MB9-23962

RAD File No. / No de dossier de la SAR : MB9-23962 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision September 9, 2020 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the person who is the subject of the appeal Me François Kasenda Kabemba Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] This is the appeal filed by XXXX XXXX XXXX, a citizen of the Democratic Republic of the Congo (DRC), regarding a decision of the Refugee Protection Division (RPD) rendered on September 9, 2019, rejecting her claim for refugee protection. [2] The appellant's account is relatively simple. She fears that she would be raped or killed if she were to return to the DRC. She arrived in Canada on XXXX XXXX XXXX 2017, to continue her studies. She explains that on XXXX XXXX XXXX 2017, her parents took part in a political demonstration organized by the Catholic Church against the extension of former President Kabila's term-which was unconstitutional. She submits that her mother disappeared during that demonstration and that her sisters were raped on XXXX XXXX XXXX 2018, by armed individuals who were looking for weapons. She states that the assailants showed up at her home again the next day and ransacked everything, but did not find anyone. She reports that her father and sisters fled for Angola on XXXX XXXX XXXX 2018. [3] The RPD rejected the appellant's refugee protection claim for credibility. [4] On appeal, the appellant essentially submits that the finding of a lack of credibility is not based on all the evidence produced before the panel and presents the following arguments: 1. [Translation] "The RPD disregarded the latest evidence [C-1: amended version of the Basis of Claim Form (BOC Form)] and holds fast to the evidence that I consider to be a draft that was not confirmed under oath to talk about a contradiction." 2. When the appellant completed the BOC Form, she did not know that her family was in Angola (audio 56-58 min.), and according to the case law, refugees may fear or not trust persons in authority because of their experiences. 3. [Translation] "...the fact that the claimant checked "No" ] for question 9(a), in her Schedule 12, which concerns arrests and criminal offences," does not contradict the fact that she is wanted as part of political persecution. 4. The fact that she stated that her parents had taken part in a march in 2006 does not contradict her allegation that they kept a distance from the country's political activities until the demonstration against the extension of President Kabila's term; a march is not synonymous with political involvement. 5. [Translation] "The RPD did not follow the guideline for assessing evidence in gender-related refugee claims and did not demonstrate its expertise in assessing such claims;" it did not consider the medical notes on the sisters' rape, or Exhibit C-3, which confirms her mother's participation in the march on XXXX XXXX XXXX 2017, and her disappearance there. Yet, the credibility of this corroborating evidence is not in question; [translation] "...rape constitutes gender-related persecution" and her mother was also abducted. [5] The appellant is asking the Refugee Appeal Division (RAD) [translation] "to use its authority under paragraph 111(1)(b) of the Immigration and Refugee Protection Act1 (IRPA) to set aside the RPD's determination and grant the appellant protection. [6] The appellant is asking to present new evidence pursuant to subsection 110(4) of the IRPA and is not requesting that an oral hearing be held under subsection 110(6) of the IRPA. [7] The Minister's representative did not intervene in the appeal. DETERMINATION [8] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the RPD's determination, namely that XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. [9] The appeal is dismissed. SCOPE OF THE APPEAL [10] For questions of fact and law and questions of mixed fact and law, the RAD must apply the correctness standard in accordance with Huruglica.2 [11] I conducted an independent analysis of all the evidence on the record, after listening carefully to the hearing, in order to form my own opinion on this refugee protection claim and determine whether the decision rendered by the RPD is correct. ADMISSIBILITY OF NEW EVIDENCE BEFORE THE REFUGEE APPEAL DIVISION [12] The appellant is asking the RAD to allow several new pieces of evidence pursuant to subsection 110(4) of the IRPA. In the written statement regarding the new evidence before the RAD, which is on page 12/119 of the court file, the appellant states at question 4: The evidence I am presenting is: and the answer is n/a. Then on page 14 et seq. of the memorandum, there are exhibits that have already been submitted, such as medical reports, a letter from the XXXX of Kinshasa and documentary evidence. There is a document that the appellant submits, namely: Focus RD Congo: Situation des femmes seules à Kinshasa [report on the situation of single women in Kinshasa], National Documentation Package (NDP), January 2016, Tab 5.16, as well as three Federal Court decisions dating back to February 20, 2003, September 3, 2004, and lastly, February 15, 2013. [13] The hearing was held on August 2, 2019, and the decision was signed on September 9, 2019. The appellant must show that the new evidence complies with the requirements of subsection 110(4) of the IRPA. As such, the person who is the subject of the appeal may present to the RAD 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. [14] The Federal Court of Appeal, in Singh3 and Raza,4 ruled that the conditions set out in subsection 110(4) of the IRPA must be met, leaving no room for discretion on the part of the RAD. The three implicit admissibility criteria mentioned in Raza, namely credibility, relevance, and newness, must also be met. [15] In the memorandum submitted, the RAD did not see any further explanation with regard to the documents submitted after the hearing. They are included just after the RPD's decision in the section with the written statement about the new evidence and just before the appellant's memorandum. [16] On the whole, the documents submitted predate the appellant's hearing and well before the signing of the decision. The Federal Court decisions were available well before the hearing, and it is not evidence; also, Tab 5.16 of the January 2016 NDP refers to an old package, because the one that was available at the hearing corresponds to July 2018 and there was a new version, issued on May 11, 2020, for the purposes of the case. It should be noted that the 5.16 document is still in the latest documentation package. Under the circumstances, it is not new evidence because it is a part of the record. [17] For all these reasons, the RAD concludes that the documents filed are part of the evidence submitted, and as for the Federal Court decisions, they are always kept in mind and applied diligently. ANALYSIS [18] Having reviewed all of the evidence on the record, both testimonial and documentary, the RAD makes the same finding as the RPD, that the appellant is not credible. [19] The appellant argues that the RPD did not properly assess her credibility and that the impact on the decision is that the appellant would not be persecuted in her country. [20] The appellant's credibility is the determinative issue in this case. [21] The RAD submits that it considered Guideline 45 when analyzing this case. [22] The first two matters in the appellant's memorandum state that the RPD disregarded the new version of the BOC Form accompanying the first version. The RPD noted contradictions between her statements and her account with regard to her father's place of residence and his flight from the DRC to Angola. [23] In this case, it should be pointed out that the appellant left the DRC on XXXX XXXX XXXX 2017, to study and further her university education at XXXX XXXX XXXX XXXX in XXXX XXXX. She completed the first form on February 3, 2018, which was received at the Immigration and Refugee Board of Canada (IRB) on February 21, 2018, and a second one on April 8, 2019, which was filed with the IRB on July 23, 2019. It should be noted that both forms were provided as evidence. What does her testimony reveal? [24] She stated that on XXXX XXXX XXXX 2018, her father informed her of the situation. Her mother had disappeared, and armed individuals had come to the house and threatened her young sisters, who were beaten and raped. The individuals allegedly threatened them that what was happening to their mother could happen to them. The appellant stated that, faced with this situation, her father left the capital and fled to Angola. She learned about this in early XXXX 2018. [25] The RAD notes a contradiction on her first form regarding her family's location. In response to question 5 of the BOC Form, she states that her family lives in Kinshasa, whereas the account accompanying the form states that the family is in Angola. She testified that she knew her family was living in Angola in early XXXX 2018. It must be concluded from all those details and dates that the appellant typed a form and an account, which she signed on February 3, corrected extensively by hand with her initials, and filed with the IRB on February 21, 2018. It should be noted that despite her testimony that she spoke to her father at least twice, she provided contradictory information regarding their location. [26] She stated that her father contacted her on the day she filed her BOC Form. This contradicts her previous testimony in which her father allegedly spoke to her in early XXXX XXXX while the BOC Form was filed on February 21, 2018. To try and explain, she also stated she could not change the text and that she had completed it alone. Once again, this clouds her testimony, because on the first form, it is clear that she made a number of corrections. [27] However, it should be noted that the second information form states that the family is now living in Luanda, Angola. The RPD had ample time to examine the two forms submitted and ask the appellant about their contents. She states in her memorandum that the RPD ignored the amended version of the BOC Form. With respect for the contrary opinion, the RPD must analyze all the evidence provided and request explanations when there is ambiguity in a document. [28] This is not a matter of pointing out that the panel must analyze only the second text, which was corrected and amended, rather than both documents submitted in an effort to attenuate a contradiction noted by the RPD. The appellant's account is based on the disappearance of her mother and the fact that armed men came to the house to assault her two young sisters. The father's reaction was to leave the capital and go to the neighbouring country. This is the crux of her fear, the core of her account. However, she made a mistake on her first form by omitting this vital piece of information. In addition, she amended her form at various places but did not correct the city where her family is located, and she even added the letters DRC next to the city of Kinshasa for all of the family members when she knew, as she stated, that they were in Luanda, Angola. This greatly undermines her credibility. [29] Another matter addressed in the memorandum relating to the Schedule 126 document and more specifically question 9a), which concerns criminal offences, the appellant submits that her answer to the question does not contradict that she is wanted in her country. The RPD noted a contradiction between her testimony at the hearing and the answer to question 9. Let us look at her testimony in this regard. [30] She told the member that she and her family are still wanted in the DRC. She stated this clearly. She maintains that this is since the armed individuals came to their house in XXXX 2018 and asked for her. She has known this since XXXX XXXX, when her father called her and told her things, to use her expression. When asked to comment on her negative answer to question 9a) of the above-mentioned Schedule, which reads as follows: Have you ever been sought, arrested, or detained by the police or military or any other authorities in any country, including Canada? The appellant responded: I said no because I have never been arrested or imprisoned. [31] The RAD cannot accept such an answer from her because she is a university-educated appellant who understands French and the question is worded clearly and unequivocally. The panel cannot agree with this portion of the memorandum, in that it does not contradict that she is wanted in the DRC. Checking the no box suggests that the person is not being sought. In the case at hand, the account does not mention her arrest or imprisonment. She recounted that the authorities came to the home to frighten her young sisters and investigate the other family members. She testified many times that she is wanted by the authorities and fears them. Clearly, she should have checked the yes box if she felt threatened by anyone. Once again, this undermines her credibility and her case. [32] The following matter concerns her family's involvement in politics. According to the appellant, her parents are not militants due to the fact that they participated in a protest march. The RPD noted a contradiction between her testimony and her account on this matter. The parents' involvement dates back to 2006, and, as she put it, they had long been identified by the Kabila regime. [33] The RAD notes the following information that it compiled from the appellant's testimony. She answered no regarding political involvement. With regard to the parents, besides the march on XXXX XXXX XXXX 2017, they are not politically active. However, she added that her parents always attend when the church organizes marches. She added that her parents participated in a number of marches but she did not go. When asked to estimate the number of marches her parents have been involved in, she answered that starting in 2012, [translation] "the whole family attended a march" when Mr. Bemba and Mr. Kabila were battling for power in 2006. Hearing these statements, her parents could be perceived as militants at important large gatherings as part of the legislative process in the Congo. Although it is the church that organizes the marches, the purpose underlying these activities is social in nature, perhaps even political expression. [34] However, in her two submitted accounts,7 she mentions that her parents stayed away from the country's political activities. Confronted with this printed statement, the appellant stated that the parents did not attend these marches because they are not involved in politics. They attended the march on XXXX XXXX XXXX 2017, organized by the church, which she describes as a very large march, but [translation] "if they were really involved, they would have participated in all the marches." If it is true that her parents participated in the largest marches and demonstrations, they inadvertently expressed a political opinion. Furthermore, the authorities went after people who took part in the march on XXXX XXXX XXXX 2017, because, according to the appellant, it is that event that caused trouble for this family, based on the texts submitted. [35] Considering that the appellant maintains that her family is not political, that she did not mention her parents' past political involvement in the accounts, if it was just a large march organized by the Catholic Church, it is difficult to reconcile the fact that the authorities would go after her because of one march. [36] Accordingly, the RAD is of the opinion that the RPD did not err in its assessment of this matter. [37] The last matter in the memorandum concerns Guideline 4. The appellant submits that the RPD did not follow the guideline for gender-related refugee claims and did not demonstrate its expertise in the assessment of the claim. As for the RPD, it concludes that [translation] "the claimant's profile and her family situation could reduce the risk of violence based on her gender below the threshold of a serious possibility." [38] The panel is sensitive to the situation of women in the DRC and considered the documentary evidence concerning Congolese women in relation to gender and sexual violence issues. [39] In a United Nations text,8 issues related to women are addressed. Paragraphs 44 et seq. of this text read as follows: The Secretary-General noted with concern that, in July and August 2018, the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) had documented the rape of and other acts of conflict-related sexual violence against at least 129 women, 2 men and 39 children, indicating a worrying increasing trend. Most of the rapes had occurred in South Kivu. [40] These rapes and attacks on people were perpetrated by a coalition of combatants in different villages. There is no mention in this text of offensive acts noted in the capital. In another document,9 the following is noted: Conflict-related sexual and gender-based violence continues to plague the DRC. Ongoing instability, internal displacement, and continuing political tensions threaten to jeopardize the progress in addressing violence as a weapon of war. [41] The situation for women and girls in the DRC is problematic. According to a number of documents, abuse of women and children are concentrated in the war-torn provinces. In other regions, domestic and conjugal violence have been noted. The RAD does not reject out of hand the problem women are facing in that country torn apart by war and regional conflicts. [42] However, in this case, the panel has to consider the appellant's entire record. A number of contradictions arose in her testimony, which she was unable to properly explain. This undermines her case and her credibility. [43] Given that both her parents are merchants, that they have significant wealth, in that respect, the student visa file is telling because they were able to send their daughter to study in Canada. The RAD is of the opinion that she could benefit from the protection of her family, of her father, a safe place to reduce the risk of violence. [44] For the reasons set out in this decision, the RAD is of the opinion that the RPD made the correct and appropriate determination. REMEDY [45] In light of all the facts noted above and after reviewing all the evidence, for these reasons, the RAD confirms the RPD's determination, namely, that XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. [46] The appeal is dismissed. (signed) Michel Jobin Me Michel Jobin September 9, 2020 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act (S.C. 2001, c. 27). 2 Canada (Citizenship and Immigration) v. Huruglica, Bujar (FCA, No. A-470-14), Gauthier, Webb and Near, March 29, 2016, 2016 FCA 93. 3 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. 4 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 5 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (November 1996). 6 Schedule 12, Additional Information - Refugee Claimants Inside Canada, IMM 0008, page 88 and following/249 of the court record. 7 Line 10 of the account dated April 8, 2019, and line 11 of the account dated February 3, 2018. 8 Compilation on the Democratic Republic of the Congo, Report of the Office of the United Nations High Commissioner for Human Rights, Tab 2.18, March 4, 2019. 9 Gender-Based Violence and Discrimination against Women and Girls in the DRC, A Report for the UN Committee on the Elimination of All Forms of Discrimination Against Women, Tab 5.7, October 2018. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-23962 RAD.25.02 (January 2020) Disponible en français 3 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.25.02 (January 2020) Disponible en français