MB3-03715

RAD File No. / N° de dossier de la SAR : MB3-03715 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision December 10, 2013 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the Appellant(s) Me Éric Taillefer Conseil(s) du (de la/des) Appelant(e)(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX, the appellant, a citizen of the Democratic Republic of the Congo (DRC), is appealing against a decision of the Refugee Protection Division (RPD), alleging that the RPD rendered a decision that was based on errors in its assessment of his credibility. II. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (the Act), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD, namely, that XXXX XXXX XXXX is neither a "Convention refugee" as defined in section 96 of the Act nor a "person in need of protection" as defined in section 97 of the Act. III. BACKGROUND A. Basis of the claim [3] The appellant stated in the Basis of Claim Form (BOC Form), which he signed on July 3, 2013, that he is a citizen of the DRC; that he was born on XXXX XXXX, 19XXXX XXXX that he is Protestant Christian; that his common-law spouse, XXXX of his daughters, XXXX sons, XXXX adopted children, XXXX sisters, a half-sister and a brother were living in the DRC; and that one of his daughters was living in the United Kingdom at that time.1 [4] The appellant stated in his BOC Form that he fears for his life and his safety should he return to his country following the abuse he suffered at the hands of government security service officers. He also stated that on or around XXXX XXXX, 2010, he was questioned by two individuals in civilian clothing, whom he suspected were Congolese government security officers and who alleged that he had incited hatred among the population against the government, its system and the men in power, and they threatened to kill him. He also stated that all of this happened because on XXXX XXXX, 2010, he organized a meeting at his home for friends and neighbours who want political change in the DRC. He stated that he was detained by the national police on XXXX XXXX and XXXX, 2012, and was violently beaten and tied up like an animal because of his political opinions.2 [5] In a document entitled Mon histoire [My Story], which was appended to his BOC Form, the appellant stated that, while a XXXX XXXX, he decided to advocate for political change, that he had been active with the political opposition and social groups acting in civil society, and that it all started in XXXX 2010, after he heard a speech by Étienne Tskhisekedi of the Union pour la démocratie et le progrès social (UDPS) [union for democracy and social progress]. He also stated that on XXXX XXXX XXXX 2010, he held a meeting with people who wanted political change in the country and that he then denounced the lack of true democracy in the DRC, that they were being arrested arbitrarily because of their political opinion and that he encouraged the participants to be brave and to not be afraid in the face of the threats, abductions and terrorism committed by the government's intelligence service.3 [6] The appellant stated in the same document that on or around XXXX XXXX, 2010, he was questioned by two men in civilian clothing, who alleged that he was inciting hatred among the population against the government, its system and the members of the party in power, the Parti du peuple pour la reconstruction et le développement (PPRD) [people's party for reconstruction and development], and who demanded that he stop all political activity, or he would never see his family again and would leave them orphans.4 [7] The appellant stated in the same document that, for the XXXX XXXX XXXX 2011, elections, he intensified his activities a little farther from his home and neighbourhood and that in order to properly inform the population of the issues, he denounced the abuses, detentions without charge or trial, arbitrary arrests, abuse against women, rape, torture, summary executions, and so on. He also stated that he continued his activities until about XXXX XXXX XXXX 2012, when officers from the CIAT (the police station) summoned him to their office, brutalized and beat him, and told him it would be his last warning.5 [8] The appellant stated in the same document that he tried to explain to the officers that his opinions and free expression were guaranteed under the constitution, but they replied that he was inciting hatred among the population; they eventually put him in the dungeon in only his undergarments and left him there for the night. He also stated that they released him the next day and told him that it was a lesson, and that he would do well to keep quiet and stay away from politics.6 [9] The appellant stated in the same document that on or around XXXX XXXX XXXX 2013, three individuals in civilian clothing tried to arrest him on public transit, but that he managed to escape during a tussle when the crowd reacted by saying to let him go. He also stated that, since then, he has deserted his home and hidden elsewhere and that his family is now being harassed and threatened by police and individuals in civilian clothing.7 [10] The appellant stated in the same document that he refused to seek protection from authorities in his country, it being understood that those same authorities had tortured, threatened and humiliated him.8 [11] The appellant stated in the same document that as an XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX he was appointed to accompany the XXXXof his country's XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and the Government of Canada. He also stated that once the mission order and work order had been signed and the Canadian visa had been obtained, there was a delay in the granting of mission fees, and he learned from a colleague that he risked being arrested following an order from upper management that wanted to prevent him from travelling.9 [12] The appellant stated in the same document that the Agence nationale de renseignements (ANR) [national information agency] visited his office. He also stated that he then took precautions to arrange his trip himself, that he contacted his acquaintances at the N'Djili airport to facilitate his exit from the country, and that he bought an airline ticket on XXXX XXXX, 2013, to line up with the travel date on the collective mission order, in order not to draw attention from the security and intelligence services.10 B. RPD decision [13] A hearing was held before the RPD on September 6, 2013. In its September 17, 2013, decision, the RPD rejected the appellant's claim for refugee protection, indicating that it did not believe the political involvement of the appellant (the claimant at that time) and that it did not believe that this kind of involvement on his part would result in problems with the Congolese authorities.11 C. Grounds of appeal and remedy sought [14] In his memorandum, the appellant gives a single ground for appeal, namely, that the RPD rendered a decision based on errors of fact in the assessment of his credibility.12 [15] The appellant is requesting that the RAD allow the appeal, set aside the RPD's determination, grant him refugee status or the status of a person in need of protection and render any other order that the RAD deems necessary.13 IV. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL A. Where evidence was submitted by the appellant on appeal [16] The following evidence was submitted by the appellant: The Observatory for the Protection of Human Rights Defenders, Appel urgent. Assassinat République démocratique du Congo [urgent appeal: murder in the Democratic Republic of the Congo], September 26, 2013, 3 pages.14 B. Test for admissibility [17] Subsection 110(4) of the Act provides that the person who is the subject of the appeal 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. It should be noted that subsection 110(4) refers to the rejection of the appellant's claim for refugee protection as the time limit, not 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 that effect.15 110. (4) On appeal, the person who is the subject of the appeal 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. 110. (4) Dans le cadre de l'appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n'étaient alors pas normalement accessibles ou, s'ils l'étaient, qu'elle n'aurait pas normalement présentés, dans les circonstances, au moment du rejet. [18] The Refugee Appeal Division Rules (RAD Rules) provide that the record of the person who is the subject of the appeal 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 Act and a memorandum that includes full and detailed submissions regarding how this evidence meets the requirements of this subsection and how this evidence relates to the appellant.16 [19] Given that that wording of subsection 110(4) of the Act is very similar to the wording regarding the new evidence admissible in a pre-removal risk assessment (PRRA), I am of the opinion that it is therefore necessary to use mutatis mutandis the factors developed in the case law concerning PRRAs; to respond to the issues identified in Raza regarding the credibility, relevance and newness and materiality of the evidence presented; and to determine whether the evidence presented on appeal is admissible or whether, on the contrary, it must be excluded from the appeal.17 [20] The fact that evidence corroborates facts, contradicts the RPD's findings or clarifies the evidence before the RPD does not make it "new evidence" within the meaning of subsection 110(4) of the Act. If that were the case, refugee protection claimants could split their case and present evidence before the RAD at the appeal stage that could have been presented from the beginning before the RPD.18 In my opinion, that is exactly the wrong that subsection 110(4) of the Act prohibits. C. The RAD's decision on admissibility [21] The document from the Observatory for the Protection of Human Rights Defenders submitted by the appellant as part of his appeal is dated September 26, 2013, a few days after the appellant's claim for refugee protection was rejected. That being said, the document provides information about the murder of a person named Rocksy Tshimpaka, who was abducted on September 19, 2013, and who, in 2012, denounced the torture and murder of a Congolese citizen by law enforcement officers.19 [22] The appellant indicates in his written statement that he is submitting this document as new evidence, which he stated confirms how the individuals persecuting him operate.20 In other words, what the document attempts to establish is what action the security forces in the DRC take with people who denounce acts of torture or murders. While conceding that the national documentation package on the DRC contains similar stories, the appellant indicates in his memorandum that the document he intends to submit as evidence for his appeal reveals a modus operandi for the Congolese authorities with respect to the disappearance of political opponents: [translation] The attacks take place when the person is alone, far away from the eyes of passersby, and not necessarily immediately after an attack on the regime.21 [23] In my opinion, this document does not provide new elements about the fact that the authorities in the DRC are sometimes responsible for extra-judicial executions of fundamental rights and freedoms defenders or of political opponents. Moreover, the RPD decision explicitly refers to a similar situation as analyzed in the documentary evidence entered into evidence before it.22 Therefore, I am of the opinion that the appellant did not discharge his burden of demonstrating that the facts analyzed in the document that he intends to submit for his appeal were not among the information in the documentary evidence before the RPD with respect to serious human rights violations committed by the DRC authorities against rights and freedoms defenders or political opponents. [24] In terms of the PRRA, in the case law, a positive answer to any one of the five grounds identified in Raza is sufficient to determine whether evidence is to be excluded or is inadmissible.23 [25] I add that the materiality of the document the appellant intends to submit as evidence in support of his appeal can also be called into question. In other words, even if the document dated September 26, 2013, had been before the RPD, would the appellant's claim have likely succeeded? [26] In his written statement and memorandum, the appellant does not present full and detailed submissions on whether his claim for refugee protection would have been likely to succeed if the document had been made available to the RPD. It is well established that, in the context of the PRRA, the burden of establishing the materiality of the evidence lies with the applicant.24 I am of the opinion that the same applies with respect to the admissibility of evidence in this appeal. Therefore, given that he did not present full and detailed submissions on the materiality of the document in question, the appellant did not discharge his burden in that regard. It is important to keep in mind that, in every proceeding, including in administrative proceedings, one party has the burden of proof: "Where the existence of a particular fact is at issue, uncertainty is resolved by asking whether or not the burden has been discharged with respect to that fact."25 [27] In any case, in my opinion, if the document dated September 26, 2013, had been made available to the RPD, it could have certainly led the RPD to acknowledge that, on September 19, 2013, Rocksy Tsimpaka was thrown into the vehicle of armed men, some in police uniforms, others in civilian clothing, and that his body was found later in the commune of Kalamu, in the province of Kinshasa. That being said, this type of situation had already been identified in the documentary evidence analyzed by the RPD, but it does not provide specific information concerning the appellant's personal situation. Therefore, I am of the opinion that the document dated September 19, 2013, does not contain any information capable of proving or disproving a fact that is directly relevant to the appellant's claim for refugee protection, whether it be to his fear of persecution in his country or to a personalized risk to his life or of being subjected to cruel and unusual treatment or even torture. [28] For those reasons, I find that this document is not admissible in the context of this appeal. V. HEARING BEFORE THE RAD A. The appellant requested a hearing [29] The RAD Rules provide that the record of the person who is the subject of the appeal must contain, among other documents, a written statement indicating whether the appellant is requesting that a hearing be held under subsection 110(6) of the Act, and a memorandum that includes full and detailed submissions regarding why the RAD should hold such a hearing, if the appellant is requesting that a hearing be held.26 [30] In his written statement, the appellant requests that a hearing be held for the purposes of his appeal because the RPD made several errors with respect to his credibility.27 [31] It should be noted that, pursuant to subsection 110(3) of the Act, the RAD generally proceeds without a hearing, on the basis of the record of the RPD proceedings: 110. (3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. 110. (3) Sous réserve des paragraphes (3.1), (4) et (6), la section procède sans tenir d'audience en se fondant sur le dossier de la Section de la protection des réfugiés, mais peut recevoir des éléments de preuve documentaire et des observations écrites du ministre et de la personne en cause ainsi que, s'agissant d'une affaire tenue devant un tribunal constitué de trois commissaires, des observations écrites du représentant ou mandataire du Haut-Commissariat des Nations Unies pour les réfugiés et de toute autre personne visée par les règles de la Commission. B. Subsection 110(6) test [32] Pursuant to subsection 110(6) of the Act, when evidence presented on appeal is found to be admissible, it should be determined whether it 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 justifies allowing or rejecting the refugee protection claim. If the answer is yes, the RAD may then hold a hearing. 110. (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. 110. (6) La section peut tenir une audience si elle estime qu'il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois : a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause; b) sont essentiels pour la prise de la décision relative à la demande d'asile; c) à supposer qu'ils soient admis, justifieraient que la demande d'asile soit accordée ou refusée, selon le cas. C. No RAD hearing should be held [33] For a hearing to be held before the RAD, evidence presented as part of the appeal process must have first been found to be admissible. In this appeal, I have found that the evidence submitted by the appellant does not meet the requirements of subsection 110(4) of the Act and is therefore inadmissible. [34] For those reasons, I find that no hearing should be held in the context of these appeal proceedings. VI. STANDARDS OF REVIEW A. The specific context of the RPD and the RAD [35] The appellant's statement implies that the RAD appeal is a de novo appeal, particularly when he requests that the RAD hold another hearing because the RPD made a number of errors with respect to his credibility.28 With all due respect for this opinion that the appeal before the RAD be a de novo appeal, I do not share this opinion. I will explain why. [36] It must be noted at the outset that the RAD is not a court of law and that it does not review RPD decisions but rather determines appeals in an administrative and non-judicial context. In fact, the RPD and the RAD are two separate divisions of the Immigration and Refugee Board (IRB).29 Sections 162 to 169 of the Act identify the provisions that apply to them both. Each division "has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction."30 Members have the powers and authority of a commissioner and may do any other thing they consider necessary to provide a full and proper hearing.31 Hearings must be held in the absence of the public, although each may conduct a proceeding in public, or take any other measure that it considers necessary to ensure the appropriate access to the proceedings.32 Sections 169.1 to 170.2 of the Act identify the provisions specific to the RPD, while sections 171 and 171.1 identify the provisions specific to the RAD. [37] The RPD and the RAD, in their respective roles, are required to deal with whether to grant refugee status and protection to claimants. They are therefore part of the Canadian refugee protection system under the Act that governs them both and that, among other things, has the objective of establishing fair and efficient procedures that will maintain the integrity of this system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings.33 [38] The RPD's primary role is to hold hearings to determine whether refugee protection claimants are "Convention refugees" or "persons in need of protection". Because it disposes of the refugee protection claim at a hearing, the RPD therefore has the opportunity to see and question refugee protection claimants, which gives it a significant advantage with respect to findings of fact and the assessment of the refugee protection claimants' credibility. [39] Pursuant to subsection 110(1) of the Act, a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the RAD against a decision of the RPD to allow or reject the person's claim for refugee protection. Pursuant to subsection 110(3) of the Act, the RAD must proceed without a hearing, on the basis of the RPD record. B. The right to appeal and the deference extended to RPD decisions [40] When analyzing the respective roles of two administrative tribunals and deciding which standard of review the Law Enforcement Review Board should apply in determining an appeal against a decision made by the officer tasked with hearing a complaint regarding the behaviour of a police officer, the Alberta Court of Appeal noted that the mere presence of a right of appeal-including appeals within an administrative structure-in no way means that no deference to the first-level decision-maker is called for.34 [41] In its decision, the Court of Appeal referred to the example of the relationship established between a trial judge and an appeal judge: The presumption underlying the structure of our court system is that a trial judge is competent to decide the case before him or her, and that a just and fair outcome will result from the trial process. Frequent and unlimited appeals would undermine this presumption and weaken public confidence in the trial process. An appeal is the exception rather than the rule.35 [42] In thus citing the Supreme Court of Canada, the Court of Appeal underscored the importance of promoting the autonomy of the proceeding and its integrity, adding that the same principle applies within administrative structures: The same principle applies to the hearings before the presiding officers. If the Board was to continue to routinely rehear all matters on a de novo basis, and to extend no deference whatsoever to the decisions of the presiding officers, that would only undermine the apparent integrity of those hearings. As previously stated, that is inconsistent with the hybrid scheme of the Act. As the appellant noted, that approach undermines those hearings to the point that they become almost academic, and call into question the need of the interested parties to even participate in them. The hearing would be reduced to a type of preliminary inquiry.36 [43] In my opinion, the expertise and advantageous position of first-level decision-makers should also be recognized, as did the Supreme Court regarding trial judges: The trial judge is better situated to make factual findings owing to his or her extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge's familiarity with the case as a whole. Because the primary role of the trial judge is to weigh and assess voluminous quantities of evidence, the expertise and insight of the trial judge in this area should be respected.37 [44] Having examined the respective roles of the decision-makers, their particular expertise and the general economy of the proceedings, the Alberta Court of Appeal identified which standards of review the Law Enforcement Review Board should apply to the decision rendered by the first-level decision-maker: [82] In conclusion, the decision of the Board to conduct a de novo hearing, and to assume that it owed no deference to the findings of the presiding officer was in error. The role of the Board is primarily to sit on appeal from the presiding officer. The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him. The focus of the appeal to the Board should be on its dual mandate of civilian oversight, and the correction of unreasonable results. [83] There is no general power to hold a de novo hearing in every case, and no requirement that a de novo hearing be held unless the parties consent to proceeding otherwise. Where a sufficient reason is shown or the issues on appeal warrant it, the Board has the power to admit fresh evidence. When sufficient cause is shown the Board can even rehear key evidence presented to the presiding officer. [84] The Board has a legitimate role to play in providing civilian oversight to the system of police discipline where oversight issues arise. The Board is not bound by the inferences and conclusions of the presiding officer, but it should be able to offer some articulable reason based in law, fact or policy when it interferes with a decision under appeal. The Board should proceed primarily from the record created by the hearing before the presiding officer. It should extend deference to the decision of the presiding officer on questions of fact, credibility, and technical policing issues. If the decision of the presiding officer was reasonable, the Board should not substitute its own view just because it might have come to a different conclusion. Where the appeal raises issues of acceptability of particular police conduct, or the integrity of the discipline process, the Board's mandate is more robust. "38 [45] Relying on the reasoning of the Alberta Court of Appeal and the factors identified in its analysis of Newton, and making the necessary adjustments to the particular context of the RPD and the RAD, I am of the opinion that, except for the strict issues of law or natural justice, it is appropriate for us, as RAD members, to extend the same deference to RPD decisions. In fact, this deference is the same as that which courts of law are required to extend to first-level decision-makers when the issue is a question of law or a question of mixed law and fact. C. The standard of review to be applied in this case [46] In his memorandum, the appellant identifies only one ground of appeal, namely, that the RPD made errors in its assessment of his credibility.39 However, he does not specify which standard of review should be applied. Relying on Federal Court case law, I find that it is a question of fact and that the standard of review is therefore that of reasonableness.40 [47] When a decision is reviewed on the standard of reasonableness, the analysis must be concerned with the existence of justification, transparency and intelligibility within the decision-making process, but it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.41 VII. ANALYSIS OF THE MERITS OF THE APPEAL Did the RPD make one or more errors in assessing the appellant's credibility? [48] I have concluded that the RPD's decision regarding the appellant's credibility falls within the range of acceptable outcomes that are defensible in respect of the facts and law, for the following reasons. [49] In his memorandum, the appellant criticizes the RPD for making errors of fact regarding: * his political involvement; * the fact that, as a XXXX XXXX, he was even more exposed to retaliation by the government; * the fact that he was not a victim of retaliation in the context of his job; * the fact that he was able to obtain an airline ticket himself, even though funding for the mission had been cut; and * the fact that he managed to get around airport security because of his contacts.42 [50] The appellant also indicates in his memorandum that he discharged his burden of proof, that he provided credible and spontaneous testimony, that he submitted substantial documentary evidence, that his credibility should not have been at stake and that the documentary evidence weighs in his favour.43 [51] In its reasons for decision, the RPD indicated that it did not believe the appellant's political involvement, nor that such involvement subsequently caused him problems of any kind.44 [52] In its reasons for decision, the RPD also specifically indicated that the appellant had given few details about his political involvement, that he confirmed that he had never been a member of a political party, and that he testified that he had been the target of security services after he organized a single meeting at his home, all the while remaining vague about the reasons for the meeting.45 [53] The RPD then concluded: [translation] [13] As the panel understands it, the claimant's political activity was limited to talking politics with friends and neighbours at private meetings. The panel does not believe that his is the profile of someone sought by the authorities.46 [54] In its reasons for decision, in reference to the information regarding the violations of fundamental rights and freedoms in the context of the presidential and legislative elections in November 2011, the RPD expressed its astonishment that the appellant did not encounter problems at that time, if it is true that he was involved politically and had previously attracted the attention of the national police. When confronted with that situation, the appellant told the RPD that he had not had problems at that time because he was no longer speaking openly and was no longer the individual presiding over the meetings he attended; the individuals conducting the meetings did not encounter problems.47 [55] After asking the appellant to provide an explanation about this, the RPD concluded that the appellant's allegations were not credible: [translation] [17] ...When asked why he was apparently the only one to have problems, the claimant explained that he was the leader: "when someone is targeted, it is the individual presiding who is targeted." The panel has difficulty understanding why, by organizing a single meeting at his home, the claimant would have suddenly become a leader when all the participants and organizers expressed their opinions, when his friends had also organized meetings at their homes, and when the claimant did not seem to be involved in politics in any other way than by attending these private meetings. The panel was not satisfied with the claimant's attempts to respond and does not believe that he is a person of interest to the Congolese authorities.48 [56] Lastly, the RPD found that the appellant's behaviour was not consistent with that a person who fears being persecuted or even having his life threatened or being subjected to cruel and unusual treatment or punishment. The following is the RPD's reasoning in that regard: [translation] [18] The claimant testified that following the attempted abduction in XXXX 2013, he deserted his home to escape his problems. However, the claimant continued to work as a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. In addition, his position was renewed in XXXX 2013. The panel finds that the claimant's behaviour is inconsistent with his fear. The claimant responded that his problems were personal, not professional. However, if the claimant wanted to hide, it would have been easy for the authorities to find him at work, especially since he worked for the XXXX. In addition, at the time of both the attempted abduction in XXXX 2013 and the first warning in 2010, the claimant encountered his problems while he was making his way home after a day of work. The claimant's response is simply not satisfactory or consistent with the alleged fear. [19] In addition, the claimant stated that he was made aware of an order to block his trip to Canada at the end of XXXX or early XXXX, but nothing was done to prevent him from doing so, and his duty passport was not taken away from him. [20] Although the panel cannot criticize him for the actions of third parties, the panel cannot believe the version of events related by the claimant and does not consider that he would face a serious possibility of persecution should he return or that, on a balance of probabilities, he would be subjected to a risk to his life, a danger of torture, or a risk of cruel or unusual treatment or punishment.49 [57] My role in his appeal is not to reassess the evidence,50 nor to proceed with a microscopic analysis of the RPD decision, but rather to determine whether, when analyzed as a whole, this decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.51 The RPD's findings regarding credibility and the assessment of evidence are entitled to great deference.52 [58] In the onerous task before it, the RPD must assess all the evidence submitted. That being said, it is open to the RPD to disbelieve a refugee protection claimant, but it has to be stated unequivocally.53 In other words, there is an obligation to give clear reasons for finding that a portion of testimony or a piece of evidence is not credible,54 once the credibility of the refugee protection claimant has been considered and taking into account all the evidence and testimony, as well as the fact that the person claiming refugee protection made his or her statements under oath.55 A lack of credibility on an important aspect of a claim can lead to a finding that there is no credible evidence on which the claim may be based.56 [59] In this case, after analyzing the various pieces of evidence on the record and indicating that there were situations that seemed to the RPD to be problematic regarding the credibility of the appellant's allegations, the RPD found that it did not believe his story. Not only did it take into account the appellant's allegations, but it also considered the answers or explanations he gave during the hearing, as well as the various pieces of evidence on the record. In short, it did indeed analyze the essential features of the appellant's claim for refugee protection, but it did not believe his account. [60] More specifically, I find that it was reasonably open to the RPD to conclude that it was surprising that the appellant had not encountered any problems at the time of the presidential and legislative elections in November 2011, if it was true that he was involved politically and had previously attracted the attention of the national police. It was also reasonably open to the RPD to conclude that the appellant's explanations in that regard were not satisfactory. In fact, merely stating that a person is a leader targeted by the authorities, when this person is no longer presiding over political meetings and, furthermore, when the other individuals running these kinds of meeting are not experiencing any problems, cannot have the effect of establishing that, at that time, the person concerned had a well-founded fear of being persecuted or of facing a risk to his life. [61] I also find that it was reasonably open to the RPD to conclude that the appellant's behaviour was inconsistent with someone who fears persecution, a risk to his life or a risk of being subjected to cruel and unusual treatment or punishment. According to the documentary evidence, the authorities that the appellant allegedly fears, particularly the ANR officers, get away with a lot, to say the least, in the DRC. Logically and plausibly, a person cannot simply at the same time be a victim of such authorities in a country like the DRC and continue to go about his daily business as a XXXX XXXX and obtain authorization to travel on an official mission abroad on top of that. [62] After attentively reading the reasons included in the RPD decision, I conclude that it took into consideration all the evidence and the explanations provided by the appellant and that it took into account the general situation in the DRC before coming to its final conclusion, namely, that the appellant failed to credibly establish that, should he return to the DRC, he would face a serious possibility of persecution or that it is more likely than not that he would be personally subjected to a risk to his life or a risk of cruel and unusual treatment or punishment by the country's authorities. The RPD amply justified its reasons for its finding that it did not believe the appellant's story. I therefore find that the RPD's decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law, and that the reasons for that decision are clear and sufficient. VIII. REMEDIES [63] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX is neither a "Convention refugee" pursuant to section 96 of the Act nor a "person in need of protection" as defined in section 97 of the Act. [64] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette December 10, 2013 Date IRB translation Original language: French 1 Basis of Claim Form (BOC Form), pages 31, 36, 37 and 40 of the RPD record. 2 Idem, pages 31 and 32 of the RPD record. 3 Idem, page 44 of the RPD record. 4 Idem. 5 Idem, pages 44 and 45 of the RPD record. 6 Idem, page 45 of the RPD record. 7 Idem, pages 45 and 46 of the RPD record. 8 Idem, page 46 of the RPD record. 9 Idem, pages 46 and 47 of the RPD record. 10 Idem, page 47 of the RPD record. 11 RPD decision, paragraphs 10 to 20, pages 4 to 7 of the RPD record. 12 Appellant's memorandum, pages 108 to 111 of the appeal record. 13 Idem, page 111 of the appeal record. 14 Idem, pages 10 to 12 of the appeal record. 15 RPD Rules, SOR/2012-256, rule 43. 16 RAD Rules, SOR/2012-257, subrule 3(3). 17 Raza v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), No. A-11-07, Sharlow, Linden and Ryer, December 26, 2007; 2007 FCA 385, at paragraph 13: "As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material)." 18 Dhrumu v. Canada (Minister of Citizenship and Immigration), No. IMM-1610-10, Kelen, February 11, 2011; 2011 FC 172, at paragraph 27. 19 The Observatory for the Protection of Human Rights Defenders, Appel urgent. Assassinat République démocratique du Congo [urgent appeal: murder in the Democratic Republic of the Congo], page 10 of the appeal record. 20 Statement of the appellant, paragraph 5, page 9 of the appeal record. 21 Appellant's memorandum, paragraphs 31, 32 and 33, pages 9 and 10 of the appeal record. 22 RPD decision, paragraph 15, pages 5 and 6 of the RPD record. 23 Mooketsi v. Canada (Minister of Citizenship and Immigration), No. IMM-2855-08, Snider, December 22, 2008; 2008 FC 1401, at paragraph 18. Foinding v. Canada (Minister of Public Safety and Emergency Preparedness and Minister of Citizenship and Immigration), No. IMM-2182-09, Shore, May 14, 2009; 2009 FC 500, at paragraph 36. 24 De Torres v. Canada (Minister of Citizenship and Immigration), No. IMM-3238-08, O'Keefe, February 26, 2009; 2009 FC 208, at paragraph 32: "The burden of proof in proving the newness of the evidence and its materiality lies with the applicant (see Mahdi v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 1438)." 25 Ferguson v. Canada (Minister of Citizenship and Immigration), No. IMM-1356-08, Zinn, September 23, 2008; 2008 FC 1067, at paragraph 20. 26 RAD Rules, SOR/2012-257, subrule 3(3). 27 Appellant's statement, paragraph 6, page 9 of the appeal record. 28 Appellant's memorandum, paragraph 6, page 9 of the appeal record. 29 Section 151 of the Act: "The Immigration and Refugee Board consists of the Refugee Protection Division, the Refugee Appeal Division, the Immigration Division and the Immigration Appeal Division." 30 Section 162 of the Act. 31 Section 165 of the Act. 32 Section 166 of the Act. 33 Paragraph 3(2)(e) of the Act. 34 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraphs 55 and 56: "[55]...While H.L. was decided on the Housen principles, and Khosa was decided on the Dunsmuir/Pushpanathan principles, both cases clearly reject the argument that the mere presence of a right of appeal signals that no deference is called for. There is no principled basis on which to make an exception for appeals within an administrative structure, such as the one that is in issue in this appeal. [56] The mere presence of a right of appeal from the presiding officer to the Board does not warrant a correctness standard of review." 35 Housen v. Nikolaisen, 2002 SCC 33; [2002] 2 R.C.S. 235, paragraph 17, as cited by the Court of Appeal of Alberta in Newton at paragraph 81. 36 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 81. 37 Housen v. Nikolaisen, 2002 SCC 33; [2002] 2 S.C.R. 235, paragraph 17. 38 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraphs 82 to 84. 39 Appellant's memorandum, paragraphs 14 to 36, pages 108 to 111 of the appeal record. 40 Parthipan Balasubramaniam v. Canada (Minister of Citizenship and Immigration), No. IMM-4243-12, Scott, June 21, 2013; 2013 FC 698, at paragraph 23. 41 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, at paragraph 47. Gabor Miroslav v. Canada (Minister of Citizenship and Immigration), No. IMM-3466-09, Russell, April 12, 2010; 2010 FC 383, at paragraph 22. Bethany Lanae Smith v. Canada (Minister of Citizenship and Immigration), No. IMM-5699-11, Mosley, November 2, 2012; 2012 FC 1283, at paragraph 19. 42 Appellant's memorandum, paragraphs 17 to 30, pages 108 and 109 of the appeal record. 43 Idem, paragraphs 34 and 35, page 111 of the appeal record. 44 RPD decision, paragraph 10, page 4 of the RPD record. 45 Idem, paragraphs 11 and 12, pages 4 and 5 of the RPD record. 46 Idem, page 5 of the RPD record. 47 Idem, paragraphs 14, 15 and 16, pages 5 and 6 of the RPD record. 48 Idem, page 6 of the RPD record. 49 Idem, pages 6 and 7 of the RPD record. 50 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12; [2009] 1 S.C.R. 339, paragraph 59: "Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within 'a range of possible, acceptable outcomes which are defensible in respect of the facts and law' (Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably within the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome." 51 Pawanbir Singh v. Canada (Minister of Citizenship and Immigration), No. IMM-12505-12, Shore, July 23, 2013; 2013 FC 807, at paragraph 29. 52 Ahmadsai v. Canada (Minister of Citizenship and Immigration), No. IMM-893-13, Shore, October 10, 2013; 2013 FC 1025, at paragraph 23. 53 Maksud v. Canada (Minister of Citizenship and Immigration), No. IMM-9459-03, Layden-Stevenson, February 10, 2005; 2005 FC 221, at paragraph 8. 54 Moreno v. Canada, [1994] 1 F.C. 298, 315 (F.C.A.). 55 Ballesteros v. Canada (Minister of Citizenship and Immigration), No. IMM-3979-08, Lagacé, April 7, 2009; 2009 FC 352, at paragraph 22. 56 Hernandez Cortes v. Canada (Minister of Citizenship and Immigration), No. IMM-4645-08, Teitelbaum, June 4, 2009; 2009 FC 583, at paragraph 30. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB3-03715 2