MB8-09902

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 : MB8-09902 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 October 18, 2019 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Amedeo Clivio Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] The appellant, XXXX XXXX XXXX, a citizen of the Democratic Republic of the Congo (DRC), submitted documents before the Refugee Protection Division1 (RPD) and stated that, as a XXXX, he had documented injustices committed by the government and that he had then been beaten, his home had been ransacked, and his name had been placed on a list of persons wanted for tarnishing the reputation of the DRC.2 [2] The RPD found that the appellant, then referred to as the claimant, had not estalished that, in the past, he had been arrested and tortured by reason of his work as a professional XXXX and that, in the future, he would face persecution or be subjected to a risk to his life or to a danger of torture.3 [3] The appellant filed evidence, requested an oral hearing and submitted that the RPD had erred in finding that he was not credible.4 The Refugee Appeal Division dismisses the appeal [4] I am of the opinion that (i) the evidence in this appeal is not admissible; (ii) a hearing is not warranted; and (iii) the RPD did not commit the alleged errors in rejecting the refugee protection claim. I. EVIDENCE PRESENTED ON APPEAL [5] In Singh, the Federal Court of Appeal found 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 would leave no room for discretion on the part of the Refugee Appeal Division (RAD).5 The court also found that the criteria set out in the case law in terms of the credibility and relevance of the evidence flow from the wording of the subsection in question.6 In short, there is a clear legislative intention to not authorize any new evidence on appeal to the RAD other than in precise and carefully defined circumstances. The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow 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 construed,8 helps to preserve the integrity of the process by promoting, with very limited exceptions, finality with respect to the factual record at the first level of decision-making and encouraging the narrowing of issues as matters move up the appellate ladder.9 [7] Having reviewed the evidence in this appeal and considered the record as a whole,10 I find that the evidence is not admissible under subsection 110(4) of the IRPA. My reasons are as follows. A. Letter of XXXX XXXX, 2018, signed by Dr. XXXX XXXX [8] The appellant provided the RAD with a copy of a letter dated XXXX XXXX, 2018, signed by Dr. XXXX XXXX, who confirmed having seen, treated and admitted him on XXXX XXXX, 2015, when he had been persecuted and tortured.11 [9] The appellant submits that the letter postdates the decision of the RPD. He also submits that it validated the contents of the medical report filed in evidence before the RPD,12 thereby refuting one of the findings in the RPD's decision. He further submits that the letter is credible, as it bears the hospital's letterhead and is accompanied by the national identity card of its sender.13 Lastly, he submits that he could not reasonably have been expected to present the document to the RPD simply because he was represented by counsel, given that neither he nor his counsel could foresee the contents of the RPD's decision.14 [10] Based on my own analysis, the letter does not contain facts that arose after the RPD's decision was rendered, on February 9, 2018. In fact, the letter refers to events that occurred between XXXX XXXX and XXXX, 2015. Moreover, the appellant has not established, on a balance of probabilities, that this evidence was not reasonably available or that he could not reasonably have been expected to have presented it before the RPD's decision was rendered. I am of the opinion that the letter was intended to address the deficient evidence submitted before the RPD, and the circumstances in which it appeared raises doubt as to its credibility. Moreover, the cards identifying the sender of the letter do not indicate that he is a physician working at the XXXX XXXX XXXX hospital centre. B. Document dated XXXX XXXX, 2018, signed by XXXX XXXX XXXX [11] The appellant provided the RAD with a document dated XXXX XXXX, 2018, signed by a person identifying herself as XXXX XXXX XXXX.15 [12] The appellant submits that the document postdates the decision of the RPD. He also submits that it explains how and when Dr. XXXX was informed about his injuries, thereby refuting one of the findings in the RPD's decision.16 Lastly, he submits that he could not reasonably have been expected to present the document to the RPD simply because he was represented by counsel, given that neither he nor his counsel could foresee the contents of the RPD's decision.17 [13] Based on my own analysis, the document refers to events that occurred before the RPD's decision was rendered. Moreover, he filed in evidence before the RPD a handwritten letter dated XXXX XXXX, 2017, and signed by a person presenting herself as his spouse.18 Consequently, I find that the appellant has not established, on a balance of probabilities, that the evidence in the document dated XXXX XXXX, 2018, was not reasonably available or that he could not reasonably have been expected to have presented it before the RPD's decision was rendered. C. Letter signed by Dr. XXXX XXXX and scientific articles [14] The appellant provided the RAD with a letter dated XXXX XXXX, 2018, signed by Dr. XXXX, and scientific articles on the effects of XXXX.19 [15] The appellant submits that the letter from Dr. XXXX arose after the decision of the RPD. He also submits that the letter and the scientific articles on the effects of XXXX show that his memory problems resulted from his health issues, thereby refuting one of the findings in the RPD's decision. Lastly, he submits that he could not reasonably have been expected to present the document to the RPD simply because he was represented by counsel, given that neither he nor his counsel could foresee the contents of the RPD's decision.20 [16] Based on my own analysis, the letter refers to events that occurred before the RPD's decision was rendered. The appellant filed documents in evidence before the RPD, including a medical report, photographs and a discharge report from XXXX XXXX XXXX hospital stating that the physician most responsible for his care, Dr. XXXX, was present at that time.21 Consequently, I find that the appellant has not established, on a balance of probabilities, that the evidence in the letter from Dr. XXXX and in the scientific articles was not reasonably available or that he could not reasonably have been expected to have presented it before the RPD's decision was rendered. II. HEARING BEFORE THE REFUGEE APPEAL DIVISION [17] The appellant requested a hearing only in the event that the RAD was of the opinion that the new evidence raised a credibility issue.22 However, in his memorandum, he failed to include full and detailed submissions regarding why the RAD should hold a hearing, as set out in the Refugee Appeal Division Rules.23 [18] In any event, the onus rests with the RAD to determine whether the criteria set out in subsection 110(6) of the IRPA have been met.24 One of the criteria in this subsection is that evidence presented on appeal has been found to be admissible. I am of the opinion that the evidence in this appeal is not admissible. Consequently, a hearing cannot be held.25 III. ANALYSIS OF THE APPEAL [19] The RAD reviews RPD decisions on a standard of correctness after carrying out its own analysis of the record except where the RPD enjoys a meaningful advantage in making credibility findings.26 That said, the RAD's role is not to carry out a de novo consideration of refugee claims, but rather to determine whether, as the appellant submits, the RPD has in fact erred.27 [20] Having carried out my own analysis of the record, including listening to the recording of the hearing before the RPD,28 I find that the RPD does not enjoy any particular advantage. Having applied the standard of correctness, I conclude that the RPD did not commit the alleged errors in rejecting the claim for refugee protection. [21] In his memorandum, the appellant submits that the RPD erred in finding that he had too many memory problems that could not be attributed to his brain injuries, in basing its finding regarding the letter from the Association des XXXX professionnels [association of professional XXXX] on speculation, in finding that his trips abroad and his return to the DRC in 2016 had undermined his subjective fear of persecution, and in focusing on details that were peripheral.29 I have read the appellant's submissions carefully. According to my own analysis of the record, they are unfounded. My reasons are as follows. A. Remaining in the country, travelling abroad, and then returning to the DRC [22] During his testimony before the RPD, the appellant stated that he had been arrested on XXXX XXXX, 2015, and severely tortured, and then on the next day he had managed to escape thanks to the head of post where he was being detained, who felt compassion for him.30 He also stated that, after receiving treatment, he had stayed at a friend's place for a few weeks and then returned to his home. While he was living at home, he always wore a hat when he went out, hiding and not wanting to encounter police officers. The problems he subsequently encountered took place on XXXX XXXX, 2016.31 [23] According to the information in his passport32 and visa application,33 the appellant made numerous trips abroad between XXXX XXXX, 2015, and XXXX XXXX, 2016. Based on the fact that the appellant stated at the beginning of his testimony that he had not gone to the airport except when he came to Canada, and then acknowledged that he had made a mistake in stating that and that he had in fact travelled in a number of foreign countries during that period,34 the RPD clearly explained the reasons why it found that the trips abroad followed by a return to the DRC undermined the appellant's credibility as to his fear of persecution.35 [24] In his memorandum, the appellant submitted that the RPD could not draw a negative inference from the fact that he had not mentioned all those trips although he had mentioned his trip to Canada. He also submitted that there was no contradiction or inconsistency in fearing the police and continuing to live in his country.36 In his BOC Form37 and during the hearing,38 the appellant stated that, in XXXX 2016, he had not been planning to claim refugee protection in Canada. [25] I find that the appellant's conduct is inconsistent with that of a person fearing persecution by the authorities of their country and that his explanations for remaining in the country and not claiming refugee protection when he travelled abroad between XXXX 2015 and XXXX 2016 are unacceptable. I am of the opinion that his conduct demonstrates an absence of subjective fear39 and is inconsistent with that of a person who truly fears for their life.40 Negative credibility findings made under section 96 may also undermine the validity of a claim under section 97 of the IRPA, even though subjective fear is not part of the assessment for the latter section.41 B. The appellant did not establish that he was a professional XXXX [26] In his memorandum, the appellant criticizes the RPD for relying on speculation in its finding that the letter from the Association des XXXX professionnels and his association membership card were fraudulent. He submits that the RPD erred by applying North American standards in assessing the quality of the documents and the fact that the association did not have a website.42 [27] In its decision, the RPD conducted an extensive analysis before finding that the appellant had not established that he was working as a XXXX and that the letter from the Association des XXXX and the association membership card were fraudulent.43 [28] Based on my own analysis, the RPD did not err. [29] First, in his visa application, the appellant never mentions being in that profession or having received training to work professionally in that profession, even though he declares that the answers to all the questions in the application are correct and complete.44 The same is true of the information in immigration form IMM 5669.45 [30] As well, the address appearing on the membership card, namely XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX, does not appear anywhere else in the various statements made by the appellant, including during his testimony.46 [31] Lastly, during the hearing, when asked to state how much money he had made through the numerous XXXX he had sold, the appellant remained vague; however, he gave a specific response regarding earnings from his employment at the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.47 Moreover, the appellant did not file any work that he had allegedly done as a professional XXXX. Failing to provide supporting documentation that it is reasonable to expect may have an impact on a refugee protection claimant's credibility.48 Rule 11 of the Refugee Protection Division Rules clearly states that refugee protection claimants are obligated to provide documents and other evidence establishing their claim. I find that, in this situation, it was reasonable to expect the appellant to make an effort to obtain concrete evidence of his alleged work as a XXXX.49 He did not do so, and this failure seriously undermines his credibility. [32] I did not have before me the originals of the letter from the Association des XXXX professionnels de la RDC and the membership card allegedly issued by that association. In a case like this, it is reasonable to rely on the RPD's assessment of the authenticity of the documents.50 In any event, even if I do not accept the RPD's finding that the documents are fraudulent, I find that the documents should not be given any probative value, it being understood that a conclusion regarding the weight to be given to a document may be reached following an assessment of its credibility or probative value or both.51 Since the appellant's testimony regarding the work he allegedly did as a XXXX or XXXX was not credible, it is reasonable not to give the two documents any probative value.52 C. The RPD analyzed the entirety of the evidence [33] In his memorandum, the appellant submits that the RPD made serious errors in reasoning that rendered its credibility analysis untenable. He also submits that the RPD failed to consider that he had problems related to the brain injuries he had sustained. Lastly, he submits that the RPD focused its analysis on details that were peripheral.53 [34] I listened carefully to the hearing before the RPD, which lasted more than 5 hours and 30 minutes. During the hearing, the RPD demonstrated exemplary attentiveness, empathy and courtesy toward the appellant. During the hearing, the appellant showed no difficulty in remembering most of the elements of his claim. Moreover, during his oral submissions before the RPD, his counsel submitted that the memory problems experienced during the hearing by his client had nothing to do with his refugee protection claim.54 [35] Based on my own analysis, however, the appellant's testimony contained some facts that are open to doubt. For example, the fact that, after being tortured so severely in 2015, he allegedly decided to XXXX a demonstration by opponents of the regime in XXXX 2016. Or the fact that, after the appellant's arrest during that demonstration, a XXXX who was a friend of his older brother's had allegedly made it possible for him to escape from detention, while telling him that his name was on a list of people to be killed while in prison.55 In this regard, it should be pointed out that the appellant, in the immigration forms that he completed, declaring that the information provided was true, complete and correct, does not state that he was arrested in XXXX 2016.56 Confronted with these omissions, he stated that, after having spoken about the incident in 2015, he had been told that there were no other problems and that he would talk about the incident in XXXX 2016 before the judge.57 In my opinion, this explanation is unacceptable because it contradicts his declarations that the information provided in the forms is true, complete and correct. [36] In its decision, the RPD considered the presumption that the appellant was speaking the truth. However, it found that the presumption was refuted particularly by reason of the appellant's inconsistent and vague testimony regarding his work as a XXXX, the trips he took abroad and the lack of evidence regarding the tangible work that the appellant had allegedly done as a XXXX. It also considered the documents supporting the refugee protection claim but found that they were to be given little weight.58 [37] The RPD did not base its decision on peripheral details; on the contrary, the very crux of the refugee protection claim is based on the work that the appellant allegedly did as a professional XXXX, having XXXX XXXX XXXX XXXX that criticized in one way or another the actions of the authorities of the DRC. With all due respect, the fact that the appellant spoke about the mass grave in Maluku or the abuse by the authorities of his country is insufficient to establish that he in fact acted as a XXXX in his country and that, as a result of his professional work as a XXXX, he was arrested and tortured and is now wanted actively by the authorities of the DRC. [38] It is well established that it is the entirety of the evidence that must be assessed, with RPD members applying common sense and human experience.59 I find that the RPD did not err in its finding that, overall, the appellant was not credible and that numerous problems in this regard could not be attributed to his brain injury. CONCLUSION [39] For these reasons, I confirm the RPD's determination, namely that XXXX XXXX XXXX is not a refugee under section 96 or a person in need of protection under section 97 of the IRPA. [40] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette October 18, 2019 Date IRB translation Original language: French 1 These documents are reproduced at pages 175 to 318 of the Refugee Protection Division (RPD) record. 2 The Basis of Claim Form (BOC Form) is reproduced at pages 31 to 51 of the RPD record. 3 RPD reasons and decision, February 9, 2018, pages 3 to 17 of the French version and pages 18 to 30 of the English version of the RPD record. 4 Appellant's memorandum, April 5, 2018, pages 64 to 86 of the appeal record. 5 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. 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 As my colleague Gregg Erauw suggested doing in X (Re), No. TB8-02355, 2018 CanLII 109764 (CA IRB), the reasons for this being clearly explained in paragraphs 13 to 16. 11 This letter is reproduced at page 22 of the appeal record. 12 A letter dated XXX X, 2016, and a report dated XX XX, 2015, are reproduced at pages 296 and 297 of the RPD record. 13 Appellant's memorandum, paragraph 31, page 71 of the appeal record. 14 Ibid., paragraph 37, page 72 of the appeal record. 15 This document is reproduced at page 25 of the appeal record. 16 Appellant's memorandum, paragraph 32, page 71 of the appeal record. 17 Ibid., paragraph 37, page 72 of the appeal record. 18 This letter is reproduced at page 313 of the RPD record. 19 This letter and these articles are reproduced at pages 30 and 33 to 59 of the appeal record. 20 Appellant's memorandum, paragraphs 35, 36 and 37, pages 71 and 72 of the appeal record. 21 These documents are reproduced at pages 283 to 295 and 306 to 311 of the RPD record. 22 Statement regarding evidence referred to in subsection 110(4) of the Immigration and Refugee Protection Act and request for a hearing, page 61 of the appeal record. 23 Refugee Appeal Division Rules, SOR/2012-257, subparagraph 3(3)(g)(v). 24 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018; 2018 FC 147, paragraph 18. 25 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. 26 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. 27 Canada (Minister of Public Safety and Emergency Preparedness) v. Gebrewold, No. IMM-4058-17, LeBlanc, April 6, 2018, 2018 FC 374, paragraph 25. 28 Recording of the first part of the hearing, on January 17, 2018, 00:01 to 02:31:03 (there is also a transcription of this part of the hearing, 70 pages); recording of the second part of the hearing, on January 25, 2018, 00:01 to 03:01:42. 29 Appellant's memorandum, paragraphs 45 to 84, pages 74 to 84 of the appeal record. 30 Recording of the first part of the hearing, 01:35:00 to 01:49:00. 31 Recording of the second part of the hearing, 21:30 to 26:00. 32 This information appears at pages 137 to 149 of the RPD record. 33 This information appears at page 123 of the RPD record. 34 Recording of the second part of the hearing, 01:18:00 to 01:28:00. 35 RPD reasons and decision, paragraphs 27 to 32, pages 12, 13 and 14 of the RPD record. 36 Appellant's memorandum, paragraphs 74 to 81, pages 82 and 83 of the appeal record. 37 BOC Form, paragraph 11, page 48 of the RPD record. 38 Recording of the second part of the hearing, 59:00 to 01:02:00. 39 Rivera v. Canada (Minister of Citizenship and Immigration), No. IMM-5826-02, Beaudry, November 5, 2003, 2003 FC 1292, paragraphs 29 and 30. 40 El-Khatib v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-15, LeBlanc, April 27, 2016, 2016 FC 471, paragraph 12. 41 Dowansingh v. Canada (Minister of Citizenship and Immigration), No. IMM-6581-14, Diner, July 30, 2015, 2015 FC 933, paragraph 18. 42 Appellant's memorandum, paragraphs 64 to 73, pages 79 and 82 of the appeal record. 43 RPD reasons and decision, paragraphs 17 to 26, pages 8 to 12 of the RPD record. 44 The information contained in the visa application is reproduced at pages 116 to 126 of the RPD record. 45 This form is reproduced at pages 89 to 92 of the RPD record. 46 Recording of the first part of the hearing, 41:00 to 48:30. 47 Recording of the second part of the hearing, 33:00 to 40:00. 48 Mercado v. Canada (Minister of Citizenship and Immigration), No. IMM-4493-09, Gauthier, March 12, 2010, 2010 FC 289, paragraph 32; Kallab v. Canada (Minister of Citizenship and Immigration), No. IMM-5130-17, Annis, May 16, 2019, 2019 FC 706, paragraph 150. 49 Regarding the issue of when refugee protection claimants may be asked to submit documents corroborating their allegations, see the in-depth analysis in Luo v. Canada (Minister of Citizenship and Immigration), No. IMM-5059-18, Strickland, June 17, 2019, 2019 FC 823, paragraphs 18 to 22. 50 Jadallah v. Canada (Minister of Citizenship and Immigration), No. IMM-4795-15, Roussel, November 7, 2016, 2016 FC 1240, paragraph 54. 51 Magonza v. Canada (Minister of Citizenship and Immigration), No. IMM-1506-18, Grammond, January 7, 2019, 2019 FC 14, paragraphs 27 to 31. 52 Ogaulu v. Canada (Minister of Citizenship and Immigration), No. IMM-3862-18, McDonald, April 30, 2019, 2019 FC 547, paragraph 26. 53 Appellant's memorandum, paragraphs 45 to 63, 82, 83 and 84, pages 74 to 79, 83 and 84 of the appeal record. 54 Recording of the second part of the hearing, 02:07:45 to 02:08:40. 55 Recording of the first part of the hearing, 02:13:00 to 02:28:45. 56 In response to Question 6 in form IMM 5669, page 89 of the RPD record, and in response to Question 9 in form IMM 0008, page 94 of the RPD record. 57 Recording of the second part of the hearing, 01:06:00 to 01:12:00. 58 RPD reasons and decision, paragraphs 33 to 38, pages 15 and 16 of the RPD record. 59 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017, 2017 FC 644, paragraphs 22 and 27. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-09902 2 RAD.25.02 (2014.09.11) Disponible en français