MA9-06833

Immigration and Refugee Board Refugee Protection Division Commission de l'immigration et du statut de réfugié Section de la protection des réfugiés RPD File No. / No de dossier de la SPR : MA9-06833 Private Proceeding Huis clos Claimant(s) Demandeur(e)s d'asile XXXX XXXX XXXX Date(s) of Hearing Date(s) de l'audience July 4, 2012 Place of Hearing Lieu de l'audience Montréal, Quebec Date of Decision Date de la décision August 22, 2012 Panel Tribunal Me Sonia Beaupré Claimant's Counsel Conseil du demandeur d'asile Me Stéphanie Valois Tribunal Officer Agent du tribunal (Filing of documents) Designated Representative Représentant désigné N/A Minister's Counsel Conseil du ministre N/A [1] The claimant, XXXX XXXX XXXX, who is XXXX years old and a citizen of the Democratic Republic of the Congo (DRC), is invoking section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (hereinafter referred to as the IRPA). ALLEGATIONS [2] In his Personal Information Form (PIF), which was submitted to the panel on June 15, 2009, the claimant stated that his problems in his country started in 1997, when he became a union member, and also in 2005, when he joined the UDPS. [3] He was detained twice-in XXXX 2000 and on XXXX XXXX XXXX 2003. On XXXX XXXX, 2000, he was arrested by the government security forces for his involvement in creating a union at Société XXXX [XXXX company]. He was then released with a death threat if he did not stop his union demands. [4] He was arrested on XXXX XXXX, 2003, by the national police for participating in a strike to protest the mass layoff of XXXX workers. [5] From 2003 to 2004, he was unemployed, and he was in contact and in discussion with a number of political parties. [6] From 2004 to 2005, he worked for a project that was supervised by the ministry of XXXX and funded by the XXXX XXXX and by the Congolese government. He was sent to France in 2005 in this connection. He chose to become a member of the UDPS after meeting party supporters on this trip. [7] In XXXX 2008, he signed a new employment contract with the ministry of XXXX XXXX XXXX XXXX XXXX XXXX XXXX). He stated that he lived in fear because all his co-workers [translation] "wore the colours of the party in power." [8] The claimant stated that a protest document from the UDPS, which he kept in his office, disappeared at the end of XXXX 2009. [9] In the meantime, he learned that a conference was being organized in the United States from XXXX XXXX to XXXX, 2009. He was very interested in it. [10] On XXXX XXXX XXXX 2009, he was approached by two individuals while he was sitting on a patio. He stated that this was the rapid response police. He was detained, intimidated, and received death threats. He managed to escape with the help of a person who asked him if he was a member of the XXXX tribe. [11] It was these incidents that motivated the claimant to attend the conference in the United States. On XXXX XXXX, 2009-the day of his trip-his passport was taken away, and he consequently missed his flight. He had to travel instead on XXXX XXXX XXXX 2009. Since he could not attend the scheduled conference, he stated that he stayed in the United States to rest. [12] He applied for a Canadian visa on XXXX XXXX and 8XXXX 2009. [13] In the meantime, his wife told him that he was wanted by some Mai Mai who were interested in his grandparents' land grants in XXXX XXXX. His spouse was also threatened. In addition, his co-worker-who was a research officer like him-disappeared. [14] The claimant claimed refugee protection in Canada for all these reasons. He left his country on XXXX XXXX XXXX 2009. He travelled to the United States and left that country on XXXX XXXX, 2009. He arrived in Canada on XXXX XXXX, 2009, and claimed refugee protection that same day. DETERMINATION [15] The panel determines that the claimant is not "a Convention refugee." It also determines that he is not a "person in need of protection" for the reasons set out below. ANALYSIS [16] The claimant's identity was established to the panel's satisfaction. A copy of a passport issued by the DRC authorities was submitted in the record by immigration services. The panel finds that this identity document is acceptable within the meaning of section 106 of the IRPA. [17] The claimant's testimony was not credible. [18] In essence, the claimant indicated at the hearing that he feared the government security forces in his country and the police. He added that he did not fear anyone in particular or anything else or any individual. [19] First, the panel asked the claimant to explain how he was able to leave his country in XXXX 2009. According to his narrative, his passport was taken away, which made him miss his flight to the United States to attend a conference on [translation] "prayer and victims of oppression in the world."1 [20] The claimant confirmed that this was in fact the passport that is filed in his record and that, on that day, as he was getting ready to leave his country, an immigration officer told him that he had received orders from his boss, without specifying any further. The claimant allegedly returned home later that same day and, the following morning, hurried downtown, to XXXX,2 where he paid the fees for changing his day and flight. He left for the United States on XXXX XXXX XXXX 2009, without any further complication. [21] The panel, surprised at the claimant's alleged fear of his country's police and security forces even though he was able to leave his country with such ease, asked the claimant to explain this. The claimant stated that he was able to do so because he paid some fees. [22] Still, the claimant had, allegedly, been expressly prevented from leaving his country the evening before, when he was stopped by an immigration officer who allegedly received [translation] "orders from his boss." The panel is not satisfied with the claimant's explanations about being able to leave the DRC so easily, when he claims to fear the government security and police forces and had even been prevented from leaving the day before. His credibility in relation to his allegations is undermined. [23] The panel listened to the claimant at length about the problems that he allegedly encountered in the DRC, which, he confirmed, began in 1997, and which he discussed essentially in his narrative.3 [24] Before leaving his country, the claimant-a father of XXXX children with XXXX nephews who depend on him, a trained XXXX, and a university graduate-worked as a XXXX XXXX for the XXXX ministry in the DRC. He allegedly worked there from XXXX XXXX XXXX 2008, to XXXX XXXX XXXX 2009.4 He analyzed the files that he was given and XXXX XXXX XXXX XXXX XXXX XXXX. [25] The claimant told the panel that his supervisor was the XXXX XXXX XXXX XXXX. He reported to the chief of staff but, when this person was absent, he reported directly to XXXX XXXX. [26] The claimant explained at length that he had been hired for this position because the XXXX wanted a candidate with XXXX experience. As a result, he contacted the XXXX private secretary, went to the XXXX office, and began that job in XXXX 2008. Through all that, his membership in the UDPS was never an issue, except for the story involving the document, which is discussed later in paragraph 52. [27] Before working for the XXXX ministry, the claimant was unemployed, he stated, from XXXX 2007 to XXXX 2008. [28] Since the claimant alleged that his problems began in 1997, the panel continued to ask him about his activities during those years. [29] From XXXX 2004 to XXXX 2007, the claimant worked on a project for the ministry of planning. This project involved addressing XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. All of this allegedly took place under the auspices of the XXXX XXXX and with financial support from the DRC government. [30] From XXXX 1997 to XXXX 2003, the claimant worked for Société XXXX, a private company where he was the XXXX XXXX. His supervisor was the deputy chief financial officer. [31] The claimant was allegedly arrested three times in his country: once on XXXX XXXX, 2000, because he was a union member; once in XXXX 2003, because of his political opinion; and a final time on XXXX XXXX, 2009. [32] He was therefore allegedly involved with the union delegation at XXXX. This delegation consisted of XXXX members-XXXX permanent and XXXX alternate members-representing approximately XXXX employees, or roughly 95% of the members. This was in early 1997. [33] On XXXX 2, 2000, he was allegedly detained by the security forces. When the panel wanted to know what type of problems the claimant encountered between 1997 and 2000, he answered that [translation] "the employer (XXXX) did not want a union in the company...." [34] The panel wanted to know more about the claimant's problems and asked him to talk about the problems regarding the fact that XXXX did not want the union. He added that [translation] "the delegates and the manager did not get along so well." [35] Five of the XXXX members were allegedly called in on XXXX XXXX XXXX 2000, by means of a summons, which he allegedly received from the state security forces.5 He stated that he was a bit [translation] "surprised" at being summoned in this way, but that he went there and tried to explain that they were trying to establish order through their union. No charges were laid against him at that time, despite the fact that he was allegedly detained, undressed, searched and put in a cell. The claimant stated that he assumed at that time that he was arrested because he was active in the union. [36] The claimant stated that he was released [translation] "thanks to" the union, which had members with easy access to the authorities. The claimant allegedly returned to his job afterwards and continued to work to fight for the union. He allegedly did not have any problems after that prior to 1998, despite the fact that, as he stated, the government placed security officers in these companies (speaking about XXXX) and that the government was often involved as a hidden shareholder, which he stated was [translation] "there to help the boss." [37] In 1998, the claimant's problems were allegedly due to the fact that he had signed the collective agreement and that the employer felt [translation] "aggrieved; relations were not good" with the deputy chief financial officer, he stated. As a result, a [translation] "technical layoff" was imposed on everyone in XXXX 2003, including the claimant. He was consequently unemployed. [38] In answer to a very specific question from the panel about the problems he had allegedly encountered between 1998 and 2003 in relation to his involvement with the union, the claimant stated that [translation] "my problems had to do with implementing the collective agreement...payroll expenses had to be reviewed and the employer was not happy." He also talked about the fact that employees were paid in Congolese francs-an undervalued currency-which caused anger among employees. [39] The claimant was arrested a second time in XXXX 2003, when a strike was allegedly organized in front of XXXX. Employees were disputing the final total amount-a severance pay paid in cases of dismissal, the claimant stated. This time, the claimant was again allegedly arrested and taken with another person, the union delegation secretary. He was allegedly detained for two hours and then released. This time, the police were allegedly called by the employer, and the police allegedly told the claimant that the employer did not agree with the strike. [40] The claimant stated that he had no other problems with the union from XXXX XXXX, 2003, to XXXX XXXX XXXX 2009. He stated that the company offshored its work and that union activity decreased because the members in fact did not see each other any more. The panel draws a negative inference regarding his fear of returning because of his union activities. [41] Lastly, the claimant was allegedly arrested for the last time in his country on XXXX XXXX, 2009. [42] In 2005, the claimant first went to France for training. He also travelled to the United States in 2005 for a project that was allegedly funded by the XXXX XXXX. While he was abroad, he allegedly contacted members of the Congolese diaspora in XXXX 2005 and allegedly became a member of the UDPS at that time.6 [43] When the panel wanted to know whether the claimant had encountered problems in his country from XXXX 2005 to XXXX 2009 because of his membership in the UDPS, he stated that [translation] "I did not have any problems, but my contract with the ministry of XXXX was not renewed." [44] The claimant did not establish any evidence to show that his problems regarding the non-renewal of his work contract with the ministry of XXXX were related to one of the grounds set out in section 96. [45] He stated that he was [translation] "not a very active" member in the field with the UDPS in the DRC. He stated that he had been going to informal meetings only about once a month since 2005. [46] The panel wanted to know why the claimant did not take advantage of his trips to France and to the United States in 2005 to claim asylum there, since he had explained that he had previously been arrested for his sustained union activities. He stated that [translation] "I wanted to continue fighting for the union...we hoped for more...we expected to get paid our full amount." [47] The panel is of the view that this is not the behaviour of a person who says he has feared for his life in his country since 1997. On two occasions, the claimant had the privilege of travelling to countries that are signatories to the Convention. Twice he chose to return to his country, even though he had previously been arrested and detained. He claimed that he did so because he still believed in [translation] "the cause." His credibility in relation to his subjective fear is undermined. [48] Moreover, in relation to the meeting that he had with the XXXX, which was mentioned earlier in paragraph 26, the claimant stated that the XXXX was not aware of his involvement with the UDPS. He stated [translation] "I was an expert. I was simply there to offer my services." The alleged problems he encountered at the XXXX ministry are as follows. [49] After he was hired by this ministry, he saw that 10% of his income was being withheld at the source and was going to the governing party. When the panel asked him how this caused problems for him, he added, seemingly surprised at the panel's question, that [translation] "well...I did not like that!" He stated that he had no other problems except for the issue with the document, which is discussed below. [50] According to the claimant's testimony, the government decided to integrate rebels who were members of the CNDP7 into the DRC army. The claimant was asked to state whether he had done anything or was involved in any way in fighting against the CNDP. He stated no. He added, however, that one day a document had been discovered in his drawer at the XXXX ministry. This document allegedly castigated the government's decision to create a coalition force consisting of FARDC and CNDP members to fight against the FDLR. [51] When the panel asked him why he was so careless in leaving this UDPS document in his drawer at the XXXX ministry, he hesitatingly stated [translation] "I had it locked up." He argued that the people he suspected of taking it had copies of the keys to his drawer and had taken the document. Again, the panel wanted to know why he acted so carelessly and why he did not simply keep this document in his pocket. He added that [translation] "it was together with other documents; it was too bulky." [52] The panel does not find this to be credible. The claimant was hired by the XXXX XXXX. He also testified XXXX XXXX XXXX XXXX XXXX order regarding his appointment at the XXXX ministry. The panel does not believe that the claimant could have been so careless as to simply leave such a compromising document [translation] "lying around" in a drawer, given his allegation that he was an active member of the UDPS in the DRC. [53] His credibility in relation to his allegations is undermined. [54] In addition, when the panel asked him how this document caused problems for him, he stated that [translation] "the climate changed." He was asked if he had encountered other problems, and he replied that he had problems because he later gave a report to the XXXX's chief of staff-a report in which he explicitly stated that the government was contributing to the war in the eastern part of the country because of the actions it had taken. The claimant called this statement an [translation] "incident." [55] However, in the panel's view, this was not an incident at all. This was simply a statement made by the claimant to none other than the XXXX XXXX XXXX XXXX. [56] Nowhere in his narrative did the claimant discuss this [translation] "incident." When the panel asked him to explain why he did not do so, the claimant stated that it was because [translation] "nothing came of it," and that the "chief of staff did not keep a copy of the report," which he "gave him a copy of on the spot." [57] In the circumstances, the panel would like to point out that the Federal Court (the Honourable Justice Teitelbaum) stated the following in Basseghi:8 33. It is not incorrect to say that answers given in a PIF should be brief but it is incorrect to say that the answers should not be complete with all of the relevant facts. It is not enough for an applicant to say that what he said in oral testimony was an elaboration. All relevant and important facts should be included in one's PIF. The oral evidence should go on to explain the information contained in the PIF. [58] However, his narrative in fact does not discuss this issue at all. Even worse, the claimant claims, and presumes, that the XXXX was never notified by XXXX XXXX XXXX XXXX of this, and the claimant was even able to continue his activities as research officer in this ministry for three weeks without the XXXX ever speaking to him about this matter. [59] He stated that [translation] "there was nothing to indicate that I could not go" to work. [60] The panel cannot find that to be credible. [61] The claimant was in regular, direct contact with the XXXX. It was the XXXX XXXX who hired him. His affiliation with the UDPS was inadvertently discovered at the bottom of his desk drawer at the XXXX ministry. He also signed a report, which he sent to the XXXX XXXX XXXX XXXX, discussing the perils of the DRC government. In spite of all this, he continued to work in the ministry without any other problems prior to organizing his escape from the country. [62] The claimant's credibility in relation to his allegations is undermined. [63] The claimant was allegedly arrested for a third time on XXXX XXXX, 2008. There were approximately four people on the patio. Two security force officers allegedly showed up, introduced themselves and ordered him to follow them. [64] He was allegedly taken to a hangar-a cell, he stated-where he was told that he was on a black list. After four or five hours, a man from his same tribe allegedly told him that he [translation] "might die young," and nothing more. He ran and managed to escape. He allegedly took refuge until the morning in a nightclub. He returned home the following morning. [65] Between that moment and when he left, the claimant continued working at the XXXX ministry. In spite of the fact that [translation] "the climate was no longer good" and that he "took steps to escape," he allegedly had no other problems. [66] The panel is of the opinion that this is not the behaviour of a person who fears for his life in his country. Although he stated that he was persecuted, the claimant continued to work in a ministry of the Kabila government without encountering any other problems. He was even able to leave his country using his own passport after paying a fee, despite having been stopped the evening before and having been delayed in the country for 24 hours. [67] The claimant's credibility in relation to his allegations is undermined. [68] At the end of the hearing the panel wanted to know why the claimant was afraid of returning to his country after all this time. On XXXX XXXX, 2009, he left behind his wife and XXXX children (XXXX are dependant nephews). It is now 2012, three years later. [69] He stated that certain individuals had [translation] "gone to find him when he was in the United States" in XXXX 2009. [70] These individuals were allegedly the [translation] "Mai Mai rebels who were integrated into the government" and who "are part of the government forces." However, the claimant could not produce any evidence regarding this allegation. After XXXX 2009, the date when the Mai Mai rebels allegedly went to his home, nobody in the DRC seemed to want to know where he was or what had happened to him. All this affects the claimant's credibility regarding the fact that he would be sought in his country if he were to return. [71] Again, the panel asked him why he feared returning to his country today. He added that he has become very involved with the UDPS since coming to Canada, participating in all the meetings, paying premiums and taking part in activities. For this reason, his risk of being detained upon returning to his country was highly probable. [72] The claimant submitted some evidence regarding his involvement9 in Canada. When the panel asked him to indicate if he had evidence establishing that UDPS members, and those members active here, risk persecution upon returning to the DRC, he stated that he did not have any. [73] However, after the break, counsel for the claimant submitted new evidence (P-13), which the panel accepted, establishing that XXXX XXXX allegedly spent a few hours in the offices of the Agence Nationale de Renseignement (ANR) [national intelligence agency] as he was getting ready to leave the DRC when the elections were still fresh. He was later released. He was then able to catch his flight in XXXX 2012. The claimant stated that if XXXX XXXX XXXX XXXX XXXX, was not able to leave his country easily, the situation for a XXXX XXXX would be more difficult and that [translation] "a fortiori, other members would be arrested like flies!" [74] However, this is not the panel's opinion. There is nothing in this document (P-13) to establish that UDPS members who return to the country have a reasonable fear of persecution because of this. In addition, the claimant himself acknowledged at the hearing that Kabila had won the elections. According to published statistics, 48% of the votes went to the UDPS (56% according to UDPS numbers). Contrary to what the claimant alleges, the panel is of the view that UDPS members who are active abroad do not have a reasonable fear of persecution upon returning to their country given the sole fact that they are active in Canada. [75] Lastly, the panel wanted to know why the claimant did not claim asylum in the United States in 2009 upon leaving the DRC after he had just been detained and given that he confirmed that he feared for his life. [76] He stated that he has family in Canada-a brother-in-law and a sister-in-law-and that he had thus chosen Canada instead. In the form that he completed when he arrived in the country, he stated that [translation] "Canada is a country that respects HUMAN RIGHTS."10 [77] The panel finds that the explanations are not enough to justify a stay of over a week in the United States to [translation] "rest a bit in the US, where I have the support of long-time friends,11 without claiming refugee protection," when the claimant alleges that he was afraid of returning to his country. The panel finds it appropriate to refer to the statements made by the Honourable Justice MacKay in Ilie,12 which are as follows: [translation] A claimant's failure to claim refugee status in a country signatory to the 1967 Protocol contradicts the claim that they fear persecution. [78] In addition, the Honourable Justice Muldoon stated the following in Leul:13 Just as I would not wish to send back to his country a person who stood in jeopardy of a reasonable chance of persecution, so I just do not wish to leave in Canada a person who isn't entitled to be here; a person who passed through a country which was a signatory to the convention and did not think to claim refugee status there. [79] The panel also refers to the Federal Court decision in Hibo Farah Mohamed and Ardo Abdi Omer,14 in which the Honourable Justice Rothstein stated as follows: The Geneva Convention exists for persons who require protection and not to assist persons who simply prefer asylum in one country over another. The Convention and the Immigration Act should be interpreted with the correct purpose in mind. [80] Lastly, the panel would like to refer to the following statements made by Justice Hugessen:15 [T]he purpose of [Canada's refugee determination system] is to provide safe haven to those who genuinely need it, not to give a quick and convenient route to landed status for immigrants who cannot or will not obtain it in the usual way. [81] The panel does not believe the claimant and rejects his testimony because it lacks credibility. [82] Taking into account all the evidence, the panel finds that the claimant did not meet his burden of establishing that there is a serious possibility that he would be persecuted on a Convention ground or that, on a balance of probabilities, he would personally subjected to a danger of torture, a risk to his life, or a risk of cruel and unusual treatment or punishment if he were to return to his country. CONCLUSION [83] For these reasons, the panel determines that the refugee protection claimant is not a "Convention refugee" under section 96 of the IRPA and that he is not a "person in need of protection" within the meaning of subsection 97(1) of the IRPA. [84] The panel rejects the claim for refugee protection of XXXX XXXX XXXX. Sonia Beaupré Me Sonia Beaupré August 22, 2012 Date IRB translation Original language: French 1 Claimant's Personal Information Form (PIF), question 31, page 3. 2 Airline company he was travelling with. 3 Claimant's PIF, question 31. 4 The claimant left his country on XXX 2009. 5 See exhibits P-5 and P-3. 6 Exhibits P-6 and P-7. 7 CNDP: Congrès National pour le Développement du Peuple [national congress for the development of the people], a militia made up of Rwandans to fight the FDLR (Front de libération du Rwanda) [Rwanda liberation front], formerly an ally of the FARDC (Forces Armées de la RDC) [armed forces of the DRC]. See the claimant's PIF, question 31, page 3. 8 Basseghi, Kourosh v. M.C.I. (F.C.T.D., No. IMM-2227-94), Teitelbaum, December 6, 1994. 9 Exhibit P10: Photographs of the claimant performing his political activities in Canada. 10 Exhibit A-2, No. IMM 5611, question 49. 11 Claimant's PIF, question 31, page 4. 12 Lucian Ioan Ilie v. M.C.I. (FCTD, No. IMM-462-94). 13 Leul, Degeana Amare v. Secretary of State of Canada, (FCTD., No. A-1465-92), Muldoon, May 27, 1994. 14 Mohamed, Hibo Farah and Ardo Abdi Omer v. M.C.I. (FCTD, No. IMM-2248-96), Rothstein, April 9, 1997. 15 Urbanek v. Canada (Minister of Employment and Immigration), [1992] F.C.A. No 556. --------------- --------------- --------------- --------------- RPD File No. / No de dossier de la SPR : MA9-06833 8