MB9-18486

RAD File No. / No de dossier de la SAR : MB9-18486 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 September 30, 2019 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Laurent Gryner Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASON FOR DECISION INTRODUCTION [1] The appellant, XXXX XXXX XXXX, a citizen of the Democratic Republic of the Congo (DRC), submitted evidence before the Refugee Protection Division1 (RPD) and declared that he feared being persecuted by reason of his political opinion in his country of origin.2 [2] The RPD found that, because of major contradictions and omissions, the appellant, then referred to as the claimant, was not credible and that his testimony was not trustworthy with respect to the key elements of his claim. It also concluded that his behaviour was inconsistent with his fear of moving back to his country of origin.3 [3] The appellant submitted evidence, requested an oral hearing and argued the following: - The contradictions in his testimony should not undermine his credibility. - There are no omissions in his testimony, as he did not know he needed to write everything in his Basis of Claim Form (BOC Form). - The new evidence of his involvement with and his support for a person engaged in politics in the DRC justifies allowing his refugee protection claim.4 The Refugee Appeal Division is dismissing the appeal [4] In my opinion, the evidence presented on appeal is not admissible (I), there is no reason to hold a hearing (II) and, in rejecting this refugee protection claim, the RPD did not commit the errors described by the appellant (III). I. EVIDENCE PRESENTED ON APPEAL [5] In Singh, the Federal Court of Appeal rules that the explicit conditions set out in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) are inescapable, have to be met and leave no room for discretion on the part of the Refugee Appeal Division (RAD).5 It also rules that the criteria set out in the case law regarding credibility and relevance of the evidence are implicit in the wording of the subsection in question.6 In short, Parliament has expressed a clear intent to allow new evidence to be introduced in an appeal to the RAD only in specific and carefully defined circumstances, as the role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.7 [6] The existence of these criteria, which must be narrowly interpreted,8 helps to preserve the integrity of the judicial process by promoting finality with respect to the factual record at the first level of decision-making (with very limited exceptions) and encouraging the narrowing of issues as matters move up the appellate ladder.9 [7] The appellant submitted documents to the RAD10 which, in my opinion, are not admissible as evidence under subsection 110(4) of the IRPA for the following reasons. - Photographs included in the appeal record [8] Regarding the photographs reproduced on pages 19 and 31 of the appeal record, in his memorandum, the appellant did not submit full and detailed observations on how this evidence meets the requirements of subsection 110(4) and how it relates to him, despite this being set out in the Refugee Appeal Division Rules (RAD Rules).11 [9] If the dates written on the back of some of the photographs12 are accurate, they indicate that the photographs are not related to facts that arose after the RPD decision. At first glance, they seem to only seek to correct issues in the evidence presented before the RPD. The appellant did not explain why this evidence was not accessible before the RPD rejected his claim nor, if it was accessible, why he could not reasonably have been expected in the circumstances to have presented it to the RPD, at that point in the process. - Message from August 29, 2018 [10] As for the message reproduced on page 33 of the appeal record, the appellant submits in his memorandum that it constitutes evidence that was not reasonably accessible when his claim was rejected and that it shows his involvement with and support of Mr. XXXX XXXX.13 [11] In my opinion, the appellant's explanation that this message was not reasonably available at the time of the proceedings before the RPD is not persuasive. If this is a message that was sent by the person in question on August 29, 2018, why would it be available now and not then? [12] Regardless, I find that this message is neither credible nor trustworthy, as its actual recipient cannot be determined.14 II. ORAL HEARING BEFORE THE REFUGEE APPEAL DIVISION [13] The appellant requested that the RAD hold an oral hearing.15 In his memorandum, he submits that the message he received on August 29, 2018, shows that Mr. XXXX asked him to invest $25,000 in a campaign for the next election and that an oral hearing before the RAD must be held in order to confirm his credibility.16 [14] The onus is on the RAD to determine whether the criteria set out in subsection 110(6) of the IRPA have been met.17 One of the criteria in this subsection is that one piece of evidence submitted on appeal must be found admissible. However, I am of the opinion that the evidence in this appeal is not admissible. Therefore, no oral hearing can be held.18 III. ANALYSIS OF THE APPEAL [15] The RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule concerns the RPD's assessment of credibility in situations where it enjoys a meaningful advantage.19 [16] That being said, the role of the RAD is not to carry out a de novo consideration of the claims, but rather to determine whether, as the appellant claims, the RPD erred.20 [17] After conducting my own analysis of the record, I believe that it enjoyed no meaningful advantage. Applying the correctness standard of review, I believe the RPD did not commit the errors alleged against it. My reasons are as follows. A. Significant omissions and contradictions [18] In his memorandum, the appellant argues that, contrary to what the RPD alleges, his testimony did not contain major omissions or contradictions that undermine his credibility to the point where his claim for status as a refugee or person in need of protection would be rejected.21 [19] Regarding the contradictions, the appellant claims that, during his hearing before the RPD, he was under considerable stress. He did not know he had the opportunity to amend the information in his BOC Form and therefore did not, most notably about the fact that he was intercepted by special service agents on XXXX XXXX, 2016, and not on XXXX XXXX, 2016.22 He also claims that there are no contradictions about the location of XXXX XXXX arrest, as the National Documentation Package can contain errors.23 [20] The appellant argues that his testimony contained no omissions, as he did not know he needed to write everything in his BOC Form.24 [21] These arguments are unfounded. [22] The appellant cannot argue today that he did not know he could amend his BOC Form, as, during the hearing, the RPD asked him if there were mistakes or corrections he wanted to add to his BOC Form, which he did orally.25 He had already submitted the written amendments to his BOC Form. In these amendments, it is indeed written that he was arrested on XXXX XXXX, 2016.26 By signing his BOC Form, he declared that the information provided was complete, true and correct.27 He made a similar declaration at the hearing, after the amendments had been made to his BOC Form. [23] When refugee protection claimants swear to the truth of certain allegations, they are presumed to be telling the truth. However, this presumption is rebuttable when the evidence does not correspond to the testimony or when the RPD is not satisfied with the explanation provided for the inconsistencies.28 The RPD may draw negative inference from implausibilities, inconsistencies or omissions. It is the evidence as a whole that must be assessed, and the RPD members may apply common sense and human experience.29 [24] Contrary to the appellant's argument, in its decision, the RPD did not allege that his testimony contained major contradictions and omissions-rather, it concluded that they existed. It also analyzed the appellant's explanations but did not consider them satisfactory. It also found that they heavily undermined his credibility and that, because of this, it did not believe the appellant's allegations of arrest and abuse.30 [25] After conducting my own analysis of the record, I believe that the RPD did not err. B. Return to the Democratic Republic of the Congo [26] In its decision, the RPD noted that the appellant returned to the DRC two weeks after leaving for the United States in XXXX 2017. Referring to the appellant's declaration, in which he claims he was arrested and threatened in his country, the RPD concluded that his behaviour was contrary to that of a person afraid for their life.31 [27] The appellant did not challenge this conclusion. In his memorandum, he simply noted that he returned to the DRC two weeks after arriving in the United States because he realized he could not find a place to stay while waiting for his refugee protection claim to be heard.32 [28] It has been well established that a claimant who remains longer than necessary in a country where they fear persecution, who voluntarily returns to that country or who does not seek refugee protection at the first opportunity is behaviour that shows they may not have a subjective fear.33 This behaviour may also be inconsistent with the behaviour of someone who truly fears for their life.34 Negative credibility findings made under section 96 may also affect the validity of a claim under section 97 of the IRPA, even though subjective fear is not part of the assessment for the second section.35 [29] According to my independent analysis of the record, I believe that the RPD did not err by finding that by going back to the DRC after moving to the United States, the appellant's behaviour was inconsistent with that of a person fearing persecution who would be putting their life in danger or risking being subjected to torture. C. The appellant did not discharge his burden of establishing a well-founded fear of persecution or a risk to his life if he were to return to the Democratic Republic of the Congo [30] In my opinion, the RPD handled the appellant's refugee protection claim with care. It analyzed each of his allegations and every document submitted as evidence. That being said, it found that the appellant was totally lacking in credibility, gave no weight to many of his documents and explained why.36 [31] In his memorandum, the appellant did not challenge these conclusions. [32] After conducting my own analysis, I believe the RPD did not commit any errors. CONCLUSION [33] For these reasons, I confirm the RPD determination, namely, that XXXX XXXX XXXX, is neither a refugee under section 96 nor a person in need of protection under section 97 of the IRPA. [34] The appeal is dismissed. (signed) Alain Bissonnette Me Alain Bissonnette September 30, 2019 Date IRB translation Original language: French 1 These documents are reproduced on pages 103 to 134 of the Refugee Protection Division (RPD) record. 2 Basis of Claim Form (BOC Form), including additions, pages 22 to 44 of the RPD record. 3 RPD reasons and decision, July 26, 2019, pages 3 to 14 of the RPD record. 4 Appellant's memorandum, August 29, 2019, pages 36 to 42 of the appeal record. 5 Canada (Citizenship and Immigration) v. Singh, No. A-512-14, by Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, paragraphs 38 to 51. 6 Ibid., paragraphs 34 and 35. 7 Ibid., paragraph 54. 8 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. 9 Canada (Minister of Citizenship and Immigration) v. Davoodabadi, No. IMM-1047-18, Norris, March 21, 2019; 2019 FC 350, paragraph 21. 10 In his affidavit signed on August 29, 2019, and included on pages 16 and 17 of the appeal record, the appellant stated that he submitted as evidence, first, a copy of the photographs taken in the Democratic Republic of the Congo (DRC), in a bundle, and a copy of a message sends by XXXX XXXX in the application WATS UP [sic]. These documents are reproduced on pages 18 to 33 of the appeal record. That being said, in his written statement concerning the new evidence presented to the Refugee Appeal Division (RAD) on page 34 of his appeal record, only the copy of XXXX XXXX message is mentioned. 11 Refugee Appeal Division Rules, SOR/2012-257, subrule 3(3), paragraph g(iii). 12 These are the photographs on pages 19 to 26 of the appeal record. 13 Appellant's memorandum, paragraphs 26 to 29, page 40 of the appeal record. 14 Singh, supra endnote 5, paragraphs 38, 43 and 44. 15 Written statement concerning holding a RAD hearing, page 35 of the appeal record. 16 Appellant's memorandum, paragraphs 24 and 25, page 39 of the appeal record. 17 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018; 2018 FC 147, paragraph 18. 18 Casilimas Murcia, supra endnote 8, paragraph 43. Borubaev v. Canada (Minister of Citizenship and Immigration), No. IMM-3026-17, Diner, February 5, 2018; 2018 FC 125, paragraph 21. 19 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. Rozas del Solar v. Canada (Minister of Citizenship and Immigration), No. IMM-2645-17, Diner, November 14, 2018; 2018 FC 1145. 20 Canada (Public Safety and Emergency Preparedness) v. Gebrewold, No. IMM-4058-17, LeBlanc, April 6, 2018; 2018 FC 374, paragraph 25. 21 Appellant's memorandum, paragraph 7, page 37 of the appeal record. 22 Ibid., paragraphs 9 to 15, page 38 of the appeal record. 23 Ibid., paragraphs 16 and 17, page 38 of the appeal record. 24 Ibid., paragraphs 20 to 23, page 37 of the appeal record. 25 Recording of the first part of the RPD hearing on July 19, 2019, 00:01 to 01:47:10, notably between 11:00 and 14:00. 26 Amendments to the BOC Form, page 33 of the RPD record. 27 Original BOC Form, page 44 of the RPD record. 28 Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, paragraph 21. 29 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, paragraphs 22 and 27. 30 RPD reasons and decision, paragraphs 10 to 24 and 34 to 39, pages 6 to 10 and 12 of the RPD record. 31 Ibid., paragraphs 25 to 32, pages 10 and 11 of the RPD record. 32 Appellant's memorandum, paragraph 18, page 39 of the appeal record. 33 Rivera v. Canada (Minister of Citizenship and Immigration), No. IMM-5826-02, Beaudry, November 5, 2003; 2003 FC 1292, paragraphs 29 and 30. 34 El-Khatib v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-15, LeBlanc, April 27, 2016; 2016 FC 471, paragraph 12. 35 Dowansingh v. Canada (Minister of Citizenship and Immigration), No. IMM-6581-14, Diner, July 30, 2015; 2015 FC 933, paragraph 18. 36 RPD reasons and decision, paragraphs 40 to 52, pages 13, 14 and 15 of the RPD record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-18486 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) Available in English