MC0-09371

RAD File / Dossier de la SAR : MC0-09371 MC0-09372 / MC0-09373 / MC0-09374 MC0-09375 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered at Montreal, QC Appel instruit à Date of decision March 16, 2021 Date de la décision Panel Me Michel Colin Tribunal Counsel for the persons who are the subject of the appeal Raphael Vagliano Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (Principal Appellant), XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX (Associate Appellants) are citizens of Chad. [2] They fear state authorities of their country because the Principal Appellant was arrested, tortured and questioned, in 2015, about the political involvement of his brother in the Front pour l'Alternance et la Concorde au Tchad (FACT) political party, and that he was wrongfully suspected of being an informant for his brother. [3] The RPD rejected their asylum claims as it found them not to be credible, essentially because it noted a contradiction between the Principal Appellant's original Basis of Claim (BOC) narrative and an amendment made at the hearing, as well as omissions, and lack of corroborative evidence to support the allegations that had been omitted. More specifically, the amendment in question was that he wished to replace the words stating that he was accused in 2015 of being "an informant for FACT" with "an informant for my brother." This was a significant amendment given that the FACT was only founded in 2016. He failed to mention, in his narrative, that his brother was involved in other opposition groups, prior to joining the FACT, and that his cousin advised him, by letter, that authorities have since come looking for him, which it considered to be serious omissions. His failure to provide corroborative evidence to support the involvement of his brother in other political parties and evidence that authorities continue to look for him further impugned his credibility. This last-minute change in his story was particularly important since he was represented by an experienced counsel at a previous RPD hearing, in proceedings before the RAD that ensued, and in the time that led up to the de novo RPD hearing. [4] Before the Refugee Appeal Division (RAD), the RPD erred in drawing a negative inference from the Appellants' failure to make a BOC amendment to address the Principal Appellant's brother's political activities prior to their first refugee hearing, in drawing a negative inference for the Principal Appellant failing to include his brother's prior political activities in his initial BOC narrative, erred in discarding relevant and probative supporting evidence. They argue that they knew that the Principal Appellant's brother was involved in the opposition since 2014. Only after sending a copy of the first RPD decision to the brother of the Principal Appellant, was it explained to them that originally, the brother was involved in opposition parties such as the UFDD and later became the XXXX of the FACT when it was founded in 2016. They explained this in the memorandum submitted with their first appeal before the RAD, and further explained that they had little contact with the brother of the Principal Appellant who lived in France, had seldom talked politics with him when he visited, and had therefore not understood these nuances when they appeared before the RPD the first time. They relied on their previous counsel who failed to make the necessary amendments in the months leading up to the de novo RPD hearing, waited for the day of this hearing to make a minor verbal amendment and never submitted all of the corroborating evidence which they had gathered and provided to her as it came in, well before the de novo hearing. She failed to submit this evidence during the de novo hearing as well. They submit 14 documents (some of which include annexes) to be considered as new evidence before the RAD and ask that a hearing be held before the RAD. They submit that these documents, along with other evidence adduced before the RPD, establish that their claim is well founded. [5] The determinative issue for the RAD is the credibility. [6] I admit all of the new evidence presented by the Appellants. However, I reject the request to hold a hearing. Despite the fact that I found no significant error in the RPD decision based on the evidence before it, after an independent review of all of the evidence now on the record, I find that they have established that the Principal Appellant's brother was active in various political opposition parties since 2014, that the Principal Appellant was tortured while in Chad in 2015 because of his brother's political involvement, that his erroneous oral and written testimony, as to which political opposition party his brother belonged to, does not impugn his credibility that authorities imputed contrary political opinions to him, and that they still have an interest in questioning him. The Appellants are credible. They have established a well-founded prospective fear of persecution on the grounds of imputed political opinions, for the Principal Appellant, and on the grounds of membership in the social group of his immediate family for the Associate Appellants. There is clear and convincing evidence that state protection would not be available to them and that there exists no place in their country where they would be free from persecution, given that the agents of persecution are themselves state authorities. DECISION [7] The appeal is allowed. I substitute my own decision that the Appellants are Convention refugees. BACKGROUND [8] Prior to their arrival in Canada, the Appellants lived in Saudi Arabia. Nevertheless, they are all citizens of Chad and no other country. They never had any political activities themselves and knew relatively little about the political activities of the brother of the Principal Appellant, although the latter visited them occasionally. [9] It was during a visit to Chad, in 2015, that the Principal Appellant was detained and questioned at the airport by authorities who believed him to be acting as an informant on behalf of his brother, who was politically active in opposition parties both in Chad and from abroad in France, where he had sought refuge from persecution. A few weeks later, he was summoned by authorities for further questioning, and was then tortured. After paying a large bribe, he was released and proceeded to leave the country in a clandestine manner. The Appellants returned to Saudi Arabia and only made their way to Canada on XXXX XXXX XXXX 2016, once they found out that their status in that country would not be renewed. [10] The asylum claim was initially rejected by the RPD on February 24, 2017. In a decision dated August 9, 2018, the RAD allowed the appeal, and referred the matter back to the RPD to be redetermined by a differently constituted panel, essentially because the RPD decision had focused on mostly peripheral issues. The RPD rendered the decision which is now subject of appeal on June 17, 2020. [11] The Appellants were represented by the same counsel for their initial hearing before the RPD, the first appeal before the RAD, and the de novo hearing before the RPD. They are now represented by a different counsel before the RAD. Although they gave notice to the previous counsel that they intend to present allegations of inadequate representation, the latter did not respond. NEW EVIDENCE The evidence presented by the Appellants is accepted [12] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [13] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.2 [14] The Appellants submit the following for consideration as new evidence before the RAD: New Evidence Summary Chart No. AR/ R. 29 Page # Description Document Date Pre or Post-Dates RPD decision Y/N p.no. Type of document, author, title and name of publication (if applicable) Day-month-year Pre-dates/post-dates 1) N 7 / 77 An affidavit from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2020 Post-dates 2) N 10, 26-30 A communication to XXXX XXXX XXXX former counsel in which allegations of incompetence of counsel were detailed, in addition to the proof of receipt of this communication XXXX XXXX XXXX 2020 Post-dates 3) N 15 - 25 The new evidence record from the Appellant's first RAD appeal, containing: * An affidavit of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2017, p. 15; * a letter from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX 2017, p. 20; * a letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2017, p. 21, * a letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2017, p. 23; * a letter from XXXX XXXX XXXX XXXX MD documenting XXXX XXXX XXXX wounds that he sustained during torture, XXXX XXXX. 2018, p. 25; XXXX XXXX 2017 - XXXX XXXX 2018 Pre-dates 4) N (p.56) An excerpt from the Appellants' memorandum from the first RAD record ? Pre-dates 5) N 13-14 A Chadian summons addressed to Mr.XXXX XXXX XXXX XXXX XXXX and delivered to his cousin XXXX XXXX XXXX; XXXX XXXX XXXX 2018 Pre-dates 6) N 15 A letter from XXXX XXXX XXXX XXXX XXXX XXXX cousin XXXX XXXX XXXX XXXX XXXX XXXX 2017 Pre-dates 7) N An email exchange with the Appellants' former counsel regarding a broken link to a facebook video XXXX XXXX XXXX 2019 Pre-dates 8) N 33 An affidavit of XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2020 Post-dates 9) N 32 The consolidated list of documents from the Appellants' first RPD hearing 26 Jan. 2017 Pre-dates 10) N 37 An email exchange between the Appellant's current counsel and XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2020 Post-dates 11) N 39-41 A XXXX XXXX 2017 FACT press release from XXXX XXXX website listing the email address XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2017 Pre-dates 12) N 42-46 Facebook posts from XXXX XXXX XXXX brother's Facebook account (with translations) ? ? 13) N 49 A letter from XXXX XXXX XXXX used in XXXX XXXX XXXX brother's refugee claim in France XXXX XXXX XXXX 2011 Pre-dates 14) N 50 A letter from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX confirming XXXX XXXX XXXX brother was placed under the office's protection XXXX XXXX 2012 Pre-dates [15] Given that the Appellants establish, by way of affidavit, that they provided this evidence to their previous counsel, that this counsel did not submit this evidence, that previous counsel has not responded to allegations of inadequate representation by failing to submit this evidence, along with the fact that they include copies of correspondence between previous counsel and them whereby they forward some of this evidence, I find that the Appellants have established that could not reasonably have been expected, in the circumstances, to bring this new evidence to the RPD before the decision. I find no reason to doubt the credibility of this new evidence. The new evidence is clearly relevant as it serves to establish the public political of the brother of the Principal Appellant, which cased the agents of persecution to impute political opinions on the Principal Appellant. For these reasons, I accept all of the above as new evidence before the RAD. However, I reject the request that a hearing be held before the RAD. ANALYSIS [16] My role is to look at all the evidence and decide if the RPD made the correct decision.3 [17] Although I did note minor errors in the RPD decision, I found no significant error in the RPD decision, based on the evidence it had before it. I find it unnecessary to address the Appellants allegations that the RPD erred based on the evidence that it had before it, which I do not find to be determinative of the appeal since, after an independent review of all the evidence that is now before me, I find that the Appellants are credible. [18] They have established, based on the new evidence, that the Principal Appellant's brother was active in various political opposition parties since 2014, that for that reason, he was granted asylum in France and that he continues to be vocal about his political opinions which are contrary to the government of Chad. [19] The Principal Appellant established that he was tortured while in Chad, in 2015, because of his brother's political involvement, based on his credible and uncontradicted testimony in that regard and medical evidence which he submitted. [20] I do not find that his erroneous oral and written testimony, as to which political opposition party his brother belonged to, in any way impugns the Principal Appellant's credibility, given that he lived for several years in Saudi Arabia while his brother lived in France, and that he never took much interest in discussing politics when his brother visited him. According to his testimony, he knew little about his brother's political activities even when he was interrogated under torture in early 2015. It stands to reason that while being questioned under torture, he was in no position to ask his oppressors specifically the details as to which political party his brother is accused of working for. [21] It is perfectly plausible that almost two years later, when he prepared his asylum claim, he assumed that his brother had always been a militant of the FACT party, given the important position of his brother, as its treasurer, had by then. Considering the distance that separated the two, he may very well, in good faith, have not considered asking if all of his brother's political opposition activities had always been with the same party. [22] After the first negative decision of the RPD, he realized that the FACT did not yet exist when he was tortured, and further queried his brother to clear up this incongruency. From then on, and before the first review of the RAD, he diligently gathered evidence to clear up and document what he had previously misunderstood. [23] According to his affidavit, he provided his counsel, at the time, with all of the corroborating evidence he relied on her to present it, in a timely and appropriate manner, at the de novo hearing, which she did not do. In the absence of any reply by his former counsel to these accusations, however good her reputation and experience, I must conclude that this is true. [24] He established that authorities still have an interest in questioning him, by providing copies of summons that were left with his relatives. [25] All of this consistent and uncontested evidence, leads me to conclude, on the balance of probabilities, that the Appellants are generally credible. Application of section 96 of the Immigration and Refugee Protection Act (IRPA) [26] Given the evidence that contrary political opinions were imputed against him when he was questioned by authorities, and that he was tortured, along with the evidence, that authorities are still looking for him, I find that he has established a well-founded prospective fear of persecution because of imputed political opinions, should he return to his country today. [27] With regard to the Associate Appellants, they have a well-founded prospective fear of being persecuted, because they belong to the social group of his immediate family. Indeed, authorities who seek to find the Principal Appellant may very well seek to persecute them in an attempt to have them disclose his whereabouts or even to pressure him to surrender himself to them. [28] I find that there is clear and convincing evidence that the state would not protect them, since the agents of persecution are state authorities. Since the state has full control over its borders and the entire country, I find that there exists no place where they may establish themselves to be safe from persecution. In such circumstances, it is not necessary for me to examine the second prong of the Internal Flight Alternative (IFA) test. [29] In light of the new evidence, I find that the Appellants are credible, that the RPD conclusion is erroneous, and that the Appellants have established that they are Convention refugees. CONCLUSION [30] The appeal is allowed. I substitute my own decision that the Appellants are Convention refugees. (signed) Michel Colin Me Michel Colin March 16, 2021 Date MC/cl 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, s.110(4). 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC0-09371 MC0-09372 / MC0-09373 / MC0-09374 MC0-09375 RAD.25.02 (January, 2020) Disponible en français 2 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