MB9-08849

RAD File No. / No de dossier de la SAR : MB9-08849 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 Ottawa, Ontario Appel instruit / entendu à Date of decision October 1, 2020 Date de la décision Panel Me Murielle Henri Tribunal Counsel for the person who is the subject of the appeal Herve Ndedi Penda 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 OVERVIEW [1] The appellant, XXXX XXXX XXXX, is a citizen of the Democratic Republic of the Congo (DRC). He alleges that he fears being arrested or killed due to his political allegiance. The appellant is a member of the Union démocratique africaine originelle (UDAO) [original African democratic union]. In XXXX 2016, he participated in a peaceful demonstration and he was arrested and put in jail. In XXXX 2017, he was arrested again, and when he was released he received a notice to appear. He hid at his uncle's home for several months and then left the DRC for Canada on XXXX XXXX XXXX 2017. [2] On April 9, 2019, the Refugee Protection Division (RPD) rejected his claim for refugee protection on the grounds that he was not credible. DETERMINATION [3] I dismiss the appeal. The appellant is not credible. NEW EVIDENCE [4] Under the Immigration and Refugee Protection Act1 (IRPA), I may only admit evidence: i. that arose after the RPD rendered its decision; ii. that was not reasonably available at the time of the decision; or iii. that the person could not reasonably have been expected in the circumstances to have presented to the RPD before the decision was rendered. [5] If the evidence meets one or more of these requirements, I must decide whether the evidence is new, credible and relevant before admitting it.2 [6] Although the letter was written on XXXX XXXX XXXX 2019, that is, after the RPD rendered its decision, its contents concern events that did not arise after the RPD rendered its decision. In addition, the evidence was reasonably available at the time of the decision. Nonetheless, I am of the opinion that the appellant could not reasonably have been expected to have presented this evidence to the RPD. In fact, this evidence does not concern an element of his refugee protection claim. I am of the opinion that the evidence is new, credible and relevant, since it provides insight into certain contradictions. [7] I therefore accept the letter as new evidence. [8] There is no reason to conduct a hearing, as the evidence does not meet the criteria of subsection 110(6) of the IRPA. ANALYSIS [9] My role is to examine all of the evidence and determine whether the RPD's determination is correct.3 The determinative issue in this case is credibility. [10] In its decision, the RPD found that the appellant was not credible, since there were a number of contradictions in his testimony. In his memorandum, the appellant alleges that he did not complete his Basis of Claim Form (BOC Form) himself and that the questions were not translated for him. He asserts that the RPD should have adjourned the hearing due to his difficulties in understanding the questions and should have asked if he needed an interpreter. He further argues that the contradictions noted by the RPD were minor. Denial of justice [11] During the hearing, the appellant testified that he completed the BOC Form with his father's friend.4 On this point, he submitted a letter signed by XXXX XXXX XXXX XXXX XXXX, which states that he helped the appellant complete his BOC Form and that the appellant did not clearly understand the questions that were asked and had only a basic level of proficiency in the French language. [12] I cannot accept these explanations: the record makes it clear that the appellant is a Francophone. [13] At question 1(g) of the BOC Form, which asks about the languages and dialects spoken, the appellant wrote French and Lingala. Furthermore, at question 4 of the Generic Application Form for Canada,5 it is written that the appellant's preferred language is French and that he has no need for an interpreter. The same form also indicates that the appellant's mother tongue is French.6 At the start of the hearing, the RPD asked the appellant whether he understood French well, since he had chosen to proceed without an interpreter. The appellant answered yes, not thoroughly, but that he speaks French, he understands it well and is able to express himself in French.7 I listened to the recording and I am of the opinion that the appellant understood French very well. For these reasons, I do not give much weight to the letter. [14] Moreover, during the hearing, when he did not understand a particular word, the appellant requested clarification. The example that the appellant gives in his memorandum illustrates this fact well. When the RPD asked the appellant if he knew his political party's platform and the appellant did not understand the term platform, the RPD was able to use other words, such as ideas, plans and political program, so that the appellant could understand.8 [15] For this reason, I am of the opinion that there was no denial of justice. Credibility Omission in form IMM 5669 [16] In his form IMM 5669, the appellant did not write that he was a member of a political party,9 and the RPD drew a negative inference from this. In his memorandum, the appellant asserts that the RPD erred in concluding that this was a contradiction when it was in fact an omission. This argument does not provide any kind of explanation as to why he did not mention in his form IMM 5669 that he was part of a political group. [17] When confronted with this omission, the appellant stated that he had not clearly understood the question and that he was not the one who had completed the form. However, question 9 is simple and unequivocal. It asks: "What organizations have you supported, been a member of or been associated with? Include any political... organization..." In addition, when I analyze the form as a whole, the questions he left blank were the questions that did not apply to him, in particular question 10 on government positions and question 11 on military and/or paramilitary service. Finally, in signing the form, he declared that the information in it was true, complete and correct. [18] This omission is significant, as the appellant indicated that he left the DRC due to the fact that he was persecuted because he had participated in a peaceful demonstration as a member of the UDAO. I would therefore have expected this information to be found in the form. [19] Consequently, I am of the opinion that the RPD did not err in drawing a negative inference from the fact that the appellant did not write in his form IMM 5669 that he was a member of a political party. Party member [20] When the RPD asked him what had motivated him to choose the party, the appellant replied that he became interested in politics when the current president came to power because nothing was working in his country, with regard to unemployment, security and politics in particular. He added that the country was moving toward bankruptcy, and that this is what pushed him towards politics. I note that these responses do not answer the question that was asked. [21] When asked why he chose that party rather than another, the appellant replied that it was because it was an opposition party. When probed again on his choice of that party in particular, the appellant replied: [translation] "It was my choice to choose this party, because I thought it would be good to choose this party."10 Once again, I note that there was very little in the way of explanation. [22] Then, later on in the hearing, he stated that it was his father who had registered him with the party and that he had connections with the president of the party.11 When questioned about the reason why he had not stated that at the outset, the appellant answered that his family had joined before, and that he then thought it would be good to join. He added that it was a family choice.12 These answers still do not explain why he did not mention this information when the RPD asked him why he had chosen that party. [23] When the RPD tried to get him to talk about the party, the appellant answered that the party was doing well and that during the election campaign the president had gone out to promote it. He added that he had seen images on the party's website and that, as a member, he can see what is happening. When questioned about the party's platform and what motivates its members, the appellant replied that it is an opposition party, with a serious president and a serious secretary, and thus a party that is well organized. This does not answer the question of what the party's platform is. Furthermore, his answers regarding what motivates the members were general. [24] When the RPD questioned him in more detail about the party's platform, ideas and plans, the appellant replied that his party collaborated with the other members of the opposition. Once again, I note that this response does not answer the question in any way. [25] What is clear from this discussion is that, apart from identifying the main leaders of the party, the appellant was not able to answer questions about the party, giving two versions of why he chose this party. The answers he provided had nothing to do with the questions asked. [26] When questioned about his participation, the appellant answered that he began to receive the party's messages in XXXX 2016, but that he did not participate in the meetings or events because he was busy with university and was working with his father.13 Because of this, he had not met the members of the party. He stated that he had participated in two demonstrations, and each time he was arrested. The first time was in XXXX 2016, when he went alone, despite the fact that his entire family (brothers, sisters, parents) are members of the party and his father is close to the party president. 14 Then, in 2017, he once again participated in a demonstration, alone. To support his allegations, the appellant presented his membership card. However, it does not show when the card was issued or for how long he has been a member. Therefore, I cannot know whether he has been a member for a long time, as he claimed. For this reason, I do not give any weight to this card. [27] In light of the foregoing, I am of the opinion that the RPD did not err in concluding that the appellant did not demonstrate, on a balance of probabilities, that he is a member of the UDAO party. Arrest [28] When questioned about when his problems began, the appellant stated that they began on XXXX XXXX XXXX 2016, when he participated in a peaceful demonstration where he was arrested and then released after five days. After this arrest, he continued to attend university.15 [29] Then, almost a year later, in XXXX 2017, he participated in a demonstration where he was arrested a second time. He testified that he had read a leaflet found on the ground that stated that they had to apply pressure by making noise with pots and pans and whistles. According to his testimony, he was arrested by plainclothes police officers while he was whistling in front of his home. When the RPD asked whether he had anything other than a whistle, the appellant answered no, that he only had the whistle.16 When confronted with the fact that his written account states that he had a pot, the appellant replied that he only had the whistle, but that there were two other people making noise with pots.17 I am of the opinion that this answer does not explain the contradiction. [30] Moreover, when confronted with the contradiction between his form IMM 5669, which indicates that he was detained for two days in XXXX 2016, and his testimony that he was under arrest from XXXX XXXXto XXXX (four days), the appellant responded that he had noticed this, and that it was the border services officer who had asked him the question, and that he had told him he had been detained for two days, but the officer misunderstood. He then added that he had told him he had been arrested twice. When the RPD pointed out to him that the form indicates two days in XXXX 2016, the appellant replied that he did not know, that it was in the month of XXXX.18 Once again, I note that the appellant does not have an explanation for the fact that the form indicates two days in XXXX, whereas he testified that it was four days in XXXX XXXX This contradiction is significant, since his arrest for having participated in a march is central to his refugee protection claim. For this reason, I give little weight to the father's affidavit, which cannot resolve this credibility problem. [31] Finally, the appellant testified that he hid in XXXX, at his uncle's home, from XXXX XXXX XXXX 2017, until he took his flight to Canada. He stated that he was just at his uncle's home and did not go out.19 When confronted with his form IMM 5669, which indicates that he was at university until XXXX 2017, the appellant answered no, that he was at his uncle's place and that he does not remember why he wrote XXXX 2017. [32] It is clear that the appellant has no explanation for this contradiction, which is significant in that it relates to his fear. He in fact testified that he was so afraid that he had to go to his uncle's place and hide without going out for several months. However, if he continued to go to school despite the notice to appear, that indicates to me that his fear was not as great as he claims. [33] As the RPD noted, the notice to appear which he presented does not indicate the reason why he was to appear and, given the previous conclusions, I give little weight to it. [34] Consequently, I am of the opinion that the appellant did not demonstrate, on a balance of probabilities, that he was arrested and that he received a notice to appear for having participated in a march. [35] The appellant's testimony is not credible with regard to his fear in the DRC. He has not demonstrated that he faces a serious possibility of persecution for his political opinion should he return to the DRC. The evidence also failed to establish, on a balance of probabilities, that he would be personally subjected to a risk to his life or a risk of cruel and unusual treatment or punishment. CONCLUSION [36] I confirm the determination that the appellant is neither a Convention refugee nor a person in need of protection. [37] The appeal is dismissed. (signed) Murielle Henri Murielle Henri October 1, 2020 Date IRB translation Original language: French 1 Subsection 110(4) of the Immigration and Refugee Protection Act. 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza, FC 385. 3Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Recording of the Refugee Protection Division (RPD) hearing, March 26, 2019, at approximately 00:12:51. 5 SPR-1, Generic Application Form for Canada, at p. 59. 6 Ibid., at p. 61. 7 Recording of the RPD hearing, March 26, 2019, at approximately 00:01:00. 8 Ibid., at approximately 00:27:57. 9 SPR-1, form IMM 5669, at p. 66. 10 Recording of the RPD hearing, March 26, 2019, at approximately 00:24:00. 11 Ibid., at approximately 00:29:23. 12 Ibid., at approximately 00:37:00. 13 Ibid., at approximately 00:31:00. 14 Ibid., at approximately 00:33:00. 15 Ibid., at approximately 00:53:00. 16 Ibid., at approximately 00:59:34. 17 Ibid., at approximately 00:59:00. 18 Ibid., at approximately 01:02:00. 19 Ibid., at approximately 01:23:00. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-08849 RAD.25.02 (January 2020) Disponible en français 9 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