MB8-27176

RAD File No. / No de dossier de la SAR : MB8-27176 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 / heard at Montréal, Quebec Appel instruit / entendu à Date of decision July 31, 2020 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the person who is the subject of the appeal Me Cristian Roa-Riveros Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This is the appeal filed by XXXX XXXX, a citizen of Guinea, regarding a decision of the Refugee Protection Division (RPD) rendered on November 21, 2018, rejecting his claim for refugee protection. [2] His story is fairly straightforward. The appellant states that he was harassed, threatened, raided and beaten because of his activism in the Parti de l'espoir pour le développement national (PEDN) [hope for national development party], which had been defeated during the 2015 presidential election. His superior and other members of the RPG, the ruling party, opposed his change in political allegiance (from the RPG to the PEDN). He was forced to leave his job and move a number of times and fears for his life following hateful remarks from the people around him. [3] The RPD rendered a decision based on credibility. It noted contradictions and additions that undermined his record. [4] On appeal, the appellant submitted the following arguments: 1. The RPD was unreasonable in drawing negative inferences based on differences between the original and modified versions of the Basis of Claim Form (BOC Form). The additions and modifications were necessary-otherwise, the RPD would have raised significant omissions-and he had a right to submit them. 2. In its credibility assessment, the RPD did not consider the culture and customs of his country of origin. 3. The contradictions concerning his movements are due to the fact that he was nervous during the hearing and intimidated by the presence of three members. 4. He failed to indicate his political affiliation on form IMM 5669 because he had no interpreter and misunderstood the question. 5. The RPD should have focused on Exhibit C-1, his PEDN membership card, to determine his political affiliation. 6. He presented his political activities credibly and proved that he was persecuted because of his political opinion. [5] The appellant is asking the Refugee Appeal Division (RAD) to [translation] "allow this appeal, grant a de novo hearing before a different panel and make any other order deemed fair and just." [6] The appellant is not asking to present new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act1 (IRPA) and is not requesting that an oral hearing be held under subsection 110(6) of the IRPA, as is clear from paragraph 3 of the submitted memorandum. [7] The Minister's representative did not intervene in the appeal. DETERMINATION [8] Pursuant to subsection 111(1) of the IRPA, the RAD confirms the RPD's determination, namely that Hassimiou Bangoura is neither a "Convention refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. [9] The appeal is dismissed. SCOPE OF THE APPEAL [10] For questions of fact and law and questions of mixed fact and law, the RAD must apply the correctness standard in accordance with Huruglica.2 [11] After carefully listening to the hearing, I conducted an independent analysis of all the evidence on the record in order to form my own opinion about this refugee protection claim and decide whether the RPD's determination is correct. ANALYSIS [12] After considering both the testimonial and the documentary evidence on the record, the RAD arrived at the same conclusion as the RPD, namely that the appellant is not credible. [13] The appellant submits that the RPD failed to correctly assess his credibility, which impacted the determination that the appellant would not be subjected to persecution in his country. [14] The very essence of this case is based on credibility. [15] After listening to the recording, it is clear that the appellant's testimony was very difficult. Despite being cautioned, he did not provide direct answers to the straightforward questions he was asked. For example, the principal member on the record-because this panel comprised three decision-makers-asked him when his problems began. He replied in 2015. Asked to be more specific, he stated the 2015 election. When the member pressed on, he indicated XXXX XXXX XXXX 2015. When did he change political parties? He answered on XXXX XXXX XXXX just before the election. When asked to provide details, he continued and testified that the problems officially began on XXXX XXXXand unofficially well before that because [translation] "I told people when I left the party." We understand that the appellant's problems began when he switched from the RPG Arc-en-ciel (Rassemblement du peuple guinéen) [Rally of the Guinean People] party to the PEDN. Just reading this short account is enough to see that the appellant does not answer the panel's questions directly and at times attempts to confuse it with his long responses. [16] The first point mentioned in the memorandum is the fact that the appellant deems the negative inferences based on differences between the BOC Form versions to be unreasonable. The RPD noted the omission of his affiliation with the RPG party in his original story, which changes the perspective of the agent of persecution. What exactly is the situation? [17] The appellant filed a Personal Information Form (PIF) on January 26, 2018, with a handwritten narrative approximately one and a quarter pages in length. Then, on October 25, 2018, the Immigration and Refugee Board (IRB) received a long typed narrative three and a half pages in length with considerable details and additional information about him. The hearing before the RPD was held on October 29, 2018. The appellant also made other modifications at the beginning of the hearing. Counsel on the record mentioned having asked him questions during the preparation of the record, and the narrative did not include the information. He states in the memorandum that the additions and modifications were necessary; otherwise, the RPD would have raised significant omissions. [18] The RAD is of the opinion that the attempted explanations to demonstrate the well-foundedness of the new account are misleading, to say the least. The appellant himself wrote and submitted an account outlining his problems with his superior as a political opponent. However, the amended account makes him a defector because he left the RPG to join an opposing party, which is omitted in the initial account. It is the view of the RAD that this major omission in the first account that he was an RPG supporter seriously undermines his credibility. In addition, there is no mention under question 9 of the IMM 5669 document of him being a member or supporter of any political party. This is a lot of invaluable information that is missing from the basic documents that were completed upon his arrival in Canada. [19] Contrary to the allegation in the memorandum that it is unreasonable to draw negative inferences regarding the two accounts, the RAD is of the opinion that it may be possible to add minor amendments to an account or add new information that was initially unknown, but modifying the account to this extent with details that blur and distort the account leads us to believe that this text is inconsistent with the refugee protection file originally submitted. Consequently, the RAD draws a negative conclusion regarding this major change to the account, which seriously undermines the appellant's credibility. On this matter, the RAD is of the opinion that the RPD did not err. [20] The second point raised in the memorandum is that the RPD failed to consider the culture and customs of the appellant's country of origin. This is raised in the written arguments that counsel for the appellant submitted following the hearing. He states in paragraph 9 that [translation] "the credibility assessment must consider, among other things, the refugee protection claimant's culture, the customs in his country, the interpretation of and relevance given to certain temporal concepts, the level of education, the social experience and work." [21] At no time during the hearing was this cultural and customs factor raised nor that the panel had to consider it. The RAD, which listened to the recording of the hearing, noted that the appellant knows French, as he sometimes answered in French. Despite the cultural differences, the appellant answered the questions he was asked, sometimes directly, but more often than not indirectly. [22] A little later in his written submissions, paragraph 19 states as follows: The panel's despotic attitude throughout the hearing did not help the claimant's cause. The RAD cannot ignore this completely unfounded sentence. Aside from the accusatory nature and the offensive word used in this text, the RAD did not sense such behaviour from the tribunal of first instance. Had that been the case, it was up to counsel representing a person to point out a decision-maker's derogatory attitude at the first opportunity, which was not done. The only remark that the RAD heard during the hearing was the presiding member cautioning counsel for the appellant to ask his client open-ended questions. This quite nice caution was intended to not harm the assessment of the appellant's testimony. [23] As a result, the RAD is of the opinion that the point raised is unfounded. [24] The third point mentioned in the memorandum concerns contradictions regarding the appellant's movements. He blames his mistakes on being nervous and intimidated by the presence of three members. The RPD noted contradictions in the chronology of movements when he fled and when he lived in the family home. What was his testimony in this regard? [25] The appellant's testimony regarding his places of residence over the years was very difficult to follow. He testified that he lived in XXXX from 2014 until his departure. He then stated that he lived in XXXX, where he shared accommodations with his family, from XXXX to XXXX 2015. Then, he was in XXXX for XXXX months starting in XXXX. He visited another place, XXXX, but was not there very long according to his testimony, around XXXX months until his departure. He continued his testimony stating that he returned to his home in XXXX, but changed houses often until his departure. A few minutes later, he stated that he left his home following the attack on the night of XXXX XXXXor XXXX, but added that he left before XXXX in XXXX 2017. This convoluted portion of the testimony severely undermined the appellant's credibility. The places of residence and periods made for a complete muddle. In addition, the information that he included in the IMM 5669 document for question 12 contradicts everything. [26] He attempts to explain by stating that he does not really understand what could be causing the differences. Admittedly, the vast majority of questions on immigration forms are completed properly, except for some causing problems in the record. He could have pointed out the problems in these forms at the beginning of the hearing, but did not. Again, this greatly undermines the appellant's credibility because aside from contradictory testimony about places and dates, the completed document is inconsistent with his verbal account. [27] The fourth point concerns the absence of any mention of his political affiliation on form IMM 5669. He states that this is because he misunderstood the question and did not have an interpreter. For the RPD, the absence of any mention of his political affiliation in question 9 contradicts his allegation of being a supporter. [28] The RAD must note that the appellant did not correctly complete the question about his political past or associations on form IMM 5669. He answered this question in the negative. However, we understand from his testimony and two submitted accounts that he was a member of two political parties. Moreover, leaving a party is what had apparently caused these troubles. The reasons given cannot support this theory. The appellant is a university-educated person who worked in the public service in his country and who, all in all, correctly completed the immigration forms, aside from a few questions, including places of residence and affiliation with political parties and organizations. It is quite paradoxical that these troubles due to politics were not mentioned on the form from the outset. Again, this greatly undermines the appellant's credibility. [29] The final point mentioned in the memorandum concerns Exhibit C-1, that is, the PEDN membership card, to determine his political affiliation. He adds that he presented his political activities credibly. [30] Aside from his alleged membership in two political parties, we stated earlier that he did not indicate any of his political affiliations in the IMM 5669 document. Similarly, there is no mention in the first account of his membership in the RPG party or his stepping down from this party to become a member of the PEDN. His leaving the RPG party and his change of allegiance to a new party is the source of all his alleged problems, namely his colleagues attacking him, calling him a traitor, etc. [31] The appellant submitted a membership card (Exhibit C-1) and was questioned about it. He was unable to answer the questions he was asked about the content of his membership card, a document he submitted as his evidence. To try and explain these poor answers, he stated that the neighbourhoods indicated are the same as his answers. [32] He stated, to the same effect, that his participation in a political party, his activism enabled him to get a job. He added that the more active you are, the easier it is to get a job. He pointed out that he left his job in XXXX 2017 because he was being intimidated. His colleagues were allegedly the main intimidators, but he remained in the position until the end of XXXX 2017 nevertheless. He added that he did not go to work every day, but that it was casual and was just a presence. Confronted with the fact that he had to hide and move regularly, the appellant answered: [translation] "I did not go into work all the time, it was just a presence." [33] Considering the indirect responses given to the tribunal of first instance throughout the testimony and the contradictions between the accounts and documents submitted and the verbal statements, all of that leads us to believe that the appellant is not credible and that this record contains significant errors. [34] For the reasons expressed in this decision, the RAD is of the opinion that the RPD made the correct, necessary determination. REMEDY [35] For these reasons, the RAD confirms the RPD's determination, namely that XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. [36] The appeal is dismissed. (signed) Michel Jobin Me Michel Jobin July 31, 2020 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act (S.C. 2001, c. 27). 2 Canada (Citizenship and Immigration) v. Huruglica, Bujar (FCA, No. A-470-14, Gauthier, Webb and Near, March 29, 2016, 2016 FCA 93. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-27176 RAD.25.02 (January 2020) Disponible en français 9 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