MB6-00295

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 : MB6-00295 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision November 3, 2016 Date de la décision Panel Me Louis Cousineau Tribunal Counsel for the person who is the subject of the appeal Charlemagne Mfera Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX, a citizen of Cameroon, is appealing against the decision of the Refugee Protection Division (RPD) dated December 18, 2015, rejecting his refugee protection claim. He is asking the Refugee Appeal Division (RAD) to set aside the RPD's determination and to substitute its determination in order to recognize the appellant as a "Convention refugee" or a "person in need of protection" or, alternatively, to refer the matter to the RPD for re-determination by a differently constituted panel. [2] The appellant did not submit any new evidence within the meaning of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), and he is not requesting a hearing before the RAD. [3] The Minister did not intervene on appeal, but did intervene before the RPD. DETERMINATION OF THE APPEAL [4] Under subsection 111(1) of the IRPA, the RAD confirms the RPD's determination that the appellant is not a "Convention refugee" under section 96 of the IRPA, or a "person in need of protection" under subsection 97(1) of the IRPA. [5] The appeal is dismissed. BACKGROUND [6] The appellant alleges as follows. He is a citizen of Cameroon and his father was appointed as XXXX to the Cameroonian head of state in XXXX. In 1988, the appellant's father started to receive threatening calls and letters because of his responsibilities. In 1990, the appellant's father found a dead dog with a knife in its heart at his door. Fearing for his and his children's safety, his father then had this three sons leave Cameroon: the first in 1993, the second in 1997 and the appellant in 1999. [7] However, because the appellant's French tourist visa application was refused, he used a passport in the name of XXXX XXXX so that he could go to France. The appellant then lived in France under the identity of XXXX XXXX XXXX until 2006, subsequently living in Belgium under that identity for a year. In 2007, the appellant settled in Canada, still under the identity of XXXX XXXX XXXX. [8] On XXXX XXXX, 2006, the appellant's father died as the result of an alleged poisoning. Fearing for his life, the appellant claimed refugee protection in Canada on August 3, 2015, that is, eight years after his arrival in Canada. IMPUGNED DECISION [9] In its decision of December 18, 2015, the RPD concluded that the appellant's identity had been established and that he was not subject to the exclusion clause set out in Article 1F(b) of the Convention relating to the Status of Refugees, findings that were not contested on appeal. The RPD rejected the refugee protection claim for reasons that can be summarized as follows: - The refugee protection claim was analyzed under subsection 97(1) of the IRPA, given the absence of any nexus with the grounds set out in section 96 of the IRPA; - The appellant was not credible and did not establish, on a balance of probabilities, a prospective risk of return to Cameroon for the following reasons: a) After the loss of his French passport under the name of XXXX XXXX XXXX around 2010, he had allegedly tried to obtain a passport in the name of XXXX XXXX XXXX from the Embassy of Cameroon in Canada. Yet, according to the appellant's testimony, he received an anonymous call to the effect that his efforts were in vain because of his relationship to his father, which confirmed for him that his life would be in danger were he to return to Cameroon. However, this call was omitted from his BOC Form, and the appellant's explanations are unsatisfactory; b) Having found that this anonymous call allegedly received by the appellant in 2012 was not credible, as well as the absence of problems since the death of his father in 2006, the RPD concluded that the appellant had not established a prospective risk of return to his country; c) The appellant's father often went to visit the appellant in France without seeking asylum. The RPD concluded that this was inconsistent and implausible, considering the allegation that he was the primary target of the alleged threats. Furthermore, the appellant's father continued in his position for more than 18 years after the start of the alleged threats, until his death; d) The appellant's behaviour was also inconsistent with that of a person who fears for his life for the following reasons: 1) The failure to seek asylum, whereas he arrived in France at the age of 21 and stayed there for several years, specifically from 1999 to 2006; 2) The failure to seek asylum in Belgium, where he lived for one year, that is, until 2007; 3) The delay in claiming refugee protection in Canada, that is, a delay of more than eight years after his arrival; 4) The excessive delay of 16 years coupled with the lack of a reasonable justification constitutes sufficient reason to reject the claim for refugee protection. APPELLANT'S ARGUMENTS [10] In his memorandum, besides the arguments on the standard of review that the RAD must apply, arguments that I will address later in my reasons, counsel for the appellant argues that the RPD committed errors that can be summarized as follows: - The RPD's contradictions regarding the important and relevant facts that are on the BOC Form, namely, the date of the loss of the appellant's French passport under the identity of XXXX, which gave him a certain security; - The RPD's reliance on erroneous information regarding one of the important facts, namely the date on which the French passport in the name of XXXX was lost, which, in itself, is an important and relevant fact in this case in terms of identifying the exact point at which the appellant's subjective fear began. And consequently, the RPD erred in its assessment of the appellant's credibility; - The RPD erred by not exercising a great deal of caution before finding that the appellant lacked credibility with respect to his behaviour, describing it as carefree and negligent in 2010, whereas, during this period, the appellant felt safe under the identity of XXXX XXXX; - The RPD committed an error of fact by stating that it was only three years after losing the French passport that the appellant claimed refugee protection; - The RPD erred when it indicated that the appellant has three brothers; - The RPD erred by drawing a negative conclusion, finding that the excessive delay of 16 years, coupled with the lack of a reasonable justification, constitutes sufficient reason to reject the refugee protection claim. SCOPE OF THE APPEAL [11] Counsel for the appellant refers to various court decisions regarding the standard of review to be applied by the RAD and argues that the standard is that of reasonableness. [12] I am of the opinion that the scope of the RAD must be reviewed in light of the IRPA and the case law on the subject. [13] First, the IRPA does not specifically set out the standard of intervention that the RAD must apply when reviewing RPD decisions. The introductory wording of subsection 110(1) of the IRPA states: Subject to subsections (1.1) and (2), 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 Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection [14] Furthermore, with respect to the RAD's decisions, subsection 111(1) of the IRPA provides that the RAD shall confirm the determination of the RPD, set aside the determination and substitute a determination that, in its opinion, should have been made, or refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate. In Huruglica, the Federal Court of Appeal states that the role of the RAD is to intervene when the RPD is wrong in law, in fact, or in fact and law.1 It also states that an appeal before the RAD is not a true de novo proceeding.2 It also clearly specifies the approach to be taken by the RAD: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination of the merits of the refugee claim without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [15] As for the degree of restraint or deference owed by the RAD to the RPD's conclusions as to the credibility or weight of any testimony, the Federal Court of Appeal also notes the following in Huruglica: [70] This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [71] One can imagine many possible scenarios. For example, when the RPD finds a witness straightforward and credible, there is no issue of credibility per se. This will also be the case when the RAD is able to reach a conclusion on the claim, relying on the RPD's findings of fact regarding the relative weight of testimonies and their credibility or lack thereof. [72] Problems will occur when the credibility findings themselves are disputed on appeal, and the RAD has no way to reach a conclusion without endorsing or rejecting those findings. If the RAD can identify an error in situations where, for example, a claimant was not found credible because his story was not plausible based on common sense, the RPD may have no real advantage over the RAD. [73] Similarly, there may also be cases where a finding that a witness is not credible was based on discrepancies that could not justify such a conclusion or that simply did not exist. If the assessment of the oral evidence contains an error which the RAD can easily identify, but the weight to be given to this testimony is essential to determine whether the RPD decision should be confirmed or set aside, the RAD may conclude that it is a proper case to refer back to the RPD with specific directions in respect of the error identified in the credibility findings. [74] That said, it is not appropriate to say more about the various scenarios that may arise, for they are not before us. The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case. [16] Thus, I am of the opinion that the RAD is a specialized tribunal and that I must conduct an independent analysis of all the evidence in order to determine whether the appellant is a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA, and consequently, whether the RPD's decision is well founded, taking into account the evidence before the RPD, the appeal record and any new evidence within the meaning of subsection 110(4) of the IRPA, or any evidence gathered during a hearing under subsection 110(6) of the IRPA, if applicable. In this case, it should be noted that no document was submitted to be admissible under subsection 110(4) of the IRPA and that no hearing was held before the RPD. [17] In reviewing this case, I will also show a measure of deference to the RPD's findings regarding the appellant's credibility when the RPD enjoyed a real advantage. Furthermore, if there are errors on questions of law or if there are erroneous findings or findings that are not supported by the evidence on questions of fact or of mixed law and fact that are central to the claim for refugee protection, I will intervene in accordance with the provisions of subsections 111(1) and 111(2) of the IRPA. ANALYSIS [18] The determinative issue is whether the RPD erred in its decision. To this end, I analyzed the reasons for the decision, and I listened to the recording of the hearing. I also read and analyzed all the evidence on the record, including the appellant's memorandum. [19] I will address the RPD's findings, while explaining my reasons for dismissing the appeal. RPD's findings [20] First, the RPD concluded that the provisions of section 96 of the IRPA do not apply because the facts do not allow it to establish a nexus between the vendetta feared by the appellant and one of the five grounds set out in the Convention. In his memorandum, counsel for the lawyer did not make any specific arguments regarding this RPD finding. [21] In this case, having analyzed all the evidence, I come to the same conclusions as the RPD for the same reasons3 it presented. Consequently, I find that the RPD did not err in coming to this conclusion. [22] Furthermore, regardless of whether it is an analysis under section 96 or subsection 97(1) of the IRPA, the appellant's credibility is an essential factor that must be analyzed. In that regard, the RPD found that there were elements that undermined the appellant's credibility, elements that I will analyze in light of the appellant's arguments. Omission of a telephone call [23] The RPD found that the omission from his BOC Form of an anonymous telephone call that he alleged having received when dealing with the Embassy of Cameroon in Canada to obtain identity documents in his name, that is, XXXX XXXX XXXX, was significant and that it undermined his credibility. Counsel for the appellant argues that the RPD erred regarding the date on which the passport was lost and the period when the appellant was taking steps to obtain a passport and that this affected its analysis. [24] I do not share this opinion for the following reasons. [25] First, although it is true that the appellant testified that he had lost the French passport he had previously obtained under the name of XXXX XXXX XXXX in 2014, the fact remains that the appellant testified that in 2010, he consulted a lawyer in Canada who allegedly told him that he did not have the necessary documents to establish his identity under the name of XXXX XXXX XXXX for the purposes of claiming refugee protection. Acting on this advice, the appellant allegedly made an initial request by telephone in 2012 to Cameroonian authorities in Canada to obtain an identity document. Then, he testified, that he allegedly took other steps between 2012 and 2014. He also stated that he had received an anonymous call in 2014, during which the caller allegedly told him that he could not have the desired identity document after what his father had done in Cameroon. When asked about the omission of this alleged call in his BOC Form, he explained that he did not have concrete evidence and that it was their word against his. [26] In my opinion, although the RPD might have made a mistake as to when this alleged call occurred, I find that this is not a determinative error for the following reasons. First, regardless of the date, the anonymous call is not mentioned in the BOC Form, and like the RPD, I do not find the appellant's explanations sufficient. Indeed, even relying solely on his statements, I find it reasonable to believe that if this allegation were true, the appellant would have mentioned it in his BOC Form like other alleged elements on which his refugee protection claim are based and regarding which he testified. In addition, as for obtaining a Cameroonian passport, the appellant testified that he had taken steps in 2012, that is, even before he had lost his French passport. For all these reasons, like the RPD, I do not believe this alleged call, which undermines the appellant's credibility. Appellant's behaviour [27] The RPD concluded that the failure to apply for asylum in France and Belgium, as well as the delay in doing so in Canada, demonstrates that the appellant's behaviour is inconsistent with that of someone who fears for his life, which undermines his credibility and his allegations of a risk of return. Counsel for the appellant argues, among other things, that the RPD erred in its analysis by mentioning that the appellant had three brothers, that the appellant felt safe with the French passport issued under the name of XXXX XXXX XXXX and that this document had allegedly been lost in 2014 and not in 2012. [28] I am not of this opinion for the following reasons. [29] First, the RPD did not make any error as to the appellant's number of brothers, as the RPD referred to three boys, including the appellant. In addition, even if the RPD had committed an error in this respect, it would not have any impact, since the RPD was analyzing the situation of the appellant's other brothers, namely the year of their departure from Cameroon, their destination and the fact that they had allegedly not claimed refugee protection until the day of the hearing. [30] Furthermore, from my analysis of the recording of the hearing, it appeared very clear to me that the RPD questioned the appellant about his failure to seek asylum in France, where he lived for about seven years. He explained that although he was 21 years old when he arrived in France (in 1999) and that he lived there with one of his aunts, he was dependent on his father and that he never made any inquiries into whether he could apply for asylum in France. Regarding his failure to apply for asylum in Belgium, where he lived for one year, the appellant stated that he had gone there to [translation] "console" his sister and that he felt safe using the identity of XXXX XXXX XXXX. Then, as the appellant arrived in Canada in 2007 and did not claim refugee protection until August 2015, the appellant explained that initially he felt safe under the identity of XXXX, that he started to feel less at ease when he met his wife in 2010 and that that same year, he contacted a lawyer; in 2012, he allegedly took other steps with Cameroonian authorities to obtain an identity document with his real name, as well as other steps after the passport issued in the name of XXXX XXXX XXXX was lost. [31] Like the RPD, I took into consideration the appellant's explanations, but I did not find them sufficient. First, the appellant is educated, with ten years of education; he was 21 years old when he arrived in France, he was surrounded by members of his family in France; and he was not in financial need, given his father's financial support. Also, in my opinion, his lack of effort, not even trying to see if he could have regularized his status by claiming asylum, demonstrates the appellant's obvious lack of interest. I am of the opinion that if the appellant feared returning to Cameroon, as he claims, he would have considered seeking asylum in France during the seven years or so of his stay, which he did not do. This undermines the appellant's credibility and his allegations of risk of return. [32] As for the reasons raised by the appellant to explain the failure to seek asylum in Belgium, like the RPD, I do not find them sufficient. Although the appellant explains his lack of interest in making inquiries into whether he could apply for asylum there by the fact that he had a French identity under a name other than his, the fact remains that this [translation] "false" identity could have been discovered at any time, and as a result, he could have risked prosecution and sanction by the competent authorities, even deportation to Cameroon. In the circumstances, I agree with the RPD's findings that this undermines the appellant's credibility, as well as the allegations of risk of return. [33] What is more, the appellant arrived in Canada in 2007, and he waited about eight years to claim refugee protection here. Once again, although the appellant stated that he felt [translation] "safe" with a passport issued under the name of XXXX XXXX XXXX, which is not his identity, as I mentioned above, this identity could have been discovered at any time, and he could have been prosecuted by the competent authorities. In addition, although this passport was allegedly lost in 2014 and not in 2012, this has no impact on the RPD's reasons. The appellant testified that he felt ill at ease in 2010, that is, from the very start of his relationship with his spouse. In 2010, the appellant also contacted a lawyer who allegedly told him that he did not have the requisite documents in his name, XXXX XXXX XXXX, to claim refugee protection. In addition, if he feared returning to Cameroon, as he claims, I am of the opinion that he would not have waited until 2012 to take steps to obtain the identity documents. It should also be noted that the appellant waited more than a year after losing the passport issued in the name of XXXX. For all these reasons, I agree with the RPD's conclusions that this undermines the appellant's credibility, as well as the allegations of risk of return. [34] I would also like to point out that a number of Federal Court decisions have confirmed decisions in which the Immigration and Refugee Board of Canada (IRB) ruled that having a valid temporary status does not constitute an acceptable reason to delay claiming refugee protection. For instance, the Honourable Justice de Montigny, in Nijjer, Yadhwinder Singh,4 points out the following: It is trite law that a delay in submitting a refugee protection claim, while not decisive, remains a relevant element that the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant: Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.), [1993] F.C.J. No. 271. The claimant knew upon his arrival in Canada that he was only authorized to stay in Canada for a specific and limited period of time. Under these circumstances, it was reasonable to expect that he would regularize his status as soon as possible if he truly feared for his life and physical integrity in India. [35] Thus, the appellant did not seek asylum in France or Belgium, and he waited more than eight years after his arrival in Canada to claim refugee protection here. Although such a delay is not determinative, in the circumstances of this specific case, I find that the RPD did not err by taking into consideration that 16 years had passed without the appellant claiming refugee protection and that this delay, along with the absence of reasonable justification, constituted sufficient reason for the rejection. It should also be noted that this conclusion was not made in isolation, but in addition to the other reasons raised to substantiate the rejection of the refugee protection claim. Other elements considered by the RPD [36] In addition to the aforementioned findings, the RPD concluded that the appellant's father's back-and-forth travel, the fact that he held his position for more than 18 years after the alleged threats started, as well as the absence of problems since the death of the appellant's father in 2006, do not establish a prospective risk of return to Cameroon for the appellant. Although counsel for the appellant did not submit specific arguments in this respect, I took them into consideration in my analysis. [37] I agree entirely with the RPD's findings for the following reasons. [38] First, as the RPD points out in its reasons, we cannot attribute someone else's intentions to the appellant. Nevertheless, the fact remains that if the appellant's father had received threats beginning in 1988, this appears inconsistent with his frequent visits to the appellant in France and his returns to Cameroon. Furthermore, according to the appellant, his father had the same duties in connection with the office of the president of Cameroon until his death in 2006. The appellant also testified that he has not had any problems since his father's death. Like the RPD, I do not find that these elements establish the existence of a prospective risk for the appellant should he return to Cameroon. CONCLUSION [39] Having analyzed all the oral and documentary evidence, in light of the above-mentioned reasons and pursuant to subsection 111(1) of the IRPA, the RAD confirms the RPD's determination to the effect that the appellant is not a "Convention refugee" within the meaning of section 96 of the IRPA, or a "person in need of protection" under subsection 97(1) of the IRPA. [40] The appeal of XXXX XXXX XXXX is dismissed. Louis Cousineau Me Louis Cousineau November 3, 2016 Date IRB translation Original language: French 1 Minister of Citizenship and Immigration v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93, paras. 36 to 103 2 Ibidem, paragraph 79. 3 RPD's reasons, specifically paragraphs 41 to 43. 4 Nijjer, Yadhwinder Singh v. M.C.I. (F.C. No. IMM-340-09); 2009 FC 1259. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB6-00295 2 RAD.25.02 (2014.09.11) Disponible en français