MB6-06193

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 File No. / No de dossier de la SAR : MB6-06193 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX née XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX née XXXX) Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision March 26, 2018 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the Respondent Me Sabine Venturelli Conseil de l'intimée Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] Ms. XXXX née XXXX XXXX XXXX, a.k.a. XXXX XXXX XXXX née XXXX, the appellant, a citizen of the Republic of the Congo (Congo) is appealing against the decision of the Refugee Protection Division (RPD). She is filing evidence, but is not requesting that a hearing be held. She is submitting that the RPD erred in fact and in law, that its reasons were unreasonable and not based on the evidence. [2] Under section 111 of the Immigration and Refugee Protection Act (IRPA) the Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD's determination. I. BACKGROUND A. Summary of alleged facts [3] In her Basis of Claim Form (BOC Form), the appellant states that, in her country, she was a supporter of General Mokoko, an effigy of whom she had placed in front of her home, and that she attended the meetings that he facilitated during presidential campaigns. She also states that, on April 21, 2016, three armed individuals came to search her home, accusing her of having pamphlets encouraging the public to push back violently against the current government. They arrested her and brought her to a police station where she was subjected to a brutal interrogation. [4] The appellant states that she was detained for 48 hours and that, before placing her in the cell, the men kicked her violently in the stomach and in the head and then searched her, touched her everywhere, raped her, and demanded US$1,000 for her release. Later, on April 25, 2016, she had surgery and lost XXXX XXXX. [5] In her BOC Form, the appellant states that, on April 29, 2016, the militias working for Denis Sassou Nguesso shot at the walls of her home, accusing her of having housed Ntoumi's Ninjas in her home. She also states that the militia members broke three doors of her home, stole anything that appeared valuable in the house and took two boys who were living with her at the time, whom she still had not heard any news of, that is, the two younger brothers of a friend who lived in France. [6] In her BOC Form, the appellant states that, the night of April 29, 2016, she went to live at the home of a friend XXXX kilometres from Brazzaville. On XXXX XXXX, 2016, she had to leave the country quickly and, the following day, she arrived in Canada.1 [7] Aside from her BOC Form, the appellant, then known as the claimant, submitted documents as evidence before the RPD.2 B. Intervention of the Minister of Immigration, Refugees and Immigration (the Minister) [8] The Minister intervened before the RPD and submitted a series of documents3 as evidence. [9] In his Notice of Intent to Intervene, the Minister submits that the claimant's credibility was undermined by inconsistencies and contradictions, particularly the fact that the stamps in her passport seem to show that she was absent from Congo during the period in question in the allegations.4 C. RPD decision [10] The hearing before the RPD was held on July 25, 2016, and the decision to reject the refugee protection claim was rendered on September 22, 2016, because the RPD found that the claimant was not credible. [11] The RPD first found that the claimant's credibility was heavily undermined by the lack of evidence regarding her absence from Congo at the time of the alleged incidents of persecution, giving more weight to the stamps appearing in her passport that clearly establish that she was in Ethiopia from April 20 to May 2, 2016. [12] The RPD then concluded that because the claimant did not claim refugee protection at the port of entry, her behaviour did not support her subjective fear of persecution, and her credibility was undermined. [13] The RPD was then of the opinion that the claimant failed to establish, on a balance of probabilities, that she was a member of the opposition movement in Congo or that she supported General Mokoko.5 II. GROUNDS OF APPEAL AND DECISION SOUGHT [14] In her memorandum, the appellant submits that the RPD erred in fact and in law as its reasons were unreasonable and not based on the evidence. [15] More specifically, the appellant submits that the RPD did not clearly establish the relevant points of the case or the amount of probative value to be attributed and, as a result, its decision lacks consistency and intelligibility. She submits that the RPD gave more weight to the stamps appearing in her passport, even though she explained that Addis Ababa was a transit point for her before entering Congo, and that the officers did not stamp her passport once she arrived in Congo, her final destination. She adds that she testified before the RPD that she left Brazzaville on XXXX XXXX, with a borrowed passport, and that she changed her passport in Ethiopia and later arrived in Canada. [16] The appellant also submits that the RPD did not attribute any probative value to the medical certificate, even though it attests to the violence that she experienced. In her opinion, the RPD's actions were therefore clearly unreasonable when it set aside that evidence, which corroborates her testimony on essential facts at the heart of her refugee protection claim. [17] With respect to the RPD's conclusions regarding the fact that she received a payment from her country's public service after being detained, and the fact that she was able to leave her country even though people wanted to attack her, the appellant submits that her explanations fell on the RPD's deaf ears, and that it then demonstrated attention to detail with a view to undermining her credibility, rather than face the reality of the alleged facts. [18] Finally, with regard to the delay in filing her refugee protection claim, the appellant submits that it is not an excessive delay and that it is plausible for a foreigner, like her, not to be comfortable with the immigration process in Canada, even though it is true that she has travelled in the past. She emphasized that she was fleeing at that time, and that she was facing trauma from the violence she experienced, in addition to the shock of having to abruptly leave her country and her family. [19] In conclusion, the appellant is asking the RAD to allow her appeal, set aside the RPD's determination and substitute its own determination or refer the matter to a differently constituted panel for a hearing de novo.6 III. EVIDENCE PRESENTED ON APPEAL AND HEARING BEFORE THE RAD A. Documents presented on appeal [20] In her appeal record, the appellant included four documents.7 [21] In her memorandum, she indicates that she was submitting as new evidence an affidavit from her nephew dated October 2, 2016, which states that he is the person who took the photographs of her burned house.8 She indicates that a letter from her husband dated October 4, 2016, constitutes new evidence because it was not available at the time of the hearing.9 She refers to a second letter from her husband, dated November 4, 2016, indicating that she would submit it as new evidence.10 Finally, she refers to a letter from one of her cousins dated October 21, 2016, indicating that it adds to the objective evidence regarding the state of violence that prevails in Congo.11 [22] In Singh, the Federal Court of Appeal finds that the explicit conditions set out in subsection 110(4) of the IRPA are inescapable, have to be met and leave no room for discretion on the part of the RAD.12 It also finds that the criteria set out in the case law with respect to the credibility and relevance of evidence arise implicitly from the wording of the subsection in question.13 In short, there is a clear legislative intention to not authorize any new evidence on appeal before the RAD other than in very specific and carefully defined circumstances, as the role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors of law or mixed errors of fact and law to be corrected.14 [23] I am of the opinion that the documents presented in the appellant's memorandum do not satisfy the conditions of subsection 110(4) of the IRPA. Here is why. i) Affidavit of the appellant's nephew [24] The first document is dated October 2, 2016, and was signed in Brazzaville by someone named XXXX XXXX. The event to which that document refers, namely, the taking of the photographs of the appellant's home that was allegedly burned, occurred prior to the hearing before the RPD. Consequently, that document does not meet the first condition of subsection 110(4). [25] I note that that document, similar to the appellant's memorandum, does not present any detailed submissions establishing why that evidence was not reasonably available or why the appellant could not reasonably have been expected to have presented it before the RPD. Consequently, that document does not satisfy the two other conditions explicitly set out in subsection 110(4) of the IRPA, and it is not admissible as evidence on appeal. ii) Two letters from the appellant's husband [26] The two letters, respectively dated October 4, 2016 and November 4, 2016, refer to incidents that occurred after the RPD rendered its decision. As a result, the two letters meet the conditions explicitly set out in subsection 110(4). [27] With regard to the first, it seems to have been written by the appellant's husband, its signatory indicating that he has just made it to Addis Ababa after a stay in Brazzaville, which did not go well as he was summoned by the ministry of foreign affairs and asked to report on the appellant's activities. The signatory of the letter also indicates that he was surprised by those incidents because the situation goes back a number of months. He also states that, if he wants to keep his job, he has to leave his spouse. The signatory presents himself as XXXX. The signature itself is illegible. [28] That letter does not contain any declaration of truthfulness, and consequently the presumption of truthfulness cannot apply to that document.15 Moreover, the letter is not accompanied by any document establishing the identity of its signatory. It must be pointed out here that the appellant's husband has important duties as the Ambassador of Congo to Ethiopia,16 and it can be presumed that he is aware of the importance attributed to documents that he signs. After carefully reading the letter and taking into account its source and the circumstances in which it appeared, I find that it is not credible.17 [29] With regard to the second letter, which is handwritten, it also seems to have been authored by the appellant's husband, its signatory indicating that he is in Brazzaville on instructions from his superiors, who are demanding that he file for divorce. The first name XXXX can be distinguished in the signature. The header also includes an address that partially corresponds to that given by the appellant in the IMM 5669 form.18 [30] That letter does not contain any declaration of truthfulness and it is not accompanied by any document establishing the identity of its signatory. After carefully reading the letter and taking into account its source and the circumstances in which it appeared, I find that it is no more credible than the first letter. iii) Letter from the appellant's cousin [31] That letter, dated October 21, 2016, refers to events that occurred after the RPD rendered its decision. Therefore, it meets the conditions explicitly set out in subsection 110(4). [32] The letter seems to have been written by a cousin of the appellant: its signatory appears to be her cousin XXXX and the header specifies her name, XXXX, and her location at the time it was written. The letter, however, does not contain any declaration of truthfulness and is not accompanied by any document establishing the identity of its signatory. After carefully reading the letter and taking into account its source and the circumstances in which it appeared, I find that it is not credible. B. Hearing before the RAD [33] In a written statement, the appellant's lawyer indicates that they are not requesting that a hearing be held before the RAD. Regardless, according to the case law, the onus rests with the RAD to determine whether the criteria set out in subsection 110(6) of the IRPA have been met.19 [34] One of the determinative criteria set out in subsection 110(6) of the IRPA is that one of the pieces of evidence submitted on appeal be found admissible. However, the documents presented by the appellant were not found admissible. Consequently, there is no new documentary evidence to analyze as part of a hearing before the RAD.20 IV. APPLICABLE STANDARD OF REVIEW AND ANALYSIS OF THE APPEAL [35] The RAD's role is to review RPD decisions by applying the correctness standard of review after conducting its own analysis of the record to determine whether the RPD erred, as the appellant submitted. The exception to that rule involves RPD findings when assessing the credibility or the weight to be given to oral evidence, in situations where the RPD enjoys a meaningful advantage, to which the RAD must apply the reasonableness standard modified to its particular context.21 [36] Having conducted my own analysis of the record, I conclude that the RPD did not enjoy a meaningful advantage and that the correctness standard must be applied. [37] Having applied that standard of review, I am of the opinion that the appellant's arguments must be dismissed. Not only did the RPD not err in assessing the appellant's credibility, but it had reason not to attribute any probative value to certain documents submitted as evidence. Here is why. A. Assessment of credibility [38] It is up to the applicant to establish, on a balance of probabilities, the facts on which they based their application.22The RPD and the RAD are entitled to make findings based on implausibilities, inconsistencies and omissions. Plausibility findings should be only made in the clearest of cases. A general finding of a lack of credibility based on inconsistencies can extend to all relevant evidence provided by an applicant.23 It is the entirety of the evidence available that must be assessed, and RPD and RAD members must apply common sense and human experience.24 [39] After conducting my own analysis of the record, I consider that the determinative issue is whether the claimant was in Congo between April 20 and May 2, 2016. [40] It should be pointed out here that the Minister presented documents and asked the RPD to reject the refugee protection claim as, in its opinion, the claimant was not credible. In that regard, the Minister indicated that she had failed to state that, in the past, she resided in Ethiopia, that she benefitted from the diplomatic immunity of the Congolese authorities and that the analysis of the information contained in her passport makes it possible to infer that she was not in Congo between April 20 and May 2, 2016. [41] In its reasons for decision, the RPD clearly demonstrates that it listened to and took into account the claimant's testimony. That said, it weighed the evidence and finally concluded that the explanation that the claimant could not find the ticket that could have established that she had indeed travelled to Congo during that period, rather than staying in Ethiopia, was not reasonable. [42] Without that evidence, the RPD found that the claimant's credibility was severely undermined and, as a result, gave more weight to the stamps appearing in the claimant's one and only passport, stamps that establish-unequivocally-her presence in Ethiopia from April 20 to May 2, 2016.25 [43] I am of the opinion that the RPD was justified in coming to such a conclusion. It should be pointed out here that, even if explanations given by a claimant regarding evidence can be plausible, the RPD is entitled to find otherwise and reject the claim based on implausibilities.26 Contrary to the appellant's arguments, the RPD did not err. I also find that that finding undermines the claimant's overall credibility. B. The little weight attributed to certain documents [44] Now the appellant submits that the RPD erred in law by not taking into account all the evidence, particularly the medical certificate that, according to her, demonstrates that she was indeed the victim of sexual violence. I am of the opinion that these arguments have no merit. [45] Actually, the RPD took into account photographs of demonstrations and of a ransacked house submitted as evidence,27 as well as the medical report dated April 26, 2016,28 but it decided not to attribute any probative value to them because of the source of the photographs of the demonstrations, namely, the Internet, and because that evidence provided information about facts that it did not find credible in light of its previous conclusions.29 [46] The case law is very clear on that topic. Justice de Montigny, then a member of the Federal Court, writes: Despite the RPD's duty to consider all of the evidence, the finding that a claimant has no credibility may extend to all of the evidence he or she submits.... In dismissing evidence that merely repeated a version of the facts considered to be not very credible and improbable, the RPD did not err or breach the general rule that all evidence must be considered before ruling on the credibility of an applicant's account. 30 [47] Furthermore, the medical certificate contains differences compared to the claimant's BOC Form. In her BOC Form, the claimant writes that, on April 25, 2016, after receiving kicks to the stomach and after the gang rapes that she experienced, she underwent surgery and lost XXXX XXXX.31 However, the medical report indicates that the claimant visited Dr. XXXX XXXX at about 8:00 a.m. on April 24, 2016, and she told him that she was gang raped at 7:00 p.m. on April 23, 2016. He also indicates that the claimant showed signs of sexual assault and that she was hospitalized on April 24, 2016, for therapeutic and psychological care. However, the medical certificate does not refer to an operation or the loss of XXXX XXXX. Furthermore, it also does not corroborate the claimant's statements that she was the victim of a number of gang rapes. I am of the opinion that the differences between the content of the BOC Form and that of her medical certificate call into question the authenticity of the latter. C. Taking into account Guideline 4 [48] The case law establishes that RPD and RAD members must consider Guideline 432 in appropriate cases. It is incumbent on RPD and RAD members to exhibit the knowledge required and apply it in an understanding and sensitive manner when deciding issues of violence against women.33 Although the RPD, like the RAD, must be particularly sensitive to the difficulty that certain women who are victims of or who fear becoming victims of violence have when giving testimony, Guideline 4 is not intended to serve as a cure for all deficiencies in the refugee protection claim or in the documents submitted in evidence.34 [49] In this case, taking into account the claimant's major credibility problems and the differences between her BOC Form and the content of the medical report, I am of the opinion that it is not an appropriate case in which to apply Guideline 4. D. Delay in claiming refugee protection [50] With regard to the delay in claiming refugee protection, it is not necessary for me to analyze the appellant's argument given that the presence or absence of a subjective fear is not determinative in refugee legislation.35 [51] In other words, even if the appellant's explanations on that topic were considered reasonable, that would not change the previous findings about her credibility, which involve her objective fear of being persecuted and which are, in my opinion, determinative and justify the decision to reject the refugee protection claim. CONCLUSION [52] For these reasons, I confirm the determination of the RPD, namely, that Ms. XXXX née XXXX XXXX XXXX a.k.a XXXX XXXX XXXX née XXXX is not a "Convention refugee" under section 96 or a "person in need of protection" under section 97 of the IRPA. [53] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette March 26, 2018 Date IRB translation Original language: French 1 The appellant's BOC Form, pages 12 to 27 of the RPD record. 2 Read the consolidated list of documents that is reproduced at page 28 of the RPD record. The documents submitted as evidence by the claimant are reproduced at pages 129 to 193 of the RPD record. 3 The documents submitted as evidence by the Minister are reproduced at pages 197 to 238 of the RPD record. 4 The Notice of Intent to Intervene is reproduced at pages 195 and 196 of the RPD record. 5 RPD's reasons and decision, September 22, 2016, pages 3 to 11 of the RPD record. 6 Appellant's memorandum, September 20, 2017, pages 135 to 142 of the appeal record. 7 The documents in question were reproduced after the appeal memorandum and were not numbered. The originals of those documents were received by the Immigration and Refugee Board (IRB) on March 15, 2018. 8 Appellant's memorandum, November 6, 2016, paragraph 41, page 19 of the appeal record. 9 Ibid., paragraph 61, page 23 of the appeal record. 10 Ibid., paragraph 63, page 23 of the appeal record. 11 Ibid., paragraphs 74, 75 and 76, pages 25 and 26 of the appeal record. 12 Canada (Citizenship and Immigration) v. Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, paragraphs 38 to 51. 13 Ibid., paragraphs 34 and 35. 14 Ibid., paragraph 54. 15 Sangmo v. Canada (Minister of Citizenship and Immigration), No. IMM-2749-17, Campbell, January 29, 2018; 2018 FC 96, paragraph 6. 16 As indicated in the document reproduced at page 211 of the RPD record. 17 Singh, supra, footnote 12, paragraph 38, where excerpts from the decision rendered in Raza are reproduced. 18 In response to question 12 in that form, which is reproduced at pages 42 to 45 of the RPD record. 19 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018; 2018 FC 147, paragraph 18. 20 Borubaev v. Canada (Minister of Citizenship and Immigration), No. IMM-3026-17, Diner, February 5, 2018; 2018 FC 125, paragraph 21, referring to Belek v. Canada (Minister of Citizenship and Immigration), No. IMM-3459-16, Diner, February 16, 2017; 2017 FC 196, paragraph 20. 21 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. X (Re), 2017 CanLII 33034 (CA IRB). 22 Arreaga v. Canada (Minister of Citizenship and Immigration), No. IMM-996-13, Noël, September 25, 2013; 2013 FC 977, paragraph 45. 23 Ikeme v. Canada (Minister of Citizenship and Immigration), No. IMM-2594-17, McDonald, January 10, 2018; 2018 FC 21, paragraphs 19 and 20. 24 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, paragraphs 22 and 27. 25 RPD's reasons and decision, paragraphs 17 to 24, pages 6, 7 and 8 of the RPD record. 26 Ikeme, supra, footnote 23, paragraph 20. 27 These photographs are reproduced at pages 132 to 142, 146 and 147, 166 to 170 and 172 to 176 of the RPD record. 28 The medical certificate is reproduced at page 177 of the RPD record. 29 RPD's reasons and decision, paragraphs 32 to 35, pages 9 and 10 of the RPD record. 30 Nijjer v. Canada (Minister of Citizenship and Immigration), No. IMM-340-09, de Montigny, December 9, 2009; 2009 FC 1259, paragraph 26. 31 Appellant's BOC Form, page 15 of the RPD record. 32 IRB, Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, effective November 13, 1996. The Guideline is available on the IRB website. 33 Aziza Mahamat Nour v. Canada (Minister of Citizenship and Immigration), No. IMM-8278-11, Scott, June 25, 2012; 2012 FC 805, at paragraph 37. Higbogun v. Canada (Minister of Citizenship and Immigration), No. IMM-2921-09, Russell, April 23, 2010; 2010 FC 445, at paragraphs 55 to 58. 34 Manege v. Canada (Minister of Citizenship and Immigration), No. IMM-4966-13, Kane, April 17, 2014; 2014 FC 374, paragraphs 29 to 32. 35 Osinowo v. Canada (Minister of Citizenship and Immigration), No. IMM-2056-17, Diner, March 12, 2018; 2018 FC 284, paragraphs 21 and 22. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-04774 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB6-06193 11