk to his life, or a risk of cruel and unusual treatment or punishment, or a danger of torture in Pakistan. [35] The RAD finds that the Appellant is neither a Convention refugee nor a person in need of protection. [36] Pursuant to ss. 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "L. Favreau" L. Favreau April 8, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Exhibit RPD-1, BoC narrative, section 2(f). 4 Exhibit RPD-1, Pakistan National Documentation Package, 14 March 2014, Item 12.5 5 Ibid. item 12.9. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-00287