MB6-01413

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. / N° de dossier de la SAR : MB6-01413 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 May 8, 2017 Date de la décision Panel Me Marie-Louise Côté Tribunal Counsel for the person who is the subject of the appeal Me Moriba Akain Koné 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, a citizen of Mali, is appealing against the decision of the Refugee Protection Division (RPD), which rejected his claim for refugee protection by 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 presented new evidence under subsection 110(4) of the IRPA and is requesting that a hearing be held before the Refugee Appeal Division (RAD) under subsection 110(6) of the IRPA. [3] The appellant is asking the RAD to set aside the determination of the RPD, order a hearing before the RAD, allow the claim for refugee protection or refer the matter to the RPD for re-determination by a different member. [4] The Minister did not intervene on appeal. DETERMINATION OF THE APPEAL [5] Pursuant to subsection 111(1) of the IRPA, the RAD allows the appeal, sets aside the determination of the RPD and refers the matter of XXXX XXXX to a differently constituted panel for re-determination of this refugee protection claim. [6] The appeal is allowed. FACTUAL BACKGROUND [7] The appellant is a young 22-year-old man from Mali whose father is a XXXX and the XXXX of a XXXX XXXX management cooperative in a village. He was subjected to revenge at the hands of his cousin, with whom he worked in his father's business, after telling his father that his cousin stole money from the store. On XXXX XXXX, 2015, some men acting on his cousin's behalf assaulted him and stole from him a significant amount of money belonging to the members of the cooperative that his father had asked him to deposit in the bank. The appellant called his father from the hospital where he was being treated to try to explain to him what had happened. His father told him that he would kill him if he did not return the money, and accused him of stealing it in order to join jihadist militants in northern Mali, according to his cousin. His father told him that he had already informed the villagers, the soldiers and the police about this. The appellant hid at the home of his uncle, who obtained a fraudulent passport and Canadian visa for him. He left Mali on XXXX XXXX, 2015, and went to XXXX. He arrived in Canada on XXXX XXXX, 2015, under a false identity. IMPUGNED DECISION [8] The RPD rejected the appellant's claim for refugee protection on February 25, 2016, as it found that the appellant was not credible because of a less than spontaneous, inconsistent, implausible and contradictory testimony. APPELLANT'S ARGUMENTS [9] The appellant submits that the RPD erred in its assessment of his credibility by failing to take all the evidence into account. ADMISSIBILITY OF NEW EVIDENCE [10] The hearing before the RPD was held on February 16, 2016, and the decision rejecting the claim is dated February 29, 2016. [11] The appellant's record, deemed perfected on May 10, 2016, contains an application to the RAD to admit new evidence under subsection 110(4) of the IRPA. The four documents are: * Certificate of rest dated XXXX XXXX, 2015. * Email to Mr. XXXX dated April 13, 2016. * Medical prescription dated XXXX XXXX, 2015. * Email to Mr. XXXX dated April 10, 2016. [12] Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present to the RAD only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of rejection. In Singh,1 the Federal Court of Appeal insists on the restrictive interpretation of subsection 110(4) of the IRPA. It states that the explicit requirements of that subsection have to be met and leave no room for discretion on the part of the RAD. In addition, the implicit admissibility criteria established in Raza also apply with some modifications, namely, credibility, relevance and newness.2 The Court further states that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case.3 [13] In this case, the certificate of rest and the medical prescription existed before the rejection of the refugee protection claim, as they are dated XXXX XXXX, 2015. However, I find that the appellant demonstrated that they were not reasonably available at the time of rejection for the following reasons. As shown by the RPD's reasons for decision, when the panel asked the appellant if he had medical evidence of the injuries he allegedly suffered during the incident of XXXX XXXX, 2015, he responded that the prescription given to him had remained with his uncle.4 The appellant testified that he had asked his uncle for this document, but that the uncle had not found it. Both emails sent to Mr. XXXX show that these documents were not sent to him until April 13, 2016, and April 10, 2016, respectively. [14] Both medical documents are a priori credible at this stage of the proceedings. They are relevant to the extent that they tend to show that the appellant consulted a doctor on XXXX XXXX, 2015, who deemed that he needed XXXX days of rest for health reasons and prescribed medication. They also meet the criterion of newness, as there is no medical evidence of his injuries on the record. [15] For these reasons, both documents are admissible into evidence under subsection 110(4) of the IRPA. I shall identify them as follows: A-1 Certificate of rest dated XXXX XXXX, 2015. A-2 Medical prescription dated XXXX XXXX, 2015. HEARING BEFORE THE RAD [16] The appellant requested that a hearing be held under subsection 110(6) of the IRPA so that he could better explain his problems, submitting that the RPD did not properly assess all the facts of his case.5 [17] Subsection 110(6) of the IRPA provides that the RAD may hold a hearing if, in its opinion, there is new evidence that is admissible and that meets the three stated conditions.6 The new evidence must raise a serious issue with respect to the credibility of the person, be central to the decision with respect to the refugee protection claim and, if accepted, justify allowing or rejecting the refugee protection claim. Furthermore, the RAD is not obliged to hold a hearing simply because it accepts new evidence.7 [18] In my opinion, the new medical documents are insufficient to justify that the refugee protection claim be allowed or rejected. While they are relevant and central to the decision, they will not help to decide the other determinative issues, in this case state protection and internal flight alternative. These issues cannot be dealt with by the RAD because they were not addressed at the hearing before the RPD at the request of the RPD member.8 [19] For these reasons, the request to hold a hearing before the RAD is refused. SCOPE OF THE APPEAL [20] Subsection 111(1) of the IRPA provides that the RAD may confirm the determination of the RPD, set aside the determination and substitute a determination that, in its opinion, should have been made, or refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate. The IRPA does not provide a standard of intervention that the RAD must apply when reviewing RPD decisions. [21] The appellant submits that the RAD should no longer merely determine whether the RPD made its decision in a [translation] "reasonable" manner, but that it has broad authority to render decisions on the merits of the appeal. Referring to the Federal Court decision in Alvarez,9 the appellant submits that the RAD must be able to correct any palpable or overriding errors of the RPD to avoid needless duplication of proceedings. [22] In light of the Federal Court of Appeal decision in Huruglica,10 I am of the opinion that the RAD must truly act as an appellate tribunal and carry out its own analysis of the record to determine whether the RPD erred. It must conduct, in substance, a reasoned, thorough, comprehensive and independent review.11 [23] The RAD must apply the standard of correctness when reviewing RPD decisions concerning findings of law, fact or mixed fact and law when they do not raise the issue of credibility of oral testimony. In each case, it is responsible for determining the level of deference owed to findings of fact or mixed fact and law based on the credibility of the oral testimony by determining whether the RPD enjoyed a meaningful advantage. [24] In this case, I will accord a certain measure of deference to the RPD's credibility findings if I am of the opinion that it enjoyed a meaningful advantage in the assessment of the appellant's testimony. ANALYSIS [25] The issue is whether the RPD erred in its assessment of the appellant's credibility. [26] I have reviewed the entire file, listened to the electronic recording of the RPD hearing, and considered the RPD record, the appeal memorandum as well as the new evidence admissible under subsection 110(4) of the IRPA. [27] I find that the RPD committed a number of errors by finding that the appellant is not credible. I will deal with the errors that appear to me to be determinative and relate to the following issues, namely, the appellant's age, the date of departure from Mali, the cooperative's money, the uncle's behaviour, the medical evidence, as well as the passport and Canadian visa. Appellant's age [28] The RPD is of the opinion that the appellant is 35 years of age, whereas the evidence shows that he was only 21 when his claim was rejected. [29] The appellant submits that the RPD's erroneous finding had a negative impact on the analysis of the decision, as the panel could find that he was mature enough to be able to take appropriate measures to defend himself in this matter. [30] I agree with the appellant. In my opinion, the RPD failed to take the evidence into account when it found that the appellant was 35 years of age, as it had been established at the start of the hearing that the appellant was born on XXXX XXXX, 1994. In my view, this is a serious error because it relates to a relevant personal factor regarding the appellant. In my view, there is a difference between a young adult and a middle-aged adult that can play a role in the assessment of the credibility of a story such as this, in which one of the agents of persecution put forth is the appellant's father. The age gap between a father and his son affects their relationship and can influence the behaviour of either one. Date of departure [31] The RPD found that the appellant made a mistake with respect to a critical date in his story, namely, XXXX XXXX, 2015, the date on which he apparently left Mali. In the RPD's opinion, this was such a major and spontaneous error that it casts doubt on the basis of the story. [32] The appellant submits that the RPD placed too much emphasis on this error, committed by stating that the departure date was XXXX XXXX, 2015, rather than XXXX XXXX, 2015. He submits that the RPD did not seem to want to understand that it is possible to make mistakes in the heat of the moment, but that this in no way means he was inconsistent. In his written statement in support of his appeal, the appellant states that he corrected himself in his testimony by indicating that he was stressed and confused and that he often mixed up the XXXX month with XXXX instead of XXXX. [33] Having listened to the electronic recording of the hearing, I find that the appellant made a number of mistakes over the span of four minutes, about the time when he stated having left his country on either [translation] "the XXXX day of the XXXX month of 2015" or "XXXX XXXX, 2015."12 However, from the moment he stated that his fear of being killed in his country had started on XXXX XXXX, 2015, he did not make any further mistakes with respect to the dates of the events, over the span of an hour and forty minutes.13 In addition, the appellant's testimony regarding the chronology of events is perfectly coherent and consistent with his written account. In these circumstances, I find that the error he made at the beginning of the hearing is not such that it undermines his credibility. [34] It is my opinion that the RPD erred by placing too much emphasis on the error made by the appellant with respect to the date of departure from Mali. Moreover, the RPD's finding does not take into account the new evidence, namely, the medical certificate and the prescription prepared on XXXX XXXX, 2015, which corroborate the appellant's testimony and confirm the fact that he simply made a mistake by stating that he left Mali on XXXX XXXX, 2015. Cooperative's money [35] The RPD found it implausible that the appellant's father had left with the appellant the colossal sum of XXXX XXXX XXXX XXXX XXXX FCFA belonging to the members of the cooperative without the appellant being an employee of the cooperative. [36] The appellant submits that the RPD ignored the realities of financial transactions in the African context and based itself on a Western and subjective understanding of the situation. Thus, it is commonplace for people to go about Mali carrying sums of USD$XXXX XXXX XXXX. He submits that the amount of XXXX XXXXCFA francs, which is equal to approximately CAN$XXXX XXXX XXXX, was neither surprising nor extraordinary. The appellant clearly explained that the members of the XXXX XXXX management cooperative in the village collect money over a long period of time before giving it to his father as XXXX, who then decides when to deposit it in the bank. In addition, the appellant explained in his testimony that he was the manager of his father's store, that he was used to depositing money in the bank and that his father trusted him. [37] In my view, the RPD's finding of implausibility is not based on all the evidence presented. It appears that the appellant had been working for his father in his business for a number of years.14 Like his older brother before he left Mali,15 the appellant was responsible for depositing the money his father entrusted to him in the bank. The RPD made no mention of the deposit receipts issued in XXXX 2015 in the appellant's name that corroborate his allegations.16 The appellant testified that this father would send him to deposit the money from the cooperative or from his business because he trusted him. Since the appellant demonstrated that he was trustworthy, it is plausible that his father entrusted him with the money of the cooperative without his being a member or employee thereof. The key factor is the relationship of trust between the two of them, not the fact that the appellant was not an employee of the cooperative. Uncle's behaviour [38] The RPD raised the fact that the appellant stated that his uncle himself came to pick him up at the hospital on XXXX XXXX, 2015, and that the uncle called his father to ask him about the appellant while the latter was with him. His father apparently told the uncle that the appellant had left to join the jihadists. The RPD found it implausible that the appellant's uncle had simply not told his father what he had seen in order to contradict his cousin's allegations that the appellant had joined jihadist militants in northern Mali. [39] The appellant submits that the matter of the jihadists was just an alibi, the main concern being the money issues. The appellant's uncle did not want to expose the appellant while he was questioning the father in order to dissuade him from his position, but the father's reaction did not permit him to do anything whatsoever to help the appellant, hence the final decision to help him leave the country. The appellant submits that the RPD ignored the fact that the true problem was the stolen money and nothing else, the matter of the jihadists having to do with his cousin's revenge. [40] I agree with the appellant and am of the opinion that the RPD made an implausibility finding without taking all the evidence into account. In this case, the root of the refugee protection claim is the appellant's inability to return the cooperative's money to his father, hence the false accusations of jihadism. [41] It appears that the appellant's father used the accusations of jihadism against his own son to save his own reputation and avoid the consequences of losing a substantial amount of money for which he is personally accountable as XXXX of the cooperative. [42] The appellant testified that his father would not listen when he wanted to explain what had happened to him. On the contrary, he threatened to kill him if he did not return the money. The appellant explained that his father did not want to believe him because of his great desire for money and because the stolen money belonged to the villagers. This is why he told them that the appellant had taken their money to fund the jihadists. [43] Similarly, when the uncle called the appellant's father with the intention of gauging his reaction and then trying to calm him by attempting to explain the situation, the father did not want to listen to him and [translation] "just wanted the money" otherwise the appellant would die. [44] The appellant's testimony shows that the uncle, who knows his father well, knew that he did whatever he wanted to do. In addition, he feared that the father would accuse him of complicity with the appellant. In these circumstances, it is plausible that the uncle did not consider it appropriate to tell him that he had gone to pick up the appellant at the hospital and that the latter was right next to him, in order to avoid putting them both in danger. [45] The appellant testified that he did not understand how a father who gave birth to his child could act in such a way and want him dead. In addition, the fact that his father hit his mother when she wanted to defend him and that he repudiated her by holding her responsible for the events should have encouraged the RPD to consider the profile of the man the appellant fears. [46] In my opinion, the RPD erred because it assessed the plausibility of the behaviour of the appellant's uncle without considering the specific profile of his father, who is the agent of persecution in this case. Medical evidence [47] The RPD found that medical evidence was necessary to corroborate his testimony given the inconsistencies in the matter of the injury of XXXX XXXX, 2015. This finding does not take into account the new medical evidence admitted under subsection 110(4) of the IRPA. Furthermore, the RPD did not take into account the evidence on the record demonstrating that the appellant arrived in Canada with an injury to his XXXX for which he was treated at the XXXX XXXX Hospital.17 Passport and Canadian visa [48] The RPD found it implausible that the appellant could have obtained a passport and Canadian visa within such a short time frame as 13 or 14 days. [49] The appellant submits that the RPD disregarded the fact that a smuggler obtained, within 16 days, a false passport belonging to someone else in which he affixed his photograph and which included a Canadian visa. [50] I note that the passport in question was issued on XXXX XXXX, 2015, whereas the Canadian visa is dated XXXX XXXX, 2015, under an identity other than the appellant's. These documents already existed when the smuggler obtained the appellant's photograph to affix it in the passport on XXXX XXXX, 2015, according to his testimony. The altered passport was available on XXXX XXXX, 2015. [51] In my opinion, the RPD's finding of implausibility is unfounded, as the usual time frame for obtaining a false passport containing a Canadian visa is not established by the evidence. [52] For all these reasons, I find that the RPD erred in its assessment of the appellant's credibility. [53] I cannot substitute the determination that should have been made for that of the RPD without the appellant being questioned on the issues of state protection and internal flight alternative, as these points were not addressed before the RPD. Consequently, I refer the matter to the RPD for re-determination. CONCLUSION [54] For these reasons, the RAD sets aside the RPD's determination and refers the matter of XXXX XXXX to a differently constituted panel of the RPD for re-determination of this refugee protection claim. [55] The appeal is allowed. Marie-Louise Côté Me Marie-Louise Côté May 8, 2017 Date IRB translation Original language: French 1 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. 2 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 3 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96, paragraph 64. 4 RPD record, page 8, at paragraphs 25 and 26 of the reasons for decision. 5 Appellant's record, page 14, Appellant's Statement, paragraph 31. 6 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96, at paragraph 51. 7 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. 8 Electronic recording of the RPD hearing on February 16, 2016, from 01:25:47 to 01:26:30. 9 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, at paragraphs 27 to 29. 10 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93. 11 Ahi v. Minister of Citizenship and Immigration, F.C., 2016 FC 1028. Gabila v. Minister of Citizenship and Immigration, 2016 FC 574. 12 Electronic recording of the RPD hearing on February 16, 2016, from 00:15:30 to 00:19:50. 13 Ibidem, from 00:19:51 to 1:58:17. 14 RPD record, page 130, question 8 of Schedule A. 15 Ibidem, page 60, Basis of Claim Form of the appellant's brother. 16 Ibidem, pages 201 to 203. 17 RPD record, pages 194 to 197. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB6-01413 13 RAD.25.02 (2014.09.11) Disponible en français