MB9-01723

RAD File No. / No de dossier de la SAR : MB9-01723 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, Quebec Appel instruit / entendu à Date of decision January 23, 2020 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Arghavan Gerami 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 INTRODUCTION [1] Mr. XXXX, you are a citizen of Chad, you presented evidence before the Refugee Protection Division (RPD),1 and you stated that you fear persecution by the Chadian authorities as a member of the Gorane ethnic group who participated in a demonstration on XXXX XXXX, 2017.2 [2] The RPD rejected your claim for refugee protection, finding that your allegations in relation to your arrest and the fact that the Chadian authorities are looking for you are not credible. It also found that you did not establish that you had been subjected to persecution in the past or had a well-found fear of persecution in the future as a member of the Gorane ethnic group.3 [3] On appeal, you provided documents4 and submitted that the RPD erred in rejecting your claim for refugee protection. First, you claim that it did not comply with the principles of procedural fairness owing to issues relating to the interpretation of your testimony. Next, you allege that the RPD erred in its assessment of your credibility. Lastly, you claim that the RPD has not considered your profile as a member of the Gorane ethnic group who is perceived as a political opponent.5 [4] I conclude that some of the documents you provided on appeal are admissible (I), but that there is insufficient grounds to hold a hearing (II). After analyzing all the evidence, I determine that your appeal must be allowed, and that your danger of being subjected to torture if you return to Chad has been established (III). [5] In the following paragraphs, I will explain how I arrived at these conclusions. I. EVIDENCE PRESENTED ON APPEAL [6] On appeal, you presented a series of documents: * a psychological report; * letters from various people living in Chad; and * documents concerning the current conditions in Chad. [7] I find that some of these documents are admissible and that others are not, under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and the relevant case law.6 Psychological report [8] An expert report must be examined by the RAD and the RPD in the same way, taking into account the expert's qualifications, the detailed nature of the analysis, the information that the refugee protection claimant provided to them, the length of time that the expert spent with the refugee protection claimant, and the question of whether the report is an inadmissible recommendation that goes beyond the author's field of expertise.7 [9] The requirements of reliability and relevance are not simply decided by the rules of technical evidence. They are the basis that decision-makers use to decide whether to give probative value to the information available for analysis.8 The Federal Court recently identified elements that are among the factors to be considered when examining the reliability of an expert report, one of which is the methodology used by the expert to formulate their opinion, their field of expertise and the extent to which they are found to be impartial and objective.9 [10] A section of a report which goes beyond the author's expertise and defends the interests of the refugee protection claimant is neither reliable nor relevant with respect to the primary findings under the jurisdiction of the administrative tribunal in question.10 [11] Both the RAD and the RPD must take into account the refugee protection claimant's medical condition, and a medical or psychological report would allow them to consider whether the refugee protection claimant's physical or psychological health could affect their behaviour during the hearing.11 It would be erroneous to make findings regarding the credibility of a refugee protection claimant without having taken into account their psychological assessment, for example.12 However, when it is based on a discredited story, a report provided by a psychologist, anthropologist or other expert cannot rehabilitate the refugee protection claimant's story.13 [12] In short, an expert report cannot, by itself, establish the credibility of a refugee protection claimant's allegations.14 In other words, an expert report cannot be used as a tool for evaluating whether a refugee protection claimant's account is truthful. Furthermore, Guideline 8 is very clear in this regard: 8.4 Experts should not offer opinions on issues within the exclusive jurisdiction of the decision-maker, such as the merits of the person's case. 8.5 An expert's opinion is not in itself proof of the truthfulness of the information upon which it is based. The weight given to the report will depend on, among other things, the credibility of the underlying facts in support of the allegation of vulnerability.15 [13] In her report, the psychologist states that she completed the evaluation in a few hours by using a list of questions aimed at verifying the severity of your depression. She identified the results regarding your depression, the corresponding symptoms and the importance of consulting a psychiatrist who could prescribe appropriate medication for you.16 I find that this section of the report does not analyze your health at the time of your RPD hearing and that, as a result, it cannot be used as an explanation as to why, at certain points, you had difficulty giving your testimony. Moreover, after listening to the recording of the RPD hearing, I find that you were able to provide your testimony in a coherent manner, for the most part, though there were times when you did not understand the questions put to you by the RPD. With regard to your current medical condition, since you did not testify at a hearing before me, your medical condition could not have affected your behaviour during such a hearing. Consequently, the evidence provided in this section of the psychological report is not admissible under subsection 110(4) of the IRPA. [14] With regard to the section of the report concerning the events that you and your family experienced, I find that the information provided is not evidence of events that occurred after your claim for refugee protection was rejected. Consequently, this evidence is not admissible under subsection 110(4) of the IRPA. Letters from various people living in Chad [15] The letters that you provided on appeal contain information that arose after your claim for refugee protection was rejected.17 For example, your former spouse stated that, on XXXX XXXX and XXXX XXXX, 2019, she witnessed agents from the national security agency (ANS) visit the family home. Your cousin, mother and two neighbours stated that they witnessed the ANS agents' visits to the family home and that the last visit was in XXXX 2019. An employee of a company that offers check-in and boarding services at the airport where travellers enter or leave your country stated, in his letter dated XXXX XXXX, 2019, that your name appears on a list requiring the company to inform the authorities of your arrival in the country. The president of a human rights association stated that, on XXXX XXXX, 2019, your father and mother informed him that they had been the victims of persecution and that, on XXXX XXXX XXXX 2019, one of your cousins had informed him of threats that he had received from the military. [16] In my opinion, these letters contain evidence that arose after your claim for refugee protection was rejected and are admissible under subsection 110(4) of the IRPA. Documents concerning the conditions in Chad [17] The documents concerning the current conditions in Chad18 refer to evidence included in the latest version of the National Documentation Package on Chad.19 However, these documents are not new evidence within the meaning of subsection 110(4) of the IRPA and are not admissible. II. ORAL HEARING BEFORE THE REFUGEE APPEAL DIVISION [18] I found that the evidence presented on appeal that was deemed admissible raised serious issues with respect to your credibility, but that it is not central to the decision with respect to your refugee protection claim, and that this evidence alone cannot justify allowing your claim for refugee protection. Consequently, the three conditions necessary for holding a new hearing under subsection 110(6) of the IRPA have not been met. III. ANALYSIS OF THE APPEAL [19] I conducted my own analysis of the record, primarily by listening to the recording of the hearing held before the RPD.20 I concluded that the correctness standard of review must be applied.21 In my opinion, the risk that you would be exposed to torture if you returned to Chad is the determinative issue. Consequently, I will limit my analysis to this issue alone. [20] Based on my own analysis of the record, the RPD erred in finding that your testimony was vague and included substantial contradictions with your Basis of Claim Form and prior statements. [21] I find that you gave coherent testimony on the essential elements of your claim for refugee protection. I identified no omissions or substantial contradictions. [22] As your counsel noted in her submissions before the RPD, you have clearly demonstrated that you are a member of the Gorane ethnic group and that you were arrested during a student protest when you were looking for your brother. He was also arrested. He subsequently went missing and, according to the information obtained by your family, apparently died during his detention.22 [23] Based on my own analysis of the record, your testimony regarding the treatment you were subjected to following your arrest also appeared to be consistent, the doubts expressed by the RPD during the hearing having been resolved, particularly concerning the question of whether or not you were struck on the back while your head was held underwater.23 [24] During the hearing, the RPD asked several questions based on the information provided in the documentary evidence. The RPD pointed out that your personal profile did not correspond to that of persons who, based on this documentary evidence, are targeted by the Chadian authorities.24 In my opinion, your claim for refugee protection should not have been analyzed in this way. While it is true that the documentary evidence suggests that certain categories of persons are generally targeted by the Chadian authorities, this does not necessarily mean that your testimony on your personal situation is not credible. [25] Moreover, the evidence that you provided on appeal establishes that the Chadian authorities are currently looking for you. [26] The documentary evidence indicates that the security forces in your country are not adequately monitored by the civil authorities, and that these security forces are corrupt, arbitrarily detain people, and engage in extortion and torture. The documentary evidence also indicates that impunity is rampant in your country since the judges, many of whom are corrupt, are overburdened and subject to executive interference.25 [27] In this context, I am of the opinion that you have established, on a balance of probabilities, that you would risk being subjected to torture if you returned to Chad, that the Chadian authorities would provide you with no protection, and that there is no viable internal flight alternative for you. CONCLUSION [28] For these reasons, I set aside the RPD's determination and substitute the determination that, in my opinion, should have been made, namely, that you are a person in need of protection under section 97 of the IRPA. [29] Your appeal is allowed. (Signed) Alain Bissonnette Me Alain Bissonnette January 23, 2020 Date IRB translation Original language: French 1 The documents in question are reproduced at pages 135 to 164 of the digital version of the Refugee Protection Division (RPD) record. 2 Basis of Claim Form and its amendments, which are reproduced at pages 53 to 67 of the digital version of the RPD record. 3 RPD Reasons and Decision, December 3, 2018, English version, pages 5 to 12, and French version, pages 13 to 21 of the digital version of the RPD record. 4 Your affidavit and the documents that you submitted before the RAD are reproduced at pages 31 to 231 of the digital version of the appeal record. 5 Appellant's memorandum, December 13, 2019, pages 291 to 307 of the digital version of the appeal record. 6 Canada (Citizenship and Immigration) v. Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, paragraphs 38 to 51. Casilimas Murcia v. Canada (Minister of Citizenship and Immigration), No. IMM-775-19, Pamel, September 17, 2019; 2019 FC 1182, paragraphs 43, 49 and 50. Canada (Minister of Citizenship and Immigration) v. Davoodabadi, No. IMM-1047-18, Norris, March 21, 2019; 2019 FC 350, paragraph 21. 7 Enam v. Canada (Minister of Immigration, Refugees and Citizenship), No. IMM-1735-17, Brown, December 7, 2017; 2017 FC 1117, paragraph 29. 8 Magonza v. Canada (Minister of Citizenship and Immigration), No. IMM-1506-18, Grammond, January 7, 2019; 2019 FC 14, paragraphs 16 to 35. 9 Moffat v. Canada (Minister of Citizenship and Immigration), No. IMM-3484-18, Annis, July 5, 2019; 2019 FC 896, paragraph 58. 10 Molefe v. Canada (Minister of Citizenship and Immigration), No. IMM-8071-13, Mosley, March 12, 2015; 2015 FC 317, paragraphs 31 and 32. 11 Atay v. Canada (Minister of Citizenship and Immigration), No. IMM-1205-07, O'Keefe, February 15, 2008; 2008 FC 201, paragraph 32. 12 Yasun v. Canada (Minister of Citizenship and Immigration), No. IMM-3669-18, Grammond, March 20, 2019; 2019 FC 342, paragraphs 10 to 17. 13 Al-Sharan v. Canada (Minister of Citizenship and Immigration), No. IMM-1920-19, Strickland, November 15, 2019; 2019 FC 1438, paragraph 34. Ndoungo v. Canada (Minister of Citizenship and Immigration), No. IMM-4397-18, Le Blanc, April 30, 2019; 2019 FC 541, paragraph 26. 14 Solomon v. Canada (Minister of Citizenship and Immigration), No. IMM-6239-03, Blais, September 15, 2004; 2004 FC 1252, paragraph 13, where Justice Blais cites several other Federal Court decisions confirming the same proposition with regard to reports drafted by psychologists. 15 Immigration and Refugee Board of Canada (IRB), Guideline 8: Procedures with Respect to Vulnerable Persons Appearing Before the IRB, effective December 15, 2006, amended December 15, 2012, section 8.3, paragraph 4. Orozco Hurtado v. Canada (Minister of Citizenship and Immigration), No. IMM-2081-07, Frenette, February 29, 2008; 2008 FC 270, paragraph 51. 16 This psychological report is reproduced at pages 39 to 46 of the digital version of the appeal record. 17 These letters are reproduced at pages 36, 37, 38 and 48 to 67 of the digital version of the appeal record. 18 The documents concerning current conditions in Chad are reproduced at pages 69 to 239 of the digital version of the appeal record. 19 IRB, National Documentation Package (NDP) on Chad, September 30, 2019. 20 Recording of the hearing held before the RPD on November 7, 2018, 00:01 to 02:39:48. 21 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 22 Recording of the hearing, supra endnote 20, 02:18:45 to 02:38:45. 23 Ibid., 01:29:15 to 01:39:15 and 02:15:45 to 02:17:30. 24 Ibid., 01:56:15 to 02:01:30. 25 NPD on Chad, in particular at Tab 2.1, United States of America, Department of State, Chad 2018 Human Rights Report, March 13, 2019, 25 pages, at pages 1 to 8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-01723RAD File / Dossier de la SAR : MB901723 RAD.25.02 (April 4, 2019) Disponible en français 7 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 (April 4, 2019) Disponible en français