TB8-05085

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 : TB8-05085 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit / entendu à Date of decision September 10, 2018 Date de la décision Panel Me Sasha Kiran Cragg-Gore Tribunal Counsel for the person(s) who is(are) the subject(s) of the appeal Fedora Mathieu (lawyer) Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (the appellant), a citizen of Djibouti, is appealing against the decision of the Refugee Protection Division (RPD) dated December 21, 2017, rejecting his refugee protection claim. He is asking the Refugee Appeal Division (RAD) to set aside the determination of the RPD and recognize him as a Convention refugee or a person in need of protection or, in the alternative, to refer the matter to a differently constituted panel of the RPD. The appellant would like to present new evidence and is asking that a hearing be held in this appeal. DETERMINATION OF THE APPEAL [2] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination, namely, that the appellant is a Convention refugee. OVERVIEW AND FACTUAL BACKGROUND OF THE APPEAL [3] The appellant alleges that he would be persecuted by reason of his political opinion as a member of the Union pour le salut national (USN) [union for national salvation], a former opposition party in Djibouti. He states that he joined the party in January 2013 and that he was responsible for XXXX XXXX XXXX XXXX XXXX XXXX. He also states that he took part in a protest in Bouldhougo on December 21, 2015, and that he was arrested on January 31, 2016, and detained for two days. He was released on the condition that he act as a government informant. Following that incident, he lessened his involvement in the USN and made arrangements to leave the country. He travelled to Canada in August 2016, where he filed a refugee protection claim. [4] The RPD rejected his refugee protection claim on December 21, 2017. The member analyzed a summons and a custody certificate and concluded that they were not genuine and that the evidence did not establish that he had been detained in January 2016. He also decided that the appellant lacked a subjective fear and that he did not establish, on a balance of probabilities, his participation in the protest and his profile as a member of the USN. ROLE OF THE RAD [5] The RAD's role is to review RPD decisions by applying the correctness standard of review after carrying out its own analysis of the record to determine whether, as alleged by the appellant, the RPD erred. The exception is where the RPD enjoys a meaningful advantage in assessing the credibility or weight to be given to the oral evidence before it, in which case the RAD may apply the reasonableness standard.1 After carrying out my own analysis of the record, I find that the RPD did not enjoy any particular advantage and that the correctness standard must be applied. DOCUMENTS PRESENTED ON APPEAL [6] In Singh, the Federal Court of Appeal finds 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.2 It also finds that the criteria set out in the case law relating to the credibility and relevance of evidence arise implicitly from the wording of the subsection in question.3 [7] In short, there is a clear legislative intention to not authorize any new evidence on appeal before the RAD other than in very specific and carefully defined circumstances, as the role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors of law or mixed errors of fact and law to be corrected.4 [8] The appellant is asking to present the following evidence in this appeal: a. An affidavit written by the appellant that repeats the allegations in the claim and that brings new evidence; b. Two summonses issued by the Djiboutian authorities for other people, which the claimant found on Twitter; c. A letter from the appellant's parents that repeats the allegations in the claim and that discusses the arrest of the appellant's father and brother in 2016; d. A letter from two of the appellant's friends that is intended to corroborate his statement that he took part in the protest on December 21, 2015; e. A letter from the Mouvement pour le renouveau démocratique et le développement (MRD) [movement for democratic renewal and development] that confirms the appellant's activities in the Union pour le salut national in Djibouti. [9] For the following reasons, the letter from the MRD is admissible in this appeal; however, the other evidence is not admissible. The appellant's affidavit is not admissible [10] The appellant's affidavit was signed after his claim was rejected, but several of the events described in it occurred before the rejection. The events that are described are a repetition of the allegations that form the basis of this refugee protection claim. The appellant cannot complete deficient evidence before the RPD,5 and the information in the affidavit concerning the events that were previously before the RPD is not admissible under subsection 110(4) of the IRPA. [11] Some of the information in the affidavit provides a context for the evidence presented in this appeal. It is in fact submissions. I cannot consider submissions that are presented in an affidavit under subsection 110(4), so the affidavit as a whole cannot be admitted as new evidence. The letter from the MRD is admissible [12] The letter from MRD is dated after the rejection of the claim and describes events that took place after the rejection. The appellant submits that he could not obtain this evidence before his claim was rejected because he did not know that the MRD had an office in Canada. I accept that explanation. Consequently, this letter is admissible in this appeal, under subsection 110(4) of the IRPA. It also appears credible, relevant to the issues in this case, and new because it responds to the RPD's concerns about the appellant's involvement in the USN. The summonses, letter from his parents and letter from friends are not admissible [13] It was clear before, during and after the RPD hearing that the validity of the appellant's summons was an important issue. The appellant should have known that copies of other summonses issued to other people by the Djiboutian authorities would probably be relevant. The summonses that he would like to have admitted date from 2015. He cannot now present evidence that he should have presented to the RPD. These summonses are therefore not admissible under subsection 110(4) of the IRPA. [14] The letters from his parents and friends were signed after the rejection of the claim, but they describe events that occurred before the rejection. The appellant should have presented such evidence before the RPD. He testified at the RPD hearing that he could not obtain letters from friends or family members because the government monitored private communications. There is no explanation before me as to why the appellant could now obtain this evidence. Without more clarification, I cannot conclude that the appellant could not have obtained this evidence before his claim was rejected. The onus is on the appellant to demonstrate that the test set out in subsection 110(4) has been met. These letters are therefore inadmissible under subsection 110(4) of the IRPA. REQUEST FOR A HEARING BEFORE THE RAD [15] In his written statement, the appellant requests a hearing before the RAD. According to the case law, the onus is on the RAD to determine whether the test set out in subsection 110(6) of the IRPA has been met.6 One of the determining factors is that evidence presented on appeal has been found admissible. [16] I have admitted the letter from the MRD as new evidence. Under paragraph 110(6)(c) of the IRPA, I can hold a hearing if there is new evidence that would justify allowing or rejecting the refugee protection claim. This letter is one of several factors that have brought me to allow this appeal. In itself, it would not have been sufficient to allow or reject this claim. For that reason, I determine that the 110(6)(c) criterion has not been met. Consequently, there is no cause to hold a hearing. ANALYSIS Summary of the analysis [17] The RPD erred when it concluded that the summons and the custody certificate were not genuine. They establish that the appellant was detained. I agree with the RPD's findings regarding the protest on December 21, 2015. However, the evidence that he was detained, the evidence that he has a USN supporter's card, the appellant's testimony and the letter from the MRD show that the appellant would be subjected to a serious possibility of persecution if he had to return to Djibouti by reason of his profile as a member of the USN. The summons and the custody certificate [18] The RPD analyzed a summons dated January 30, 2016, and concluded that it was not genuine because of numerous discrepancies between the appellant's summons and the sample in the National Documentation Package (NDP) on the country.7 The appellant submits that the Response to Information Request (RIR) on summonses in Djibouti contains its own contradictions regarding the standardization of summonses and that it is dated more than two years after the appellant's summons was issued. For these reasons, the appellant submits that the member erred when he found that the summons was not genuine because it does not match the sample in the RIR. [19] The appellant is right. It is wrong to justify the rejection of a summons simply because it does not match some sample, when it was not established that summonses are standardized in the country in question. In the RIR, a former official confirms that there are variations in the format of summonses, while a current official states that they are the same across the country. The RPD preferred the statement from the current official because it is more recent. However, the RIR was written more than two years ago, and there is no evidence before me indicating whether, today, all summonses are issued in the same format. [20] I note that, at first glance, there is nothing suspicious about the summons presented by the appellant. It has a signature, a date, logos, a seal, and a location and time for him to appear. The RPD doubted its genuineness only after comparing it to a sample from 2014. Documents issued by a foreign government are presumed to serve as proof of their content.8 In this case, I do not see why this presumption should be rebutted. No other problems with this document were identified, and I therefore conclude, on a balance of probabilities, that it is valid. [21] The RPD concluded that the appellant's custody certificate was not genuine because it contained grammatical errors and because the appellant had already submitted a summons that was not genuine. I have already concluded that the summons is genuine. French is the language of the elite and is not spoken by the local population.9 Moreover, police officers sometimes prepare summonses themselves by computer.10 It is reasonable to expect that other documents from the same place might also have been prepared on a computer by the police themselves. Consequently, the minor spelling errors, which do not appear in the header, are insufficient in themselves to cast doubt on the validity of this document. [22] I conclude that, through the summons and the custody certificate that were submitted, the appellant established, on a balance of probabilities, that he was being sought by the police and that he was detained from January 31, 2016 to February 2, 2016. The appellant established his involvement in the USN [23] The RPD concluded that the appellant did not establish his affiliation with the USN because he did not reasonably explain why he did not obtain a letter from the party and because he lacked adequate knowledge of the party. The appellant is disputing both of these conclusions. [24] To begin, I admitted a letter from the MRD in this appeal. The secretary general of the MRD in North America, XXXX XXXX XXXX, confirms the appellant's past membership in the USN. He also indicates that he contacted two USN members in Djibouti, former communications director XXXX XXXX XXXX and former member of parliament XXXX XXXX XXXX, who confirmed his activities as the USN youth organizer in the country. I also note that Mr. XXXX's position and full name match the RIR on the MRD in Canada, dated January 19, 2018.11 I find that this letter is credible, and I give it substantial weight in supporting the appellant's allegations. [25] The RPD rightly indicated that the appellant was unable to answer every question asked about the USN's structure, history and operations. However, I listened to the recording of the hearing and noted that the appellant did answer several questions about the USN. As submitted by the appellant, I agree that his knowledge of the party was reasonable for someone who encouraged young people to get involved but who was not involved in the party's management or administration. [26] He was able to indicate the names of several parties that make up the USN coalition, the number of seats that the USN won in the February 2013 elections, the names of the top-ranking party officials and a USN member party that participated in the municipal elections. The evidence of this knowledge, together with the supporter's card and letter from the MRD, are sufficient to establish, on a balance of probabilities, that the appellant was an active member of the USN and that he recruited and mobilized young people. [27] The appellant testified that the police never revealed the reason for his arrest. The reason is also not indicated in the evidence concerning his detention. He assumed that it was because of his participation in the protest on December 21, 2015. As explained above, I am not satisfied that he participated in that protest. Regardless, as the reason for his detention is unclear, it is possible that he was detained because of his involvement with the USN, which he established on a balance of probabilities. [28] A review of the country documentation shows that former USN members are still being persecuted in Djibouti. Members of the USN and people who participate in protests supporting the USN and other opposition parties are often arrested.12 I also note that the appellant testified that his father and brother were arrested in 2016 because of his involvement in the USN. Accordingly, the appellant would face a serious possibility of persecution should he return to Djibouti by reason of his political opinion. The RPD's other findings are insufficient to change my conclusion [29] The RPD found that the appellant did not establish that he had taken part in a protest on December 21, 2015, as alleged. There were in fact a few contradictions between the appellant's testimony and the country documentation, the main one concerning when the protest began. Like the RPD, I am not persuaded that the appellant took part in this protest. I have already concluded that the appellant established his participation in the USN and that, for that reason, he faces a risk of persecution. Therefore, the issue of his participation in the protest is not determinative. [30] The RPD also concluded that the appellant lacks a subjective fear because he waited five months after obtaining his US visa to leave Djibouti. He explained at the hearing that when he left the country, he only presented his ticket for Ethiopia and declared that he was going on vacation. He did not want to leave immediately after receiving his US visa because the authorities would not have believed that he was merely going to Ethiopia on vacation. That explanation is reasonable. It is possible that the authorities might have had a different perception if the appellant had left the country immediately after obtaining his visa. Therefore, I find that the RPD erred in finding that the appellant lacks a subjective fear. State protection [31] Given that the state is the agent of persecution, there is no state protection for the appellant. There is no internal flight alternative [32] As the state is the agent of persecution and Djibouti is a very small country, the appellant cannot seek refuge in another part of Djibouti. CONCLUSION [33] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination, namely, that the appellant is a Convention refugee. (signed) "Sasha Kiran Cragg-Gore" Me Sasha Kiran Cragg-Gore September 10, 2018 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. X (Re), 2017 CanLII 33034 (CA IRB). 2 Canada (Citizenship and Immigration) v. Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, paragraphs 38 to 51. 3 Idem, paragraphs 34 and 35. 4 Idem, paragraph 54. 5 Canada (Citizenship and Immigration) v. Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, paragraph 54. 6 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley J, February 8, 2018; 2018 FC 147, paragraph 18. 7 Exhibit SPR-1, RPD record, National Documentation Package (NDP) on Djibouti dated July 31, 2017, Tab 9.2: Summonses issued by police authorities, including their content and appearance as well as the procedure for issuing them; the possibility of receiving a false summons, DJI104947.FE, Immigration and Refugee Board of Canada, September 12, 2014. 8 Ramalingam v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 7241 (FC), paragraphs 5-6. 9 Exhibit SPR-1, RPD record, NDP on Djibouti dated July 31, 2017, Tab 1.4: Djibouti. L'aménagement linguistique dans le monde [Djibouti: linguistic development around the world], December 23, 2015. 10 Exhibit SPR-1, RPD record, NDP on Djibouti dated July 31, 2017, Tab 9.2: Summonses issued by police authorities, including their content and appearance as well as the procedure for issuing them; the possibility of receiving a false summons, DJI104947.FE, Immigration and Refugee Board of Canada, September 12, 2014. 11 NDP on Djibouti dated June 29, 2018, Tab 4.9: Canada and Djibouti: Representation of the Movement for Democratic Renewal and Development (Mouvement pour le renouveau démocratique et le développement - MRD) in North America, including its presidents since 2005; whether MRD representation in North America provides membership documents, including membership cards and letters, and the requirements and procedures to obtain such documents; appearance of such documents (2005-January 2018), ZZZ106045.FE, Immigration and Refugee Board of Canada, January 19, 2018. 12 Exhibit SPR-1, RPD record, NDP on Djibouti dated July 31, 2017, Tab 4.6: Djibouti: Political Deadlock and Intensified Repression, three months prior the presidential election, International Federation for Human Rights, 2016; Tab 4.4: Treatment of members of the Union for National Salvation (Union pour le salut national, USN) coalition; framework agreement signed in December 2014 between the government and the USN (March 2014-May 2015), Immigration and Refugee Board of Canada, June 12, 2015; Tab 4.8: Le harcèlement de l'opposition continue [harassment of the opposition continues], International Federation for Human Rights, April 7, 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : TB8 05085 RAD.25.02 (February 05, 2018) Disponible en français 2 RAD.25.02 (July 5, 2018) Disponible en français