MB3-04532

RAD File No. / N° de dossier de la SAR : MB3-04532 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant Appelant XXXX XXXX XXXX Appeal considered/heard at Appel instruit à Montréal, Quebec Date of Decision February 6, 2014 Date de la décision Panel Tribunal Normand Leduc Counsel for the Appellant Conseil de l'appelant Me Eric Taillefer Designated Representative Représentant désigné N/A Counsel for the Minister Conseil du Ministre N/A REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX, a citizen of the Democratic Republic of Congo (DRC), is appealing against the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. [2] He has presented new evidence in support of his appeal and is requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD, namely, that XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" under section 97 of the IRPA. BACKGROUND [4] The appellant is a 61-year-old man who alleged before the RPD that he was a businessman and company director in the city of XXXX XXXX XXXX. He alleged that he had been targeted and arrested by various people in his country. [5] The appellant alleged that he was arrested by the authorities twice in 2011, and specifically on XXXX XXXX, 2011, the day Mr. XXXX, a political opponent, was to take a public oath. In XXXX 2012, he was allegedly forced to hand over his car to a member of the party in power to whom he owed money. In XXXX 2012, he was allegedly detained at the request of an army major who had XXXX XXXX XXXX XXXX XXXX and refused to XXXX XXXX XXXX XXXX. He alleged that in XXXX 2013, he XXXX XXXX XXXX XXXX XXXXa well-known XXXX journalist on the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. He alleged that the journalist, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXreported him. He alleged that he was [translation] "stalked" between XXXX and XXXX 2013 by XXXX XXXX, known to be an enforcer for the Kabila regime. [6] The appellant also alleged that he denounced the regime in power by taking part in the XXXX strike at the XXXX of 2013 and by giving advice to parliamentarians, political figures and journalists. [7] The RPD rejected his claim for refugee protection on the ground that the appellant's principal allegations were not credible. [8] Before the RAD, the appellant submits that the RPD erred in its assessment of his credibility in finding that: - there was a contradiction regarding the number of times he had allegedly been arrested in the DRC; - there were inconsistencies between his testimony about the place where he was allegedly arrested on XXXX XXXX, 2011, and the place indicated in the medical document that had been submitted; and - it was implausible that the XXXX XXXX whom the appellant stated he had contacted would have XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX people in power, especially with someone unknown to her, as the appellant was. [9] For those reasons, the appellant is requesting that the RAD set aside the determination of the RPD and grant him refugee protection. ADMISSIBILITY OF NEW EVIDENCE [10] In the affidavit in his memorandum, the appellant states that he is presenting new evidence to the RAD (see page 9 of the memorandum). [11] I note that the memorandum contains three newspaper articles that are not among the exhibits submitted to the RPD. The first is dated XXXX XXXX, 2013, the second is not dated, and the third is dated XXXX XXXX XXXX 2013 (see pages 10 to 13 of the memorandum). [12] Subsection 110(4) of the IRPA states that the person who is the subject of the appeal may present to the RAD 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. [13] Subparagraph 3(g)(iii) of the Refugee Appeal Division Rules also requires that the appellant's memorandum include full and detailed submissions regarding how any new evidence presented meets the requirements of subsection 110(4) of the IRPA and how that evidence relates to the appellant. [14] I find that, in his memorandum, the appellant has not complied with the requirements of subparagraph 3(g)(iii) of the Rules in that he failed to provide full and detailed submissions regarding how the evidence in question meets the requirements of subsection 110(4) of the IRPA. [15] Consequently, I do not accept these newspaper articles as evidence. DECISION ON WHETHER TO HOLD A HEARING [16] Pursuant to subsection 110(6) of the IRPA, the RAD may hold a hearing if, in its opinion, there is new evidence that is admissible and that meets the following three criteria: 1) it raises a serious issue with respect to the credibility of the person; 2) it is central to the decision with respect to the refugee protection claim; and 3) if accepted, it would justify allowing or rejecting the refugee protection claim. [17] Since the provision preliminary to this provision was not met, in that I did not admit any new documents into evidence, I conclude that a hearing may not be held in this appeal. STANDARD OF REVIEW [18] The IRPA does not expressly set out the standard of review that the RAD should apply when reviewing RPD decisions, nor is that standard of review set out explicitly in the case law. The appellant also does not suggest a standard of review in his memorandum. [19] In Dunsmuir,1 rendered in 2008, the Supreme Court of Canada revisited the foundations of judicial review and the standards of review applicable in various situations. In order to simplify the analysis, the Supreme Court determined that there should now be only two standards of review: correctness and reasonableness. [20] Although the RAD does not conduct judicial reviews of RPD decisions, but rather acts as an appellate body within the same administrative tribunal, the IRB, I am of the opinion that without more direct guidance from the higher courts, the principles developed in Dunsmuir may be applied to the RAD. [21] Paragraph 51 of the Supreme Court's decision in Dunsmuir states that: ...questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness while many legal issues attract a standard of correctness. Some legal issues, however, attract the more deferential standard of reasonableness. [22] In the case at hand, I find that the errors alleged by the appellant are questions of credibility, that is, of fact, and are therefore reviewable on the standard of reasonableness. [23] At paragraph 47 of Dunsmuir, the Court states that "reasonableness is concerned mostly 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." Judicial deference is therefore required, and deference must be given to the RPD decision. ANALYSIS [24] The issue in this case is whether the RPD erred in assessing the appellant's credibility. [25] In its reasons, the RPD finds that the appellant's allegations are not credible because of implausibilities, inconsistencies and omissions in the evidence presented, namely: - The appellant testified that he was arrested four times in the DRC, on XXXX XXXX XXXX 2011, XXXX XXXX, 2011, XXXX XXXX XXXX 2011, and in XXXX 2012. He then changed his answer during the hearing, stating that he was arrested only three times, because the incident on XXXX XXXX, 2011, was not an arrest, but rather an assault by armed men close to the headquarters of the UDPS, the opposition political party, who tried to arrest him without success. The RPD was of the opinion that the appellant adjusted his testimony and that his credibility was undermined as a result. - In his testimony, the appellant confused the XXXX 2012 arrest with the one in XXXX 2012. The RPD was of the opinion that the appellant adjusted his testimony and that his credibility was undermined as a result. - The appellant indicated that he had been arrested only once in his Schedule 2 form that was submitted as evidence. The RPD did not find the appellant's explanations-that there was not enough space to write everything-to be reasonable because the form states to add sheets if the claimant needs more space. - The appellant testified that the altercation of XXXX XXXX, 2011, took place near the headquarters of the UDPS political party, whereas the medical certificate submitted as evidence indicates that the assault took place at the appellant's home. The RPD did not find the appellant's explanations-that he did not want to tell the doctor that he was near the headquarters of an opposition party because he was afraid he would have problems-to be reasonable, given that, in any event, in the opinion of the RPD, the appellant was under no obligation to tell the doctor where the assault took place. - The RPD found it implausible that a renowned journalist would agree to do a program on the sexual indiscretions of people in power, including President Kabila, given the sensitive nature of the topic, given that she did not know the appellant, and given that the appellant had no real evidence to show to the journalist and that everything was based on rumours. - The RPD found it implausible that the appellant could have criticized the people in power given that, because of his work, he always maintained ties with those in positions of power and that he was always receiving favours from them. The RPD did not find the appellant's explanation-that he felt the winds of change with the 2011 election-to be reasonable, given that the appellant had never had problems with the authorities before. [26] In my opinion, the appellant fails to show in his memorandum that the RPD decision is unreasonable. [27] It is true that the contradiction noted by the RPD about the number of arrests is a minor contradiction because the appellant allegedly first answered the question with the words [translation] "let's say four times" (see paragraph 24 of the appellant's memorandum) and because the incident on XXXX XXXX XXXX 2011, was apparently an attempted arrest. It would have been unreasonable for the RPD to base its finding that the appellant was not credible on that point alone, but that is not so in this case because the finding was based on a number of points, as indicated above. [28] I also find that it was open to the RPD to draw negative inferences from the contradiction raised in the evidence about the place where the attempted arrest took place on XXXX XXXX XXXX 2011, for the reasons explained in paragraph 17 of its reasons. I am of the opinion that the RPD's reasoning is based on the evidence presented, contrary to the appellant's statement in his memorandum. [29] I also find the RPD's finding that it was implausible that the appellant collaborated with a journalist to be reasonable. In this regard, the appellant submits in his memorandum that the RPD contradicted itself in its reasons by writing first that he was not known to the journalist, and second that he knew and maintained contact with a number of people who were close to power. In my opinion, there is no contradiction: the appellant could well maintain ties with people in positions of power and be in an enviable position without being a [translation] "personality" that the public, or the journalist, might know. [30] In paragraph 25 of his memorandum, the appellant submits that the RPD seemed to be confused when it wrote, in paragraph 4 of its reasons, that the appellant apparently mentioned [translation] "being caught between the Bemba and Kabila militias in 2006," which according to him he never stated. Although this incident is ancillary to the claim for refugee protection, I note nevertheless that the appellant did indeed make that statement in his Basis of Claim Form (see page 20, first paragraph, of the RPD record). [31] In view of all the above, I conclude that, overall, the RPD's decision is reasonable because it is transparent and intelligible and falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. REMEDIES [32] For these reasons, I confirm the decision of the RPD, namely, that XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection." [33] The appeal is dismissed. Normand Leduc Normand Leduc February 6, 2014 Date IRB translation Original language: French 1 Dunsmuir v. New Brunswick, 2008 SCC 9, (2008) 1 SCR 190. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB3-04532 7