MB9-29994

RAD File No. / No de dossier de la SAR : MB9-29994 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 / heard at Montréal, QC Appel instruit / entendu à Date of decision January 27, 2021 Date de la décision Panel Me Isabelle Parizeau Tribunal Counsel for the person who is the subject of the appeal Me Yaya Touré 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 OVERVIEW [1] XXXX XXXX XXXX (the appellant), a citizen of Côte d'Ivoire, is appealing the Refugee Protection Division (RPD) decision rejecting his refugee protection claim. [2] The appellant allegedly fears being arrested, tortured, imprisoned or killed by the current government because of his political involvement. [3] The RPD did not find the appellant credible because of the contradiction in the date he joined the Front Populaire Ivoirien (FPI) [Ivorian popular front], an inconsistency in his testimony as to when he allegedly started fearing for his life, behaviour that is inconsistent with that of someone who fears for his life, and a contradiction between his testimony and his visa application regarding the date he allegedly decided to leave his country. The RPD gave little or no weight to the exhibits filed by the appellant. [4] The appellant argues that the RPD erred by rejecting his explanation for the contradiction in the date he joined the FPI, by describing his testimony about when he started fearing for his life as inconsistent, and by concluding that he did not take any precautions when his fear was at its height. Contrary to what the RPD states, the date of the letter from his employer supporting his trip to Canada is not in contradiction with when he decided to leave his country. The appellant recalls that, according to the case law, not every inconsistency and implausibility can justify drawing a negative credibility inference. [5] The RPD's decision is incorrect. The RAD sets aside the determination and refers the matter to the RPD for a new hearing. BACKGROUND [6] According to his Basis of Claim Form1 (BOC Form), the appellant was an activist with the FPI, a political opposition party led by former president Laurent Gbagbo, and a member of the party's youth association (JFPI). On XXXX XXXX, 2015, he participated in a ceremony in the former president's XXXX. His supporters were beaten and dispersed by law enforcement, the appellant's identity card was confiscated, he was injured, and he fled. In XXXX 2017, strangers went looking for him at his mother's home and then at his brother's home. [7] On XXXX XXXX, 2018, the appellant left his country for Canada and claimed refugee protection. ANALYSIS [8] The RAD conducted an independent analysis of all the evidence, which includes listening to the recording of the RPD hearing, and it applied the correctness standard.2 CREDIBILITY [9] The RPD found that the appellant's testimony about determinative elements of his refugee protection claim was not credible. The RAD does not agree. Instead, it is of the view that the elements discussed by the RPD were not determinative. Membership in the FPI [10] The appellant testified at the RPD hearing that he joined the FPI in 2008. In a form completed upon his arrival in Canada,3 he states that he was a JFPI activist from XXXX 2009 to 2018. The appellant presented a membership card4 indicating 2008 as the date of membership. [11] The appellant argues in his memorandum that the RPD erred by not accepting his explanation that he made a mistake when completing the form. The error appears to stem from the fact that memberships are annual and begin at a certain point in the year and continue until another point the next year, in this case, 2008-2009, which is common with non-profit organizations. The appellant states that the RPD failed to explain why it rejected the date that appears on the membership card. [12] The RPD did not accept the explanations provided by the appellant, who first testified that the cards were issued annually and then stated that he might have made a mistake when completing the form. It found these explanations unreasonable since the appellant's membership in the FPI is the basis of his fear of persecution in his country. It attributed little weight to the membership card because of the appellant's credibility problems. [13] The RAD does not share the RPD's point of view. It finds the appellant's explanation satisfactory and accepts that he might have made a mistake when completing the form, because according to his testimony, an annual membership straddles two years, in this case, 2008 and 2009. According to the RAD, the RPD erred. Contradiction between not knowing if he was being sought and fearing for his life [14] According to the appellant, the RPD's statement that not knowing if he was being sought and fearing for his life is contradictory is untenable and does not stand up to an in-depth analysis of the political situation in Côte d'Ivoire. With no search warrant issued against him, the appellant could not know with certainty that he was being sought because soldiers had confiscated his identity card on XXXX XXXX, 2015. The appellant argues that any activist who expresses their opposition by participating in protests or gatherings is justified in fearing for their life. According to the appellant, the Federal Court has ruled that it sometimes requires a certain amount of political maturity for an activist to determine when they are being sought and that caution must be exercised. He cites a decision in which the Federal Court ruled that the RPD had required a level of political knowledge usually required of an active member, rather than a simple supporting member of the party.5 [15] The RPD recounted the appellant's testimony at the hearing, according to which he started fearing for his life following the events on XXXX XXXX XXXX 2015. He had been very afraid, he [translation] "had seen death." He stated that the authorities took his identity card. Later in the hearing, he stated that he did not know if he was being sought when he returned to his brother's home after fleeing from the soldiers. The RPD asked the following question: if the appellant did not think he was being sought, why did he fear for his life? The RPD noted that the appellant, when confronted with that inconsistency, answered that he did not know what the future held for him. The RPD did not accept that explanation. It noted that the moment when a person starts fearing for their life is a fundamental element in the assessment of a refugee protection claim. The RPD found that the appellant's credibility was undermined. [16] The RAD does not reach the same conclusion. In its opinion, it is incorrect to equate not knowing if he was being sought to a lack of fear. Moreover, this equivalence on its own would be insufficient to reject a refugee protection claim and would make it impossible to decide the claim correctly. The RAD therefore concludes that the RPD erred. Behaviour inconsistent with the appellant's fear [17] The appellant states in his memorandum that the RPD's conclusion that he did not take precautions at the height of his fear is unreasonable. The appellant testified that he lived primarily with his brother, a police officer, and that at other times he stayed with his mother, he was careful and he did not go out much. The appellant argues that living with a police officer provided him with a form of protection, if not the best protection. According to the appellant, alternating between his brother's home and his mother's home is consistent with the behaviour of a simple activist who does not have a search warrant against him but who faces a serious risk of arrest, detention or imprisonment. [18] The RPD found that the appellant's behaviour after XXXX XXXX, 2015, was inconsistent with that of someone who fears for his life. Given the previous two conclusions invalidating the RPD's findings of non-credibility, even if certain aspects of the appellant's behaviour might seem inconsistent with his fear, it is not, in the RAD's opinion, a determinative factor that could be a basis for rejecting the refugee protection claim. Date when the appellant allegedly decided to leave his country [19] The appellant testified that he decided to leave his country in XXXX 2018. A letter from his employer dated XXXX XXXX, 2017,6 explains the reasons for his trip to Canada. According to the appellant, this letter does not demonstrate that he intended to leave his country before XXXX 2018, it was not issued at his request for a personal trip, but by his employer. [20] The RPD considered the contradiction between the appellant's testimony and his Canadian visa application with regard to when he allegedly decided to leave his country to be serious and found that his credibility was undermined. [21] In the RAD's opinion, this is a peripheral detail that does not lead to the finding that the appellant is not credible and that, on its own, is sufficient to reject the refugee protection claim. [22] The RAD is of the view that this conclusion and the one about the appellant's inconsistent behaviour, mentioned above, are not-on their own or taken together-sufficient to base a finding of non-credibility for which the refugee protection claim could be rejected. [23] According to the RAD, the RPD's decision is incorrect. The RPD did not analyze the heart of the appellant's refugee protection claim. The RAD is of the opinion that it cannot reach a final decision on the refugee protection claim because additional credibility issues regarding all the circumstances of this refugee protection claim should have been addressed. [24] The RAD is of the opinion that the appellant's situation requires a de novo consideration. CONCLUSION [25] The RAD cannot confirm or set aside the RPD's determination and substitute the determination that, in its opinion, should have been made without holding a new hearing for an in-depth review of the appellant's situation. Given that there is no new evidence, the RAD cannot hold an oral hearing. [26] Under paragraph 111(1)(c) of the Immigration and Refugee Protection Act, the RAD allows the appeal, sets aside the RPD's determination and refers the matter to the RPD for re-determination by a different member than the one who made the determination in question. (signed) Isabelle Parizeau Me Isabelle Parizeau January 27, 2021 Date IRB translation Original language: French 1 SPR-1, Refugee Protection Division (RPD) record, pp. 13 to 15. 2 Canada v. Huruglica, 2016 FCA 93. 3 SPR-1, RPD record, IMM 5669 form, question 9, p. 54. 4 Ibid., pp. 85 and 86. 5 Yilmaz v. Canada (Minister of Citizenship and Immigration), 2003 FC 844. 6 SPR-1, RPD record, p. 109. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-29994 RAD.25.02 (January 2020) Disponible en français 3 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.25.02 (January 2020) Disponible en français