MB4-01297

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. / N° de dossier de la SAR : MB4-01297 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 à Date of decision July 3, 2014 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Meryam Haddad Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX XXXX the appellant, a citizen of the Democratic Republic of the Congo (DRC), is appealing against the decision of the Refugee Protection Division (RPD), alleging that it rendered a decision based on errors in its assessment of her credibility. II. DETERMINATION OF THE APPEAL [2] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD's determination, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. III. BACKGROUND A. Basis of the claim [3] In the Basis of Claim Form (BOC Form), which she signed on September 19, 2013, the appellant states that she is a Congolese citizen; that she was born on XXXX XXXX, 1991; that she speaks French, Lingala and Kigongo; that she is Catholic; and that her father, mother, stepfather, stepmother, brothers and sisters were living in the DRC at that time.1 [4] Rather than providing a direct answer to each question included in her BOC Form,2 the appellant provided the following account, which I have reproduced in its entirety: [translation] 10. Before I left, I lived in the neighbourhood of XXXX with my father, my stepmother XXXX XXXX, my brothers and my sisters; 11. Between 1997 and XXXX 2013, I studied at the Congo XXXX University; 12. I was unable to obtain my university degree in XXXX because of the gang rape that I was subjected to by soldiers and the persecution that followed; 13. Young and enthusiastic about bringing change to my community, in XXXX 2009, I did a month of training through an NGO and was awarded a certificate in the "Defense of Human Rights;" 14. The training's objective was to give us tools to intervene in cases such as domestic violence and to offer help to child mothers; 15. In the DRC, domestic violence remains unpunished under the law and this scourge affects many victims who do not dare to denounce their attackers; 16. This violence is also perpetrated against thousands of Congolese children, whose fathers exert total dominance over their families and they fall prey to physical, economic, sexual and economic violence; 17. During the training, we were told that this was the primary cause of mortality among women; 18. Personally, I was never a victim of violence at the hands of my father; 19. A woman's life in the DRC is not easy, but I was aware that I had been at least spared any domestic violence; 20. Being young and interested in this problem, I decided to take the training to be able to help the women in my community; 21. Several times, I witnessed cases of domestic violence, and it was not unusual in the DRC to see women and children mutilated by their spouse or someone around them; 22. Rape by soldiers, rebels or police officers is also very common in the DRC, and the perpetrators are rarely punished; 23. From 2009 to XXXX 2013, I did home visits in my neighbourhood to explain what to do and to avoid using violence when conflict arises; 24. That is why I decided to act on the night of XXXX XXXX, 2013, when my two brothers, XXXX and XXXX, came to tell me that a neighbour, XXXX XXXX, was being beaten by a man; 25. I knew this woman by sight, since I had greeted her a few times; 26. Thinking that I was dealing with domestic violence, I went to Ms. XXXX home to try to defuse the situation; 27. When I arrived, an individual wearing civilian clothing and who I thought was her husband told me and my two brothers not to get involved in their business; 28. Raising his voice, the man told us that this woman was "his woman;" 29. I insisted on telling him that he should not beat a woman and that he should instead try to talk if there was a disagreement; 30. Furious, he left the premises; 31. That was when Ms. XXXX informed me that this man was not living with her, that she was actually his "mistress" and that he was a very influential man in the city; 32. I returned home and went about my activities without any further news of the incident; 33. On XXXX XXXX, 2013, both of my brothers, XXXX and XXXX, came to tell me that Ms. XXXX was being beaten again, and that this time it was very violent; 34. We went to Ms. XXXX home to try and defuse the situation once again; 35. When I arrived, the man was no longer there, only the woman; 36. I saw that she had head injuries, and she was complaining of pain in her body; 37. Suddenly, while I was talking with Ms. XXXX, the man (the lover) entered the home with four armed soldiers; 38. My brothers, who were waiting outside, ran away while I was being kidnapped, out of fear of being killed; 39. The man gave orders to the four soldiers, telling them to make us disappear, because we had bothered him while he was with his mistress; 40. I was then forced by these men to get into a black car with tinted windows; 41. Using tape, they covered my mouth to keep me from crying out; 42. I was taken all the way out to the "XXXX" commune, which is approximately three or four hours from my home; 43. During the trip, my assailants were speaking another dialect, which I was unable to understand; 44. On XXXX XXXX, 2013, around 11 p.m., after arriving in the XXXX commune, I was the victim of a gang rape by the four soldiers; 45. After each of these men had taken their turn, they put me back in the vehicle and then threw me out onto the streets in the early hours of the morning; 46. I was completely confused and distraught; 47. I asked a passerby where I was; 48. Filled with shame, I did not tell the woman that I had just been gang raped, but I did tell her that I had been kidnapped and that I wanted to go home; 49. The woman brought me to a taxi stand, and she paid the taxi in advance so that I could go home; 50. After arriving at home, I walked in crying, broken inside and filled with shame; 51. Since XXXX XXXX, 2013, I've lost a part of my body and my soul; 52. I told my brothers everything, but not my father, out of fear that he would force me to leave home to protect his honour; 53. In the meantime, the neighbours told me that the soldier was looking for me and wanted to kill me; 54. Three days after the incident, wanting to help me, my brothers contacted a good friend of my father's, a man called XXXX; 55. It should be noted that after this event, I ceased going to classes, preferring to stay home to avoid being seen; 56. Mr. XXXX agreed to help me and to pay the various fees (US$2,000), which he would ask my father to repay after I left; 57. In XXXX 2012, I decided to obtain a passport as proof of identity; 58. I had no intention of travelling, and had never travelled prior to XXXX XXXX, 2013, to come to Canada; 59. Mr. XXXX gave me instructions to follow to obtain a United States student visa; 60. I then went to the U.S. Embassy in Kinshasa, at the embassy's request, on XXXX XXXX, 2013; 61. At the embassy, I was asked about my reasons for going to the US., and I stated that my intent was to study English at "XXXX XXXX XXXX;" 62. It should be noted that Mr. XXXX had already produced certain documents pertaining to the request, but I cannot confirm their accuracy; 63. My father was aware that I was being threatened by soldiers, but did not know that I had been raped; 64. The day before I left, I told my father that Mr. XXXX had helped me arrange my departure from the country; 65. I explained to my father that my persecutors were soldiers that I had encountered as part of my human rights work; 66. That I was being threatened by them because I had seen their faces; 67. Trusting his good friend XXXX, and seeing my determination and my fear, he allowed me to leave; 68. I did not want to leave the country without having told at least part of my story to my father; 69. On XXXX XXXX, Mr. XXXX came to pick me up at home and brought me to the XXXX airport; 70. On XXXX XXXX, 2013, I travelled to XXXX with Mr. XXXX, who then returned to XXXX; 71. Passing through XXXX, I arrived in Washington on XXXX XXXX, 2013; 72. After arriving in Washington, I missed the airplane and had to spend two nights at the airport; 73. I met a passerby who brought me to the service desk to resolve my situation; 74. Since Mr. XXXX had acquaintances in XXXX, two young women came to pick me up at the XXXX airport; 75. They drove me to a motel, where my room was already paid for, and they told me that someone would come to pick me up; 76. And so I stayed at the motel from XXXX XXXX to XXXX XXXX, 2013; 77. On XXXX XXXX, the same women came to the motel and drove me by car to the bus terminal; 78. They gave me a ticket for a bus that would go all the way to XXXX; 79. The women told me that I was to go to a motel whose name I do not recall; 80. From the bus terminal in XXXX, I walked to the motel; 81. Once again, my motel room was already paid for, and I stayed there from XXXX XXXX to XXXX, 2013; 82. On XXXX XXXX XXXX a man came to the motel and told me that he had been hired to drive me to Canada for $500, which I gave him; 83. That same day, I got into his vehicle and we left for Canada; 84. We arrived at the border, and the man showed a passport that was not mine; 85. Arriving in Montréal around 2:00 a.m., the man dropped me off in front of the PRAIDA building and told me to wait for it to open and then make a claim for refugee protection; 86. I will never be able to return to my country. I am still wanted. The lives of my two brothers and of my entire family are in danger; 87. I wish to be granted one last chance to live, to save the remaining half of my body and keep living a new life.3 [5] Besides her BOC Form, the appellant presented the following documents as evidence before the RPD: D-2: Amnesty International report on the DRC;4 D-3: United States Department of State 2012 report on human rights in the DRC;5 D-4: Observatory for the Protection of Human Rights Defenders' 2011 report on the situation in the DRC;6 D-5: Report of the United Nations Joint Human Rights Office on serious human rights violations committed by members of the Congolese defence and security forces in the city of Kinshasa in the DRC between November 26 and December 25, 2011;7 D-6: Index of the IRB's National Documentation Package on the DRC, dated May 3, 2013,8 D-7: Letter from XXXX XXXX XXXX XXXX, the appellant's stepbrother, dated XXXX XXXX, 2013;9 D-8: A map, a pass and a participation certificate for a training seminar on human rights.10 B. RPD decision [6] The hearing before the RPD was held on November 22, 2013, and the decision to reject the claim for refugee protection was rendered on December 18, 2013.11 [7] In its reasons for decision, the RPD indicated that the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution12 had been taken into account. [8] In its reasons for decision, the RPD indicated that the determinative issue was credibility, and that it found that the appellant's testimony on essential elements of her claim for refugee protection was not credible or trustworthy.13 [9] The RPD first indicated that it did not believe that the appellant had received human rights training from an NGO called the Ligue internationale des activités pour la promotion des droits humains [XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX], or from any other NGO. The RPD also indicated that it did not believe that the appellant had volunteered for that NGO, or any other, from 2009 to 2013.14 [10] The RPD came to this conclusion after having noted that, during the hearing, the appellant could not spontaneously recall the name of the NGO or name the NGO that had given her human rights training.15 The RPD also indicated that, during the hearing, the appellant gave vague testimony about the content of the training that she alleges she received, when this training was allegedly attended six nights a week for a month and a half in 2009.16 [11] The RPD came to this conclusion after also noting that the appellant had omitted the name of the NGO in the IMM 5669 form,17 and that she had given contradictory information regarding the time she started working with the NGO18 and the exact nature of that work.19 The RPD allowed the appellant to provide explanations, but it did not find them satisfactory.20 [12] The RPD then indicated that it did not believe that the appellant had intervened in episodes of domestic violence in a neighbour's home.21 [13] The RPD came to this conclusion after having noted that, during the hearing, the appellant gave contradictory or inconsistent versions about the presence or absence of her two brothers at the location of her intervention on a female neighbour's behalf.22 The RPD also noted that the intervention on this neighbour's behalf, according to the appellant's testimony during the hearing, could not reasonably correspond to the intervention following training by a human rights NGO. The RPD wrote the following on this matter: [translation] 36. Furthermore, the panel wanted more details about both of the claimant's interventions when her neighbour was being subjected to domestic violence, and the claimant's testimony lacked credibility. For example, when questioned about the reasons why she had gone to her neighbour's home, and invited to explain how she believed she could intervene at the very moment Ms. XXXX spouse was beating her, the claimant initially stated that it was because she was well acquainted with her neighbour. She added that she wanted to tell her neighbour's spouse to stop hitting her. The claimant also testified that due to the training she had received from the NGO on how to intervene in the event of a conflict situation, she wanted to give Ms. XXXX advice. When invited to share the guidance she had given her, the claimant stated that she had told her [translation] "to submit to her husband, to be careful because living with a man who has not married her means that she has to see the good side of things." The claimant explained that she told her neighbour that to see the good side of things, meant getting along with her spouse and respecting the person that is her man. 37. The claimant alleged in her BOC Form that she had completed training intended to give her tools to intervene in situations including cases of domestic violence. Her testimony indicates that her knowledge of how to intervene on behalf of victims, the training received by the NGO and her involvement in the organization led her to intervene on behalf of her neighbour during two episodes of domestic violence and gave her the ability to offer guidance. The claimant alleged in her BOC Form that she was particularly interested in the scourge of domestic violence, which affects many victims who do not dare to denounce their attackers. The claimant alleged that she volunteered for the NGO for several years, from 2009 to 2013, conducting home visits among victims and persons in various districts to give them information about their rights. The claimant is an educated woman who studied at a university in her country. In those circumstances, the panel finds that it is unreasonable to believe that the claimant gave her neighbour such advice, essentially telling a victim of violence to submit and respect her man. 23 [14] The RPD then indicated that the appellant's credibility regarding her alleged rape by four soldiers had been undermined by contradictions in her testimony.24 In her BOC Form, the appellant wrote that, during her second intervention on her neighbour's behalf, on XXXX XXXX, 2013, the spouse was no longer in the house, but that he came back with four soldiers while she was talking with her neighbour. During the hearing, she provided another version of the facts, namely, that the spouse was in the room, and he threatened her, and that the other men appeared afterwards.25 When confronted with the difference between these two versions, the RPD indicates that the appellant changed her testimony by providing more details, which only added to the confusion. Accordingly, the RPD's analysis is as follows: [translation] The claimant's answers fail to explain the contradiction pointed out between the version provided in her BOC Form and that presented at the hearing. On the contrary, they add more confusion the account. The claimant is an educated woman who presents herself as a human rights activist. The events on XXXX XXXX, 2013, are central to her claim for refugee protection since it was because of her intervention that day that she was raped. In the circumstances, it is reasonable to expect her to be able to provide a single version of the facts about the events that day. However, it is clear that this is not the case and, in light of the above, the answers that she provided do not satisfactorily explain the contradictions pointed out. The claimant's credibility, already highly tarnished, is undermined even further.26 [15] The RPD then identified an omission that also undermined the appellant's credibility. During the hearing, the appellant stated that her four attackers had told her that they would dispose of her if she spoke of the rape they had subjected her to. This threat is not mentioned in her BOC Form. When asked to provide an explanation, the appellant replied that she had planned to mention it in person, during the hearing. Given the seriousness of the omission, the RPD found this explanation to be unsatisfactory.27 [16] The RPD also found it unlikely that both of the appellant's brothers would have fled four armed men rather than help their sister.28 [17] Lastly, the RPD indicated that the appellant's behaviour was inconsistent with that of a person truly afraid for her life, since she did not apply for asylum in the United States of America, where she stayed from XXXX XXXX to XXXX XXXX, 2013.29 [18] Hence the RPD's final conclusion: [translation] Having taken into account all the evidence on file, and in light of the above analysis, the panel finds that the claimant failed to credibly establish the essential facts in support of her claim for refugee protection. The panel does not believe the claimant's entire account. Given the claimant's lack of credibility, the panel does not give any weight to the documents she submitted as proof to support her claims.30 C. Grounds of appeal and remedy sought [19] In her memorandum, the appellant submits that the RPD's analysis is unreasonable, particularly as it pertains to her credibility.31 [20] The appellant's counsel indicates in the memorandum that the appellant gave a meaningful and exact response to the RPD's questions about the training received and the NGO's name when she replied that she had learned how to provide guidance and solutions in a conflict situation.32 [21] She notes that failing to provide the full name of the NGO on the IMM 5669 form does not constitute an omission and that, during her testimony, the appellant simply provided clarification.33 [22] She notes that there is no contradiction regarding the period during which the appellant was part of and worked for the NGO because, in her BOC Form and during the hearing, she indicated that she had worked for the organization from 2009 to XXXX 2013.34 [23] She notes that the pass provided by the NGO identifies her as an XXXX and that, during her testimony, she stated that the NGO had sent her to visit families to verify if there was any violence in the family context and to help them manage this type of problem. In her opinion, this amounts to an inspection of the premises.35 [24] Consequently, the appellant's counsel submits that the RPD made an error by concluding it did not believe the appellant had received training from the NGO or that she had worked for it as a volunteer.36 [25] As for the RPD's analysis of the appellant's intervention on behalf of Ms. XXXX, the appellant's counsel submits that it is unreasonable, since it is normal to think that her two brothers would have stayed outside, given that she was the expert on cases of domestic violence.37 [26] As for the RPD's analysis of the rape, the appellant's counsel submits that the member erred in assuming that her brothers should have stayed on the premises to protect her.38 [27] As for the failure to apply for asylum in the United States of America, the appellant's counsel notes that the appellant did not apply for asylum because her trip had been organized by Mr. XXXX and her intent was not to settle in that country; rather, it was to reach Canada.39 [28] This led to her conclusion that the RPD made several errors, requiring the RAD to intervene.40 [29] The appellant is requesting that the RAD set aside the determination of the RPD and allow her claim for refugee protection, or refer the matter to the RPD for re-determination before another member and to make any other order it deems necessary.41 IV. HEARING BEFORE THE RAD A. The appellant has not provided new evidence in support of her appeal and has not requested a hearing before the RAD [30] In a statement made by the appellant's counsel, it is indicated that they are not filing new evidence pursuant to subsection 110(4) of the IRPA, and that they are not asking for a new hearing to be held, as outlined in subsection 110(6) of the IRPA. However, they do indicate that if the RAD considers it necessary to hold a hearing, they would prefer that it be held in French.42 [31] In this respect, it is appropriate to point out that under subsection 110(3) of the IRPA, the RAD generally proceeds without holding a hearing, on the basis of the record of the proceedings of the RPD: 110. (3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. 110. (3) Sous réserve des paragraphes (3.1), (4) et (6), la section procède sans tenir d'audience en se fondant sur le dossier de la Section de la protection des réfugiés, mais peut recevoir des éléments de preuve documentaire et des observations écrites du ministre et de la personne en cause ainsi que, s'agissant d'une affaire tenue devant un tribunal constitué de trois commissaires, des observations écrites du représentant ou mandataire du Haut-Commissariat des Nations Unies pour les réfugiés et de toute autre personne visée par les règles de la Commission. B. Test under subsection 110(6) of the IRPA [32] Under subsection 110(6) of the IRPA, when evidence presented on appeal is found to be admissible, it must be determined whether it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, whether it is central to the decision with respect to the refugee protection claim and whether it would justify allowing or rejecting the refugee protection claim. If so, the RAD may then hold a hearing. 110. (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. 110. (6) La section peut tenir une audience si elle estime qu'il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois : a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause; b) sont essentiels pour la prise de la décision relative à la demande d'asile; c) à supposer qu'ils soient admis, justifieraient que la demande d'asile soit accordée ou refusée, selon le cas. C. No cause to hold a hearing before the RAD [33] In this case, the appellant has not submitted new evidence under subsection 110(4) of the IRPA. [34] Therefore, there is no cause to hold a hearing before the RAD. V. APPLICABLE STANDARD OF REVIEW FOR THIS APPEAL [35] The question of whether or not the RPD properly assessed the credibility of a person who claimed refugee protection has to do with the assessment of the evidence, which constitutes a question of fact. Based on the case law, it is my opinion that the applicable standard of review in similar cases is that of reasonableness.43 [36] When a decision is reviewed on the standard of reasonableness, the analysis must be concerned with the existence of justification, transparency and intelligibility within the decision-making process, as well as with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.44 This procedural fairness element is reviewed as a question of law. No deference is due. The decision maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.45 VI. ANALYSIS OF THE MERITS OF THE APPEAL Did the RPD make one or more errors in assessing the appellant's credibility? [37] I have concluded that the RPD did not err in its assessment of the appellant's credibility and that its decision regarding her lack of credibility falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law. I will explain why. [38] I familiarized myself with the information in the appellant's BOC Form, as well as the evidence she presented before the RPD. I also read her counsel's arguments in the memorandum of appeal. In my opinion, the overall intent of these arguments was to repeat what was already stated before the RPD. I consider that, within the context of the current administrative appeal, I must show deference to the findings made by the RPD with regard to credibility and weighing of the evidence.46 [39] In this matter, the RPD amply justified the reasons for its finding that the appellant's testimony was not credible. [40] In its credibility analysis, the RPD took into account not only the appellant's various statements, but also gave her the opportunity to provide explanations, which it analyzed before drawing its own conclusions. Consequently, I find that it did not commit any error. [41] It bears repeating that the RPD is entitled to gauge the credibility of an individual making a claim for refugee protection and draw negative inferences when there are disparities between her various statements in her initial BOC Form; those in the amendments and subsequent additions to her BOC Form; those in other documents that she filled out, in which she confirmed that the information provided was complete, true and correct; and those in her viva voce testimony, during which she provided no satisfactory, plausible or credible explanation in the circumstances.47 In this case, that is exactly what the RPD did and it finally found that overall, the appellant's testimony was not credible. [42] The RPD is also entitled to make findings based on implausibility, common sense and rationality.48 In my opinion, that is exactly what the RPD did when it concluded that the intervention on a female neighbour's behalf, as described by the appellant during the hearing, could not reasonably correspond to an intervention that would have occurred after being trained by a human rights NGO. [43] Accumulated contradictions or omissions can also strike a fatal blow to the credibility of the individual making a refugee protection claim.49 In this matter, I consider that the RPD reasonably took into account the accumulated contradictions and omissions before concluding that the appellant's overall credibility had been undermined. By acting as it did, I find that the RPD committed no error. [44] Given the context, the RPD's refusal to give any probative value to the documents provided in support of the appellant's refugee protection claim and that relate to her personal situation is, in my opinion, a reasonable finding. Furthermore, based on case law, the RPD can dismiss or attach no probative value to any evidence that merely repeats a version of the facts already considered to lack credibility.50 [45] Maintaining that the documentary evidence illustrates the problems experienced by women who are victims of sexual violence does not mean that once the appellant returns to that country, she will also be victimized in a similar situation. It surely bears repeating here that the documentary evidence about the current conditions in a country cannot by itself establish that the fear of persecution is well-founded, or that there is a risk to the life of the individual from that country who is making a claim for refugee protection. That individual must establish a connection between the documentary evidence and their personal situation.51 In this case, the appellant has clearly not been able to establish the existence of a link between this documentary evidence and her personal situation. [46] As for the appellant's failure to present an application for asylum during her stay in the United States of America, I consider that the arguments presented by her counsel in the memorandum of appeal cannot be retained. Indeed, such a failure can compromise the appellant's credibility regarding her fear of persecution if she had to return to the DRC. With regard to this point, it is clearly established that failure to immediately claim international protection can impugn the credibility of an individual making a refugee protection claim in Canada.52 If no convincing or reasonable explanation is provided, failing to claim refugee protection at the first opportunity can undermine a refugee protection claimant's credibility.53 In this case, explaining that the appellant's trip was organized by Mr. XXXX and that her intent was to reach Canada, not to settle in the United States of America, does not seem convincing or reasonable to me. [47] Acting as the RPD did in this case is, in my opinion, consistent in every regard with one of the objectives of the IRPA, namely, to establish fair and efficient procedures that will maintain the integrity of this system, while upholding respect for the human rights and fundamental freedoms of all human beings.54 VII. REMEDY [48] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. [49] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette July 3, 2014 Date IRB translation Original language: French 1 Basis of Claim Form (BOC Form), pages 21, 26, 28 and 30 of the RPD record. 2 I admit that I question this practice, when the BOC form specifically indicates that every question on the form must be answered. 3 Idem, pages 32 to 37 of the RPD record. 4 The report is reproduced at pages 144 to 149 of the RPD record. 5 The report is reproduced at pages 150 to 196 of the RPD record. 6 The report is reproduced at pages 197 to 200 of the RPD record. 7 The report is reproduced at pages 201 to 222 of the RPD record. 8 The index is reproduced at pages 222 to 259 of the RPD record. 9 The letter is reproduced at pages 101 to 103 of the RPD record. 10 The documents are reproduced at pages 124 and 130 of the RPD record. 11 RPD decision, pages 6 to 19 of the RPD record. 12 Idem, paragraph 10, page 7 of the RPD record. 13 Idem, paragraph 13, page 8 of the RPD record. 14 Idem, paragraph 31, page 13 of the RPD record. 15 Idem, paragraphs 15, 16 and 17, page 8 of the RPD record. 16 Idem, paragraphs 18, 19 and 20, page 9 of the RPD record. 17 Idem, paragraphs 21, 22 and 23, page 10 of the RPD record. 18 Idem, paragraphs 24 and 25, pages 10 and 11 of the RPD record. 19 Idem, paragraphs 28, 29 and 30, pages 11, 12 and 13 of the RPD record. 20 Idem, paragraphs 26, 27 and 30, pages 11, 12 and 13 of the RPD record. 21 Idem, paragraph 38, page 15 of the RPD record. 22 Idem, paragraphs 33, 34 and 35, pages 13 and 14 of the RPD record. 23 Idem, page 15 of the RPD record. 24 Idem, paragraph 41, pages 16 and 17 of the RPD record. 25 Idem, paragraphs 39 and 40, page 16 of the RPD record. 26 Idem, paragraph 41, pages 16 and 17 of the RPD record. 27 Idem, paragraph 42, page 17 of the RPD record. 28 Idem, paragraph 43, pages 17 and 18 of the RPD record. 29 Idem, paragraphs 44 and 45, page 18 of the RPD record. 30 Idem, paragraph 46, page 18 of the RPD record. 31 Appellant's memorandum, paragraph 2.1, page 24 of the appeal record. 32 Idem, paragraph 2.4, page 27 of the appeal record. 33 Idem, paragraph 2.5, page 27 of the appeal record. 34 Idem, paragraph 2.6, pages 27 and 28 of the appeal record. 35 Idem, paragraph 2.7, page 28 of the appeal record. 36 Idem, paragraph 2.8, page 28 of the appeal record. 37 Idem, paragraphs 2.9 and 2.10, page 28 of the appeal record. 38 Idem, paragraph 2.11, page 29 of the appeal record. 39 Idem, paragraph 2.12, page 29 of the appeal record. 40 Idem, paragraph 2.13, page 29 of the appeal record. 41 Idem, page 30 of the appeal record. 42 Statement signed by Me XXXX, page 21 of the appeal record. 43 Iyamuremye v. Canada (Minister of Citizenship and Immigration), No. IMM-5282-13, Shore, May 26, 2014; 2014 FC 494, at paragraphs 39 and 40. 44 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, at paragraph 47. Gabor Miroslav v. Canada (Minister of Citizenship and Immigration), No. IMM-3466-09, Russell, April 12, 2010; 2010 FC 383, at paragraph 22. Bethany Lanae Smith v. Canada (Minister of Citizenship and Immigration), No. IMM-5699-11, Mosley, November 2, 2012; 2012 FC 1283, at paragraph 19. 45 Sketchley v. Canada (Attorney General), 2005 FCA 404, at paragraph 53. 46 Iyamuremye v. Canada (Minister of Citizenship and Immigration), No. IMM-5282-13, Shore, May 26, 2014; 2014 F.C. 494, at paragraph 39: "It is clear from the case law that an appellate body cannot substitute its own reasoning for that of a specialized tribunal of first instance, the tribunal of fact, having the advantage of having heard viva voce testimony and with its authority conferred by the Inquiries Act, unless the trial judge made a 'palpable and overriding error' that led to an erroneous result." 47 Zeferino v. Canada (Minister of Citizenship and Immigration), No. IMM-4058-10, Boivin, April 13, 2011; 2011 FC 456, at paragraphs 31 and 32, as cited by his colleague the Honorable Justice Gagné in Gonzalez Hernandez v. Canada (Minister of Citizenship and Immigration), No. IMM-2324-12, Gagné, September 20, 2012; 2012 FC 1097, at paragraph 36. 48 Laszlo v. Canada (Minister of Citizenship and Immigration), No. IMM-3507-04, Von Finckenstein, April 6, 2005; 2005 FC 456, at paragraph 10. 49 Ocampo Aguilar v. Canada (Minister of Citizenship and Immigration), No. IMM-2728-11, Scott, February 3, 2012; 2012 FC 150, at paragraph 42. 50 Nijjer v. Canada (Minister of Citizenship and Immigration), No. IMM-340-09, de Montigny, December 9, 2009; 2009 FC 1259, at paragraph 27: "Despite the RPD's duty to consider all of the evidence, the finding that a claimant has no credibility may extend to all of the evidence he or she submits. This is what the Court of Appeal recognized in Sheikh v. Canada (Minister of Employment and Immigration), reflex, [1990] 3 F.C. 238, and Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89, 2002 FCA 89, [2002] F.C.J. No. 302. In dismissing evidence that merely repeated a version of the facts considered to be not very credible and improbable, the RPD did not err or breach the general rule that all evidence must be considered before ruling on the credibility of an applicant's account. In this case, the RPD was entitled to consider that the sarpanch's documentary evidence was not sufficient to make an account that otherwise appeared in many respects to be implausible credible." 51 Morales Alba v. Canada (Citizenship and Immigration), No. IMM-3943-07, Shore, October 29, 2007; 2007 FC 1116, paragraph 31 and 32. 52 Mesidor v. Canada (Minister of Citizenship and Immigration), No. IMM-2233-09, Shore, December 4, 2009; 2009 FC 1245, at paragraph 11, referencing Justice Teitelbaum's decision in Assadi v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 331 (QL). 53 Medina Canchon v. Canada (Minister of Citizenship and Immigration), No. IMM-3359-12, Noël, November 27, 2012; 2012 FC 1374 paragraph 28. Basaa v. Canada (Minister of Citizenship and Immigration), No. IMM-9938-03, Snider, February 8, 2005; 2005 FC 201, at paragraph 10: "...a short delay in making a claim, with a reasonable explanation for the delay, cannot be determinative of a negative decision in a refugee claim." 54 Paragraph 3(2)(e) of the Act. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-01297 17