MB7-16089

RAD File No. / No de dossier de la SAR : MB7-16089 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 November 7, 2019 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the person who is the subject of the appeal Me Stéphanie Valois Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This is a de novo case in which the appellant, XXXX XXXX XXXX, received a decision from the Refugee Protection Division (RPD) on September 8, 2017, rejecting his refugee protection claim. For the reader's benefit, this case was subsequently analyzed by a member of the Refugee Appeal Division (RAD), and a decision was rendered on January 26, 2018, confirming the RPD's determination. A hearing was held before the Federal Court, and a decision was rendered on XXXX XXXX, 2018, allowing the application for judicial review and setting aside the RAD's determination. The matter was referred to another RAD member for re-determination. [2] The appellant is asking the RAD to overturn the RPD's decision and grant him refugee status, as he considers that the reasons are tainted on multiple levels. [3] The appellant is asking to present four new pieces of evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act1 (IRPA) and requesting that an oral hearing be held under subsection 110(6) of the IRPA. [4] Essentially, the appellant argues that he fears the authorities in Chad, having been imprisoned, mistreated and tortured. The event triggering this fear was a community conflict on XXXX XXXX XXXX 2016, between young soccer players of Gorane and Zaghawa ethnicity. During a soccer game, a Zaghawa boy apparently threw a rock at a Gorane player, fatally injuring him. After the funeral, people sought vengeance by throwing rocks at the child assailant's family, and some Zaghawa individuals began shooting, killing 4 people and injuring another 15. [5] On returning from Egypt, the appellant brought together some Gorane youths, formed an association to XXXX XXXX XXXX in XXXX and organized demonstrations that were suppressed by the police. [6] On XXXX XXXX, 2017, the appellant and other people were arrested by officers from the Agence nationale de sécurité (ANS) [national security agency] and the appellant was detained in a XXXX prison. About two months later, while the appellant was being transferred to another place of detention, the convoy carrying him was attacked by soldiers. He managed to flee and took refuge at the home of an uncle, who helped him obtain travel documents and leave Chad for the United States. Holding a passport issued on XXXX XXXX, 2016, and a United States visa issued on XXXX XXXX, 2017, the appellant left his country on XXXX XXXX, 2017, travelled to the land of our southern neighbours, and arrived at the Saint-Bernard-de-Lacolle border crossing on July 1, 2017, where he claimed refugee protection. [7] On appeal, the appellant submits the following arguments: 1. He is a founding member of a Chadian XXXX XXXX association because he had conversations with the France-based director at the time of its founding, and they were able to put his front-line skills to good use; 2. The fact that he is a member of the association's executive branch and the omission of this information in the letter from the association is not, in itself, the ground for persecution, but rather the activities corroborated by the evidence on the record; 3. The evidence shows that his employer was aware of his problems and helped him, which explains why he was granted vacation time after an extended absence due to his detention. [8] The Minister's representative did not intervene in the appeal. DETERMINATION [9] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the RPD's determination, namely, that XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. [10] The appeal is dismissed. ADMISSIBILITY OF NEW EVIDENCE [11] The appellant is asking the RAD to allow four new pieces of evidence pursuant to subsection 110(4) of the IRPA. These documents were received by the Immigration and Refugee Board of Canada on June 26, 2019, based on the wet stamp on the document entitled "Requête" [motion], which is undated. They are three supporting letters signed on XXXX XXXX, XXXX XXXX and XXXX XXXX, 2019, and the fourth exhibit is documentary evidence from the International Crisis Group: Chad: Defusing Tensions in the Sahel, published on December 5, 2018. [12] The panel must also consider subrules 29(3) and (4) of the Refugee Appeal Division Rules (RAD Rules). Three factors must be taken into consideration with regard to allowing new evidence: the documents' relevance and probative value; any new evidence the documents bring to the appeal; and, lastly, whether the person who is the subject of the appeal, with reasonable effort, could have provided the documents with the appellant's record. This is what these provisions establish. [13] According to the RPD's decision, the appellant also submitted documents on January 18, 2018. He submitted two documents from his employer, one signed on XXXX XXXX, 2017, and the other on XXXX XXXX, 2017. He also produced an excerpt from a newspaper, La Nouvelle République, dated December 17, 2017, reporting on a gathering of the Chadian diaspora in Tours, France. [14] The hearing before the RPD was held on September 7, 2017, and the decision is dated the following day. The appellant must show that the new evidence meets the requirements of subsection 110(4) of the IRPA and subrules 29(3) and (4) of the RAD Rules. The person who is the subject of the appeal may present to the RAD only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [15] In Singh,2 the Federal Court of Appeal ruled that the conditions set out in subsection 110(4) of the IRPA must be met and leave no room for discretion on the part of the RAD. The three implicit admissibility criteria identified in Raza, credibility, relevance, and newness, must also be met. [16] The RAD will analyze the first set of documents submitted after the RPD's decision dated September 8, 2017. On November 26, 2017, the appellant produced his memorandum along with three documents. In his memorandum, the appellant explains why he did not submit these documents to the RPD. He writes: the appellant did not submit this letter because he had not thought it would be necessary to obtain it. He continues by noting: he had no way of knowing it might be important to submit a letter of this nature, which the panel expressed interest in at the hearing. The documentary evidence submitted after the hearing describes the significant problems experienced by the Gorane people and, in particular, political opponents in Chad. As a result, the appellant, in his opinion, met the criteria set out in the IRPA. [17] The first of the two documents from his employer is dated XXXX XXXX, 2017, or well before the hearing, and could and should have been produced at the time of the appellant's hearing. The explanations provided to the effect that he did not think it necessary to obtain it or that it might be important, when he presents arguments in his memorandum as to this document's relevance, appear entirely contradictory and somewhat frivolous. The appellant was represented by a seasoned lawyer who surely must have prepared her client for the hearing by asking him for all evidence potentially supporting his claim. His argument after the fact that he did not think it necessary to submit a document of this nature is weak and must be rejected by the RAD. [18] The second document, also from his employer, is dated XXXX XXXX, 2017, or after the RPD hearing. Additionally, the facts set out in this document predate the hearing before the first panel. The signatory describes events that occurred in XXXX and XXXX 2017, well before the hearing. No explanation was provided to support the fact that this document was not submitted previously. Consequently, neither of these documents meets the three criteria set out in the IRPA. [19] Lastly, the third document, a newspaper article dated December 17, 2017, from La Nouvelle République, is titled: "La communauté tchadienne mobilisée pour ses disparus" [Chadian community rallies for those lost]. The article reports that this gathering-only about 20 people are visible in the photograph-was organized to remember the massacre a year earlier in N'Gueli, on the outskirts of N'Djamena, in which at least 7 people died. Although dated after the RPD hearing, this newspaper article offers nothing to support the appellant's case. The article does not mention the appellant, either. It is a general news piece on a past event. In conclusion, this document cannot be allowed into evidence under subsection 110(4) of the IRPA. Moreover, in accordance with the case law, the article is not new, relevant or credible. [20] Following the Federal Court decision of XXXX XXXX, 2018, the appellant filed a motion on June 26, 2019, under rule 37 of the RAD Rules, asking the panel to admit new documents. He adds that these exhibits comply with the wording of subsection 110(4) of the IRPA. They consist of an attestation of support from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX dated XXXX XXXX, 2019; a letter from the office of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Canada signed on XXXX XXXX XXXX 2019; and another letter of support from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX signed by the executive director on XXXX XXXX, 2019. Lastly, the appellant filed a document from the International Crisis Group based in Brussels entitled Chad: Defusing Tensions in the Sahel, a report issued on December 5, 2018. [21] It must be noted that these four documents are dated after the RPD's decision of September 8, 2017. These exhibits must now be analyzed in light of the provisions of the IRPA and the case law. Do these documents meet the criteria prescribed by the IRPA and the courts? [22] In his motion, the appellant states that these documents describe the events that occurred after the hearing and the first appeal. He adds that they are new documents as defined in the case law. He concludes that with regard to relevance, these documents confirm the problems awaiting the claimant should he return to his country. [23] With respect to the attestation of XXXX XXXX, 2019, the RAD notes that the wording of the association's name differs within the document. In some places, it is referred to as the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX while in others, including below the president's signature, the acronym becomes XXXX XXXX XXXX It is stated in the fifth paragraph that [translation] "the appellant is a founding member since its creation"-of the association, I presume. He testified that he established an association for Gorane youth in Chad, not France. This information to the effect that he formed the association based in France is not indicated in his account, and he did not find it relevant to note that he is a founding member of the association in France. This casts doubt on the contents of the letter of XXXX XXXX, 2019, which states that the appellant has been a founding member since the association was formed. As a result, the RAD does not give any credibility to this document. Relevance and credibility are also sorely tested in that the contents of the letter of support go against the appellant's account. The RAD consequently considers this evidence inadmissible within the meaning of subsection 110(4) of the IRPA. [24] The second document is a letter from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX signed on XXXX XXXX, 2019. According to this letter, the appellant has been a supporter of this party since XXXX 2017. The body of the letter reiterates the substance of the appellant's account. After analyzing this document, the RAD notes that it is dated after the RPD's decision. However, it adds nothing to the appellant's case apart from confirming that he is a supporter of the party in Canada. The contents otherwise reiterate the contents of the appellant's account. This letter is consequently neither credible nor relevant to this case and is not admissible under subsection 110(4) of the IRPA. [25] The third document, a letter of support from the XXXX XXXX XXXX XXXX XXXX XXXX dated XXXX XXXX XXXX 2019, confirms that the appellant is a member of that association and participates in its activities. The association asserts that the appellant will face a risk of mistreatment if he returns to the country. This letter does not bring anything new to the appellant's testimony. This letter is therefore inadmissible within the meaning of subsection 110(4) of the IRPA. [26] The fourth document is documentary evidence in the form of a report from the International Crisis Group published in December 2018. It describes the problems experienced by young people in the Sahel and the future outlook with regard to easing pressure and resolving disputes between the population and the authorities. This highly interesting report documents the problems observed in this region of Chad. This issue is addressed in section 2, "Human Rights," of the National Documentation Package (NDP) on the record and the version dated September 28, 2018, which was current at the time. The RAD is of the opinion that this document adds nothing new and simply repeats other information already provided in the NDP. For these reasons, the RAD concludes that this document is inadmissible as evidence pursuant to subsection 110(4) of the IRPA. HOLDING OF AN ORAL HEARING BEFORE THE REFUGEE APPEAL DIVISION [27] The appellant is requesting an oral hearing before the RAD pursuant to subsection 110(6) of the IRPA, which provides that the RAD may hold an oral hearing if, in its opinion, there is new evidence that is admissible and that meets the three conditions set out therein.3 In the circumstances, I see no reason to hold an oral hearing, given that the new evidence that the appellant wished to present is not admissible under subsection 110(4) of the IRPA. [28] As a result, the request to hold an oral hearing before the RAD is dismissed. SCOPE OF THE APPEAL [29] For questions of fact, of law and of mixed fact and law, the RAD must apply the correctness standard in accordance with Huruglica.4 [30] I conducted an independent analysis of all the evidence on the record, after carefully listening to the hearing, to form my own opinion about this refugee protection claim and determine whether the RPD's decision is correct. ANALYSIS [31] After reading all the evidence on the record, both testimonial and documentary, the RAD arrived at the same finding as the RPD, that the appellant is not credible. [32] The appellant argues that the RPD failed to correctly assess his credibility, which swayed the decision toward the determination that the appellant would not be subjected to persecution in his country. [33] The very essence of this case is based on the appellant's credibility. [34] The first aspect raised in the appellant's memorandum concerns the creation of an association and his problems in Chad. He is a founding member of a Chadian XXXX XXXX association because he had conversations with the France-based director at the time of its founding, and they were able to put his front-line skills to good use. The RPD noted the omission of the fact that the association was founded in France, where its directors live, and his description of his role within the association as a founding member. [35] What was his testimony in this regard? The appellant stated that after returning from a trip to Egypt, he was surprised by the situation and went on to describe the unfortunate event in which a number of people died. He wanted to combat this situation through peaceful action. He continued his testimony by noting that, in response to his idea, some people came together and decided to form an association to raise youth awareness. He stated that this association was founded on XXXX XXXX, 2016. When asked for additional details concerning the association's formation, the appellant changed his testimony to assert that the association was founded by XXXX XXXX XXXX, who lives in France. [36] He was confronted with the fact that in his account, which he confirmed was true and correct, and to which he made changes, he states, [translation] "I brought Gorane youth together and we established the association," which differs from his oral testimony. The appellant explained that following the events, people came up with the idea, he was in France, but he then went back on that statement and indicated that he was in Egypt and that on returning to his country, he reached out to young people and moved forward with the association. [37] When asked to explain why he did not write in his account that he was in contact with Mr. XXXX, he responded that he was from the same tribe, he was far away, he was not involved, the idea was the same, and this was why he did not note his name in the account. [38] Concerning his title within the association, the appellant stated that he is a member of the association's executive branch. However, according to the letter from the president of the association based in France,5 the appellant is an active member. When confronted with his own documentary evidence, the appellant stated that he is a member of the executive branch and that they have to work together to defend their ideas. Based on these inaccuracies, combined with his documentary evidence, the RAD does not give credibility to the account and the testimony with respect to his allegations regarding his involvement in the association. [39] Concerning the appellant's alleged problems in terms of the demonstrations he organized along with young people, the RPD was given a hodgepodge of explanations. He added that the government enacted a law prohibiting the gathering of Gorane youth. When asked for details about these demonstrations, he testified that the demonstrators were intercepted as they left their homes. Following this roundabout response, he finally stated that he organized demonstrations but was unable to proceed with them due to the adoption of the law. Once again, his testimony differed from his account. When confronted with the fact that the people had been unable to demonstrate, the appellant replied that everything was in place but they were being watched. There was apparently one demonstration, whereas his account mentions multiple events. Faced with this and not knowing what to say, he attributed this error to the translation. Despite correcting certain words in his account at the start of the hearing, the appellant did not correct this error. In light of the fact that several responses were given concerning this event-there was no demonstration, there was one or, according to the account, there were several-the RAD does not believe this portion of the testimony. The appellant's credibility is sorely undermined. [40] The second aspect raised and the fact that he is a member of the association's executive branch and the omission of this fact from the letter from the association is not, in itself, the ground for persecution, but rather the activities corroborated by the evidence on the record. During the hearing, the member questioned the appellant as to whether Mr. XXXX was aware of his problems in Chad. He replied that he was. When confronted with the contents of the letter from the president of the association, which is very brief and simply confirms his membership in the group without mentioning any of the problems he faced, the appellant responded: [translation] "I asked for a letter confirming that I am a member of the association, he is aware of my problems." A fortiori, if the association's president is aware of the appellant's experiences and the problems he had, no mention is made to confirm the difficulties the appellant faced over a period of months, that is, being arrested, detained and tortured, even though he claims that the Chadian authorities living in France are aware of his difficulties. Once again, this discredits the account and the oral testimony and raises serious doubts about the account. [41] The third aspect raised in the memorandum concerns the evidence that his employer was aware of his problems and helped him, which explains why he was granted vacation time after an extended absence due to his detention. The RPD noted that the employer granted 45 days of vacation after the appellant had been absent from work since XXXX XXXX XXXX 2017. [42] In this portion of the account, the appellant states that while travelling to the city of Moussoro, he was arrested by ANS agents and taken to prison, where he was detained for two months. He alleges that he was tortured during that time. However, he managed to escape when soldiers attacked the prisoner convoy. He went into hiding at the home of an uncle, who planned his scheduled departure from the country on XXXX XXXX XXXX 2017. The appellant did not work during this entire period. [43] However, in order to apply for a United States visa, he had to submit work documents. He explained that he had been working at this company for a while and had a good connection with the general manager's assistant. This person asked the uncle for an explanation concerning his absence. The uncle shared the problems his nephew had been going through. The appellant went on to testify that the company did not know about the problems he had been having. Meanwhile, correspondence was mailed to his residence concerning his absence and possible dismissal. He indicated that his mother hid this letter. [44] The letters6 submitted by the appellant from his employer are signed by the assistant general manager rather than the general assistant manager, as he testified. This undermines his credibility. The two other letters that he alleges were delivered to his home are signed by someone with a different position title and first name. [45] The appellant argues that his employer was aware of his problems and helped him, which explains why he was granted vacation time. The appellant testified that the company did not know he was having problems. Then, the uncle informed the assistant general manager about the difficulties the appellant was having. It must be noted that the company inquired about the appellant's extended absence and sent him a letter informing him of his dismissal and yet, although months had passed, the assistant general manager provided confirmation of employment and a leave certificate, which are, at the very least, ill founded. In light of the numerous discrepancies between the testimony and documents, and even within the testimony, the RAD gives little weight to these documents and the explanations offered. Once again, this undermines the appellant's credibility, which is substantially undermined. [46] Accordingly, the RAD is of the opinion that the RPD did not err in its assessment of this case. [47] For the reasons expressed in this decision, the RAD is of the opinion the RPD's decision is correct and appropriate. REMEDY [48] For these reasons, the RAD confirms the RPD's determination, 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. (signed) Michel Jobin Me Michel Jobin November 7, 2019 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act (S.C. 2001, c. 27). 2 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. 3 Supra, endnote 2. 4 Canada (Citizenship and Immigration) v. Huruglica, Bujar (FCA, No. A-470-14, Gauthier, Webb and Near, March 29, 2016, 2016 FCA 93. 5 Document 4, Exhibit P-8, Attestation, at p. 89 of the court record. 6 Document 4, exhibits P-4 and P-7, at pp. 75 and 87 of the court record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB7-16089 RAD.25.02 (April 4, 2019) Disponible en français 12 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 4, 2019) Disponible en français