MC0-09836

RAD File No. / No de dossier de la SAR : MC0-09836 MC0-09837 / MC0-09838 / MC0-09839 MC0-09840 / MC0-09841 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision February 10, 2021 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the persons who are the subject of the appeal Me Hervé Ndedi Penda Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] Ms. XXXX, you are acting as the designated representative for your minor children. You and your children are citizens of the Democratic Republic of the Congo (DRC). You stated that you fear being persecuted in your country by reason of your political opinion because in April 2017, you were arrested, beaten, and tortured by police after you participated in peaceful march organized by the opposition parties.1 [2] The Refugee Protection Division (RPD) rejected your refugee protection claims after concluding that, although you may have been a member of the UDPS political party, you did not demonstrate that your profile is one that is likely to be of interest to the Congolese authorities given that you did not credibly establish that you had difficulties in the past and did not establish a serious possibility of future persecution in light of the most recent documentary evidence.2 [3] On appeal, you submit that the RPD erred in analyzing the issue of your children having Senegalese nationality and in assessing your credibility.3 [4] After reviewing your record, I conclude that the RPD did not commit the errors you allege. In light of that conclusion, your appeal is dismissed. ANALYSIS OF THE APPEAL [5] The role of the Refugee Appeal Division (RAD) is not to conduct a de novo consideration of a claim for refugee protection, but rather to determine whether the RPD erred as alleged.4 I have conducted an independent assessment of the record. In my opinion, the correctness standard of review must be applied.5 A. The errors you allege the Refugee Protection Division made [6] The Refugee Appeal Division Rules stipulate that the person who is the subject of the appeal must specify: i) the errors that are the grounds of the appeal and ii) where the errors are located in the written reasons for the RPD's decision that the appellant is appealing or in the transcript or in any recording of the hearing.6 [7] In your memorandum, you submit the following: - With respect to your children's Senegalese nationality, the RPD erred in law by stating at the hearing that they have this nationality by operation of law, whereas according to the law, they simply cannot be Senegalese, meaning that it was unnecessary to assess this issue on a balance of probabilities.7 - With respect to the news article, C-3, the RPD drew a negative inference because you could not explain the basic premise of the appeal before the Congolese supreme court, which constitutes a palpable error.8 - With respect to your credibility, the RPD did not consider all of the evidence provided or your explanations, limiting itself to noting clear contradictions here and there and failing to conduct an analysis of the coherent and credible facts that form the basis of your refugee protection claim.9 B. According to my analysis, the Refugee Protection Division did not commit the errors you allege [8] Having conducted an independent analysis of your record, I conclude that the RPD did not commit the errors you allege. Here is why. With respect to your children's citizenship [9] In its decision, given the documentary evidence on citizenship in Senegal, the RPD concluded that it was more likely than not that your partner has never been given Senegalese citizenship and he was therefore unable to transfer it to your children.10 [10] Had the RPD concluded, on a balance of probabilities, the facts were such that your spouse and therefore your children did not have Senegalese citizenship, it would not change the result of its decision. According to my independent analysis of the decision, there is no reason to set it aside simply because the RPD should instead have assessed the issue in light of Senegalese law alone. With respect to your credibility [11] The RPD also concluded that the determinative issue was your credibility11 and that it was undermined for several reasons: - because document C-3 was fraudulent;12 - because you were not credible when you stated that you decided to leave the DRC because of the incident on November 27, 2018, whereas you had purchased airline tickets on XXXX XXXX, 2018;13 - because you failed to state in your written account that you had fled your residence after the incidents in April 2017;14 - because there was a contradiction in your testimony about the police coming to your residence after the protest on November 27, 2018;15 - because your testimony was vague and evasive.16 [12] When a claimant swears that their allegations are true, they are presumed to be telling the truth. However, this presumption is rebuttable when the evidence is inconsistent with the testimony or when the RPD is not satisfied with the explanations provided for those inconsistencies.17 The RPD can draw negative inferences based on implausibilities, inconsistencies or omissions. It is the entirety of the evidence that must be assessed.18 [13] After analyzing your record, I am of the opinion that the RPD did not commit any errors in explaining why your credibility was undermined. In other words, I am of the opinion that the various elements rightfully rebutted the presumption of the truthfulness of your allegations. [14] On this point, I would like to add that the RPD relied not only on your explanations about the appeal to the supreme court to conclude that document C-3 was fraudulent. According to the article you submitted in evidence, you were allegedly arrested for the first time in January 2015, you then supposedly disappeared from sight and, after much searching, in April 2017, you were supposedly found at the national intelligence service.19 Before the RPD, you stated that you did not know why this article states that you were arrested in January 2015. After assessing your explanation, the RPD concluded that it was not reasonable, that your testimony was evasive, and it concluded that you had attempted to mislead it, which significantly undermined your credibility. According to my analysis, the RPD did not commit any error. [15] Another important aspect is the fact that you failed to include in your BOC Form that you had fled your home after the incidents in April 2017. Your explanation for that omission was that you only included key information in your written account. With all due respect, this explanation is not acceptable considering that you signed the form on January 19, 2019,20 and considering that at the start of the RPD hearing, you stated that the information included in the form was true, complete and correct. [16] With respect to the fact that the police came to your residence after the protest on November 27, 2018, it is clear that if you were no longer at your home at that time, it is contradictory that the police spoke with you directly at that location. As for your explanation to the effect that it was an error in your written account, I am of the opinion that this is not acceptable, for the same reason as the one mentioned in the previous paragraph. [17] Furthermore, in its decision, the RPD assessed the documents submitted in evidence-with the exception of the document it concluded was fraudulent-but it was of the opinion that they were insufficient to establish that, in the past, you were persecuted by reason of your political opinion.21 [18] The documentary evidence is not assessed independently of the refugee protection claim as a whole. Given that the RPD found that you were not credible, it could also question the credibility of the documentary evidence presented in support of your refugee protection claim.22 The weight of evidence is the persuasiveness of some evidence in comparison with other evidence.23 According to my independent analysis of the record, the RPD did not err in giving no weight or probative value to these documents and in its explanations. CONCLUSION [19] For these reasons, I confirm the RPD determination to the effect that you and your children have not established a well-founded fear of persecution under section 96 or that you would face a risk within the meaning of section 97 of the IRPA if you were to return to the DRC. [20] Your appeal is dismissed. (signed) Alain Bissonnette Me Alain Bissonnette February 10, 2021 Date IRB translation Original language: French 1 Your Basis of Claim Forms (BOC Forms) are reproduced on pages 14 to 73, the documents you submitted in evidence before the Refugee Protection Division (RPD) on pages 247 to 279, and your counsel's written submissions on pages 283, 284 and 285 of the scanned version on the RPD record. 2 RPD Reasons and Decision, September 23, 2020, pages 5 to 13 of the scanned version of the RPD record. 3 Your memorandum, November 12, 2020, pages 14 to 20 of the scanned version of the appeal record. 4 Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. Kanawati v. Canada (Minister of Citizenship and Immigration), No. IMM-6486-18, Norris, January 3, 2020; 2020 FC 12, paragraphs 23 and 24. 5 Canada (Minister of Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 6 Refugee Appeal Division Rules, SOR/2012-257, subparagraph 3(3)(g)(ii). 7 Your memorandum, supra footnote 3, paragraphs 7 to 17. 8 Ibid., paragraphs 19 to 25. 9 Ibid., paragraphs 26 to 30. 10 RPD Reasons and Decision, supra footnote 2, paragraph 8. 11 Ibid., paragraph 9. 12 Ibid., paragraphs 10 to 14. 13 Ibid., paragraph 15. 14 Ibid., paragraph 16. 15 Ibid., paragraph 17. 16 Ibid., paragraph 18. 17 Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, paragraph 21. 18 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, paragraphs 22 and 27. 19 This document is reproduced at page 251 of the scanned version of the RPD record. 20 Your BOC Form, pages 14 to 23 of the scanned version of the RPD record. 21 RPD Reasons and Decision, supra footnote 2, paragraphs 19 and 20. 22 Ogaulu v. Canada (Minister of Citizenship and Immigration), No. IMM-3862-18, McDonald, April 30, 2019; 2019 FC 547, paragraph 26. Jean v. Canada (Minister of Citizenship and Immigration), No. IMM-836-19, Mosley, September 3, 2019; 2019 FC 1127, paragraph 23. 23 Magonza v. Canada (Minister of Citizenship and Immigration), No. IMM-1506-18, Grammond, January 7, 2019; 2019 FC 14, paragraphs 27 to 31. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR: MC0-09836 MC0-09837 / MC0-09838 / MC0-09839 MC0-09840 / MC0-09841 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