MB3-02388

RAD File No. / No de dossier de la SAR : MB3-02388 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX Appelant(e)(s) Appeal Considered / Heard at Montréal, Quebec Appel instruit à Date of Decision October 2, 2013 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the Appellant(s) Me Gisela Barraza Conseil(s) du (de la/des) Appelant(e)(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX, the appellant, a citizen of the Democratic Republic of Congo (DRC), is appealing against a decision of the Refugee Protection Division (RPD). The appellant is alleging that the RPD rendered a decision based on errors in its assessment of his credibility. II. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (the Act), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD, namely, that XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the Act nor a "person in need of protection" under section 97 of the Act. III. BACKGROUND A. Basis of the claim [3] In his Basis of Claim Form (BOC Form), which he signed on January 9, 2013, the appellant states that he is a citizen of the DRC, that he was born on XXXX XXXX, 1971, and that his spouse, three daughters and one son, in addition to his mother, three brothers and one sister, were still living in the DRC at that time.1 [4] In his BOC Form, the appellant states that he left his country no later or earlier than XXXX XXXX, 2011, because he obtained a scholarship from the CFSP that enabled him to leave the country. He added that as a result of the events that followed that were related to previous threats, he realized the full extent of the insecurity around him as soon as he returned to the country.2 [5] In his BOC Form, the appellant states that if he were to return to his country, he is certain that he would be harmed, mistreated or threatened because of his political opinion against the government. He added that the police, intelligence officers and militia working for the government would be the ones to harm or mistreat him.3 [6] In his BOC Form, the appellant states that in XXXX2006, he was threatened both physically and over the telephone as well as mistreated by the rapid intervention police, the government militia and the intelligence services in Mbujimayi in the province of Kasai. He specifies that this occurred because he belonged to the UDPS political party and that he and members of the party told their combatants from the ISTM-Mbujimayi and the Université officielle de Mbujimayi [official university of Mbujimayi] to comply with the national president's slogan for the end of the transition on XXXX XXXX, 2006, and that they called for the open enrolment of their members in the elections.4 [7] In his BOC Form, the appellant states that he was threatened over the telephone each time that he and the members of the party organized their meetings and demonstrations in Kinshasa before he left the country. He also states that on XXXX XXXX, 2011, his spouse was threatened and attacked by uniformed personnel and that she had to change addresses, and that on XXXX XXXX, 2012, his younger brother XXXX XXXXwas taken in for questioning by the police because he was by chance near a demonstration, and that during the interrogation, his brother was mistaken for him.5 [8] In his BOC Form, the appellant states that he did not ask any authorities such as the police or any other organization in his country to protect or assist him because in his country, the police serve the government and scare the citizens instead of making them secure; they are there to extort, and justice does not exist. He also states that the attacks and threats that his spouse reported to the police after the election in XXXX 2011 did not lead to any investigation.6 [9] In his BOC Form, the appellant states that he left Mbujimayi in the province of Kasaï oriental in XXXX 2006 because of the threats and kidnappings experienced by their militants in his province of origin. He also states that on XXXX XXXX, 2011, after being threatened and attacked, his spouse had to move from No. XXXX XXXX XXXX in Kinshasa to another address-number XXXX XXXX XXXX in Kinshasa, where she currently lives with her children.7 B. RPD decision [10] The hearing before the RPD was held on March 12, 2013. In its decision dated June 11, 2013,8 the RPD rejected the claim for refugee protection filed by the appellant. In its reasons, the RPD found that the appellant established his identity,9 but that his refugee protection claim had to be rejected given that his testimony was neither credible nor trustworthy with respect to the essential elements of his refugee protection claim.10 C. Grounds of appeal [11] In his memorandum,11 the appellant submitted a ground of appeal, namely, that the RPD's findings with respect to the appellant's credibility are patently unreasonable, perverse, capricious, and based on erroneous findings of fact. D. Remedy sought [12] The appellant is asking the RAD to allow the appeal and set aside the determination of the RPD.12 IV. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL A. Admissibility criteria [13] Subsection 110(4) of the Act stipulates that the person who is the subject of the appeal may present 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. 110. (4) On appeal, the person who is the subject of the appeal may present 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. 110. (4) Dans le cadre de l'appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n'étaient alors pas normalement accessibles ou, s'ils l'étaient, qu'elle n'aurait pas normalement présentés, dans les circonstances, au moment du rejet. [14] The Refugee Appeal Division Rules (RAD Rules) stipulate that the appellant's record must contain, among other things, a written statement indicating whether the appellant is relying on any evidence referred to in subsection 110(4) of the Act and a memorandum that includes full and detailed submissions regarding how the evidence meets the requirements of subsection 110(4) and how that evidence relates to the appellant.13 [15] Given the wording of subsection 110(4) of the Act, which is very similar to the wording concerning the new evidence admissible during a pre-removal risk assessment (PRRA), I find that it is necessary to use mutatis mutandis the factors established by the case law for the PRRA. Consequently, I find that it is necessary to address the issues raised in particular in Raza with regard to the credibility, relevance, newness and materiality of the evidence presented, and to make a determination as to whether the evidence presented for the purposes of the appeal is admissible or whether, on the contrary, it must be excluded from the appeal.14 [16] The fact that the evidence corroborates events, contradicts findings of the RPD, or clarifies the evidence before the RPD does not make it "new evidence" under subsection 110(4) of the Act. If it did, refugee protection claimants could split their evidence and present evidence that could have been presented at the start to the RPD to the RAD at the appeal stage.15 In my opinion, this is exactly what subsection 110(4) of the Act seeks to prohibit. B. The appellant presented evidence on appeal [17] In his written statement, the appellant requests that two documents be submitted as evidence for the purposes of the appeal process, namely, a statement made in Toronto on July 19, 2013, indicating that he is a member of the representation of the UDPS in Canada, and messages posted on social networks about his political activities. He explains that the statement dates back to July 2013 and that the messages posted on social networks were not presented at his hearing before the RPD because he did not think that it was necessary to do so, given that he presented other evidence that provided solid support for his story.16 The same explanations are also included in his memorandum.17 C. The RAD's decision on the admissibility of the evidence (i) Messages posted on social networks in 2011 and 2012 [18] Most of the messages posted on social networks presented under P-12 for the purposes of this appeal process are dated 2011 or 2012.18 [19] Regarding the PRRA, when a document is dated before the RPD decision, the case law confirms that the officer can exclude such a document when the person who is the subject of the appeal has failed to establish that the document was not reasonably available or that the person could not reasonably have been expected in the circumstances to present it before the RPD.19 [20] In his written statement20 and in his memorandum,21 the appellant indicates that the messages posted on social networks were not presented at his hearing before the RPD because he did not think that it was necessary to do so, given that he presented other evidence that provided solid support for his story. [21] In no way does this explanation indicate that the messages in question were not reasonably available, or that the appellant could not reasonably have been expected in the circumstances to have presented them to the RPD at his hearing. [22] For these reasons, I find that the messages posted on social networks by the appellant dated 2011 or 2012 are inadmissible for the purposes of this appeal. (ii) Messages posted on social networks after June 11, 2013 [23] Five messages posted on social networks presented under P-12 for the purposes of this appeal process are dated July 2013,22 a few days after the RPD rendered its decision to reject the appellant's refugee protection claim. That being said, the newness of documentary evidence cannot be tested solely by the date on which the document was created. What is important is the event or circumstance sought to be proved mby the documentary evidence.23 The evidence aims to establish that the appellant is indeed a political activist who is critical of the current government in the DRC. [24] In his written statement24 and in his memorandum,25 the appellant indicates that the messages posted on social networks were not presented at his hearing before the RPD because he did not think that it was necessary to do so, given that he presented other evidence that provided solid support for his story. This explanation clearly does not refer to the messages sent in July 2013, given that at his hearing before the RPD, those messages did not yet exist. [25] I find that, in light of the case law regarding the PRRA, I must ask whether at this stage of the appeal process, the evidence can be considered credible given its source and given the circumstances in which it appeared. According to the case law, "evidence may lack credibility for a variety of reasons; it may be vague, unreliable or self-serving."26 [26] The messages posted by the appellant in July 2013 on social networks seem self-serving. While they show the appellant's critical view of the government in the DRC, they seem insufficient to establish that he is a political opponent of the current regime.27 I also find that they are vague with respect to the appellant's main allegations concerning his political involvement as a member of a specific party in the DRC and concerning the threats or mistreatment he could experience if he were to return to live in that country. [27] The appellant did not provide, in either his sworn statement or his memorandum, detailed and accurate submissions that could lead to the finding that the evidence meets the requirements of subsection 110(4) of the Act. In addition, the appellant bears the burden when requesting, at this stage of the appeal process, that a document be declared admissible.28 [28] For these reasons, I find that the five messages dated July 2013 and posted on social networks by the appellant are inadmissible for the purposes of this appeal. (iii) Statement made in Toronto on July 19, 2013 [29] This statement signed by the assistant representative of the UDPS representation in Canada, and presented under P-11 for the purposes of this appeal process, is dated July 19, 2013,29 a few days after the RPD rendered its decision to reject the appellant's refugee protection claim. [30] In his written statement30 and in his memorandum,31 the appellant indicated that the statement in question was made on July 19, 2013, which is accurate from reading the document, and that it is thus a document that arose after the RPD's rejection of his refugee protection claim. [31] That being said, the newness of documentary evidence cannot be tested solely by the date on which the document was created. What is important is the event or circumstance sought to be proved by the documentary evidence.32 [32] This statement aims to establish events that occurred before the appellant's RPD hearing, namely, the fact that he supported the UDPS in Mbuji-Mayi, in the province of Kasaï-Oriental in the DRC, that he has a UDPS membership card issued on XXXX XXXX, 2012, in Kinshasa, and that he was a member of the party's XXXX cell, XXXX XXXX, in the city of Kinshasa in the DRC. In other words, the information in the statement essentially repeats the information that the RPD had before it at the hearing and is therefore not new evidence under subsection 110(4) of the Act. In addition, the statement could have been requested before the RPD hearing since it concerns events that occurred before the hearing. [33] For these reasons, I find that the statement dated July 2013 is inadmissible for the purposes of this appeal. V. HEARING BEFORE THE RAD A. The appellant requested a hearing [34] The RAD Rules provide that the record of the person who is the subject of the appeal must include, among other things, a written statement indicating whether the appellant is requesting that a hearing be held under subsection 110(6) of the Act, and a memorandum that includes full and detailed submissions regarding why the RAD should hold such a hearing, if the appellant is requesting that a hearing be held.33 [35] In his written statement,34 the appellant requests that a hearing be held for the purposes of his appeal and indicates that the hearing is necessary because there is evidence that raises a serious issue with respect to his credibility, that is central to the decision with respect to the refugee protection claim, and that, if accepted, would justify allowing the claim. In his memorandum,35 the appellant states that the new evidence that he presented on appeal is consistent with the requirements of subsection 110(6) of the Act because it raises a serious issue with respect to his credibility, since it shows his political activities and his involvement in the UDPS. [36] It should be noted that, pursuant to subsection 110(3) of the Act, the RAD generally proceeds without 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. Subsection 110(6) test [37] Pursuant to subsection 110(6) of the Act, when evidence presented on appeal is found to be admissible, it should 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 the answer is affirmative, 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 [38] For a hearing to be held before the RAD, evidence presented during the appeal process must first be found to be admissible. In this appeal, I find that the appellant presented no new evidence that meets the requirements of subsection 110(4) of the Act. Therefore, the evidence is inadmissible. [39] For these reasons, I find that, for the purposes of this appeal process, there is no cause to hold a hearing. VI. STANDARDS OF REVIEW [40] The standard of review analysis need not be conducted in every case. Where the standard of review applicable to a particular question is well settled by past jurisprudence, it may be adopted. Using case law as a guide, I am of the opinion that only where this search proves fruitless is it necessary to undertake such an analysis.36 [41] In this case, it is important to note that the RAD is not a court of law, and it does not review RPD decisions, but rather determines appeals in an administrative and non-judicial context. The RPD and RAD are two separate divisions of the Immigration and Refugee Board.37 Sections 162 to 169 of the Act identify the provisions that apply to them both. Each division "has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction."38 Members have the powers and authority of a commissioner and may do any other thing they consider necessary to provide a full and proper hearing.39 Hearings are held in the absence of the public, although each may conduct a proceeding in public and take any measure that it considers necessary to ensure the appropriate access to the proceedings.40 Sections 169.1 to 170.2 of the Act identify the provisions specific to the RPD, and sections 171 and 171.1 identify the provisions specific to the RAD. [42] Pursuant to subsection 110(1) of the Act, "a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection." [43] When analyzing the respective roles of two administrative tribunals and deciding which standard of review the Law Enforcement Review Board should apply in determining an appeal against a decision made by the officer tasked with hearing a complaint about a police officer's behaviour, the Alberta Court of Appeal noted that the mere presence of a right to appeal-including appeals within an administrative structure-in no way means that no deference to the first-level decision-maker is called for.41 [44] In its decision, the Court of Appeal referred to the example of the relationship established between a trial judge and an appeal judge: The presumption underlying the structure of our court system is that a trial judge is competent to decide the case before him or her, and that a just and fair outcome will result from the trial process. Frequent and unlimited appeals would undermine this presumption and weaken public confidence in the trial process. An appeal is the exception rather than the rule.42 [45] In thus citing the Supreme Court of Canada, the Court of Appeal emphasized the importance of promoting the autonomy of the proceeding and its integrity, adding that the same principle applies within administrative structures: The same principle applies to the hearings before the presiding officers. If the Board was to continue to routinely rehear all matters on a de novo basis, and to extend no deference whatsoever to the decisions of the presiding officers, that would only undermine the apparent integrity of those hearings. As previously stated, that is inconsistent with the hybrid scheme of the Act. As the appellant noted, that approach undermines those hearings to the point that they become almost academic, and call into question the need of the interested parties to even participate in them. The hearing would be reduced to a type of preliminary inquiry.43 [46] I am of the opinion that the expertise and advantageous position of the first-level decision-maker should also be recognized, as did the Supreme Court regarding the trial judge: The trial judge is better situated to make factual findings owing to his or her extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge's familiarity with the case as a whole. Because the primary role of the trial judge is to weigh and assess voluminous quantities of evidence, the expertise and insight of the trial judge in this area should be respected.44 [47] After reviewing the respective roles of the decision-makers, their particular expertise and the general economy of the proceedings, the Alberta Court of Appeal identified which standards of review the Law Enforcement Review Board should apply to the decision of the decision-maker of first instance: [82] In conclusion, the decision of the Board to conduct a de novo hearing, and to assume that it owed no deference to the findings of the presiding officer was in error. The role of the Board is primarily to sit on appeal from the presiding officer. The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him. The focus of the appeal to the Board should be on its dual mandate of civilian oversight, and the correction of unreasonable results. [83] There is no general power to hold a de novo hearing in every case, and no requirement that a de novo hearing be held unless the parties consent to proceeding otherwise. Where a sufficient reason is shown or the issues on appeal warrant it, the Board has the power to admit fresh evidence. When sufficient cause is shown the Board can even rehear key evidence presented to the presiding officer. [84] The Board has a legitimate role to play in providing civilian oversight to the system of police discipline where oversight issues arise. The Board is not bound by the inferences and conclusions of the presiding officer, but it should be able to offer some articulable reason based in law, fact or policy when it interferes with a decision under appeal. The Board should proceed primarily from the record created by the hearing before the presiding officer. It should extend deference to the decision of the presiding officer on questions of fact, credibility, and technical policing issues. If the decision of the presiding officer was reasonable, the Board should not substitute its own view just because it might have come to a different conclusion. Where the appeal raises issues of acceptability of particular police conduct, or the integrity of the discipline process, the Board's mandate is more robust.45 [48] Relying on the reasoning of the Alberta Court of Appeal and the factors identified in its analysis in Newton, and making the necessary adjustments to the particular context of the RPD and the RAD, I am of the opinion that, except for strict issues of law or natural justice, it is appropriate for us, as members of the RAD, to extend the same deference to RPD decisions. Indeed, this deference is the same as that which courts of law are required to extend to decision-makers of first instance when the issue is a question of fact or a question of law and fact. [49] In his ground of appeal, the appellant criticizes the RPD for making findings on his credibility that are patently unreasonable, perverse, capricious, and based on erroneous findings of fact.46 That being said, the appellant does not indicate which standard of review must be applied. This ground of appeal concerns the RPD's assessment of the appellant's testimony and evidence, which is a question of fact. Using the Federal Court case law as a guide, I am of the opinion that the standard of review that must be applied in such cases is that of reasonableness.47 [50] 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, and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.48 VII. ANALYSIS OF THE MERITS OF THE APPEAL Ground of appeal: Did the RPD err when it found that the appellant was not credible? [51] Regarding the first ground of appeal, I have come to the conclusion that the RPD made a reasonable finding that the appellant was not credible. This is why. [52] In his memorandum, the appellant submits that the RPD made findings on his credibility that are patently unreasonable, perverse, capricious, and based on erroneous findings of fact.49 [53] The following are the details of the appellant's criticisms of the RPD's decision. [54] The RPD focused its questions on peripheral elements that cannot cast doubt on the truthfulness of the appellant's testimony.50 [55] The RPD never provided reasons for its non-credibility findings in a clear manner or on the basis of any evidence.51 [56] The RPD was wrong to find that merely being a member of the UDPS party and participating in discussion groups is not enough for the appellant to face persecution or a risk to his life, since the documentary evidence shows that members of the UDPS are persecuted by government agents.52 [57] The RPD was wrong to criticize the appellant for failing to claim refugee protection as soon as he arrived in Canada, since he explained that it was the events experienced by his wife in 2011 and his brother in 2012 that made him understand the risks he faced after leaving his country, and since he submitted evidence to the RPD corroborating his testimony on the subject.53 [58] The RPD was wrong to criticize the appellant for failing to provide evidence on his political activities in Canada.54 [59] The RPD erred in law in systematically concluding that the appellant's testimony is implausible without referring to relevant evidence to support its assessment of the facts.55 [60] Finally, the RPD set the documentary evidence aside without reason and failed to take into account the specific situation in the DRC.56 [61] In its reasons for decision, the RPD stated that there were a number of issues with respect to the credibility of the appellant's allegations and that its analysis would cover the elements that it considered the most significant.57 [62] The RPD found that the appellant's testimony was vague and unclear, and that he gave few details in response to its questions about the issues that he allegedly experienced in XXXX 2006 in Mbuji-Mayi. When asked about what happened during his detention on XXXX XXXX, XXXX and XXXX, 2006, the appellant answered that he was told nothing and that the next day, his handcuffs were removed and he was released without further explanation.58 [63] The RPD found the appellant's answer unsatisfactory when he was asked about his UDPS activities in his country's capital from July 2006 until 2010, even though he described the issues and internal schisms within the party and explained that he remained loyal to XXXX XXXX.59 [64] The RPD found that the appellant's failure to claim refugee protection as soon as he arrived in Canada, even though he alleged that he had already been detained by the police and that he feared for his life because of his political activities, is inconsistent with the behaviour of a person who states that his life is threatened, and that his failure to claim refugee protection as soon as he arrived in Canada shows a lack of subjective fear. From these two findings, the RPD drew a negative inference that greatly affected the appellant's credibility.60 [65] When asked to explain why he claimed refugee protection in Canada, the appellant referred to the issues encountered by his family in the DRC and to his personal political activities in Canada. That being said, the RPD found the appellant's testimony concerning his brother's issues in the DRC confused and lacking in spontaneity, and noted that omissions in his BOC Form,61 such as the fact that his brother was tortured, were not explained in a satisfactory manner: [translation] [22] When asked to explain why he failed to mention in his BOC Form that his brother was tortured, the claimant stated that he wanted his brother to explain himself what happened to him. His brother's torture was one of the main factors that prompted the claimant to claim refugee protection in Canada. It is thus a significant aspect of his fear. When he prepared his BOC Form, the claimant was aware of this fact. In the circumstances, the panel finds that it is reasonable to expect that he would indicate it in his BOC Form. Consequently, the panel finds that the claimant's explanation for such a significant omission is not satisfactory. [23] In addition, the claimant explained at the hearing that in the DRC, when a police officer takes you in for questioning, the obvious implication is that there will be torture. He added that even if the questioning is done for a small issue, the police officer will start by torturing you. The panel finds that, even taking into account the Congolese situation, there is a significant difference between questioning and torture. The claimant is a young educated man. As a result, the panel finds that the claimant tried to compensate for a contradiction between the documentary evidence that he himself submitted and the allegations made in his BOC Form. This even further undermines the claimant's already significantly diminished credibility.62 [66] After the appellant submitted, on the day of the hearing, a medical certificate concerning his brother,63 the RPD found that the appellant's explanations regarding his failure to indicate in his BOC Form that his brother needed medical care were also unsatisfactory: [translation] [25] When asked to explain why he failed to indicate in his BOC Form that his brother needed medical care and that he was hospitalized, the claimant again stated that it was because he wanted his brother to talk about it himself. The fact that his brother required medical care and hospitalization for a number of days as a direct result of his torture at the hands of the police is an important element in the claimant's refugee protection claim. The panel finds the claimant's explanation for this omission unsatisfactory.64 [67] After reading a newspaper article, a part of which the appellant submitted as evidence, the RPD considered that the document had been tampered with and that this greatly affected his credibility: [translation] [26] At the hearing, the panel stated that it reviewed what the claimant argues is the original newspaper65 that he submitted as evidence in support of his refugee protection claim. The claimant acknowledged that the most important part of the newspaper, the part that referred to him and his brother, was ripped, and he did not provide any explanation. The panel noted that the document clearly had been tampered with, which constitutes a major break in the claimant's already undermined credibility.66 [68] In short, the RPD did not believe the appellant's allegations that his brother was tortured in the DRC.67 The RPD also noted that his UDPS membership card issued on XXXX XXXX, 2012, did not contain a membership number and that his response in that regard was not satisfactory.68 Lastly, the RPD drew a negative inference from the fact that the appellant did not attempt or think to provide documents to corroborate his statements that in Canada, he criticized the current government in the DRC through social networks.69 [69] This led to the RPD's overall finding: [translation] [33] Overall, the panel does not believe that the events alleged by the claimant occurred, and it finds that the claimant failed to show that merely being a member of the UDPS party and participating in discussion groups in which thousands of people are also participating is enough to establish a serious possibility of persecution or that, on a balance of probabilities, he would be personally subjected to a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment.70 [70] My role in this appeal is not to re-weigh the evidence,71 or to conduct a microscopic analysis of the RPD decision, but rather to determine whether the RPD's finding that the appellant is not credible falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.72 [71] In its reasons for decision, the RPD clearly indicated why, in its view, the appellant's credibility was seriously affected, based on the following facts: - the appellant gave testimony that it considered vague and unclear; - his answers were unsatisfactory, in particular concerning the omissions in his BOC Form; - he did not claim refugee protection as soon as he arrived in Canada; - his membership card contained anomalies; - he did not submit as evidence documents that could have shown that he was actively involved in criticizing the DRC's current government on social networks in Canada; and - he submitted as evidence part of a newspaper article, while another part of that same article was ripped. [72] As part of its demanding task, the RPD must assess all the evidence before it. That being said, it is open to the RPD to disbelieve the statements of the refugee protection claimant. However, this must be stated unequivocally.73 The perception that the refugee protection claimant is not credible on an important aspect of the claim can amount to a finding that there is no credible evidence on which the claim can be based.74 The case law also establishes that the RPD can reasonably base its negative findings with respect to credibility on the omissions and contradictions between the oral testimony and the written statements made before the hearing. The case law also clearly establishes that it is open to the RPD to reject an explanation provided with respect to such omissions when it finds the explanation unsatisfactory.75 [73] After carefully reading the RPD's reasons for decision, I find that the appellant's criticisms are unfounded. A careful reading of the RPD's reasons for decision in no way leads to the finding that it focused its questions on peripheral elements that cannot cast doubt on the truthfulness of his testimony or that it never provided reasons for its non-credibility findings in a clear manner or on the basis of any evidence-quite the contrary. [74] Regarding the issue of whether the RPD was wrong to find that merely being a member of the UDPS party and participating in discussion groups is not enough to face persecution or a risk to his life, since the documentary evidence shows that members of the UDPS party are persecuted by government agents, I am of the view that this criticism is also unfounded. According to the documentary evidence, it is the people who demonstrated in the street in the DRC who were victims of serious human rights violations.76 On that point, I find that the appellant failed to meet his burden of proof. The appellant failed to bring to my or the RPD's attention elements in the documentary evidence that would lead to the finding that as a result of merely being a member of the UDPS and participating in discussions on social networks outside the DRC, a person could have a well-founded fear of persecution by reason of political opinion, or more likely than not, the person would be subjected to a risk to their life, a risk of cruel and unusual treatment or a danger of torture if the person were to return to live in their country of origin. [75] Regarding the issue of whether the RPD was wrong to criticize the appellant for not claiming refugee protection immediately after arriving in Canada, I am of the view that the RPD could rightly draw a negative inference from such a situation. According to the case law, failure to immediately claim international protection can impugn the credibility of a person claiming refugee protection in Canada.77 Moreover, failure to immediately claim refugee protection must be only one reason among others for a finding that a refugee protection claimant is not credible. In other words, that fact alone can constitute a sufficient reason to reject a refugee protection claim.78 When no convincing or reasonable explanation is given, failure to claim refugee protection at the first opportunity may undermine the credibility of the person claiming refugee protection.79 The RPD found that the appellant's failure to claim refugee protection as soon as he arrived in Canada, even though he alleged that he had already been detained by the police and that he feared for his life because of his political activities, is inconsistent with the behaviour of a person who states that his life is threatened, and that his failure to claim refugee protection as soon as he arrived in Canada shows a lack of subjective fear. I am of the view that this finding is reasonable. I must add that the appellant's credibility was not affected by this factor alone, but also by a number of other factors. [76] Regarding the issue of whether the RPD was wrong to criticize the appellant for not providing evidence of his political activities in Canada, I am of the opinion that the RPD could reasonably draw a negative inference on the matter. According to certain Federal Court decisions, the RPD can raise the absence of documentary evidence only if it first finds contradictions or inconsistencies in a refugee protection claimant's testimony.80 In this case, the appellant's credibility was previously affected. In addition, according to other Federal Court decisions, failure to file supporting documentation that it is reasonable to expect may have an impact on the claimant's credibility.81 Rule 11 of the Refugee Protection Division Rules clearly identifies the refugee protection claimant's obligation to provide documents and other elements of the claim. In that regard, the English version is considered more direct than the French version: "The claimant must provide...."82 Consequently, the lack of diligence of the appellant, who did not try to obtain documentary evidence corroborating his allegation that in Canada he was actively involved in criticizing the current government's activities on social networks, could affect his credibility.83 [77] Consequently, taking into account all the reasons included in its decision, I am of the opinion that the RPD sufficiently explained its finding that the appellant's credibility is affected. In other words, I am of the opinion that it did not err in fact or in law in its overall assessment of the appellant's credibility and that its finding on the matter is justified and falls within a range of acceptable outcomes which are defensible in respect of the facts and law. VIII. REMEDY [78] 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 Act nor a "person in need of protection" under section 97 of the Act. [79] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette October 2, 2013 Date IRB translation Original language: French 1 Basis of Claim Form (BOC Form), pages 24, 29 and 32 of the RPD record. 2 Idem, page 26 of the RPD record. 3 Idem, page 25 of the RPD record. 4 Idem, page 24 of the RPD record. 5 Idem. 6 Idem, page 25 of the RPD record. 7 Idem, page 26 of the RPD record. 8 RPD decision, pages 3 to 11 of the RPD record. 9 Idem, paragraph 11, page 5 of the RPD record. 10 Idem, paragraphs 12 to 33, pages 6 to 10 of the RPD record. 11 Appellant's memorandum, pages 108 to 117 of the appeal record. 12 Idem, page 119 of the appeal record. 13 Refugee Appeal Division Rules (RAD Rules), SOR/2012-257, subrule 3(3). 14 Raza v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), No. A-11-07, Sharlow, Linden and Ryer, December 26, 2007; 2007 FCA 385, at paragraph 13: "As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material). 15 Dhrumu v. Canada (Minister of Citizenship and Immigration), No. IMM-1610-10, Kelen, February 11, 2011; 2011 FC 172, at paragraph 27. 16 Appellant's written statement, page 11 of the appeal record. 17 Appellant's memorandum, page 118 of the appeal record. 18 Exhibit P-12, pages 91 to 103 of the appeal record. 19 Foinding v. Canada (Minister of Public Safety and Emergency Preparedness and Minister of Citizenship and Immigration), No. IMM-2182-09, Shore, May 14, 2009; 2009 FC 500, at paragraphs 27, 28 and 29. 20 Appellant's written statement, page 11 of the appeal record. 21 Appellant's memorandum, page 118 of the appeal record. 22 Exhibit P-12, pages 104 to 106 of the appeal record. 23 Raza v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), No. A-11-07, Sharlow, Linden and Ryer, December 26, 2007; 2007 FCA 385, at paragraph 16. 24 Appellant's written statement, page 11 of the appeal record. 25 Appellant's memorandum, page 118 of the appeal record. 26 Mosavat v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), No. IMM-6385-10, Snider, June 6, 2011; 2011 FC 647, at paragraph 13. 27 Idem, at paragraph 18. 28 Idem, at paragraph 13. 29 Exhibit P-11, page 89 of the appeal record. 30 Appellant's written statement, page 11 of the appeal record. 31 Appellant's memorandum, page 118 of the appeal record. 32 Raza v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), No. A-11-07, Sharlow, Linden and Ryer, December 26, 2007; 2007 FCA 385, at paragraph 16. 33 RAD Rules, SOR/2012-257, subrule 3(3). 34 Appellant's written statement, page 11 of the appeal record. 35 Appellant's memorandum, page 118 of the appeal record. 36 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, paragraph 62. Canada (Human Rights Commission v. Canada (Attorney General), 2011 SCC 53; [2011] 3 S.C.R. 471, paragraph 16. Cetinkaya v. Canada (Minister of Citizenship and Immigration), No. IMM-3362-11, Russell, January 4, 2012; 2012 FC 8, paragraph 16. 37 Section 151 of the Act: "The Immigration and Refugee Board consists of the Refugee Protection Division, the Refugee Appeal Division, the Immigration Division and the Immigration Appeal Division." 38 Section 162 of the Act. 39 Section 165 of the Act. 40 Section 166 of the Act. 41 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraphs 55 and 56: [55] ...While H.L. was decided on the Housen principles, and Khosa was decided on the Dunsmuir/Pushpanathan principles, both cases clearly reject the argument that the mere presence of a right of appeal signals that no deference is called for. There is no principle basis on which to make an exception for appeals within an administrative structure, such as the one that is in issue in this appeal. [56] The mere presence of a right of appeal from the presiding officer to the Board does not warrant a correctness standard of review. 42 Housen v. Nikolaisen, 2002 SCC 33; [2002] 2 S.C.R. 235, paragraph 17, as cited by the Alberta Court of Appeal in Newton at paragraph 81. 43 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 81. 44 Housen v. Nikolaisen, 2002 SCC 33; [2002] 2 S.C.R. 235, paragraph 17. 45 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraphs 82 to 84. 46 Appellant's memorandum, pages 110 to 117 of the appeal record. 47 Parthipan Balasubramaniam v. Canada (Minister of Citizenship and Immigration), No. IMM-4243-12, Scott, June 21, 2013; 2013 FC 698, at paragraph 23. 48 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. 49 Appellant's memorandum, pages 110 to 117 of the appeal record. 50 Idem, page 111 of the appeal record. 51 Idem. 52 Idem, pages 111 and 112 of the appeal record. 53 Idem, pages 112, 113 and 114 of the appeal record. 54 Idem, pages 116 and 117 of the appeal record. 55 Idem, page 117 of the appeal record. 56 Idem. 57 RPD decision, paragraphs 12 and 13, page 6 of the RPD record. 58 Idem, paragraphs 14 and 15, page 6 of the RPD record. 59 Idem, paragraph 16, page 6 of the RPD record. 60 Idem, paragraphs 17 and 18, pages 6 and 7 of the RPD record. 61 Idem, paragraphs 20 to 21, page 7 of the RPD record. 62 Idem, paragraphs 22 and 23, pages 7 and 8 of the RPD record. 63 Idem, paragraph 24, page 8 of the RPD record. 64 Idem, paragraph 25, page 8 of the RPD record. 65 Exhibit D-10 - Newspaper article. 66 RPD decision, paragraph 26, page 9 of the RPD record. 67 Idem, paragraph 27, page 9 of the RPD record. 68 Idem, paragraph 28, page 9 of the RPD record. 69 Idem, paragraphs 29 to 32, pages 9 and 10 of the RPD record. 70 Idem, paragraph 33, page 10 of the RPD record. 71 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12; [2009] 1 S.C.R. 339, paragraph 59: "Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within 'a range of possible, acceptable outcomes which are defensible in respect of the facts and law' (Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome." Bunoti James Wokwera v. Canada (Minister of Citizenship and Immigration), No. IMM-5410-11, Boivin, February 2, 2012; 2012 FC 132, at paragraph 34: "The Court is not persuaded by the applicant's argument that the Board ignored or erred in its assessment of any individual facts or pieces of evidence; the examples referred to by the applicant are all mentioned in the decision and were properly considered by the Board. It is not the role of the Court on a judicial review to re-weigh the evidence that was before a decision maker whom is owed deference, but it is instead '...concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.' (Dunsmuir, above, at para 47)." 72 Pawanbir Singh v. Canada (Minister of Citizenship and Immigration), No. IMM-12505-12, Shore, July 23, 2013; 2013 FC 807, at paragraph 29. 73 Maksud v. Canada (Minister of Citizenship and Immigration), No. IMM-9459-03, Layden-Stevenson, February 10, 2005; 2005 FC 221, at paragraph 8. 74 Hernandez Cortes v. Canada (Minister of Citizenship and Immigration), No. IMM-4645-08, Teitelbaum, June 4, 2009; 2009 FC 583, at paragraph 30. 75 Vazquez Bizarro v. Canada (Minister of Citizenship and Immigration), No. IMM-5378-12, Noël, February 8, 2013; 2013 FC 140, at paragraph 18. I am referring in particular here to the document submitted as evidence to the RPD under P-6: Monusco and the Office of the High Commissioner for Human Rights, Report of the United Nations Joint Human Rights Office on serious human rights violations committed by members of the Congolese defense and security forces in Kinshasa in the Democratic Republic of Congo between November 26 and December 25, 2011, at pages 56 to 77 of the appeal record. 77 Mesidor v. Canada (Minister of Citizenship and Immigration), No. IMM-2233-09, Shore, December 4, 2009; 2009 FC 1245, at paragraph 11, citing the decision by Justice Teitelbaum in Assadi v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 331 (QL). 78 Idem, at paragraph 48. 79 Medina Canchon v. Canada (Minister of Citizenship and Immigration), No. IMM-3359-12, Noël, November 27, 2012; 2012 FC 1374 at 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." 80 Hernandez v. Canada (Minister of Citizenship and Immigration), No. IMM-3517-09, Martineau, February 18, 2010; 2010 FC 179, at paragraph 26, where Justice Martineau cites his colleague Justice Pinard in Mejia v. Canada (Minister of Citizenship and Immigration), No. IMM-356-09, Pinard, October 29, 2009; 2009 FC 1091, at paragraph 18. Jhon Eduard Ortega Ayala v. Canada (Minister of Citizenship and Immigration), No. IMM-5324-10, Near, May 25, 2011; 2011 FC 611, at paragraphs 20 and 21. 81 Mercado v. Canada (Minister of Citizenship and Immigration), No. IMM-4493-09, Gauthier, March 12, 2010; 2010 FC 289, at paragraph 32 referring to the following decisions: A.M. v. Canada (Minister of Citizenship and Immigration), 2005 FC 579, [2005] F.C.J. No. 709 (QL) at paragraph 20 and Nechifor v. Canada (Minister of Citizenship and Immigration), 2003 FC 1004, [2003] F.C.J. No. 1278 (QL) at paragraph 6. 82 Villanueva Pinon v. Canada (Minister of Citizenship and Immigration), No. IMM-4906-09, Boivin, April 20, 2010; 2010 FC 413, at paragraph 16. 83 Bunoti James Wokwera v. Canada (Minister of Citizenship and Immigration), No. IMM-5410-11, Boivin, February 2, 2012; 2012 FC 132, at paragraph 39: "...it is reasonable for the Board to demand corroborating evidence where the applicant can be reasonably expected to have such evidence available to them." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB3-02388 24