MB5-02767

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 : MB5-02767 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 March 22, 2016 Date de la décision Panel Me Louis Cousineau Tribunal Counsel for the person who is the subject of the appeal Me Moriba Alain Kone 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 [1] The appellant, XXXX XXXX, is alleging that he is a citizen of Mali and is appealing against the decision of the Refugee Protection Division (RPD) of May 19, 2015, rejecting his refugee protection claim. He is requesting that the Refugee Appeal Division (RAD) set aside the RPD's determination and grant him status as a "Convention refugee," or alternatively, order a hearing before the RAD or refer the matter to the RPD for re-determination. [2] The appellant submitted photographs that he claims are new evidence under section 110(4) of the Immigration and Refugee Protection Act (IRPA). [3] The Minister did not intervene in the appeal. DETERMINATION OF THE APPEAL [4] Under subsection 111(1) of the IRPA, the RAD confirms the RPD's determination that the appellant is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. [5] The appeal is dismissed. FACTUAL BACKGROUND [6] In his "Basis of Claim Form" (BOC Form), the appellant alleges that he is a citizen of Mali. Since 1998, he allegedly was a XXXX who worked in the family XXXX and, also, as a XXXX XXXX XXXX. From 2009 to 2013, he reportedly left his native city to live with one of his aunts in Bamako. After meeting a person named Mr. XXXX in XXXX 2013, he worked as a XXXX in the town of XXXX. In XXXX 2014, the animals for which he was responsible caused damage in the field of a neighbouring owner (hereinafter referred to as the neighbour), who demanded XXXX XXXX XXXX XXXX XXXX CFA francs from him. Also, he gathered the cattle, but XXXX animals were not found, and Mr. XXXX demanded XXXX XXXX XXXX CFA francs from him in compensation. Since he could not reimburse him, Mr. XXXX allegedly threatened him and his aunt living in Bamako. A few days later, the neighbour went to see the appellant's aunt to threaten the appellant. [7] Afterwards, the appellant was allegedly summoned by the police, and he agreed to pay Mr. XXXX and the neighbour within his means, as an amicable payment agreement. However, they allegedly refused and were looking for him. They attacked and injured some members of the appellant's family, ransacked the family field and threatened to seize the property belonging to his family. [8] Some time later, as he was unable to repay the sums demanded, the appellant met a woman named XXXX, who hid him and obtained a passport and a Canadian visa for him. He then hid at a friend's home until he left Mali. [9] The appellant arrived in Canada on November 2, 2014, on a visa issued on October 1, 2014, and he made a refugee protection claim in January 2015. IMPUGNED DECISION [10] In its May 19, 2015, decision, the RPD rejected the refugee protection claim in finding, first, that the appellant had not established his identity and, second, that he was not credible with respect to the key elements of his refugee protection claim. These findings may be summarized as follows: - First, the appellant did not establish his identity for the following reasons: (a) the RPD gave no probative value to the Malian passport1 submitted, given that the information it contained, including his profession, differs from his allegations and that the appellant was unable to explain the discrepancies and how the passport was obtained; (b) the appellant testified that he had no knowledge of the steps taken to obtain the visa.2 However, when he was questioned regarding certain documents3 submitted to obtain the visa, the appellant recognized his signature, and there was a relatively significant discrepancy in the appellant's testimony regarding the role that he allegedly played in obtaining the visa. Furthermore, as the appellant was unable to specify the origin of the documents and how they had been obtained, the RPD gave them no probative value to establish his identity; (c) the appellant testified in a contradictory manner regarding the birth certificate dated XXXX XXXX, 2011, attached to the visa application; it appeared that the appellant did not know the origin of the document, and the RPD did not give it any probative value; (d) at the hearing, the appellant submitted another birth certificate,4 which contains the following anomalies: the name of the mother indicated in it differs from the name that the appellant noted in the various immigration forms, and the RPD found that the appellant's testimony did not match the information written on this document. The appellant's credibility was undermined and no probative value was given to this document to establish his identity. - There were also inconsistencies in the appellant's testimony regarding the reasons and circumstances surrounding the failure to pay the sums allegedly demanded by Mr. XXXX and the neighbour. APPELLANT'S ARGUMENTS [11] In his memorandum, in addition to the arguments on the standard of review that the RAD must follow, arguments that I will address later in my reasons, counsel for the appellant makes claims that may be summarized as follows: - the RPD incorrectly analyzed the appellant's situation; - the RPD excluded evidence without giving any explanation, and it made a selective assessment of the oral and documentary evidence by choosing only some of it, thus undermining the appellant's credibility; - the reason given by the RPD to reject the validity of the appellant's passport was not serious; - the RPD focused on the details and not on the essential elements of the appellant's refugee protection claim. ADMISSIBILITY OF NEW EVIDENCE [12] The appellant submitted an affidavit and photographs5 as new evidence under subsection 110(4) of the IRPA. [13] First, 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 the rejection. [14] To date, the Federal Court has rendered several decisions regarding the admissibility of evidence under subsection 110(4) of the IRPA. In Iyamuremye,6 the Honourable Justice Shore comments on the Federal Court of Appeal's decision in Raza,7 stating, among other things, the following: This case law established a legal meaning to the general application of the words "new evidence," which, in the Court's view, is consistent with Parliament's clear intention with regard to subsection 110(4) to require that the RAD review the RPD's decision as is, unless new, credible and relevant evidence arose after the rejection, that might have affected the outcome of the RPD hearing if that evidence had been presented to it. [15] In Ghanadi8 and Denbel,9 the Federal Court states that the factors set out in Raza should be considered by the RAD when analyzing the admissibility of documents presented on appeal. [16] Furthermore, in Parminder Singh,10 the Federal Court highlights the importance of distinguishing the role of a PRRA officer from that of a RAD member in interpreting subsection 110(4) of the IRPA in relation to subsection 113(a) of the IRPA: ... [57] In sum, I am of the view that it was unreasonable for the RAD to strictly apply the Raza test in interpreting subsection 110(4) of the Act all the while failing to appreciate that its role is quite different from that of a PRRA officer. [17] Furthermore, I considered the decision in Sow,11 which concurs with the decision of the Honourable Justice Gagné in Singh12 to the effect that: [16] The RAD was wrong to import the approach to the receipt of new evidence recognized in Raza v. Canada, 2007 FCA 385, [2007] R.C.J. No 1632. An appeal to the RAD is not the equivalent of a Pre-Removal Risk Assessment [PRRA]. Indeed, it has been repeatedly held in this Court that a PRRA is not an appeal from an unfavourable refugee determination. The reasons for strictly limiting the receipt of new evidence in the context of a PRRA are mostly absent from those that apply to an appeal from a refugee determination, particularly given the truncated timeline for completing the underlying RPD proceeding. [18] I have read and analyzed all of the evidence on the record. First, with respect to the photographs submitted, counsel for the appellant claims that they were not available to the appellant at the time of the decision, without explaining the reasons. Given that the appellant testified before the RPD and that he had the burden of establishing the elements of his refugee protection claim and considering the absence of explanations in support of why these photographs were not available at the time of the rejection, I am of the view that these photographs are not new evidence under subsection 110(4) of the IRPA. [19] In addition, the affidavit only introduces the submission of photographs that are not new evidence. Therefore, I find that the affidavit is not new evidence under subsection 110(4) of the IRPA. HOLDING A HEARING BEFORE THE RAD [20] In the memorandum submitted, the appellant requests, alternatively, a hearing before the RAD. [21] At the outset, it should be noted that under subsection 110(3) de the IRPA, the RAD proceeds without a hearing on the basis of the record of the proceedings of the RPD. Furthermore, under subsection 110(6) of the IRPA, the RAD may hold a hearing when evidence presented on appeal is found admissible and if it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, if it is central to the decision with respect to the refugee protection claim, and if it justifies allowing or rejecting the refugee protection claim. [22] In this case, no document was admitted as new evidence under subsection 110(4) of the IRPA and, therefore, there is no cause to hold a hearing before the RAD.13 SCOPE OF THE APPEAL [23] Counsel for the appellant refers, in his memorandum, to various Federal Court decisions regarding the standard of review to be applied by the RAD. [24] Like counsel for the appellant, I find that the scope of the RAD appeal must be reviewed in light of the IRPA and the case law on this topic. [25] First, the IRPA does not expressly set out the standard of intervention that the RAD must apply when reviewing RPD' decisions. The introductory wording of subsection 110(1) of the IRPA states: Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. [26] In addition, with respect to the RAD's decisions, subsection 111(1) of the IRPA states 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, giving the directions to the RPD that it considers appropriate. [27] Also, my interpretation of the provisions of subsection 111(2) of the IRPA is that they suggest that Parliament favours the finality of these decisions. In fact, it states that the RAD may refer the matter to the RPD only if it is of the opinion that the decision of the RPD is wrong in law, in fact or in mixed law and fact, and if it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the RPD. [28] To date, the Federal Court has rendered a number of decisions regarding the standard of review or intervention to be applied by the RAD and its role when an RPD decision is appealed to it. [29] Thus, the appeal before the RAD is not in the nature of a judicial review. The RAD errs when it applies the reasonableness standard of review, and it must perform its own assessment of all the evidence.14 [30] Additionally, from the Federal Court decisions rendered to date, two lines of case law have emerged regarding the standard of review or intervention applicable to the RAD. [31] First, some decisions15 state that the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts. [32] Second, in Huruglica,16 the Honourable Justice Phelan states that "[u]nlike judicial review, the RAD, pursuant to subsection 111(1)(b), may substitute the determination which 'in its opinion, should have been made' and the RAD must conduct an independent assessment of the application in order to arrive at its own opinion."17 To do so, the RAD is required to conduct a hybrid appeal and it must review all aspects of the RPD's decision.18 [33] In terms of the deference the RAD owes to the RPD's findings, the Honourable Justice Phelan indicates that it may be justified to show "deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative."19 However, when it comes to interpreting the documentary evidence on country conditions, the Honourable Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment."20 [34] In my analysis, in my role and functions as a RAD member, I considered the provisions of the IRPA and all of the Federal Court decisions regarding the RAD, in particular Huruglica. I therefore find that the RAD is a specialized tribunal and that I must conduct an independent assessment of all the evidence to determine whether the appellant is a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA and, therefore, determine whether the RPD's decision is well-founded given the evidence presented to the RPD, the records presented on appeal, and any new evidence within the meaning of subsection 110(4) of the IRPA or any evidence gathered during a hearing under subsection 110(6) of the IRPA, if applicable. In this case, it should be noted that no document was admissible under subsection 110(4) of the IRPA and that there was no cause to hold a hearing before the RAD. [35] In my review of this case, I will also show a measure of deference to the RPD's findings on issues of credibility. In addition, if there are errors on questions of law or if there are findings that are erroneous or are not supported by the evidence on questions of fact or of mixed law and fact that go to the heart of the central elements of the refugee protection claim, I will intervene in accordance with the provisions of subsections 111(1) and 111(2) of the IRPA. ANALYSIS [36] The determinative issue is whether the RPD erred in its reasons. In order to do this, I reviewed the reasons for the RPD's decision and I listened to the recording of the hearing before the RPD. Also, I read and analyzed all of the evidence in this matter as well as the appellant's memorandum. [37] I will begin by addressing the RPD's findings relating to the appellant's identity, then those relating to the credibility of key elements of the refugee protection claim, while considering the appellant's arguments that the RPD improperly analyzed the appellant's situation, that the RPD made a selective assessment of the evidence, that the reason given for rejecting the passport was not serious and that the RPD focused on the details. The appellant's identity [38] The RPD found that the appellant had not established his identity. I agree with the RPD's findings, for the following reasons. [39] First, in order to establish his identity, the appellant initially provided a passport.21 After analyzing it, the RPD pointed out that the profession noted differs from the profession the appellant alleged that he had. From my analysis of the passport, it also appears to me that the profession noted, business employee, does not match the profession alleged by the appellant, i.e. XXXX XXXX XXXX. Also, from my analysis of the recording of the hearing before the RPD, it appears clear to me that the appellant was questioned on the circumstances in which he obtained this passport and that the appellant answered that he did not know, that he had paid XXXX XXXX XXXX XXXX XXXX CFA francs-or, according to counsel representing him at the time before the RPD, between XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. He added that he had not provided any document, aside from his photograph, for the passport application. [40] From my own analysis, it appears clear to me that the RPD supported its findings on all of the evidence, including the appellant's specific circumstances, that there was a major discrepancy between the passport and the appellant's testimony regarding the profession, and that he was not able to explain how the document was obtained, except that he had paid the sum noted above. For all these reasons, I agree with the RPD's finding that the passport is not sufficient in the circumstances to establish the appellant's identity. [41] In addition, the RPD's analysis was not limited to the passport, but also to other documents, including those submitted to obtain the visa that facilitated the appellant's arrival in Canada. [42] In this context, from my analysis of the recording of the hearing before the RPD, it appears clear to me that the appellant was questioned, first, with respect to the circumstances of obtaining the visa. The appellant testified that he had no idea how the person who had helped him, hereinafter referred to as Ms. XXXX, was able to obtain the visa. Then, when he was questioned as to whether he had participated in obtaining the visa, the appellant testified that besides paying the sum noted above, he was not aware of anything, that he had no idea about the reasons given for having the visa and that he had played no part. [43] However, the appellant adjusted his testimony as the RPD confronted him with various documents submitted to obtain the visa, and he testified that either he had provided the document or he had signed it. I considered the alleged lack of formal education and the appellant's explanations that he believed that the member's questions referred to his financial support. I am of the view that they are not satisfactory and that these adjustments again undermine the appellant's credibility. Indeed, the questions asked by the RPD member were clear and unambiguous with respect to the appellant's participation, and no misunderstanding was raised by the appellant, who answered that besides paying, he had provided no document, nor had he otherwise participated, testimony that changed when the appellant was confronted by the RPD with the documents. [44] Therefore, when confronted with a birth certificate22 submitted to obtain the visa, the appellant was questioned as to how Ms. XXXX had obtained the document. The appellant then testified that he had given her the document. When confronted with his previous testimony that he had played no part in obtaining the passport, the appellant reiterated that he had given her this document and no others. He also added that he had the birth certificate when he left his native city in 2009. When confronted with the birth certificate submitted with the application for a visa, which had been issued in 2011, the appellant testified that it may have been fabricated to obtain the passport. [45] Like the RPD, I give no probative value to the birth certificate noted above. First, considering all of the evidence, it appears clear to me that the appellant testified in a contradictory manner, for the following reasons. First, he denied any personal participation in obtaining the visa; second, his testimony does not match the birth certificate that he allegedly provided himself, given that it precedes the one that was submitted to obtain the visa. Also, the appellant himself called into question the genuineness of the birth certificate. For all these reasons, like the RPD, I give no probative value to this document to support the appellant's identity. [46] Also, there was a document entitled Délibération Résolution #1423 [deliberation resolution #14], which authorizes some people from the XXXX XXXX XXXX commune, including the appellant, to go to Canada to participate in a Cooperatives summit. When confronted with this document, the appellant testified before the RPD that he did not know how it was obtained. When confronted with his signature, the appellant testified that he had signed the document. Like the RPD, I note that the appellant again adjusted his previous testimony that he had not participated in obtaining the visa. Considering this adjustment, which undermines the appellant's credibility, juxtaposed with his testimony that he had no knowledge of the circumstances in which the document was obtained, I give no probative value to this document to establish the appellant's identity. [47] At the hearing before the RPD, the appellant submitted another birth certificate.24 From my analysis of the recording of the hearing before the RPD, it initially appears to me that the appellant hesitated while testifying that it was given to him by his father. Then, when questioned by the RPD as to who had issued it, after repeating that it was his father who had given it to him, he hesitated while testifying that the birth certificate had been issued by the XXXX authorities. Like the RPD, from my analysis of the birth certificate, it appears clear to me that the name of the mother that appears on it is different from the name noted in the BOC Form and matches the name in the appellant's visa application, and that the seal affixed clearly notes the issuing authority, i.e. the [translation] "Chief of XXXX district," which was not noted by the appellant. Given this significant contradiction and the omission in the appellant's testimony, I give no probative value to this document to support the appellant's identity. [48] For all these reasons, I completely agree with the RPD's findings that the appellant did not establish his identity. Credibility findings [49] I confirmed the RPD decision regarding the appellant's inability to establish his identity, a finding I consider determinative. Alternatively, I also analyzed the other RPD findings regarding inconsistencies with respect to key elements in his BOC Form. [50] From my analysis of the recording of the hearing before the RPD, it appears clear to me that there are significant inconsistencies, accurately repeated by the RPD in its reasons, with regard to the reasons and circumstances surrounding the non-payment of the amounts that Mr. Diallo and the neighbour had allegedly requested. [51] I am of the opinion that the RPD considered all of the evidence to reach its findings of non-credibility, including the particular circumstances of the appellant and the members of his family. [52] First, the RPD clearly questioned the appellant about the situation of his family members after he had left Mali. The appellant's testimony indicates that there is no contact between Mr. XXXX and the neighbour and his family members to recover the amounts requested. The appellant explained this by testifying that he was the one being sought and his family members did not have the cash flow. In my opinion, these explanations are not satisfactory, since they contradict the appellant's allegations that his family could pay and, moreover, Mr. XXXX and the neighbour had allegedly previously threatened to seize the family's property. Therefore, the appellant's explanations about their lack of interest in being paid by the family do not seem credible to me. [53] The appellant also testified that Mr. XXXX and the neighbour believe that his family is hiding him and since they could not find him, they are looking to cause problems for his family and that his brother was allegedly injured by them. In the same manner as the RPD, I do not find it credible that the family members did not try to avoid these problems and protect themselves in the alleged circumstances. This also undermines the appellant's credibility. [54] For all these reasons, considering all of the evidence, I completely agree with the RPD's findings of non-credibility regarding the appellant's allegations in support of his refugee protection claim. CONCLUSION [55] After reviewing all of the oral and documentary evidence, in light of the reasons noted above and pursuant to subsection 111(1) of the IRPA, the RAD confirms the RPD's determination that the appellant is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" pursuant to subsection 97(1) of the IRPA. [56] The appeal of XXXX XXXX is dismissed. Louis Cousineau Me Louis Cousineau March 22, 2016 Date IRB translation Original language: French 1 RPD record: (pages 55 to 59): Exhibit 2: passport dated XXXX XXXX, 2014. 2 RPD record: (pages 87 to 123): Exhibit 5: visa file, visa issued on XXXX XXXX, 2014. 3 Ibidem, visa application (pages 89 to 96), document entitled Délibération N0 14 [deliberation No. 14] of XXXX XXXX, 2014 (pages 106 to 108) and birth certificate No. 498 of XXXX XXXX, 2011 (page 115). 4 RPD record: (page 123): Exhibit 6: birth certificate of XXXX XXXX,1986. 5 Appellant's record, respectively affidavit (pages 13 and 14), copy of photographs (pages 16 and 17). 6 Iyamuremye v. M.C.I., 2014 FC 494, para. 45. 7 Raza v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), No. A-11-07, Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 8 Ghannadi v. Canada (Minister of Citizenship and Immigration), No. IMM-1458-14, Manson; 2014 FC 879, paras. 17 and 18. 9 Denbel v. Canada (Minister of Citizenship and Immigration), No. IMM-3827-14, Mosley; 2015 FC 629, paras. 40 to 44. 10 Singh v. M.C.I., 2014 FC 1022. 11 Sow v. M.C.I., 2015 FC 295, Barnes. 12 Supra, footnote 10. 13 Sajad v. M.C.I., No. IMM-926-14, the Honourable Justice Shore, November 21, 2014; 2014 FC 1107, paragraph 17, also cited in Malambu v. M.C.I., No. IMM-7972-14, the Honourable Justice Noël; 2015 FC 763, paragraphs 32 et seq. 14 Namely, Eng v. M.C.I., 2014 FC 711; Alvarez v. M.C.I., 2014 FC 702; Spasoja v. M.C.I., 2014 FC 913; Huruglica v. M.C.I., 2014 FC 799. 15 Idem, the first three decisions cited at footnote 14. 16 Supra, footnote 14, Huruglica. 17 Ibidem, paragraph 47. 18 Ibidem, paragraph 54. 19 Ibidem, paragraph 37. 20 Ibidem, paragraph 38. 21 Supra, see footnote 1. 22 Supra, see footnote 3. 23 Supra, see footnote 3. 24 Supra, see footnote 4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-02767 2 RAD.25.02 (2014.09.11) Disponible en français