MB7-08735

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 / Dossier de la SAR : MB7-08735 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision October 12, 2018 Date de la décision Panel Me Sonia Boisclair Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Sabine Venturelli Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX is a citizen of the Democratic Republic of the Congo (DRC). He is appealing the decision of the Refugee Protection Division (RPD) dated July 24, 2017. This decision was made following a de novo hearing. [2] The RPD first rejected the appellant's refugee protection claim on October 1, 2015. The appellant appealed that decision before the Refugee Appeal Division (RAD), which set it aside, and on June 28, 2016, referred the matter for re-determination by a differently constituted panel. This was done, and the appeal against the RPD's second negative decision is now before me. [3] In this appeal, the appellant is asking to submit new evidence, but he is not requesting a hearing.1 His request is addressed later on in my analysis. DETERMINATION OF THE APPEAL [4] I dismiss the appeal and confirm the RPD's determination that the appellant is not a Convention refugee or a person in need of protection under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA). OVERVIEW AND FACTUAL BACKGROUND OF THE APPEAL Facts [5] The appellant is seeking protection in Canada because he fears persecution by reason of his involvement in the non-governmental organization (NGO) the Institut congolais de Formation et d'Alphabétisation pour la Promotion des Droits de l'Homme (ICFPDH) [Congolese institute for training and literacy for the promotion of human rights]. He claims that he fears for his life should he return to the DRC. [6] He states that he received anonymous threatening calls on June XXXX and August XXXX, 2014. [7] He alleges that on January XXXX, 2015, he was kidnapped, had his hands and feet tied and was blindfolded, was subjected to death threats, and then released, nothing more, after he promised to stop criticizing human rights violations. [8] He states that a motorcyclist helped him, taking him to a clinic where he was treated that very evening. He then allegedly went home. [9] He claims that he filed a complaint with the police the next day, but they did virtually nothing to protect him. [10] He then allegedly decided to leave his country. To this end, he took steps to find international training opportunities. He reportedly made the necessary efforts to obtain his visa and finally left the DRC on June XXXX, 2015. [11] He alleges that after he left in June 2015, some strangers broke into his home looking for him. His wife was reportedly beaten because she told them she did not know where he was. Following this incident, the appellant's wife and five children allegedly sought refuge with another family member. [12] He filed his refugee protection claim on July 17, 2015.2 RPD decision [13] The RPD determined that the appellant was not a "Convention refugee" or a "person in need of protection" given his lack of credibility. [14] This conclusion is based on the following findings: * The major omission relating to the mistreatment the appellant claims he was subjected to when he was supposedly abducted.3 The mere fact that the appellant states in his written account that he was taken to the clinic after his release is not sufficient to explain this omission, which is central to his refugee protection claim.4 * The contradiction between the appellant's oral testimony and his written account regarding how long he supposedly spent in Kinshasa while waiting to obtain his Canadian visa.5 The appellant's written account clearly states that he could not go out because there were police everywhere. However, he stated that he travelled to Kinshasa from March 2015 to June 2015. In this context, the appellant contradicted himself in his written account by stating that he did not go out.6 * The significant omission at the hearing with regard to the appellant's work after his alleged abduction.7 It is unreasonable that the appellant would forget to include in his written account the fact that he continued to work in secret for the NGO, despite the threats allegedly facing him after his reported abduction.8 According to it, it is inconsistent for the appellant to believe that he would not suffer serious retaliation for continuing his work, even in secret, after his abduction, while at the same time claiming that he had been beaten and even tortured, according to his testimony at the hearing.9 * The contradiction that concerned his ICFPDH membership card.10 It did not believe that the appellant worked for the ICFPDH because he could not describe the membership card renewal process in a spontaneous and complete manner.11 * The omission regarding the death threats that the appellant claims to have received.12 * The RPD gave no probative value to the letter from the director, which recounts almost word for word the facts that it did not believe.13 [15] The RPD did not believe any of the allegations that the claimant submitted to support his refugee protection claim. It found that the appellant lacked complete credibility.14 Errors according to the appellant [16] The appellant submits that the RPD erred, and that it made the following errors:15 * Did the Immigration and Refugee Board of Canada (IRB) base its decision on erroneous findings of fact and/or law that it made in a perverse or capricious manner or without regard for the material before it, or in a manner inconsistent with the purpose and spirit of the Immigration Act? * Did the IRB err in law in making its decision, whether or not the error is apparent on the face of the record? * Did the IRB make an error subject to review on appeal in its assessment of relevant and determinative facts, such as * The claimant's credibility; and * The risk to the claimant's life? [17] I will proceed with my independant analysis and answer the last question since, in my opinion, it includes the first two. RAD's standard of review [18] The appellant submits that the reasonableness standard of review should be applied, and he relies on Dunsmuir,16 to request the RAD's intervention. I do not agree, and this is not the standard of review that I will apply. [19] The IRPA does not set out the standard of review that the RAD must apply when reviewing RPD decisions. It has been set out in the case law. [20] In Huruglica,17 the Federal Court of Appeal ruled that the RAD must carry out its own analysis of the record in order to determine whether, as submitted by the appellant, the RPD erred. The RAD is to review the RPD's decisions applying the correctness standard with respect to findings of fact (and mixed fact and law) that raise no issue of the credibility of oral evidence.18 That is the standard that I will also apply in general, unless an exception applies. [21] With regard to findings of fact that raise the issue of the credibility of oral evidence, the three-member RAD panel19 established that where the RPD enjoyed a meaningful advantage, the RAD will explain how the RPD enjoyed such an advantage, if applicable, and will apply the reasonableness standard modified to apply to the RAD context. ANALYSIS [22] In my analysis, I reviewed the entire record (including the appellant's memorandum), and I listened to the recording of the de novo hearing before the RPD. [23] The determinative issue in the analysis is the appellant's credibility. New evidence [24] The Refugee Appeal Division Rules (RAD Rules) require the appellant's record to contain a written statement indicating whether he is relying on any evidence referred to in subsection 110(4) of the IRPA.20 He has to include any documentary evidence that he wants to rely on in the appeal.21 He also has to indicate clearly in his statement how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the IRPA and how it relates to him.22 [25] The appellant has to comply with these requirements as the principle is that the appeal is heard on the basis of the record, as submitted to the RPD.23 [26] On appeal, the person who is the subject of the appeal may present only:24 * evidence that arose after the rejection of his claim; * evidence that was not reasonably available; or * evidence that was available, but which they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [27] Once that first step is complete, the appellant has the burden of demonstrating that the new evidence that he wants to have admitted meets the factors of credibility, relevance and newness.25 [28] The RAD does not have the discretion to override these statutory requirements.26 Moreover, 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.27 [29] The appellant wishes to submit the following new evidence: a) Testimony note of XXXX XXXX XXXX dated 14/08/2017.28 b) Statement No. PNC/0016/2017 dated 2/08/2017.29 c) Testimony of XXXX XXXX dated 7/08/2017.30 d) Testimony of XXXX XXXX XXXX dated 10/08/2017.31 [30] However, the appellant failed to explain, even minimally, how the documentary evidence he wishes to submit meets the requirements of subsection 110(4) of the IRPA and how it is related to him. He simply attached it to his memorandum. This is not sufficient. [31] In these circumstances, the evidence does not comply with the Rules as set out above and, consequently, will not be allowed into evidence.32 Credibility [32] The appellant submits that the RPD was hasty in its analysis of the evidence, thus finding that he was not credible, and that it failed to sufficiently justify its reasoning.33 He also criticizes it for giving too much weight to details without taking into account the psychological state of the claimant in his situation.34 He concludes that the RPD's finding as to his credibility has no merit.35 [33] Four issues identified by the RPD are being challenged by the appellant: 1) The omission to indicate that he was allegedly tortured; 2) The omission to disclose that he was allegedly in hiding in Kinshasa; 3) The omission to report that he continued to work after his abduction; and 4) The contradiction regarding the renewal of the organization's membership cards. The omission to indicate that he was allegedly tortured [36] The RPD identified a major omission concerning the mistreatment that the appellant alleged to have received during his supposed abduction. He stated that when he was abducted he was beaten in the kidnappers' van. He testified that he was kicked in the ribs and that one of the kidnappers trampled his entire body. However, there is no mention of this mistreatment in his written account.36 The RPD considered that if the appellant had been beaten and trampled by his kidnappers as he claimed, it is reasonable to believe that he would have reported this in his BOC Form, given that he took pains to include the specific words used by his kidnappers.37 The alleged abduction is central to his refugee protection claim and prompted him to flee the DRC, leaving his wife and children behind.38 [37] The appellant states that he has consistently mentioned this fact during his hearings. If the applicant did not recount the physical violence precisely in his written account, it was because he considered it a part of them tying him up, throwing him in the van blindfolded and threatening to have him shot. According to him, the RPD should have taken into account that he was traumatized by the abduction and that he would not have been driven to the clinic right after if he had not been in a poor physical and psychological state. He is of the opinion that the RPD ignored the documentary evidence submitted in the proceedings. [38] I am of the opinion that there is a difference between being tied up and blindfolded in a van for two hours and being beaten while tied up and handcuffed. [39] This omission seems even more inexplicable since the RPD's first decision already raised the following:39 [translation] The panel asked him again why he did not state in the previous questions that he had been beaten, and the claimant answered "I just remembered now." The panel does not accept that the claimant forgot, despite a number of questions from the panel, that he had been beaten during the entire two-hour drive. Furthermore, there is also no mention in the written account that he was beaten during the abduction. To this, the claimant responded that when he stated that he was threatened, he also meant that he was beaten. Evidently, such a way of testifying, by omitting a material fact, greatly undermines the claimant's credibility. [40] In this case, I find this to be a major omission, which heavily undermines the appellant's credibility. [41] I also note that he did not take the opportunity granted by the second RPD hearing to amend his BOC Form and clarify this.40 He never describes the injuries he suffered, which were supposedly treated at the clinic. [42] As for the documentary evidence,41 contrary to what the appellant states, the RPD did not ignore it. It found that it was not credible because it recounts almost verbatim the appellant's testimony, which it did not believe. I agree with the RPD's finding. The author of this letter did not witness the events he describes. The omission to disclose that he was allegedly in hiding in Kinshasa [43] The RPD noted a contradiction between the appellant's oral testimony and his written account regarding the amount of time he alleged to have spent in Kinshasa while waiting for his Canadian visa.42 He was asked if he hid there after his alleged abduction. He answered that he had gone to Kinshasa to make the necessary arrangements for his visa. He also stated that he lived in only one place and travelled minimally. In short, he stated that he was hiding in Kinshasa. In the IMM5669 form, he indicates that he stayed in Kinshasa from March 2015 to June 2015. [44] The appellant argues that he never claimed to have hidden in Kinshasa.43 He states that the fact that he indicated that he had kept a low profile to avoid attracting attention in Kinshasa does not necessarily mean that he was intentionally hiding or had moved there.44 He argues that he has consistently and repeatedly stated that he had simply gone to Kinshasa at that time to complete the administrative procedures for his Canadian visa.45 [45] I reject the appellant's argument because the recording of the hearing indicates exactly the opposite of what he argues. He clearly testified that he hid for two months in Kinshasa, the time it took to arrange for his Canadian visa.46 The RPD even asked him what he meant by [translation] "hiding," and he stated that he meant remaining in one place to avoid being seen in public.47 He explained that for him, to move meant [translation] "to go somewhere else with one's family and things." In his BOC Form, he clearly writes that he did not move and was unable to go out.48 He therefore contradicted himself by testifying that he had hidden. [46] In addition to this contradiction in his evidence, I also note an omission. If he had really hidden as he stated in his testimony, it would have been advantageous to indicate this at the first opportunity, since it would support his alleged fear. However, he did not do so. For that reason this omission is not minor and undermines his credibility. The omission to report that he continued to work after his abduction [47] The RPD noted a significant omission in the appellant's BOC Form relating to his work after his alleged abduction. It deemed it unreasonable that that he could forget to include in his written account the fact that he continued to work for this organization in secret, despite the threats supposedly made against him after his alleged abduction. [48] The appellant considers instead that his stating that he continued to work after his assault is not contradictory, as he stated that he kept a low profile in conducting his mission.49 [49] The appellant's argument in no way refutes the RPD's finding. He testified that he subsequently went door-to-door. However, this approach exposes him just as much. I find this conduct to be inconsistent with his alleged fear, which undermines the appellant's credibility regarding whether there even was an alleged abduction. The contradiction regarding the renewal of the organization's membership cards [50] The RPD did not believe that the appellant allegedly worked for ICFPDH. It based this finding on a contradiction regarding membership card renewals at the organization. [51] The appellant argues that he gave a plausible and reasonable explanation, which the RPD was wrong to reject. [52] I noted that the appellant had a lot of difficulty explaining how to become a member of this organization, which he claimed to have joined in 2011.50 He had just as much difficulty explaining the membership card renewal process. The appellant adjusted his testimony on this. He started with one version (that it was renewed once a year);51 then he explained that the card was not required by the organization;52 and finally, once confronted with the fact that his card was valid for two years, he explained that he had two types of cards, one of which was valid for one year, and the other of which was valid for two years.53 [53] I find that the RPD correctly assessed the appellant's explanation and legitimately found that this undermined his credibility as to whether he actually was a part of this human rights organization. This allegation is at the basis of his refugee protection claim. [54] In conclusion, on the issue of credibility, I find that the RPD correctly assessed the evidence with respect to the appellant's lack of credibility. I am of the opinion that he indeed lacked credibility. Moreover, it is my opinion that the appellant's testimony was laboured, in that he did not directly answer certain questions, no matter how clearly and simply they were expressed, and [translation] "evaded" questions, repeating aspects he had already stated. This suggests that his story was learned rather than lived. Risk to life [55] The appellant submits that the RPD should have considered the documentary evidence relating to the situation in the DRC. He criticizes it for not conducting an analysis of the evidence.54 The documentary evidence is apparently clear about the fact that he cannot obtain police protection. According to him, the case law states that the RPD must consider the objective evidence regarding the country's situation that is available to it and the extent of the risk should he return to the country, all independent of any issue of credibility.55 [56] Contrary to the appellant's argument, it is insufficient to submit documentary evidence consisting of reports on problematic situations in his country to be recognized as a "Convention refugee" or a "person in need of protection." He must still demonstrate a link between this evidence and his personal situation, which he has not successfully done.56 [57] Documentary evidence concerning the general situation prevailing in the refugee protection claimant's country cannot, in and of itself, establish the merit of his refugee protection claim.57 [58] Consequently, I do not share the appellant's opinion, since he failed to demonstrate in a credible manner that he was a member of the NGO of which he claims to be a member, as well as the facts that form the basis of his refugee protection claim. CONCLUSION [59] I dismiss the appeal and confirm the determination of the RPD, namely, that the appellant is neither a Convention refugee nor a person in need of protection, pursuant to subsection 111(1) of the IRPA. Sonia Boisclair Me Sonia Boisclair October 12, 2018 Date IRB translation Original language: French 1 Appellant's memorandum, page 12. 2 Page 162 of the RPD record. 3 RPD decision, paragraph 13, page 5 of the RPD record. 4 Idem, para. 16, page 6. 5 Idem, para. 18, page 6. 6 Idem, para. 23, page 7. 7 Idem, para. 24, page 7. 8 Idem, para. 27, page 8. 9 Idem, para. 31, page 9. 10 Idem, para. 32, page 9. 11 Idem, para. 35, page 10. 12 Idem, para. 36, page 10. 13 Idem, para. 40, page 11. 14 Idem, para. 39, page 10. 15 Appellant's memorandum, page 16. 16 Appellant's memorandum, page 28. 17 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93. 18 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93, paragraph 103. 19 X (Re), 2017 CanLII 33034 (CA IRB). This decision is the subject of a judicial review before the Federal Court, but no decision has been rendered to date. 20 Subpara. 3(3)(d)(i) of the RAD Rules. 21 Para. 3(3)(e) of the RAD Rules. 22 Subpara. 3(3)(g)(iii) of the RAD Rules. 23 Subs. 110(3) of the IRPA. 24 Subs. 110(4) of the IRPA. 25 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 and Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 (CanLII). 26 Idem, para. 63. 27 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, para. 54. 28 Appellant's memorandum, page 31. 29 Idem, page 32 30 Idem, page 33. 31 Idem, page 34. 32 X (Re), 2015 CanLII 108826 (CA IRB), <http://canlii.ca/t/h4hf0>, para. 35. 33 Appellant's memorandum, para. 12, page 18. 34 Idem, para. 13, page 18. 35 Idem, para. 51, page 23. 36 RPD decision, paragraph 14, page 5 of the RPD record. 37 Idem, para. 16, page 6. 38 Idem. 39 Page 188, para. 13, RPD record. 40 At 3:00. 41 Page 193 of the RPD record. 42 RPD decision, para. 18, page 6 of the RPD record. 43 Appellant's memorandum, para. 25, page 19. 44 Idem, para. 26, page 20. 45 Idem, para. 28, page 20. 46 At 1:56:40. 47 At 1:57:00. 48 BOC Form, page 24 of the RPD record. On page 157 he mentions the address where he stayed in Kinshasa during this time. 49 Appellant's memorandum, para. 34, page 20. 50 From 55:00 to 59:00. 51 At 1:03:00. 52 At 1:07:00. 53 At 1:11:00. 54 Appellant's memorandum, paragraph 57, page 24. 55 Idem, para. 61, page 26. 56 Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89, [2002] F.C.J. No. 302 (F.C.A.) (QL). 57 Hissein v. Canada (Citizenship and Immigration), 2018 FC 698, Alexibich v. Canada (Minister of Citizenship and Immigration), 2002 FCT 53, [2002] F.C.J. No. 57 (QL); Ithibu v. Canada (Minister of Citizenship and Immigration), 2001 FCT 288, [2001] F.C.J. No. 499 (QL). Morales Alba v. Canada (Citizenship and Immigration), 2007 FC 1116. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB7-08735 RAD.25.02 (August 8, 2018) Disponible en français 12 RAD.25.02 (August 8, 2018) Disponible en français