MB5-06094

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 : MB5-06094 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision April 28, 2017 Date de la décision Panel Me Marie-Louise Côté Tribunal Counsel for the person who is the subject of the appeal Me Julie Chamagne Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX, is appealing against the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection, determining that he is neither a "Convention refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant has not filed new evidence within the meaning of subsection 110(4) of the IRPA. He is not asking the Refugee Appeal Division (RAD) to hold a hearing under subsection 110(6) of the IRPA. [3] The appellant is asking the RAD to set aside the RPD's determination and substitute a determination that should have been made, or, alternatively, to refer the matter back to the RPD for re-determination. [4] The Minister did not intervene in the appeal. DETERMINATION OF THE APPEAL [5] Pursuant to subsection 111(1) of the IRPA, the RAD confirms the RPD's determination, namely, that XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. [6] The appeal is dismissed. FACTUAL BACKGROUND [7] The appellant is a citizen of Burkina Faso. Since 20XXXX, he has been an active member of the Congrès pour la démocratie et le progrès (CDP) [congress for democracy and progress] and a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. In addition, in 2009, he also voluntarily took part in XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, under the leadership of the CDP mayor. [8] On October 31, 2014, while the appellant was at the local CDP headquarters in the arrondissement of Ouagadougou along with other members, he was assaulted and injured by demonstrators, who looted material and set fire to the premises during the popular uprising against the plan to amend the Constitution that would have enabled President Blaise Compaoré to run in the next presidential elections. Some 50 demonstrators then went to his home with bottles and matches and tried to break down the main door while he hid in his room, but neighbours managed to convince them to leave. [9] On November 1, 2014, after receiving treatment at a medical clinic, the appellant went to his parents' native village, where he stayed for a week until things settled down. Then, during the night of XXXX XXXX XXXX XXXX, 2014, his XXXX store was ransacked by unknown persons. The appellant left his country to come to Canada on XXXX XXXX, 2015, and claimed refugee protection on July 14, 2015. IMPUGNED DECISION [10] The RPD rejected the appellant's refugee protection claim on November 24, 2015, having determined that the appellant was not a credible witness, because of a number of contradictions and inconsistencies noted in the case. APPELLANT'S ALLEGATIONS [11] The appellant argues that the RPD's decision is wrong, because there was a breach of natural justice and because the member made erroneous findings of fact without taking into account the objective evidence on Burkina Faso and the personal documentation corroborating the appellant's membership in the CDP. SCOPE OF THE APPEAL [12] Subsection 111(1) of the IRPA provides that the RAD may confirm the impugned determination, set it aside and substitute a determination that, in its opinion, should have been made, or refer the matter to the RPD, giving the directions that it considers appropriate. The IRPA does not set out the standard of review to be applied by the RAD when reviewing RPD decisions. [13] The appellant's memorandum, dated February 1, 2016, is based on the Federal Court's decision in Huruglica.1 The appellant argues that the RAD is required to conduct a hybrid appeal by reviewing all aspects of the RPD's decision and by coming to its own conclusion as to whether the claimant is a Convention refugee or a person in need of protection. He argues that errors of fact do not have to constitute a palpable and overriding error in order for the RAD to intervene in the RPD's decision. [14] In light of the Federal Court of Appeal's decision in Huruglica,2 I find that the RAD must truly serve as an appellate tribunal and conduct its own analysis of the case to determine whether the RPD did indeed err as alleged. It is a matter of conducting, in substance, a reasoned, thorough, comprehensive, and independent review.3 The RAD must apply the correctness standard when reviewing RPD decisions concerning findings of law, of fact or of mixed fact and law, when the credibility of oral testimony is not at issue. It must determine in each case the degree of deference owed to findings of fact or of mixed fact and law that are based on the credibility of oral testimony while also considering whether the RPD had a meaningful advantage. [15] In this case, the panel will show a measure of deference to the RPD's findings if it is of the opinion that the RPD enjoyed a meaningful advantage in assessing the appellant's testimony. ANALYSIS [16] The appellant's arguments raise the following three questions: * Did the RPD breach his right to procedural fairness by rendering its decision without considering post-hearing submissions? * Did the RPD make an erroneous finding of fact without taking into account the objective evidence on Burkina Faso? * Did the RPD make an erroneous finding of fact without taking into account the personal evidence corroborating his membership in the CDP? [17] Having reviewed the entire record and considered the appeal memorandum, I answer in the negative to the three questions raised by the appellant and confirm the RPD's determination for the reasons that follow. I. Breach of procedural fairness [18] The appellant argues that the RPD failed in its duty by not taking into account the written submissions filed after the hearing but before the decision was rendered. He argues that he has no way of knowing whether the RPD considered his written submissions, because they are not at all mentioned in the decision. He argues that the RPD was obliged to acknowledge that it had considered the submissions before deciding to allow or reject them. He submits that the RPD breached the principle of natural justice under which he has the right to be heard and that this constitutes a reviewable error. [19] The relevant facts are as follows. At the end of the hearing held on September 14, 2015, the RPD asked to appellant to make written submissions. The deadline for making them was set for September 25, 2015. On September 30, 2015, five days after the deadline set by the RPD, the appellant mailed written submissions, documents describing the conditions in Burkina Faso, and an envelope containing the original copies of personal documents that had not been seized by Citizenship and Immigration Canada. They were stamped October 2, 2015.4 The appellant did not meet the deadline set by the RPD or apply for an extension. [20] There is no doubt that the member did indeed receive the appellant's written submissions before rendering her decision, because they are in the RPD record. They were also attached to documents, one of which is explicitly mentioned in the reasons for the decision, namely, Exhibit C-13, which is referred to as follows in paragraph 60 of the reasons for the decision: [translation] "(The claimant's counsel sent the document to the panel after the hearing, which was held by videoconference)". The appellant is not contesting that point. I find that the RPD not only received the documents and submissions filed by the appellant, but that it accommodated him by allowing them despite the fact they were filed late. [21] The record and the decision show that the RPD member did indeed see the appellant's written submissions. I find that the RPD had no obligation to explicitly comment on the appellant's written submissions. Furthermore, according to the Federal Court in Ahanin,5 the RPD was not even obliged to consider the late submissions. [22] I do not agree with the appellant's claims, which are based on the Federal Court's decision in Nagulesan,6 because two important factual distinctions must be made. First, the facts in this case are not the same as those in Nagulesan, where documents filed after the hearing were not in the RPD record and where the RPD made no reference to them in its decision. Second, unlike the facts in Nagulesan, the appellant's written submissions do not meet the requirements under the RPD Rules, because they were filed late without being accompanied by an application for an extension. [23] For these reasons, I find that the appellant did not demonstrate that the RPD failed to take his written submissions into account. I conclude that there was no breach of procedural fairness. II. Objective evidence [24] The appellant alleges that, on October 31, 2014, he had been at the local CDP headquarters with other party members when 100 or so unknown demonstrators in the neighbourhood burst in. He was allegedly assaulted and hacked in the hip with a machete until he lost consciousness. The next day, he reportedly sought treatment at a medical clinic. [25] The RPD did not believe that the appellant was assaulted on October 31, 2014. It based its finding on the major contradiction between his testimony and his Basis of Claim Form (BOC Form) concerning a central element of his refugee protection claim, namely, what the appellant and the other CDP members had been doing when the demonstrators arrived to attack them. On the one hand, he testified that 10 or so CDP members had been at the party headquarters to organize a party in anticipation of Blaise Compaoré's victory, with some of them making tea and others cooking rice, while the appellant was playing a board game. On the other hand, in his BOC Form, he states that he and the CDP members were picketing. The RPD found that the appellant's explanations in no way justified this major contradiction, namely, that he and the CDP members had stayed at the local headquarters awaiting the election results and that they had gone inside the headquarters to wait for the election results. [26] The appellant argues that the RPD erred by failing to refer to the objective evidence before it in its reasons. He argues that the documentary evidence in the National Documentation Package on Burkina Faso indicates that there had been widespread attacks on CDP offices in Ouagadougou on October 31, 2014, and that hundreds of people had been injured and killed. He provided the Country Reports on Human Rights Practices for 20147 and Response to Information Request BFA105222.FE8 as examples. [27] The appellant also notes that the RPD's reasons are unclear when they state that the RPD [translation] "does not believe the assault of October 31, 2014", because that could mean that there had not been any attacks in Ouagadougou that day or that the local CPD office had not been attacked or even that only the appellant had not been attacked. [28] I will begin by reiterating the principles derived from the Federal Court's decision in Cepeda-Gutierrez,9 cited by the appellant, namely, that one can infer that the RPD made an erroneous finding of fact because it failed to mention in its reasons certain relevant pieces of evidence on the record. The RPD's reasons are not to be read hypercritically, nor is the RPD required to refer to every piece of evidence before it that is contrary to its findings. However, the obligation to mention evidence increases with the relevance of the evidence in question. [29] In this case, the RPD concluded that it did not believe the assault of October 31, 2014, and that the appellant's credibility was undermined. [30] Contrary to the appellant's claims regarding the lack of clarity of the conclusion drawn by the RPD, which did not believe the assault of October 31, 2014, I find that there is no doubt in reading the decision that the RPD concluded that it did not believe that the appellant had been assaulted on October 31, 2014, which is central to the refugee protection claim. It seems obvious to me that the RPD's finding refers to the appellant's assault. For example, paragraphs 25 and 26 of the reasons indicate that the appellant's alleged assault on October 31, 2014, is a key incident with respect to his refugee protection claim and that there is a major contradiction concerning that assault. [31] Nothing in the RPD's decision suggests that the RPD did not believe that there had been a popular uprising in Ouagadougou on October 31, 2014, or that CPD members had been injured and killed. Because this fact is not disputed, I do not find that the RPD had to cite the objective documentary evidence in this regard. [32] It is well established that the objective documentary evidence on a country does not alone establish the merits of a refugee protection claim.10 The claimant must also demonstrate a nexus between that evidence and their personal circumstances. [33] In this case, the objective evidence does not personally concern the appellant, and nothing in the evidence can be used to corroborate the truthfulness of his allegations regarding his physical presence at the local CDP offices and his assault during the popular uprising of October 31, 2014. [34] Like the RPD, I find that the appellant's credibility is undermined by the major contradiction between his testimony and his BOC Form regarding his description of what he and the CDP members had been doing when they were allegedly attacked by 100 or so demonstrators. It is important to note the fact that the appellant is not contesting that there is a major contradiction in his evidence. [35] Because I find it implausible to confuse preparing tea and rice in anticipation of a party and a board game with picketing, I do not believe that the appellant was at the local CDP headquarters when it was attacked on October 31, 2014. III. Personal evidence [36] The appellant argues that the RPD erred in rejecting numerous pieces of corroborating personal documentation that are of paramount importance in order to determine whether the appellant is a CDP member and whether he fears being persecuted for that reason. [37] The appellant argues that the RPD must not ignore or refuse to give probative value to corroborating evidence solely because it has already found that the claimant is not credible based on his testimony. He cites the Federal Court's decision in Ahmed.11 Documents concerning merchant associations [38] Exhibits C-9 to C-12 and C-14 to C-17, as well as C-19, demonstrate that the appellant sold XXXX XXXX XXXX XXXX XXXX XXXX and that he was a member of several merchant associations. The appellant argues that the RPD erred by failing to mention those documents in its decision. [39] I note that only Exhibit C-19 is mentioned in the RPD's decision. However, I find that the RPD had no obligation to mention the other documents because it drew no conclusions that were contrary to them. The appellant's membership in merchant associations is neither contested by the RPD nor relevant with respect to the merits of his refugee protection claim. Health booklet [40] The RPD gave no probative value to the health booklet submitted under Exhibit C-21, because it did not believe the assault of October 31, 2014. It also noted that the handwriting in the booklet is illegible. [41] The appellant's arguments are as follows:12 [translation] 62. The appellant argues that the member should have examined whether the health card was relevant to her finding that he was not attacked and that she should have taken into account the reasons in determining what he did or did not do. Instead, despite the health card, the member maintained her original finding without providing any explanation, which is separate from the non-credibility finding. 63. In addition, despite the member's finding that the health card also has no value because the doctor's handwriting is illegible, the appellant notes that the dates, stamp and cover page are legible and relevant in themselves. The appellant notes that it is unreasonable to have expected him, having arrived in Canada, to send copies of the pages to the doctor's office in Burkina Faso, asking him to decipher his own handwriting, especially when considerable evidence was submitted. [42] I agree with the appellant that the health booklet must be assessed independently and that a "blanket statement that no probative value was assigned to this evidence because of a negative credibility finding will not suffice."13 That said, the information that is legible in the health booklet indicates that the appellant apparently consulted a doctor on November 1, 4 and 7, 2014, in an office in Ouagadougou, but does not make it possible to establish the nature of his health problems or to conclude that he was the victim of an assault. Consequently, I find that the health booklet does not constitute probative evidence of the appellant having been assaulted on October 31, 2014. [43] Furthermore, I find that the dates mentioned in the health booklet raise an issue of credibility, because they contradict the appellant's statements. On the one hand, in his BOC Form, the appellant states that he visited a medical clinic on November 1, 2014, and that he then fled directly to his parents' native village located 35 kilometres from Ouagadougou, where he stayed a week until things settled down. On the other hand, the health booklet indicates that the appellant went to the Ouagadougou clinic three times, not once. That obvious contradiction is another reason not to give any probative value to the health booklet. Documents concerning CDP membership [44] The documents concerning the appellant's membership in the CDP are exhibits C-7, C-8, C-13, C-18, C-19 and C-22. According to the appellant, the RPD failed to take into account those documents, which support the facts set out in his story. The appellant argues that the RPD erred by not giving any probative value to exhibits C-7, C-8 and C-13, because it concluded that he was not part of the CDP because of inconsistencies in his testimony and between his testimony and the documentary evidence. He criticizes it for not having conducted an independent assessment of the documents. [45] I note that the RPD duly examined exhibits C-18 and C-19 and concluded that they are false documents because they contain the same spelling mistakes, despite being from two different people. The undated letter from Assimi Kouanda, National Executive Secretary of the CDP, and the letter dated July 18, 2013, from Moussa Nikiema, President of the Coordination des Associations des Petits Commerçants de la Province du Kadiogo (CAPCK) [coordination of small merchant associations of the province of Kadiogo], include the same errors, namely, "je tien à vous remercie." The RPD gave no probative value to those letters and found that the appellant's credibility, especially with regard to his membership in the CDP, was undermined. That finding by the RPD is not contested by the appellant, and I have no reason to disregard it. [46] Exhibit C-22 is a second undated letter from Assimi Kouanda of the CDP that the RPD carefully examined and that was found to have no probative value because it contradicts the appellant's oral testimony, as explained in the reasons given in paragraphs 42 to 48 of the decision. The appellant is not contesting that finding. [47] With respect to the three other exhibits submitted by the appellant, namely, the CDP membership card that expired XXXX XXXX, 2014 (C-7), a participation card for the regular session of the CDP national council held on April 26, 2014 (C-8), and a document indicating that the appellant is a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX of the CDP (C-13). [48] In my opinion, the RPD duly examined exhibits C-7, C-8 and C-13 based on the totality of the evidence and decided to give them little probative value for all the reasons it clearly outlined in its reasons. I did not note any errors in how the RPD arrived at its conclusions regarding the appellant's alleged membership in the CDP party and his activities within the party. [49] Moreover, it is important to note that none of the documents filed into evidence corroborate the appellant's testimony regarding the actual basis of his refugee protection claim, namely, his alleged assault at the local CDP headquarters on October 31, 2014, because of his involvement, in 2009, in XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. In this respect, in its decision, the RPD clearly explains the reasons why the appellant's testimony, in which he claims that his actual fear is based solely on the story of XXXX XXXX XXXX XXXX, is not credible. I have no reason to disregard that finding, which is truly determinative in this case. [50] For all these reasons, I find that the appellant failed to demonstrate that there is a serious possibility that he would be persecuted on a Convention ground or that, on a balance of probabilities, he would be personally subjected to a danger of torture, to a risk to his life or to a risk of cruel and unusual treatment or punishment should he return to Burkina Faso. CONCLUSION [51] For these reasons, the RAD confirms the RPD's determination, namely, that XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. [52] The appeal is dismissed. Marie-Louise Côté Me Marie-Louise Côté April 28, 2017 Date IRB translation Original language: French 1 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 2 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93; at paragraphs 58, 59, 63, 64, 78 and 103. 3 Ahi v. Minister of Citizenship and Immigration, F.C., 2016 FC 1028. Gabila v. Minister of Citizenship and Immigration, 2016 FC 574. 4 RPD record, pages 242 to 282. 5 Ahanin v. Canada (Minister of Citizenship and Immigration), 2012 FC 180. 6 Nagulesan v. Canada (Minister of Citizenship and Immigration), 2004 FC 1382. 7 National Documentation Package on Burkina Faso of July 17, 2015, Tab 2.1, Country Reports on Human Rights Practices for 2014, June 25, 2015. 8 RPD record, pages 93 to 97, Response to Information Request BFA105222.FE of July 10, 2015. 9 Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] FCJ No. 1425. 10 Morales v. Canada (Minister of Citizenship and Immigration), 2007 FC 1116, at paragraphs 31 and 32. 11 Ahmed v. Canada (Minister of Citizenship and Immigration), 2003 FC 456, paragraph 8. 12 Appellant's record, page 93, at paragraphs 62 and 63. 13 Ahmed v. Canada (Minister of Citizenship and Immigration), 2003 FCT 456, at paragraph 8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-06094 3 RAD.25.02 (2014.09.11) Disponible en français