MB7-04526

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 : MB7-04526 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 November 7, 2018 Date de la décision Panel Me Sonia Boisclair Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me François Kasenda Kabemba 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). She is appealing the decision of the Refugee Protection Division (RPD) rendered on March 29, 2017. [2] The appellant is not presenting any new evidence in support of her appeal. She is not requesting a hearing before the Refugee Appeal Division (RAD) unless I order one. She is asking the RAD to set aside the determination of the RPD and grant her the status of refugee or person in need of protection, or even to refer the matter back to the RPD. [3] Since she is not presenting any new evidence before the RAD and the minimum requirements set out in the Immigration and Refugee Protection Act1 (IRPA) have not been met, this appeal will be decided on the basis of the record of proceedings of the RPD.2 [4] The Minister did not intervene in the appeal. DETERMINATION OF THE APPEAL [5] To conduct my independent analysis, I reviewed the full record, including the appellant's memorandum, and I listened to the recording of the hearing before the RPD. [6] Pursuant to subsection 111(1) of the IRPA, 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. OVERVIEW AND FACTUAL BACKGROUND OF THE APPEAL [7] The appellant is claiming refugee protection by reason of her political opinion. [8] She alleges that she took part in a protest in January 2015 and that she was then pursued by police officers, but she was able to escape. She subsequently participated in a second protest in September 2015, and she alleges that she was arrested and detained until the next day. She states that she was mistreated during her detention. [9] Her parents allegedly decided that it would be best if she left the DRC, and they made arrangements for her to study in Canada and to facilitate her departure. [10] She left her country on March XXXX, 2016, with a Canadian student visa. [11] She allegedly decided to claim refugee protection on March 27, 2016, the day she arrived in Canada, but she filed her claim on August 19, 2016. RPD decision [12] The RPD rejected the refugee protection claim because the appellant lacked credibility with respect to her subjective fear of persecution and the determinative aspects of her refugee protection claim. [13] Its findings were based on the following observations: * The serious omission between the written account and the oral testimony at the hearing regarding her alleged participation in the protest on September XXXX, 2015. In the RPD's opinion, the appellant did not answer the panel's question spontaneously, she adjusted her testimony and she failed to specify the involvement of XXXX XXXX when she testified at the hearing. As a result, her credibility was undermined regarding her participation in this protest, which was allegedly the cause of her supposed arrest. * The appellant's lack of subjective fear. The appellant testified at the hearing that she feared for her life following her release on September XXXX, 2015, and that the police could arrest anyone at any time. Despite this alleged fear, she did not seem to change her behaviour to minimize the risk of being apprehended by the security services in her country. The RPD found that this behaviour was inconsistent with the alleged subjective fear of persecution, which undermined her credibility. * The inconsistency of her written account. The appellant alleges that she was arrested because of her political involvement, beaten by the police and threatened that she would [translation] "be made to disappear," but she took the risk of exposing herself on the international stage as the representative of the country she wanted to flee. Moreover, she had already obtained her Canadian visa before her trip to Côte d'Ivoire, which she could have used to leave her country sooner to protect herself. The RPD found that the appellant's decision to travel to Côte d'Ivoire to attend a cultural festival showed an utter lack of a subjective fear of persecution and, as a result, it found that she was not credible. Consequently, the RPD did not believe that she was being sought by her country's security services. * The RPD did not grant any probative value to the testimonial letters filed on the record, which describe facts that it did not believe, considering the lack of credibility. It did not give any probative value to the medical report for the same reasons. It found that the documents relating to her Christian activities were not relevant. Errors according to the appellant [14] The appellant alleges that the RPD erred and that its finding of a lack of credibility is based on a confused and erroneous understanding of the evidence, especially concerning the following: * the steps taken to ensure her safety (subjective fear); * the RPD's complete lack of knowledge of the situation in the country of origin; * the blanket rejection of the documentary evidence presented by the appellant with no valid reason. The RAD's standard of review [15] The IRPA does not specify the standard of intervention to be applied by the RAD when it reviews RPD decisions. This standard has been defined by the case law. [16] In Huruglica,3 the Federal Court of Appeal concluded that the RAD must conduct an independent analysis of the record to determine whether the RPD did indeed err as alleged by the appellant. The RAD must review RPD decisions by applying the correctness standard to findings of fact (and of mixed fact and law) which raise no issue of the credibility of oral evidence.4 This is the standard that I will generally apply, with some possible exceptions. [17] In the case of findings of fact that raise the issue of the credibility of oral evidence, the three-member RAD panel5 determined that if the RPD enjoyed a meaningful advantage, the RAD must explain how the RPD enjoyed such an advantage, if applicable, and may apply the reasonableness standard, modified to apply to the RAD context. [18] In this case, I find that the RPD did not enjoy such an advantage, and I am applying the correctness standard. ANALYSIS [19] In my opinion, credibility and subjective fear are inextricably linked in this appeal. I conclude that the appellant's behaviour was not consistent with her alleged fear. Protest on September XXXX, 2015 [20] The RPD noted that the appellant specified in her written account that XXXX XXXX XXXX XXXX had encouraged her to attend the protest on September XXXX, 2015. However, when questioned at the hearing about the identity of the people who supposedly urged her to protest, she answered that no one had asked her. The RPD considered that the appellant did not answer the question spontaneously, that she adjusted her testimony and that she failed to mention XXXX XXXX involvement at the hearing. It found that this undermined the appellant's credibility with respect to her participation in this protest, which was the reason for her supposed arrest. [21] The appellant alleges that the RPD erred by drawing a negative inference regarding her failure to mention XXXX XXXX involvement in her testimony at the hearing. According to her, the request was made to all members of the parish. The pastor made a [translation] "general" request, not a "personal" request to the appellant. She believed that the RPD was asking about direct and personal requests, and that is why she answered the questions from that perspective. From her point of view, this was a misunderstanding. [22] I share the appellant's view. Her explanation could be reasonable in the circumstances (group invitation rather than personal invitation). It is possible that she misunderstood the question. I do not find that this undermines her credibility regarding her participation in this protest. Nonetheless, while it is possible that she took part in this protest on September XXXX, 2015, I do not believe that she was arrested and, therefore, that she was beaten, as she alleges, or that she is being sought. [23] She testified that she was not afraid during the protest but that she did not feel at ease, either, because she was aware that the situation could deteriorate. That is why she decided not go out into the crowd, but to stay back in her corner, alone, and avoid the crowds and the agitated people, in order to get back to her vehicle easily and leave quickly, if necessary.6 She testified that she believed she had been recognized in the crowd and was arrested because of a song that she was composing and had sung in public. She believed that the police officers had recognized her. She did not believe that the police were after her personally.7 [24] I do not believe that she was arrested at that protest, given the steps she claims to have taken. Behaviour inconsistent with her subjective fear [25] The appellant submits that the RPD's finding that she did not change her lifestyle is not based on the evidence. The appellant clearly testified that she only went out for important events and that when she went out, she was often accompanied by her parents and an influential friend of her father. [26] The RPD noted the appellant's lack of subjective fear. It identified a contradiction in the appellant's statements: on one hand, she stated that she mostly stayed at the family home to protect herself, but on the other, she stated that she was intent on participating in public events. [27] I agree with the RPD. The appellant testified that she attended Christmas mass, as well as the New Year's Day mass, to sing there. She also allegedly went to pick up her passport in February 2016, when she obtained her visa. She justified her public appearances by her need for freedom after her brush with death. It was unthinkable for her not to receive her certificate in front of the community because she had worked hard for it. In my opinion, that behaviour is inconsistent with her alleged fear. [28] But that is not all. What is determinative in this story is the fact that the appellant stayed in Côte d'Ivoire from XXXX XXXX to XXXX, 2016 (Marché africain [African marketplace]) to represent her country during an international event.8 Her uncle allegedly helped her leave the country and return without any problems. [29] I find that someone who leaves the DRC to go and sing in Côte d'Ivoire to represent her country, who chooses to return to the DRC and to leave a few days later for Canada to claim refugee protection here is simply not credible. She could have taken advantage of her visit to Côte d'Ivoire to come directly to Canada since she already had her student visa. Her explanation that it was her parents who had made all the arrangements is not sufficient and contradicts their letter, in which they indicate that they fear for their daughter's safety. She argues on appeal that it was a private outing and not an official event. That does not change the fact that she had an opportunity in that she was outside her country and was not obligated to return to the DRC if she truly were in danger there. [30] Furthermore, in this context in which the appellant acknowledges that the study permit was simply a ploy to get away from the DRC, the fact that she did not claim refugee protection for five (5) months indicates to me that she did not have a real fear. She relied on a friend of her parents and waited for him to do what she was supposed to do. A person who fears for her life and who is educated and supported by a reliable person would be more proactive. Documentary evidence on the situation in the DRC [31] Contrary to the appellant's arguments, it is not sufficient to file documentary evidence reporting on problematic situations in one's country in order to be granted status as a "Convention refugee" or a "person in need of protection." Furthermore, it is necessary to establish a link between that evidence and her personal situation, which she did not do.9 [32] I am therefore of the opinion that the RPD correctly analyzed the evidence by not basing its decision solely on the situation in the DRC. Blanket rejection of the documentary evidence [33] The appellant criticizes the RPD for its blanket rejection of her documentary evidence for no reason. In support of her refugee protection claim, she filed evidence such as testimonial letters, a medical report and evidence establishing her Christian life. [34] The RPD gave no probative value to the testimonial letters filed on the record, which describe facts that it did not believe, given the appellant's lack of credibility. [35] To verify whether the RPD made the correct decision, I will summarize this evidence in the following paragraphs. Letter from her parents [36] Her parents produced a letter titled "témoignage" [testimony] on September 13, 2016. What is striking about this letter is the fact that they mention that their house was seized by the security services, but no date is given. This is particularly astonishing because they allegedly lived through it, but they are not the ones who provided details about it. [37] Moreover, as will be described below, there is a contradiction between their letter and the letter from their lawyer. [38] In light of the above, I give no probative value to the parents' letter. Letter from the lawyer [39] The appellant's parents allegedly hired a lawyer to file a "plainte contre inconnu et dénonciation" [complaint against unknown individuals and report] on August 29, 2016.10 In it, the lawyer denounces the break-in and theft that supposedly took place on August XXXX, 2016. He also indicates that a [translation] "group of unidentified men" entered the appellant's parents' home without a warrant and stole some belongings. Further on, he indicates that the group was made up of eight (8) men, four (4) wearing police uniforms and the other four (4) dressed in civilian clothing. He goes on to state, [translation] "these men, who introduced themselves either as being with the police or with the ANR." [40] However, the parents11 indicate in their letter that their house was searched by [translation] "the security services." No distinction is made between police officers and ANR officers, or between civilians and authority figures. [41] I therefore note that the evidence presented by the appellant is contradictory in terms of the people who entered her parents' home. Consequently, I give no probative value to the lawyer's letter. Letter from the pastor [42] The pastor produced a statement on September 12, 2016.12 Other than the fact that the appellant worked as a section leader (singing teacher), nothing in it comes from his personal knowledge. He was therefore not a direct witness to the facts he describes. Accordingly, I cannot give any probative value to this statement, other than with respect to the fact that she taught the choir to sing. Documents relating to her Christian activities [43] Essentially, the RPD noted that there is no link between these documents and her story of persecution or risks to her life. [44] I do not agree with the RPD, but I have not reached the conclusion that the appellant has asked me to reach. [45] She filed a certificate of merit issued on December 25, 2015.13 This document corroborates her testimony about the fact that she needed [translation] "a certificate" and that it was important that she attend the Christmas mass to receive it publicly. This fact was accepted by the RPD as showing that she did not have a subjective fear, given that she went out in public even though she claimed that she stayed at home to protect herself after her alleged arrest. I conclude that it is probable that she went there. In my opinion, this undermines her alleged subjective fear. [46] The appellant also filed evidence from the "Convention chrétienne pour la démocratie C.C.D." [convention for Christian democracy].14 The person who signed this document issued on September 8, 2016, indicates that the appellant's family is [translation] "often visited by ANR officers and presidential security guards." This testimony contradicts the parents' letter, which does not mention numerous visits. Consequently, I attach no probative value to it. [47] She also filed an "Attestation de vie chrétienne" [certificate of Christian life].15 This document confirms her participation in the choir and her Christian morality. These factors seem peripheral to me and were acknowledged by the RPD. The same applies to the "Attestation de service rendu" [certificate of service rendered].16 Medical certificate and report [48] The appellant filed a medical certificate issued on September 9, 2016,17 and a report regarding a consultation that supposedly took place on September 16, 2015,18 which was also issued on September 9, 2016. [49] The appellant failed to indicate in her BOC Form that she went to a doctor for care the day after her arrest, even though she claims that she was beaten with a club. When questioned about this omission, she explained that she [translation] "did not think it was important."19 It was at her counsel's request that she allegedly requested this evidence. [50] When questioned about the care she received, she did not mention the IV. When the RPD confronted her and asked about this omission, she simply explained that she [translation] "had forgotten about it."20 [51] In the context described above, I give no probative value to this evidence. The explanations provided are not reasonable, and I am not persuaded that she received care or even that she went to a health care professional. Documents related to her studies [52] The appellant filed a "Brevet d'aptitudes musicales" [certificate of musical aptitudes] issued on September 25, 2014,21 her "Attestation de réussite" [certificate of successful completion] issued on August 28, 2014,22 and a chat among students that took place in 2014.23 These documents simply confirm that the appellant participated in and completed her studies. This fact is peripheral and was never questioned by the RPD. They do not establish any of the principal facts in support of her refugee protection claim. [53] In conclusion, I do not share the appellant's opinion that the documentary evidence that she submitted corroborates the facts in support of her alleged fear of persecution. The RPD's analysis of the documentary evidence was brief but, ultimately, its finding in this regard is fair and correct. [54] I am therefore of the opinion that the RPD correctly assessed the appellant's credibility and that she did not establish that the RPD's conclusion is not founded. She did not meet her burden of proof regarding the facts at the heart of her refugee protection claim. [55] Since she failed to demonstrate a serious possibility of a risk of persecution, I see no need to review state protection or internal flight alternatives. [56] Furthermore, since I agree with the RPD's finding with respect to the appellant's credibility, I conclude that she did not establish, on a balance of probabilities, that she would be subjected to a danger of torture, a risk of cruel and unusual treatment or punishment or a risk to her life should she return to the DRC. CONCLUSION [57] 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 November 7, 2018 Date IRB translation Original language: French 1 Subs. 110(6), Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Subs. 110(3), IRPA. 3 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93. 4 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93, paragraph 103. 5 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. 6 At 36:20 to 44:00. 7 At 52:00. 8 At 1:15:00. 9 Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89, [2002] F.C.J. No. 302 (F.C.A.) (QL).) 10 Page 119 of the RPD record. 11 Page 118 of the RPD record. 12 Page 120 of the RPD record. 13 Page 117 of the RPD record. 14 Page 121 of the RPD record. 15 Page 125 of the RPD record. 16 Page 126 of the RPD record. 17 Page 122 of the RPD record. 18 Pages 123 and 124 of the RPD record. 19 At 1:03:00. 20 At 1:06:00. 21 Page 127 of the RPD record. 22 Page 128 of the RPD record. 23 Pages 129 and 130 of the RPD record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB7-04526 RAD.25.02 (September 18, 2018) Disponible en français 12 RAD.25.02 (September 18, 2018) Disponible en français