MB6-06288

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 / Dossier de la SAR : MB6-06288 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa ON Appel instruit / entendu à Date of decision June 29, 2018 Date de la décision Panel Susan Brown Tribunal Counsel for the person(s) who is(are) the subject of the appeal Solomon Orjiwuru 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 (Appellant), citizen of Cameroon, appeals a decision of the Refugee Protection Division (RPD), dated August 19, 2016, rejecting his claim for refugee protection. The Appellant argues that the RPD erred when it found he was not credible and used false documents. I accepted one of the three documents submitted as new evidence by the Appellant pursuant to section 110(4) of the Immigration and Refugee Protection Act (IRPA) and allowed an oral hearing pursuant to section110(6) of the IRPA. After conducting my own analysis of the evidence, I find that the RPD did not err and the decision rendered is correct. BACKGROUND [2] According to his Basis of Claim Form (BOC)1 the Appellant was born in 1987. He seeks refugee protection because he fears persecution by the Cameroonian authorities due to his political opinion as a member of the Southern Cameroons National Council (SCNC). The Appellant joined the SCNC in 2009 and participated in its meetings, demonstrations and rallies and propaganda activities. He also organized meetings and disseminated information. The Appellant says he was arrested on September 9, 2010 and detained until October 14, 2010 and on March 18, 2011 and detained until March 29, 2011. In October 2011, the Appellant left Cameroon for XXXX to study and graduated in July 2014. While in XXXX he remained active in the SCNC by participating in meetings and raising funds. The Appellant came to Canada in XXXX 2015 to study at XXXX University. Also in August 2015 the Appellant's father and sister were arrested in Cameroon, his sister for attending a SCNC meeting and his father following evidence of SCNC activities uncovered during a search of the family home. During the same search the police found evidence of the Appellant's SCNC activities in XXXX and issued a warrant for his arrest. [3] The Appellant's claim for refugee protection was received on October 15, 2015. RPD hearings were held on December 7, 2015 and April 26, 2016. At the second hearing, the Appellant consented to the RPD's request that the Immigration and Refugee Board (IRB) Research Directorate (SIRU) contact the SCNC national secretariat to verify the authenticity of the Appellant's SCNC membership card2 and the authenticity of a SCNC affidavit dated August 25, 2015.3 The response from SIRU4 was sent to the Appellant on July 14, 2016 and the Appellant's submissions5 were received on August 2, 2016. The RPD's negative decision was rendered on August 19, 2016 identifying the determinative issues as credibility and the use of false documents by the Appellant. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [4] Section 110(4) of the IRPA provides that the Appellant may present 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. [5] The Appellant submitted the following documents as new evidence pursuant to section 110(4)(New Documents A-C): A. Peter Wuteh Vakunta, "Linguistic Apartheid and the Quest for Freedom and Identity in Cameroon", Postline News, (December 14, 2014), online: <www.postnewsline.com>.6 B. Simplice Magloire Essomba Fouda, "Evaluating the Degree of Individual Bilingualism in Yaounde", Research on Humanities and Social Sciences, Vol. 2 2013.7 C. Letter from SCNC XXXX XXXX, XXXX XXXX XXXX dated September 26, 2016.8 [6] I find that the Appellant's first two items of new evidence (New Documents A and B) do not meet the statutory requirements of section 110(4). The RPD decision was rendered on August 19, 2016. The new evidence pre-dates the RPD decision, was reasonably available, and the Appellant could reasonably have been expected in the circumstances to have presented the information at the hearing. Section 110(4) is not to be used to complete a deficient record submitted before the RPD. 9 I do not accept New Documents A and B as new evidence. [7] I find that New Document C, a lettter from the SCNC XXXX XXXX dated September 26, 2016, is admissable as new evidence under section 110(4) and the caselaw.10 The letter postdates the RPD decision and is prima facie new, credible and relevant as it purports to correct previous information previously provided by the SCNC about the Appellant. ORAL HEARING AT THE RAD [8] The Appellant requests that the Refugee Appeal Division (RAD) hold a hearing. Section 110(6) of the IRPA says the RAD may only hold a hearing if there is new evidence that (a) raises a serious issue with respect to the credibility of the Appellant, (b) is central to the RPD's decision, and (c) if accepted, would justify allowing or rejecting the refugee protection claim. [9] At the second RPD hearing the Appellant consented that SIRU conduct a verification of his membership and the SCNC affidavit dated August 25, 2015 with the SCNC secretariat in Cameroon. Based on inconsistencies on the face of the SCNC affidavit and the SIRU response11 the RPD found that the SCNC affidavit was a fraudulent document. [10] With the consent of the Appellant, the RAD asked SIRU to contact the SCNC secretariat to verify the authenticity of New Document C. SIRU was unable to comply with the request advising that, as a result of legal factors brought to its attention in 2017, it is not able to send claimant information for verification to various authorities and organizations because private information has to be sent via a secure network which is not available for some foreign government authorities or organizations. [11] Given that verifying the authenticity of the New Document C, the letter from the SCNC XXXX XXXX dated September 26, 2016, meets the section 110(6) criteria, the RAD allowed a hearing for the purpose of contacting the signatory of the letter, XXXX XXXX XXXX. When the Appellant arrived at the hearing12 he advised the RAD that the signatory of the New Document C could not be contacted because he was in detention. The Appellant's counsel referenced several newspaper reports from January 2018 as evidence of the detention and forwarded copies of those articles to the RAD following the hearing.13 The Appellant proposed calling another party associated with the SCNC but admitted that that person did not have direct knowledge of New Document C and could not verify its authenticity so the call was not made. The RAD was therefore not able to confirm the authenticity of the New Document C, the letter from the SCNC XXXX XXXX dated September 26, 2016. SCOPE OF THE RAD REVIEW [12] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.14 The exception to this rule is where the RPD enjoys a meaningful advantage in assessing and weighing the credibility of the oral testimony heard, which in particular cases attracts a standard of review of reasonableness adapted to the RAD.15 Unless specifically stated below, I have applied the correctness standard. DETERMINATIVE ISSUE [13] The determinative issue on appeal is whether or not the RPD erred in finding that the Appellant was not credible because he used fraudulent documents to support his claim for refugee protection. ANALYSIS [14] The Appellant argues that the RPD erred in its credibility findings, specifically: * making a negative credibility inference from the blank undertaking found in documents seized by the Canadian Border Services Agency (CBSA); * not giving any weight to the government of Cameroon issued documents (warrant of arrest, summons and bail bond) because they are believed to be fraudulent documents; and * finding that the SCNC letter is fraudulent. [15] The Appellant made arguments about other evidence and the Appellant's delay in claiming refugee protection. I need not address these arguments since I found the RPD's credibility findings on the fraudulent documents to be determinative. For the reasons outlined below I find that the RPD correctly found that the Appellant is not credible and that he used fraudulent documents. Blank undertaking [16] The Appellant argues that the RPD incorrectly made a negative inference from the fact that among the Appellant's documents seized by the CBSA and forwarded to the RPD16 "was a blank but stamped and signed police undertaking. The RPD reasoned that this document is fraudulent and the [A]ppellant intended to use this to mislead the RPD..."17 [17] In its decision the RPD identified the following reasons for concluding that the blank undertaking was fraudulent:18 * the document bears a security seal in red at the bottom of the page and is apparently signed by a police officer, but is not dated and still needed to be filled in with the Appellant's information; * the document was apparently issued by the "regionale service of judicial police - littoral" but does not have any address or contact information on it; * the document contained several spelling mistakes: regionale instead of regional and sousigné instead of soussigné (twice); * the document could have been manufactured by anybody with access to a computer and a printer; and * the prevalence of fraudulent documents in Cameroon citing the National Documentation Package19. [18] The Appellant states that at the time of his release from detention on March 26, 2011, while at the police station with his legal counsel, the secretary of the Police Commissioner gave his lawyer two documents: a completed original undertaking and a blank signed and sealed undertaking. The Appellant was supposed to copy the content of the completed undertaking into the blank undertaking, sign both documents, give the original back to the police and keep the copy. The Appellant testified that the signed original was returned to the police but due to the inadvertence of the lawyer, the blank undertaking was not filled out and remained in the lawyer's file. [19] The RPD did not accept the Appellant's explanation and found it, on a balance of probabilities, to be an attempt to mislead the panel to consider a fraudulent document. The RPD stated that there is just no logic behind the Appellant's testimony explaining why the police would give him a signed blank undertaking along with the only original. The RPD found that it would be more likely that the police would have kept the only original and would have made a photocopy of it at the Appellant's request. [20] The Appellant argues that the RPD misapprehended his explanation because the RPD stated in its reasons that the Appellant's lawyer took the two documents to his office to be completed by the Appellant. I have reviewed the Appellant's ten minutes of testimony on his explanation20 and I agree with the Appellant that his evidence does not clearly state that the documents were taken to his lawyer's office as stated by the RPD in its reasons. Whether or not the lawyer took both documents to his office, however, is not the central issue because the Appellant's explanation is that the police gave his lawyer both the original completed undertaking and a signed and sealed blank undertaking. The central question is whether or not this is a reasonable explanation. The RPD found that it was not reasonable that the police would give the Appellant's lawyer the original document and that it would be more likely that the police would have kept the original and made a photocopy. I do not find that the RPD erred. [21] The Appellant also argues that the RPD made an implausibility finding. While the RPD did not make an explicit implausibility finding, it did find that there was "no valid reason"21 why the Appellant possessed the blank undertaking. Since the RPD clearly outlined its reasons for this finding I do not find that it erred. [22] Following my own review of the documentary and testamentary evidence, I do not find that the Appellant's explanation for possessing a blank undertaking is reasonable. I find, on a balance of probabilities, that the document is fraudulent, which is determinative of the credibility of the Appellant. Other government documents [23] The Appellant argues that the RPD erred when it gave no weight to all the government of Cameroon issued documents (warrant of arrest, summons, bail bond) provided by the Appellant because it believed them to be fraudulent. [24] The RPD gave the following reasons for concluding that the other documents were fraudulent: * The Appellant's possession of the blank undertaking which the RPD found to be fraudulent and because the other documents have the same defects as the blank undertaking; * The bail bond is signed by the same police officer and bears some of the same mistakes including the use of the word "regionale"; * The summons is titled "mandement de comparution" which ought to be "mandat de comparution" since "mandement" means "pastoral letters"; * All the documents look like the blank undertaking having similar letterheads and red security seals; and * The other documents could have been manufactured by anybody with a computer and a printer. [25] The Appellant argues that the RPD erred in finding the other documents fraudulent for the following reasons: * Finding that a spelling error on a document equates to its being fraudulent; * Evidence of widespread forgery is not, on its own, sufficient to reject a document as a forgery; and * There must be some reason or evidence to rebut the presumption that government-issued documents are valid. [26] The Appellant's memorandum also references errors relating to the availability of fraudulent documents in China and Nigeria and the absence of security features, none of which was referenced in the RPD decision. [27] I have conducted my own review of the other documents and note, in addition to the issues raised by the RPD, that the documents have other problems, including: * Both the blank undertaking and the undertaking are bilingual documents but the title of the document is unilingual English; * The bail bond has a bilingual header but the body of the document is unilingual English; * The summons does not conform to the characteristics of the summons described in the NDP,22 for example the appropriate sections of the Criminal Procedural Code (CPC) are not cited; * The top half of the body of the summons and the warrant is identical even citing the same inappropriate sections of the CPC. [28] It is clear that the problems with the documents extend well beyond spelling errors and the RPD relied on much more than objective evidence in the NDP of the prevalence of forged documents in Cameroon. My own analysis has added to the issues identified by the RPD to demonstrate sufficient reasons and evidence, both on the face of the documents and objective evidence in the NDP, to rebut the presumption that these government-issued documents are valid. The RPD did not err. [29] I find, on a balance of probabilities that the other documents (warrant, bail bond and summons) are fraudulent which is determinative of the credibility of the Appellant. SCNC letter fraudulent [30] The RPD found the SCNC letter fraudulent because the SIRU report from the SCNC national secretariat did not confirm the information in the SCNC affidavit provided by the Appellant in support of his SCNC membership and persecution suffered as an SCNC member. [31] The Appellant submitted as new evidence as letter dated September 26, 2016 from the XXXX XXXX of the SCNC purporting to correct the information given to SIRU by the SCNC national secretariat (New Document C or the new letter). I tried to authenticate New Document C by asking SIRU, with the consent of the Appellant, to verify the authenticity of the New Document. SIRU was unable to comply for the reasons outlined above at paragraph 10. [32] As outlined above in paragraph 11, I accepted New Document C as new evidence and allowed a hearing for the purpose of contacting the signatory of the letter to confirm its authenticity. A Notice of the Hearing scheduled for June 6, 2018 was sent to Appellant on May 24. 2018 accompanied by a List of Issues advising that the hearing would be restricted to the following issues: 1. Verification of the authenticity of a letter (Letter) from XXXX XXXX XXXX (Author) XXXX XXXX of the Southern Cameroons National Council (SCNC) regarding XXXX XXXX XXXX (Appellant) dated September 26, 2016 including but not limited to: • the letterhead used • the contact details (address, email, website and telephone numbers) listed in the Letter • the name and title of the Author • the signature of the Author • the seal used in the Letter. 2. Verification [sic] of the identity of the Author, his relationship with the Appellant and the Appellant's membership in and activities with the SCNC. 3. The circumstances and manner under which the the [sic] Letter was requested and obtained including but not limited to: who made the request; to whom was the request made; and what date was the request made. 4. Sources of the information presented in the Letter generally and specifically copies of the SCNC records referenced in the Letter in relation to: • the arrest, detention and release of the Appellant from September 9, 2010 to October 14, 2010; • the arrest, detention and release of the Appellant from March 18, 2011 • payments by the Appellant into the SCNC Solidarity Funds. 5. Any other issue or question which, in the opinion of the Member, is raised by the testimony of the Appellant and the Author during the hearing. In addition, please provide a valid calling card at the hearing. The Board member assigned to the file wishes to get in touch with the signatories [sic] of the letter from the Southern Cameroons National Council (SCNC). [33] After the hearing started Appellant's counsel advised that the signatory of the new letter, the XXXX of the SCNC XXXX XXXX XXXX, was not available to be called because he was in detention. The Appellant testified that he had received the Notice of Hearing and List of Issues and that he understood that the purpose of the hearing was to call the XXXX of the SCNC. 23 The Appellant testified that XXXX XXXX XXXX was arrested in January 2018 and said that he could provide corroborative evidence of the arrest and continued detention. Counsel responded on behalf of the Appellant citing newspaper articles for the arrest but not the continued detention. When asked for evidence about the continued detention of XXXX XXXX XXXX the Appellant referenced a telephone conversation with XXXX XXXX of the SCNC on May 10, 2018.24 [34] The Appellant proposed calling XXXX XXXX who he says works at the SCNC secretariat but the Appellant did not know his title or how long he had been working at the SCNC. When asked how XXXX XXXX was in a position to authenticate the letter from the XXXX of the SCNC, the Appellant testified that XXXX XXXX did not have the direct knowledge to authenticate the letter and that a call to him could not result in authentication.25 [35] The Appellant was aware of the importance of the authentication of the New Document C as evidenced by the RAD SIRU request and the RAD hearing. A number of factors mitigated against authentication: * The Appellant consented to a SIRU research inquiry in March 2018 to the SCNC secretariat when his evidence was that the SCNC secretariat had disbanded and its staff had gone into hiding in October 2017;26 * The Appellant said he had "not yet" obtained the SCNC documents referenced in the List of Issues;27 * The Appellant testified that although he know that the purpose of the RAD Hearing was to call XXXX XXXX XXXX to authenticate the new letter, the Appellant did not advise the RAD prior to the June 6, 2018 hearing that the author of the letter, XXXX XXXX XXXX, had been arrested in early January 2018 and which the Appellant had known since May 10, 2018; * The Appellant did not arrive at the RAD hearing with corroborative documentary evidence of the arrest and continued detention of XXXX XXXX XXXX; * The Appellant admitted that the person he proposed to substitute as a witness for XXXX XXXX XXXX did not have direct knowledge of the new letter and could not verify its authenticity; and * The Appellant did not propose any alternative witnesses or corroborative evidence to authenticate the new letter. [36] For all of these reasons I give the new evidence, New Document C, little probative weight so it does not affect the RPD finding regarding the SCNC letter. CONCLUSION [37] I have conducted an independent analysis of the RPD record and hearing and I have reviewed the arguments of the Appellant, the new evidence and the RAD hearing. I agree with the RPD that the Appellant is not credible and that he used fraudulent documents to support his claim for refugee protection. I find that the Appellant is not, on a balance of probabilities, an SCNC activist being sought by the police and that there is not a serious possibility of his persecution in Cameroon. [38] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) Susan Brown Susan Brown June 29, 2018 Date 1 RPD Record, Exhibit 2, page 15. 2 RPD Record, Exhibit 11, pages 281, 282. 3 Ibid., pages 270, 271. 4 RPD Record, Exhibit 12, page 298-300. 5 Ibid., Exhibit 13, pages 305-307. 6 Appellant's Record, pages 15-23. 7 Ibid., pages 25-33. 8 Ibid., page 13. 9 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 10 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385 and Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 11 RPD Record, Exhibit 12, pages 298-304. 12 RAD Hearing, June 6, 2018. 13 Letter from Appellant's counsel to IRB dated June 7, 2018 enclosing newspaper articles. 14 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93 (CanLII). 15 Ibid., and X (Re), 2017 CanLII 33034 (CA IRB). 16 RPD Record, Exhibit 11, page 260. 17 Appellant's Record, page 37, Appellant's Memorandum, paragraph 6. 18 RPD Reasons, paragraph 7. 19 RPD Record, Exhibit 3, NDP for Cameroon, July 17, 2015, document 3.1. 20 RPD Hearing, April 26, 2016, minutes 00:10:58-00:20:50. 21 RPD Reasons, paragraph 9. 22 RPD Record, Exhibit 3, NDP for Cameroon, July 17, 2015, document 10.1, Response to Information Request CMR104623.FE dated October 23, 2013, Cameroon: Notices to appear issued by the General Delegation for National Security (Delegation generale a la Surete nationale, DGSN), including the issuing procedure; the content and appearance of the notices to appear, and whether it is the same at all the police stations in the country; possiblity of obtaining a fraudulent notice to appear (2012-October 2013)(Document 10.1). 23 RAD Hearing, June 6, 2018, minutes 18:30-19:00. 24 Ibid., minutes 19:30-24:30. 25 Ibid., minutes 35:00-37:00. 26 RAD Hearing, June 6, 2018, minutes 7:50-8:00. 27 Ibid., minutes 24:30-25:10; 29:00-29:30. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB6-06288 13 RAD.25.02 (April 24, 2018) Disponible en français