MB5-04487

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 : MB5-04487 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX (alias XXXX XXXX) Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision April 11, 2016 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Kristin Marie Debs Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] The appellant, XXXX XXXX XXXX, which is his name as it appears on his Senegalese passport,1 is appealing against the decision of the Refugee Protection Division (RPD). He submits that the RPD committed errors in its assessment of his credibility and that it breached the principles of procedural fairness. II. DETERMINATION ON THE APPEAL [2] Pursuant to section 111 of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the decision of the RPD to the effect that XXXX XXXX XXXX is neither a refugee under section 96 nor a person in need of protection within the meaning of section 97 of the IRPA. III. BACKGROUND A. Summary of the alleged facts [3] In his memorandum, the appellant presents the facts as follows: - he and the members of his group of young XXXX were activists in the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX movement; they led various actions, including the distribution of pamphlets to the population for the purpose of raising awareness about the government's policies; - on XXXX XXXX, 2011, he and his group participated in a large demonstration in Dakar bringing together various sectors of Senegalese civil society, and he himself was XXXX XXXX XXXX XXXX XXXX XXXX - along with other demonstrators, he was ambushed, and the police brought him to the police station, kept him there for XXXX XXXX and released him, informing him that they would be keeping an eye on him; - after this detention, he was followed by plain clothes police officers, he felt threatened and he moved to another part of town called Patte d'Oie; - In July 2014 [sic],2 he obtained a visa to come to Canada, he left Senegal in XXXX 2014 and he filed his claim for refugee protection in March 2015.3 [4] Before the RPD, in addition to his BOC Form,4 the appellant, then designated as the claimant, filed a number of documents.5 B. RPD decision [5] The hearing before the RPD was held on May 15, 2015, and the decision to reject the claim for refugee protection was made on June 9, 2015.6 [6] In its reasons for decision, the RPD states that it listened carefully to the claimant's testimony, that he included little detail in his BOC Form and that he was not represented by counsel. It also states that it was sensitive to the last fact and asked him several questions to give him an opportunity to present his case properly.7 [7] Having taken these precautions, the RPD nevertheless found that certain aspects of the claimant's story led it to doubt his credibility and the merits of his claim for refugee protection.8 [8] The RPD noted that the information relating to his family situation and profession provided in his application for a temporary resident visa differed from that presented in the claim for refugee protection. It writes the following on this point: [translation] [15] . . . in Form IMM 5645 of his visa application, it is indicated that the refugee protection claimant is married to a certain "XXXX XXXX XXXX," who works as a cashier, while in his BOC Form, the claimant states that he is celibate. As for his profession, the claimant's visa application states that he is an XXXX XXXX, while in Form IMM 5669, which he filled out as part of his claim for refugee protection, he writes that he worked in XXXX XXXX and in particular that he had held positions as XXXX XXXX XXXX XXXX XXXX. [15] The panel asked the refugee protection claimant to explain these inconsistencies. He did not hesitate in his response and stated that he had lied in his visa application. He is neither married nor XXXX XXXX XXXX: "XXXX XXXX XXXX" simply does not exist. When the panel asked him why he had lied about his family situation, he explained that his entourage in Senegal had told him that he should state in his visa application that he was married, that it was better. The refugee protection claimant specified that he had lied only about these two aspects of his visa application. The panel also pointed out to the claimant that there was a marriage certificate included in his visa application. The claimant explained that it was very easy to obtain false marriage certificates in Senegal by paying certain individuals who make them. [16] Although the panel noted that the refugee protection claimant seemed to want to tell the truth during his testimony, the fact remains that the false information provided in his visa application undermines his credibility for the whole of his claim for refugee protection in Canada. The fact that he lied in his visa application is bound to raise doubt in the panel's mind as to the credibility of the refugee protection claim as a whole, especially given that the refugee protection claimant did not return to Senegal after his visa expired on XXXX XXXX, 2014. He remained in Canada with no legal status contrary to the Immigration and Refugee Protection Act (IRPA). He testified that he found the situation untenable and that he finally decided to make a claim for refugee protection in March 2015. The panel asked him why he had waited so long to make his claim, and he replied that he was afraid of being sent back to his country. The panel is of the view that this delay also undermines the credibility of the refugee protection claimant with respect to his fear of returning to his country of origin.9 [9] In addition, relying on the claimant's testimony, the RPD was of the view that he had nothing to fear from the Senegalese authorities, given that the latter intervened with the authorities of the Democratic Republic of the Congo (DRC) to have the leaders of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX movement liberated.10 [10] The RPD also found that the fact that the applicant had been able to leave his country and return without problem in 2012 when he took a trip to Côte d'Ivoire and the fact that he had not claimed asylum in that country also undermined his credibility.11 [11] Finally, the RPD indicated that there was no basis in the testimony or documentary evidence to conclude that the refugee protection claimant would be in danger if he were to return to live in his country.12 C. Grounds for appeal and decision sought [12] In his memorandum, the appellant submits that the RPD erred in its assessment of his credibility and breached the principles of procedural fairness.13 [13] With respect to the assessment of his credibility, the appellant submits that the information contained in a visa application should not be used to attack the credibility of a refugee protection claimant and that it is not unreasonable for a claimant to lie when making a claim for refugee protection in order to escape persecution.14 [14] He also submits that the situation of the leaders of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX movement involved the Senegalese people putting pressure on the government to have the individuals concerned repatriated and that there is nothing to suggest that he, on his own, would receive the same degree of public attention and support.15 [15] Finally, he submits that when he went to Côte d'Ivoire, the situation was not safe, and that even though the internal conflict had calmed down somewhat before his arrival, he could not, in his opinion, have claimed asylum there. He adds that, in any case, failure to seek refugee protection in a safe third country cannot constitute a determinative factor.16 [16] With respect to procedural fairness, the appellant submits that the RPD denied him the right to a fair hearing because it did not state at the outset of the hearing that he had a right to counsel, which affected his ability to testify about important aspects of his story and present the evidence necessary to prove his story. He adds that in making findings about his credibility, the RPD should have taken into account the fact that he did not have the benefit of counsel, particularly to help him with the forms he had filled out.17 [17] In conclusion, the appellant is asking the RAD to allow his appeal and grant him refugee status or, in the alternative, to refer the file to a different RPD member for re-determination.18 IV. ADMISSIBILITY OF DOCUMENT PRESENTED ON APPEAL A. The appellant presented documents in his appeal [18] In his memorandum19 and in a statement signed by his counsel,20 the appellant states that he is presenting evidence pursuant to subsection 110(4) of the IRPA. The appeal record includes six documents: a mission order dated XXXX XXXX, 2012; a letter of attestation from the XXXX XXXX XXXX XXXX dated July 20, 2015; an international identity card for XXXX XXXXe; an accommodation certificate signed by XXXX XXXX dated July 14, 2015; an identity card for XXXX XXXX and a sworn statement signed by XXXX XXXX.21 B. Eligibility criteria [19] 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 his or her 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. It should be noted that subsection 110(4) provides as a deadline the rejection of the appellant's claim and not the date of the hearing before the RPD. After the RPD hearing, but before the decision takes effect, a party who wants to provide a document as evidence may make an application to do so.22 [20] In a recent and much-anticipated decision, the Federal Court of Appeal held 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.23 It also held that the criteria identified in the case law relating to the credibility and relevance of evidence flow implicitly from the wording of that subsection.24 In short, Parliament expressed a clear wish to authorize the introduction of new evidence in an appeal before the RAD only in very specific and carefully defined circumstances, as the role of the RAD is not to provide an opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.25 [21] Finally, it should be noted that the RAD Rules state that the appellant's record must contain, among other documents, a written statement indicating whether the appellant is relying on any evidence referred to in subsection 110(4) of the IRPA and a memorandum that includes full and detailed submissions regarding how such evidence meets the requirements of that subsection and how that evidence relates to the appellant.26 C. The RAD's decision on the admissibility of the documents at issue [22] In his memorandum, the appellant acknowledges that the documents that he submitted on appeal could have been obtained during his hearing, but because he had no counsel, he was unaware that this evidence could have helped him argue his case.27 [23] In his memorandum, the appellant states that the mission order dated XXXX XXXX, 2012, demonstrates that his trip to Côte d'Ivoire was a business trip, as he had stated during his hearing before the RPD.28 [24] He states that the letter of attestation from the XXXX XXXX XXXX XXXX dated July 20, 2015, demonstrates that he worked full time for the XXXX XXXX XXXX from 2009 to 2011 and part time from 2011 to 2013, as he had stated during his hearing before the RPD.29 [25] He states that the accommodation certificate dated July 14, 2015, demonstrates that he indeed lived at his friend's residence in the XXXX XXXX neighbourhood from 2011 to 2013.30 [26] He finally states that the sworn statement signed by Ms. XXXX demonstrates that he was not married at the time of his hearing, contrary to what he had stated in his visa application.31 [27] Having carefully read each of these documents and the appellant's memorandum, I am of the view that these documents do not contain any evidence that arose after the rejection of the appellant's claim for refugee protection. As the appellant admitted explicitly, these documents were reasonably available at the time of his RPD hearing; I am therefore of the view that he has not demonstrated that he could not reasonably have been expected to present them to the RPD. On that point, I find that the fact that he was not represented by counsel at the time of his hearing before the RPD does not constitute evidence that he could not reasonably have been expected to present these documents to it. [28] I consider it important to note that, in this case, the RPD hearing took place on May 15, 2015, and the decision to reject the claim was rendered on June 9, 2015. This means that the claimant had about three weeks to take the necessary steps to obtain the documents in question. I would add that his BOC Form contained specific information not only about his right to be represented by counsel, but also about his responsibility for obtaining and presenting to the Immigration and Refugee Board of Canada (IRB) all documents that could support his claim for refugee protection.32 [29] Consequently, in light of the wording of subsection 110(4) of the IRPA and the case law, I find that the documents presented by the appellant in his appeal are inadmissible. V. HEARING BEFORE THE RAD A. The appellant is requesting a hearing before the RAD [30] In the written statement signed by his counsel,33 the appellant requests a hearing before the RAD. However, in his memorandum, he does not state that he is making this request.34 B. Test under subsection 110(6) of the IRPA [31] The RAD Rules state that the record of the person who is the subject of the appeal must include, among other things, a written statement indicating whether the appellant is requesting that a hearing be held under subsection 110(6) of the IRPA, and a memorandum that includes full and detailed submissions regarding why the RAD should hold such a hearing under subsection 110(6), if the appellant is requesting that a hearing be held.35 [32] Pursuant to subsection 110(6) of the IRPA, when evidence presented on appeal is found to be admissible, it should be determined whether that evidence raises a serious issue with respect to the credibility of the person who is the subject of the appeal, whether it is central to the decision with respect to the refugee protection claim, and whether it would justify allowing or rejecting the refugee protection claim. If the answer is yes, the RAD may then hold a hearing. C. RAD decision on whether to hold a hearing [33] The RAD bears the burden of determining whether or not the requirements set out in subsection 110(6) of the IRPA have been met. 36 [34] One of the determinative criteria in this regard is that the evidence presented in an appeal is found to be admissible.37 However, in this case I have found that the documents submitted by the appellant in his own appeal are not admissible pursuant to the test set out in subsection 110(4) of the IRPA and the case law. Consequently, it is my opinion that there is no cause to hold a hearing before the RAD. VI. APPROACH TO BE TAKEN IN THIS APPEAL A. The appellant's position [35] In his memorandum, the appellant submits that the RAD must review all aspects of the RPD's decision and reach its own conclusion about whether he is a Convention refugee or a person in need of protection, questions of procedural fairness to be analyzed in accordance with the standard of correctness, since issues of credibility based on testimony call for a degree of deference.38 B. A brief summary of the Federal Court of Appeal decision in Huruglica [36] After an exhaustive analysis of the legislative history and the various arguments used to date, in a recent and much anticipated decision, the Federal Court of Appeal held that the RAD's role was to intervene when the RPD is wrong in law, in fact or in fact and law.39 It also held that the appeal before the RAD was not, however, a true de novo proceeding.40 It also clearly specified the approach to be followed by the RAD: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.41 [37] As for the degree of deference owed by the RAD to the RPD's findings or conclusions regarding the credibility of testimony, Justice Gauthier made a number of very useful clarifications: [70] . . . there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [71] One can imagine many possible scenarios. For example, when the RPD finds a witness straightforward and credible, there is no issue of credibility per se. This will also be the case when the RAD is able to reach a conclusion on the claim, relying on the RPD's findings of fact regarding the relative weight of testimonies and their credibility or lack thereof. [72] Problems will occur when the credibility findings themselves are disputed on appeal, and the RAD has no way to reach a conclusion without endorsing or rejecting those findings. If the RAD can identify an error in situations where, for example, a claimant was not found credible because his story was not plausible based on common sense, the RPD may have no real advantage over the RAD. [73] Similarly, there may also be cases where a finding that a witness is not credible was based on discrepancies that could not justify such a conclusion or that simply did not exist. If the assessment of the oral evidence contains an error which the RAD can easily identify, but the weight to be given to this testimony is essential to determine whether the RPD decision should be confirmed or set aside, the RAD may conclude that it is a proper case to refer back to the RPD with specific directions in respect of the error identified in the credibility findings. [74] That said, it is not appropriate to say more about the various scenarios that may arise, for they are not before us. The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.42 C. An independent review to rectify any errors [38] In light of the Federal Court of Appeal decision, it is clear that I must fully exercise the role of the RAD, which is to correct any error that the RPD may have committed and make the determination that should have been made or that must be made in light of the most recent evidence on the record.43 That said, I must demonstrate a degree of deference to the RPD's conclusions regarding the appellant's credibility on the basis of his testimony.44 However, no such deference is owed with respect to procedural fairness.45 VII. ANALYSIS OF THE MERITS OF THE APPEAL [39] Having conducted an independent review of the record, I find that the appellant has failed to establish that the RPD erred in its assessment of his credibility or breached the principles of procedural fairness. Here is why. A. The principles of procedural fairness [40] Where procedural fairness is in question, one must ask whether the principles of procedural fairness have been respected in light of the particular circumstances of the case.46 In the context of a claim for refugee protection before the RPD, the goal of procedural fairness is to ensure that the person claiming refugee protection understands the procedure, is given a reasonable opportunity to tender any evidence that supports his or her claim and has a chance to persuade the RPD that the claim is well founded.47 A breach of procedural fairness will not necessarily result in a remedy in each case. According to the case law, if it is clear that the decision maker would have reached the same conclusion notwithstanding the breach of procedural fairness and no purpose would be achieved by remitting the case for redetermination by the RPD, the decision should stand.48 [41] In his memorandum, the appellant submits that the RPD denied him his right to a fair hearing because it did not tell him at the outset of the hearing that he had the right to counsel, and this affected his ability to testify about important aspects of his story and tender the necessary evidence to support his story. He adds that in drawing conclusions about his credibility, the RPD should have taken into account the fact that he did not have the benefit of the assistance of counsel, particularly to help him with the forms he had filled out.49 [42] The Claimant's Guide states, among other things, that refugee protection claimants may represent themselves; in other words, they are not required to have counsel to represent them, but if they decide to be represented by counsel, they must ensure that the counsel is available for the date and time shown on the Notice to Appear for a Hearing. The Guide also states that claimants must provide the RPD with documents in support of their claims for refugee protection. It explains that claimants are responsible for consulting the IRB website to review the documents included in the National Documentation Package for their countries of origin and that it is important to be well prepared for the hearing.50 [43] Before the RPD, the right to counsel is not absolute, but the right to a fair hearing is, and the claimant must be able to participate meaningfully.51 In a recent decision, Justice Russell provided the following explanation: My review of the case law suggests that a hearing is fair so long as the applicant understands the nature of the proceeding and is prepared to represent him or herself. For self-represented litigants, this may include an obligation on the Board to explain the process to an applicant and to clarify the nature of the decision being made. The consequences of the decision and the complexity of the matter can have an impact in determining whether a hearing is fair.52 [44] The Code of Conduct for Members of the Immigration and Refugee Board of Canada states that "[m]embers must take reasonable measures to accommodate all participants so that they may participate effectively in a proceeding."53 [45] I listened carefully to the recording of the hearing. I am confident that the decision-maker acting on behalf of the RPD took all reasonable measures to meet the claimant's needs. Here are a few examples. First, aware of the fact that he was not represented, it explained to him the procedure and the list of documents filed in evidence, and asked him whether he recognized his BOC Form and whether the information provided was complete and accurate, to which he responded in the affirmative. Next, regarding the Index to the most recent version of the National Documentation Package for Senegal, which the claimant stated he had not received, the RPD reassured him that if it were to mention any of the documents in the package, it would give him the necessary time to look at them and respond to them, to which the claimant replied that there was no problem. The RPD then explained the two ways to obtain protection in Canada, referring to sections 96 and 97 of the IRPA, and how it would proceed by asking him questions about his identity and his credibility, specifying that if it noted contradictions, omissions or inconsistencies in his testimony, it would ask him questions to give him the chance to explain. Finally, the RPD checked whether the claimant had any questions, and he replied, [translation] "Not particularly."54 [46] The examination then began, with no indication of any kind from the claimant that he was uncomfortable with the idea of starting immediately or that he wished to obtain an adjournment for the purpose of finding counsel or gathering additional evidence. [47] During the hearing, the member asked her questions calmly and respectfully, in a completely non-confrontational atmosphere. She always gave the claimant the chance to present his testimony thoroughly, even though she occasionally told him, seeming to doubt certain aspects of his account, that she needed to determine what was true.55 It was in such an atmosphere that the claimant openly admitted to having lived in Canada illegally after the expiry of his visa, from February 12, 2014, until he made his claim for refugee protection, on or about March 24, 2015.56 [48] During the hearing, the member clearly indicated to the claimant that she had to make her determination in light of his testimony and the evidence on the record. She pointed out to him that he had not submitted any written information about the movement to which he claimed to belong, the XXXX XXXX XXXX XXXX XXXX XXXX XXXX movement, to which he replied that he did not realize he had to provide that kind of information, as the movement was well known across Africa and he had expected it to be equally well known here.57 [49] During the hearing, the member also allowed the claimant to explain thoroughly why he could not return to Senegal and allowed him to provide any information he wished to provide about the XXXX XXXX XXXX XXXX XXXX XXXX XXXX movement, his personal participation in it and precisely what had happened, not only regarding the leaders who had been arrested in the DRC but who, with the support of the Senegalese government and population, were freed and returned to Senegal, but also regarding the demonstrations in which he himself had allegedly participated and the actions of the police against him personally.58 [50] In short, I am persuaded that the claimant's hearing before the RPD was fair, that the claimant understood the nature of the proceedings and that he was prepared to proceed without being represented by counsel. I am equally persuaded that the member clearly explained the process under way and the basis on which she would make her determination. Finally, I am satisfied that this was a straightforward case, not requiring any particular expertise. [51] Consequently, taking into account the specific circumstances of this case, I find that the RPD respected the principles of procedural fairness. B. Assessment of the credibility of the allegations of fear of persecution in Senegal [52] In its reasons for decision, the RPD was very clear and meticulous in its assessment of the claimant's credibility. These findings are based on an analysis of his testimony, including his explanations, and the evidence on the record. I am of the view that in this case, before drawing the conclusions that undermined the credibility of the claimant's key allegations, the RPD did not commit the error of too hastily disregarding the presumption that when a claimant seeking refugee protection swears that certain facts are true, they are true unless there are valid reasons to doubt there truth.59 (i) The appellant's subjective fear [53] The failure to seek international protection at the first opportunity may undermine the credibility of a person claiming refugee protection in Canada.60 Also, remaining longer than necessary in a country where one fears persecution, returning to that country voluntarily, travelling to other countries without claiming asylum and failing to seek refugee protection immediately upon arrival in Canada are behaviours that demonstrate a lack of subjective fear.61 When no satisfactory or reasonable explanation is provided, the failure to seek refugee protection at the first opportunity may undermine the claimant's credibility.62 The delay in making a claim for refugee protection may even, in the right circumstances, constitute sufficient justification for its rejection in itself.63 [54] In his BOC Form, the appellant declared that the information provided in that form was complete, true and accurate.64 During the hearing before the RPD, he stated that the contents of his BOC Form were complete and accurate. However, in his BOC Form, the appellant wrote that it was in XXXX 2011 that he participated in a demonstration in which the police went after him, arrested him and beat him and later placed him under surveillance.65 During the hearing, when asked to explain why he had not sought asylum when he travelled to Côte d'Ivoire in XXXX and XXXX 2012, he responded that he had gone to his country for an event, not to flee, because at that time he was not yet being threatened. This last statement clearly contradicts the contents of his BOC Form. In addition, the appellant never challenged the fact that in XXXX and XXXX 2012, he had been able to leave his country for Côte d'Ivoire and return without encountering any problems whatsoever with the Senegalese authorities.66 In my view, this is sufficient to undermine the claimant's credibility regarding his subjective fear of persecution in his country. [55] During the hearing before the RPD, when invited to explain why he had waited so long to leave Senegal after returning there in XXXX 2012, the claimant answered that he had been constantly in hiding and that, although he worked, he had no access to his workplace, and even though he went occasionally-very rarely-out in public, it was always at night. When asked to explain whether the police knew where he was hiding, the claimant responded that he did not know.67 That statement contradicts another statement he made during his hearing before the RPD to the effect that, in his country, the police always know everything. Furthermore, during his hearing, the claimant stated that he had moved to a new neighbourhood after the events of XXXX 2011 in order to hide, which contradicts the information provided in Form IMM 5669, in which he states that he resided at the same address from April 2006 to December 2013.68 [56] In addition, the appellant acknowledged during his hearing before the RPD that he had lived illegally in Canada for more than a year. His sole explanation for this was that he feared being deported to his country. In my view, this is not a reasonable explanation, and one would be quite justified to conclude that the claimant's conduct during this period did not correspond to that of someone who fears persecution, again justifying the finding that his credibility regarding his subjective fear of persecution is undermined. [57] In my view, the RPD was fully justified in making such a finding and therefore did not commit an error. (ii) The findings relating to the information contained in his visa application [58] In his memorandum, the appellant criticizes the RPD for using the information contained in his visa application to attack his credibility. [59] However, it is open to the RPD to gauge the credibility of refugee protection claimants and draw negative inferences when there are disparities among their various statements: those contained in their BOC Forms; those contained in other documents they have completed with declarations that the information provided was complete, true and accurate; and those contained in their viva voce testimony to the extent that the explanations provided are not considered satisfactory, plausible or credible in the circumstances.69 [60] In light of the analysis performed in the preceding paragraphs, it seems clear to me that when he filled out his visa application to come to Canada, the appellant was not in a situation of attempting to flee from a country where he was being persecuted by reason of his political opinion. Furthermore, in filling out his visa application, he declared that the information provided was complete, accurate and factual, although he never signed the document in question.70 In addition, as part of his visa application, he submitted a marriage certificate issued by an officer of civil status, which is presumed to be authentic.71 In my view, a mere statement by the claimant that it is easy to obtain a false document in his country and that he is not married to the person mentioned in the marriage certificate does not constitute proof that the marriage certificate is false. [61] Consequently, I am of the view that the RPD did not err in finding that the false information contained in the visa application undermined his overall credibility. That said, it did not limit its analysis of the claim for refugee protection to this issue alone. (iii) An analysis of the documentary evidence [62] It should be recalled that "in determining an application for refugee status, it [is] up to the . . . applicant to establish, on a balance of probabilities, the facts on which [the application was based]." However, the appellant did not submit to either the RPD or the RAD any documentary evidence from, for example, the press or from civil society organizations that could have helped him corroborate his allegations that the Senegalese authorities were looking for him and threatening him because he was a member of a movement that opposed the former President of that country, Mr. Wade, when the latter wished to amend the constitution so that he might obtain another presidential mandate. [63] The failure to provide supporting documentation that is reasonably expected may have an impact on a refugee protection claimant's credibility.72 Upon reading rule 11 of the RPD Rules,73 it is clear that the person claiming refugee protection has a duty to provide the documents and other elements of the claim. The English version is more eloquent than the French version, stating, "The claimant must provide ...." 74. However, it is important to remember that, in French, the use of the present indicative is sufficient to express the imperative nature of a rule. In any event, the bottom line is that a lack of diligence on someone's part to obtain an important document that could have corroborated his or her testimony can undermine his or her credibility.75 [64] Furthermore, even though the explicit conditions listed in subsection 110(4) of the IRPA are inescapable, the appellant could have submitted documents from the Senegalese press or from civil society organizations to corroborate, for example, the fact that he was known to the Senegalese authorities to be involved in the XXXX XXXX XXXX XXXX XXXX XXXX XXXX movement, explaining that prior to the rejection of his claim by the RPD, these documents were not reasonably available to him or, if they were, that he could not reasonably have presented them in the circumstances.76 However, he did not do so. [65] Finally, a plain reading of the documentary evidence indicates that during the presidential election of March 2012, it was not Mr. Wade who was elected for a seven-year mandate, but rather his opponent, Macky Sall. Also, freedom of the press is improving in Senegal. Moreover, the version of the National Documentation Package on Senegal available at the time of the hearing before the RPD contained no information about the situation described by the appellant, namely that he or other individuals involved in 2011 in the XXXX XXXX XXXX XXXX XXXX XXXX XXXX movement were at that time subject to persecution by the Senegalese authorities.77 [66] Consequently, in this case, I find that the appellant has failed to establish that the RPD erred in its assessment of his credibility. C. A supplementary opinion [67] In its decision, the RPD did not analyze whether this was a situation that called for a finding of no credible basis. In his memorandum, the appellant did not address this issue either. [68] The Federal Court has already stated that the RAD must not base a finding that the RPD's decision was erroneous or invalid on a new issue.78 [69] In this decision, I do not intend to rely on the issue of no credible basis to allow or dismiss the appeal, given that, in light of my analysis above, I have already found that the appeal should be dismissed. I nevertheless wish to express an opinion that I hope will prove useful. I am basing this opinion on my analysis of the evidence on the RPD record,79 including the claimant's testimony, the recording of which I listened to carefully. [70] According to the case law, the threshold for a finding of no credible basis under subsection 107(2) of the IRPA is a high one because the effects of such a finding are significant.80 In my view, in this case, not only was the claimant's testimony before the RPD not credible, but there was no documentary evidence on which to base a finding that the claim was well founded. Consequently, in such circumstances the RPD could have noted in its decision that this claim for refugee protection had no credible basis. VIII. CONCLUSION [71] For these reasons, I confirm the RPD's determination that XXXX XXXX XXXX is neither a refugee within the meaning of section 96 nor a person in need of protection within the meaning of section 97 of the IRPA. [72] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette April 11, 2016 Date IRB translation Original language: French 1 The passport in question is reproduced at pages 41 to 49 of the RPD record. 2 According to the information in his visa, which is reproduced at page 45 of the RPD record, it was issued on August 15, 2013. 3 Appellant's memorandum, September 4, 2015, paragraphs 5 to 8, pages 2 and 3. 4 The appellant's Basis of Claim (BOC) Form is reproduced at pages 10 to 19 of the RPD record. 5 The documents in question are reproduced at pages 50 to 54 of the RPD record. 6 RPD Decision and Reasons, pages 3 to 9 of the RPD record. 7 Idem, paragraph 12, pages 5 and 6 of the RPD record. 8 Idem, paragraph 13, page 6 of the RPD record. 9 Idem, paragraphs 14, 15 and 16, pages 6 and 7 of the RPD record, citations omitted. 10 Idem, paragraph 17, page 7 of the RPD record, citations omitted. 11 Idem, paragraph 19, page 8 of the RPD record, citations omitted. 12 Idem, paragraph 20, pages 8 and 9 of the RPD record, citations omitted. 13 Appellant's memorandum, paragraph 17, pages 5 and 6. 14 Idem, paragraphs 24 to 31, pages 8 and 9. 15 Idem, paragraphs 32, 33 and 34, page 10. 16 Idem, paragraphs 35 to 41, pages 10, 11 and 12. 17 Idem, paragraphs 42 to 48, pages 12 and 13. 18 Idem, paragraphs 49 to 52, pages 14 and 15. 19 Idem, Part IV, paragraphs 1 to 6, pages 13 and 14. 20 Statement signed on September 4, 2015, 1 page, appearing at Tab 3 of the appeal record. 21 The documents in question are reproduced at Tab 4 of the appeal record. 22 RPD Rules, SOR/2012-256, rule 43. 23 Minister of Citizenship and Immigration v. Parminder Singh, A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, paragraphs 38 to 51. 24 Idem, paragraphs 34 and 35. 25 Idem, paragraph 54. 26 RAD Rules, SOR/2012-257, subrule 3(3). 27 Appellant's memorandum, Part IV, paragraph 6, page 14. 28 Idem, Part IV, paragraph 2, page 14. 29 Idem, Part IV, paragraph 3, page 14. 30 Idem, Part IV, paragraph 4, page 14. 31 Idem, Part IV, paragraph 4, page 14. 32 Appellant's BOC Form, page 10 of the RPD record, includes the following excerpt: IMPORTANT NOTICE REGARDING COUNSEL AND DOCUMENTS THAT MAY SUPPORT YOUR CLAIM You have a right to be represented by counsel at your own expense, but that counsel you choose must be available on the date fixed for the hearing. You are responsible for obtaining and providing to the IRB any documents that may support your claim. Please see the appendix at the end of this form for details on providing documents to the IRB. 33 Statement signed on September 4, 2015, 1 page, appearing under Tab 3 of the appeal record. 34 Appellant's memorandum, 15 pages. 35 RAD Rules, SOR/2012-257, subrule 3(3). 36 Zhuo v. Canada (Minister of Citizenship and Immigration), IMM-2693-14, O'Reilly, July 27, 2015; 2015 FC 911, paragraph 11: ". . . Where the conditions for holding an oral hearing are present, the RAD should generally be required to convene one. Obviously, the RAD retains a discretion on this question but that discretion must be exercised reasonably in the circumstances. In particular, the mere fact that a party has not requested a hearing will generally not be sufficient reason to justify a refusal to convene one when the circumstances appear to require it. While the RAD rules allow an appellant to request a hearing, IRPA does not actually impose a burden either to request, or to satisfy the RAD that the circumstances merit, an oral hearing (see Refugee Appeal Division Rules, SOR/2012-257, Rule 5(2)(d)(iii). The onus rests with the RAD to consider and apply the statutory criteria reasonably." 37 Parminder Singh, supra note 19, paragraph 51: ". . . the basic rule is that the RAD 'must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division [...]' (s. 110(3)). The new evidence must meet the admissibility criteria set out in subsection 110(4), and a new hearing can be held only if the new evidence fulfils the conditions set out in subsection 110(6)." 38 Appellant's memorandum, paragraphs 18 to 23, pages 6, 7 and 8. 39 Minister of Citizenship and Immigration v. Huruglica, A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93, paragraphs 36 to 103. 40 Idem, paragraph 79. 41 Idem, paragraph 103. 42 Idem, paragraphs 70 to 74. 43 Idem, paragraphs 96, 97 and 98. 44 Dowansingh v. Canada (Minister of Citizenship and Immigration), No. IMM-6581-14, Diner, July 30, 2015; 2015 FC 933, paragraph 22: "This Court has repeatedly held that RPD's conclusions on issues of credibility based on testimony clearly warrant some measure of deference . . ." (citations omitted). 45 Bouanga v. Canada (Minister of Citizenship and Immigration), No. IMM-1017-14, Martineau, October 30, 2014; 2014 FC 1029, paragraph 8. 46 Wai Kheong Ching v. Canada (Minister of Citizenship and Immigration), No. IMM-1272-14, Kane, June 9, 2015; 2015 FC 725, at paragraph 75, citing Baker, [1999] 2 SCR 817, paragraphs 23 to 28, she writes: ". . . the Supreme Court of Canada set out a list of factors affecting the duty of procedural fairness and emphasized that the content of the duty must be determined in the specific context of each case. The Court noted that the factors were not exhaustive and reiterated that procedural fairness is based on the principle that individuals affected by decisions should have the opportunity to present their case and to have decisions affecting their rights and interests made in a fair and impartial and open process 'appropriate to the statutory, institutional, and social context of the decision.'" Zheng v. Canada (Minister of Citizenship and Immigration), No. IMM-1998-11, Mosley, November 25, 2011; 2011 FC 1359, at paragraph 7. Bokhari v. Canada (Minister of Citizenship and Immigration), No. IMM-3907-10, Harrington, March 22, 2011; 2011 FC 354, at paragraph 13. 47 Nemeth v. Canada (Minister of Citizenship and Immigration), No. IMM-2522-02, O'Reilly, May 14, 2003; 2003 FCT 590, paragraph 10: "The Board was aware that the Nemeths had been represented up until just prior to the hearing. It was, or should have been, alive to the risk that the claimants were ill-prepared to represent themselves. Under the circumstances, it had an obligation to ensure that the Nemeths understood the proceedings, had a reasonable opportunity to tender any evidence that supported their claim and were given a chance to persuade the Board that their claims were well-founded." 48 Fei Zheng v. Canada (Minister of Citizenship and Immigration), No. IMM-1998-11, Mosley, November 25, 2011; 2011 FC 1359, at paragraph 8. Sumit Roy v. Canada (Minister of Citizenship and Immigration), No. IMM-7106-12, Scott, July 9, 2013; 2013 FC 768, at paragraph 34: "While there is no need to establish a prejudice in order prove a breach of procedural fairness based on inadequate interpretation, the Applicant is required to demonstrate that the breach of procedural fairness was material to the Board's decision in order for this Court to intervene" (citations omitted). Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202. 49 Appellant's memorandum, paragraphs 42 to 48, pages 12 and 13. 50 IRB, Claimant's Guide, Version 2 - 2013, which is available on the Board's website: http://www.irb-cisr.gc.ca/Eng/RefClaDem/Pages/ClaDemGuide.aspx. 51 Navaratnam v. Canada (Minister of Citizenship and Immigration), No. IMM-2608-13, O'Keefe, March 5, 2015; 2015 FC 274, paragraph 37. 52 Li v. Canada (Minister of Citizenship and Immigration), No. IMM-1304-14, Russell, July 28, 2015; 2015 FC 927, paragraph 37. 53 IRB, Code of Conduct for Members of the Immigration and Refugee Board of Canada, December 15, 2012, section 25. The Code is available on the IRB website: http://www.irb-cisr.gc.ca/Eng/BoaCom/empl/Pages/MemComCode.aspx. 54 Recording of hearing of May 15, 2015, before the RPD, 00:01 to 16:35. 55 For example, with respect to the fact that, according to the information contained in his visa application, he is married. See also idem, 26:50 to 31:00. 56 Idem, 37:25 to 46:20. 57 Idem, 52:10 to 53:55. 58 Idem, 46:45 to 49:30 and 56:40 to 01:22:15. 59 Anthonimuthu v. Canada (Minister of Citizenship and Immigration), No. IMM-1854-04, de Montigny, January 28, 2005; 2005 FC 141, at paragraph 46. 60 Mesidor v. Canada (Minister of Citizenship and Immigration), No. IMM-2233-09, Shore, December 4, 2009; 2009 FC 1245, at paragraph 11. 61 Rivera v. Canada (Minister of Citizenship and Immigration), No. IMM-5826-02, Beaudry, November 5, 2003; 2003 FC 1292, at paragraphs 29 and 30. 62 Medina Canchon v. Canada (Minister of Citizenship and Immigration), No. IMM-3359-12, Noël, November 27, 2012; 2012 FC 1374, at paragraph 28. 63 Milovic v. Canada (Minister of Citizenship and Immigration), No. IMM-7773-14, LeBlanc, August 25, 2015; 2015 FC 1008, at paragraph 17: "Although a delay in claiming refugee protection is not determinative with respect to the outcome of a refugee claim it may constitute sufficient grounds for rejection in itself, in the right circumstances. This would generally be the case when the refugee claimant cannot provide a satisfactory explanation for the delay in claiming." 64 BOC Form, page 19 of the RPD record. 65 Idem, pages 11 and 12 of the RPD record. 66 Recording of hearing of May 15, 2015, before the RPD, 01:27:00 to 01:30:28. 67 Idem, 01:30:30 to 01:32:20. 68 Form IMM 5669 is reproduced at pages 33 to 37 of the RPD record. Question 12 asks specifically about the addresses where the applicant has lived for the past ten years. 69 Zeferino v. Canada (Minister of Citizenship and Immigration), No. IMM-4058-10, Boivin, April 13, 2011; 2011 FC 456, at paragraphs 31 and 32, as cited by Justice Boivin's colleague the Honourable Justice Gagné in Gonzalez Hernandez v. Canada (Minister of Citizenship and Immigration), No. IMM-2324-12, Gagné, September 20, 2012; 2012 FC 1097, at paragraph 36. 70 Form IMM 5257 is reproduced at pages 100 to 107 of the RPD record. 71 Elhassan v. Canada (Minister of Citizenship and Immigration), IMM-9787-12, de Montigny, December 12, 2013; 2013 FC 1247, paragraphs 21, 22 and 23. 72 Mercado v. Canada (Minister of Citizenship and Immigration), IMM-4493-09, Gauthier, March 12, 2010; 2010 FC 289, at paragraph 32, referring to the following decisions: A.M. v. Canada (Minister of Citizenship and Immigration), 2005 FC 579, [2005] F.C.J. No 709 (QL) at paragraph 20 and Nechifor v. Canada (Minister of Citizenship and Immigration), 2003 FC 1004, [2003] F.C.J. No 1278 (QL) at paragraph 6. 73 Refugee Protection Division Rules, SOR/2012-256. 74 Villanueva Pinon v. Canada (Minister of Citizenship and Immigration), No. IMM-4906-09, Boivin, April 20, 2010; 2010 FC 413, at paragraph 16. 75 Idem, at paragraph 15. 76 Parminder Singh, supra footnote 23, paragraph 51. 77 IRB, National Documentation Package on Senegal, September 30, 2014, Document 2.1: United States of America, Department of State, Senegal. Country Reports on Human Rights Practice for 2013, February 27, 2014. 78 Ojarikre v. Canada (Minister of Citizenship and Immigration), No. IMM-7033-14, Annis, July 23, 2015; 2015 FC 896, paragraph 20. Jianzhu v. Canada (Minister of Citizenship and Immigration), No. IMM-1034-14, Simpson, April 28, 2015; 2015 FC 551, paragraph 12. 79 Sary v. Canada (Minister of Citizenship and Immigration), No. IMM-3451-15, Gascon, February 10, 2016; 2016 FC 178, paragraph 29. 80 Pournaminivas v. Canada (Minister of Citizenship and Immigration), No. IMM-8229-14, Boswell, September 22, 2015; 2015 FC 1099, paragraph 9, citing his colleague Justice Strickland in Behary, 2015 FC 794, paragraph 53. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 SAR.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB5-04487 21