MC0-09587

RAD File / Dossier de la SAR : MC0-09587 MC0-09588 / MC0-09589 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision April 9, 2021 Date de la décision Panel Jo-Anne Pickel Tribunal Counsel for the persons who are the subject of the appeal Suel Hee Lee Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal for the reasons that follow. [2] XXXX XXXX XXXX is a citizen of Angola. His spouse, XXXX XXXX XXXX is a citizen of the Democratic Republic of Congo and their son, XXXX XXXX XXXX, is a citizen of the United States. In this decision, I refer to all three individuals collectively as the "Appellants". [3] Mr. XXXX alleged that he was arrested, beaten up, and detained due to a property dispute over his father's land which was expropriated by a high-ranking member of the Angolan armed forces while his family was living in the Democratic Republic of Congo between 1983 and 2010 during the time of the Angolan civil war. Ms. XXXX fears returning to the Democratic Republic of Congo as a result of an incident in which she was raped, and her family was killed. Mr. XXXX left Angola for the United States in XXXX 2012. He met and married Ms. XXXX in the United States and their son was born there. Mr. XXXX filed an asylum claim in the United States in XXXX 2013 which was denied in XXXX 2016. Ms. XXXX made a request to sponsor Mr. XXXX in 2017 but they did not hear back from American authorities. Mr. XXXX and his family crossed the border to claim refugee protection in Canada in or around March 2018. [4] The Refugee Protection Division (RPD) found that Mr. XXXX failed to establish his identity due to various irregularities in the documents he provided and inconsistencies in his evidence regarding the documentation. The RPD also found that Mr. XXXX account of events that occurred in Angola and the risk he would face if he returned was not credible due to various credibility problems relating to his claim. The RPD found that Ms. XXXX was excluded from protection under Article 1E of the refugee Convention due to her permanent resident status in the United States. Finally, the RPD denied the son's claim as the Appellants failed to allege any risk that he would face if he were to return to the United States. [5] On appeal, the Appellants challenge the RPD's findings regarding Mr. XXXX claim. They do not challenge the RPD's rejection of the claims filed by Ms. XXXX and their son. DECISION [6] My role is to look at all the evidence and decide if the RPD made the correct decision.1 In my view, the determinative issue in this case is the issue of forward-looking risk. Even if I agree with the Appellants that the RPD erred in finding that Mr. XXXX had not proven his identity, I find that the Appellants have failed to establish that he would face a serious possibility of persecution or the likelihood of one of the types of serious harm that would make him a person in need of protection if he were to return to Angola today. PROPOSED NEW EVIDENCE [7] According to the law,2 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or that the appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [8] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.3 The RPD decision was dated August 4, 2020. Therefore, this is the date in relation to which the new evidence must be assessed. [9] The Appellants have submitted a written statement sworn by Mr. XXXX and 12 documents as proposed new evidence on appeal. I address each of the documents below, grouping them thematically as necessary. In his statement, Mr. XXXX identifies and makes arguments regarding the admissibility of the various documents attached as exhibits to the statement. I will treat the statement as argument even though arguments on admissibility should normally be contained in the appeal memorandum. Narrative emailed to former counsel [10] The Appellants submit as proposed new evidence an email that Mr. XXXX sent to his former counsel with a written narrative. Among other things, the narrative mentions Mr. XXXX father being poisoned in Angola before dying in 2009 in the Democratic Republic of Congo. This part was omitted by the version of the narrative that Mr. XXXX previous counsel included with his Basis of Claim form. The Appellants argue that the email is admissible as they could not reasonably have been expected to present the email to the RPD before it rendered its decision. I agree. I find that the email is admissible as it meets the conditions for the admissibility of new evidence contained in s. 110(4) of the Immigration and Refugee Protection Act (IRPA) as well as the applicable case law. [11] I do not find admissible what purports to be the version of Mr. XXXX narrative submitted by his former counsel as the narrative submitted as new evidence is actually the narrative that was submitted for Ms. XXXX. In any event, the written narratives that the Appellants former counsel submitted on their behalf are contained in the RPD Record. Copies of passports and cedula pessoal [12] The Appellants filed copies of passports and cedula pessoal for five unknown persons. They argue that they could not reasonably have been expected to file these documents as they directly respond to issues raised in the RPD Decision. The Appellants submit the documents to show that the Pessoal numbers on passports do not match those that appear on a cedula pessoal. I do not find these documents admissible on the basis that the Appellants have provided absolutely no information as to where they obtained these documents or to whom they belong. In any event, these documents were submitted to support the Appellants' argument that the RPD erred in finding that Mr. XXXX had not established his identity. As noted above, I agree with them on the identity issue. The passport copies are irrelevant to any other issue on appeal. For all the above reasons, I find them inadmissible. Mr. XXXX affidavit [13] The Appellants submitted as new evidence an affidavit that Mr. XXXX swore in November 2020 that purports to provide further explanations on various points covered in the hearing. The Appellants argue that they could not be expected to file the affidavit with the RPD as it responds directly to findings made by the RPD. The affidavit is not admissible. It is well-established that claimants must put their best case forward before the RPD. It is not open to them to seek to supplement their evidence by adding information and explanations that they could have, but failed, to provide to the RPD at the time of the hearing. UNHCR statement and printout from website [14] The Appellants filed a statement from UNHCR and a printout from the Citizen Rights in Africa Initiative website that both refer to an initiative in which the UNHCR facilitated the reintegration of Angolan returnees by providing them with cedula pessoal. Both of these documents would have been available to the Appellants before the RPD decision. Given the RPD's questioning of the Appellants on the two hearing days in this case, it would have been evident to them that the RPD had concerns about Mr. XXXX identity documents. Therefore, the Appellants could reasonably have been expected to file these documents with the RPD, if not between the two hearing days, then before it rendered its decision in the case. In any event, these materials were submitted to support the Appellants' arguments on the issue of identity. As noted above, I accept these arguments even without reference to these inadmissible materials. Printout from Angolan website [15] The Appellants submitted as proposed new evidence a printout from an Angolan government website from September 2020 which, they argue, sets out different documentation that must be presented in order to obtain a passport than what was indicated in a 2003 Response to Information Request relied upon by the RPD. I find the printout admissible. It is unclear whether the printout would have been available to the Appellants before the RPD decision; however, I am prepared to find it admissible as new evidence. Immigration and Refugee Board document [16] I find admissible the Response to Information Request prepared by the Immigration and Refugee Board in 1998 about the cedula pessoal, which is the equivalent of a birth certificate, given that it is a research report produced by the IRB itself. Submissions filed in response to RAD notice [17] I find admissible the new submissions filed by the Appellants' counsel on March 18, 2021, in response to a notice I sent in relation to the issue of forward-looking risk.4 These submissions are admissible as they could not reasonably have been made before I sent the notice to the Appellants' counsel. IN-PERSON HEARING REQUEST [18] The Appellants' request for an in-person hearing is denied. The RAD only has the power to hold an in-person hearing in some circumstances in which it admits new evidence. I deny the Appellants' request for an in-person hearing because the evidence I have admitted does not meet the conditions for the holding of an in-person hearing. Specifically, the new evidence I have found to be admissible does not raise a serious issue with respect to the Appellants' credibility that is central to their claims and that, if accepted, would justify allowing or rejecting their claims.5 ANALYSIS OF MERITS Identity [19] I accept the Appellants' argument that the RPD erred in finding that Mr. XXXX had failed to establish his identity. However, I do not need to provide extended reasons on this issue as I find that the Appellants have not established that Mr. XXXX would face a forward-looking risk if he returns to Angola. It suffices to say that, having reviewed the transcript of Mr. XXXX testimony, I agree with the Appellants that the RPD erred in finding that there were significant inconsistencies in Mr. XXXX testimony as to how he obtained his passport and cedula pessoal. Therefore, I find these documents were sufficient to prove his identity, on a balance of probabilities. Forward-looking risk not established [20] I find that the determinative issue in this case is the issue of forward-looking risk. Even if I were to accept as true, all of the Appellants' allegations about events that occurred before Mr. XXXX left Angola in 2012, I find that they have failed to establish a forward-looking risk if Mr. XXXX returns to Angola today. That is, they failed to establish a serious possibility that Mr. XXXX would be persecuted on a Convention ground or a likelihood that he would be subjected to any of the forms of serious harm that would make him a person in need of protection. [21] In response to the notice I sent to the Appellants' Counsel on the issue of forward-looking risk, Counsel argued that Mr. XXXX would be considered a foreigner in Angola due to his being brought by his parents to the Democratic Republic of Congo as a child during the Angolan civil war. Counsel argues that Mr. XXXX would be an internally displaced person and she seeks to rely on evidence contained in the National Documentation Package (NDP) for Angola to argue that Mr. XXXX would not be able to exercise his property rights, that he would be discriminated against, would be denied the right to work and to access social services. [22] I do not agree with these arguments. The portions of the NDP for Angola that counsel seeks to rely upon apply to refugees and asylum seekers. Mr. XXXX is neither. He is a citizen of Angola. He was born in Angola and has both a cedula pessoal, which is the equivalent of a birth certificate, and an Angolan passport. As a citizen of Angola, his status differs significantly from that of refugees and asylum seekers. Moreover, Counsel does not specifically explain why she argues that Mr. XXXX would be a "displaced person." Counsel's argument seems to be that Mr. XXXX would be mistreated and/or discriminated against due to the fact that his family fled to the Democratic Republic of Congo between 1983 and XXXX 2010. However, the evidence does not establish how Mr. XXXX would be identified as a person whose family left Angola before again returning so long ago. In addition, the evidence does not establish that any discrimination that Mr. XXXX would face due to his family's migration history if he returns to Angola today would be sufficiently serious and widespread to amount to persecution, as he has alleged. The only documentary evidence relied upon by counsel relates to asylum seekers and refugees who are not groups of persons who are similarly-situated to Mr. XXXX as a citizen of Angola. [23] There is no evidence to support Counsel's contention that Mr. XXXX would be unable to access proper national identity documentation since he has both a cedula pessoal as well as an Angolan passport. The IRB research report I admitted as new evidence indicates that the cedula pessoal is the equivalent of a birth certificate and it can be used to obtain an identity card and a passport. [24] While it is likely the case that Mr. XXXX would not be able to regain rights over the property held by his family that had been subject to expropriation while they were living in the Democratic Republic of Congo, the evidence does not establish that Mr. XXXX would not have access to property rights as an Angolan citizen. Likewise, the evidence does not establish that he would not be able to access social services or work in Angola. [25] I have taken into account the fact that the Appellants alleged that Mr. XXXX and his family were once detained by police when they returned to Angola and that Mr. XXXX does not know where his brother and sister are today. However, even accepting these allegations as true, I find that they do not establish a serious possibility that Mr. XXXX would be persecuted by authorities if he returned today or a likelihood that he would be seriously harmed by them. As for Mr. XXXX brother and sister, there was only vague evidence as to Mr. XXXX loss of contact with them which is insufficient to establish that Mr. XXXX would face a serious possibility of persecution or a likelihood of serious harm if he returned to Angola today. [26] For all of the above reasons, I find that the Appellants have failed to establish that Mr. XXXX would face a serious possibility of persecution or the likelihood of any of the forms of serious harm that would make him a person in need of protection if he were to return to Angola today. Claims filed by Ms. XXXX and her child [27] As noted above, the Appellants did not contest the RPD's rejection of the claims filed by Ms. XXXX and Mr. XXXX and Ms. XXXX son. Therefore, it suffices for me to state that I have reviewed all of the evidence regarding these claims and agree with the RPD's findings for the reasons set out in paragraphs 49-63 of the RPD decision. CONCLUSION [28] For the above reasons, I find that XXXX XXXX XXXXXXXX, XXXX XXXX XXXX, and XXXX XXXX XXXX are neither Convention refugees nor persons in need of protection. (signed) Jo-Anne Pickel Jo-Anne Pickel April 9, 2021 Date JP/tm 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 Subsection 110(4) of the IRPA. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (Singh). 4 Letter from the Appellants' counsel to the RAD March 18, 2021 (Exhibit P-3); Letter from RAD to Appellants' counsel on March 4, 2021 (Exhibit RAD-1). 5 IRPA, section 110(6). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC 0-09587 MC0-09588 / MC 0-09589 RAD.25.02 (January, 2020) Disponible en français 2 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