MB4-05375

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : MB4-05375 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 at Montréal, Quebec Appel instruit à Date of decision March 19, 2015 Date de la décision Panel Stephen J. Gallagher Tribunal Counsel for the person who is the subject of the appeal Me Michael Loebach Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION [1] The Appellant is Ms. XXXX XXXX XXXX, who is a 25-year-old citizen of the Democratic Republic of the Congo (DRC). Ms. XXXX is appealing a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant has presented new evidence and has requested an oral hearing. DETERMINATION OF THE APPEAL [2] I find the decision of the RPD to be wrong on questions of fact. I am unable to confirm or set aside the RPD decision without hearing further evidence with respect to the issue of credibility and country conditions. Pursuant to ss. 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers this matter to the RPD for redetermination by a differently constituted panel. BACKGROUND [3] The Appellant alleges that she is at risk of being placed in prison and perhaps killed because she is a supporter of the Union pour la démocratie et le progrès social (UDPS), which is a mass party in DRC. [4] The Appellant alleges that because of her attendance at many demonstrations and her participation in the UDPS, she has been assaulted and arrested on several occasions dating from when she joined the party in 2007. The Appellant alleges that in 2011 through 2012, during the period when it is alleged that President Joseph Kabila, an independent, stole the presidential election from his opponent, Mr. Etienne Tshisekedi (leader of the UDPS), the Appellant alleges she was arrested and beaten at various times by the police. [5] The Appellant alleges that she took some time off from protesting (seven months) but in April 2013, she became involved in a demonstration again and was allegedly arrested and beaten again. The Appellant alleges that this time she was warned that she would be investigated. The Appellant alleges that she was released again but in August 2013, her house was allegedly raided and everyone, including the Appellant, was arrested. This time, the Appellant alleges that she was tortured and was at risk of being murdered but that the UDPS somehow managed to orchestrate her escape and paid for her travel to Canada. [6] The Appellant alleges that she transited the US to reach Canada, where she made a protection claim in September 2013. The RPD heard the Appellant's protection claim and in a decision, dated May 30, 2014, denied the claim. The Appellant appealed this decision by submitting a Notice of Appeal, which was received by the RAD on June 16, 2014. SUBMISSIONS [7] The Appellant submits that the RPD erred in its overall adverse credibility conclusion, which involved the RPD making individual errors on important elements of the Appellant's claim but most importantly on the RPD's failure to accept that the Appellant's UDPS membership card was genuine. [8] With respect to an outcome to this appeal, the Appellant seeks to have the RPD decision 'set aside' and a decision substituted such that the Appellant should be recognized as a Convention refugee. Alternatively, the Appellant seeks to have the file returned to the RPD for a redetermination by a 'differently constituted panel'. NEW EVIDENCE AND REQUEST FOR AN ORAL HEARING [9] In this appeal, the Appellant has introduced new evidence. In reviewing this evidence, which includes additional letters of support and a newspaper article (Appellant's Record, pp. 184-183), I can conclude that this material is not sufficient for me to set aside additional credibility concerns I have with respect to the existing evidence found in the file in order to reach a positive determination. Given that I find that the RPD did err in its decision analysis and additional testimony is required on subject matter unrelated to the new evidence, I conclude that the appeal must be granted and the file returned to the RPD for another hearing. In the context of a differently constituted RPD panel, this new evidence will be available for review. ROLE AND FUNCTION OF THE RAD [10] With respect to the RPD's credibility assessment, which is the determinative issue in this claim, for a number of reasons the RPD did not believe that the Appellant was at risk of persecution or at risk for a IRPA section 97 reason because it concluded that the Appellant did not meet her burden of establishing that her story was true on a balance of probability. [11] I note that the RAD has now received some Federal Court guidance on the role of the RAD vis-à-vis RPD decisions. One Justice suggests that my assessment of the RPD's determination with respect to questions of fact and with respect to questions of mixed fact and law, should involve an evaluation of the evidence to determine if the RPD made 'palpable and overriding errors'. This jurisprudence sets out that the RPD is owed a "measure" of deference in its conclusions of fact, and of mixed fact and law and establishes that the RAD is responsible to perform its "own assessment" of all of the evidence (Alvarez1 and Eng2). [12] I note that in another recent decision (Spasoja3), Justice Roy agrees with Justice Shore on the conclusion that 'palpable and overriding errors' should be the standard of intervention with respect to questions of fact. [13] In Huruglica,4 the Federal Court has stated that the RAD "must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection". Justice Phellan in Huruglica indicates that there is no need for the RAD to enunciate a 'standard of review' and suggests that while the RAD might show some deference on a credibility assessment and/or where the RPD enjoys a particular advantage in reaching such a conclusion, in other areas, such as an assessment of country conditions evidence, the RAD need not be deferential. [14] In Njeukam,5 Justice Locke references Huruglica and suggests that "Except in cases where the credibility of a witness is critical or determinative or when the RPD has a particular benefit from the RAD to draw a specific conclusion, the RAD must not give any deference to the analysis of the evidence made by the RPD". [15] Following Huruglica and Njeukam, I conclude that in this appeal, which turns on questions of fact, the RPD's determinative credibility assessment must be granted deference and I must provide my own assessment of the evidence. I note that this conclusion is consistent with the arguments of the Appellant (Appellant's Memorandum, paragraph 22, p. 238). ANALYSIS OF THE MERITS OF THE APPEAL Core Issue: Did the Board err in its credibility findings? [16] The basic argument of the Appellant is that the RPD erred in its evaluation of the Appellant's testimony and corroborative evidence. The RPD begins by noting that the Appellant stated that she was in University when she joined the UDPS whereas in fact, after reviewing the dates, the RPD finds that the Appellant was still in high school (RPD Decision, paragraph 7). [17] In response, the Appellant argues that the RPD's analysis is 'microscopic' and that if the Appellant made an error it was 'trivial' (Appellant's Memorandum, paragraph 19, p. 241). [18] In reviewing the evidence, I conclude that there may be a problem here in that the Appellant did first suggest that she was in University when she joined the party (Hearing Transcript, Appellant's Record, p. 208). My conclusion would be, however, that this mistake is well within the margin of unintended error given that this event took place more than 6 years previous and the Appellant entered university that same year. I must add, as noted below, the Appellant is providing evidence which credibly establishes, on a balance of probability, that she was in fact a member of the UDPS from April 2007. I must conclude that the RPD erred in this conclusion. [19] The next issue is the whole analysis forwarded by the RPD that when the Appellant's knowledge of her UDPS membership card is compared to the NDP objective evidence, the RPD can conclude that the Appellant is misrepresenting her membership in the UDPS (RPD Decision, paragraph 10). [20] In this case, the Appellant has provided evidence from the UDPS party in Canada confirming the validity of the cards (RPD Record, p. 187). In response to this disclosure, which was provided by the Appellant after the hearing, the RPD concluded that: Since this document was only provided after the hearing, after the panel addressed credibility concerns regarding the issuance of the card, and concerning the fact that the claimant had not contacted the UDPS after having come to Canada, this document appears to have been obtained and tailored to patch up the claimant's credibility problems at the hearing. It also contradicts the objective evidence with regards to the issuance of the cards by the national office in Kinshasa and the fees that are paid to obtain the card. For all these reasons, the panel give this letter very little weight and prefers to give more weight to the objective evidence (RPD Decision, paragraph 13). [21] I note below that the fact that the Appellant did not contact the UDPS party on arrival to Canada is an issue which I do not see as a credibility issue unless it is coupled with other problems. In this case, I find that logically, an individual who has been targeted for demonstrations because she is a UDPS member such that she is forced to flee half way around the globe, is not necessarily going to check in with that organization at the first opportunity. Even if she finds out that the UDPS paid for the trip, as is noted by the RPD, I would not find it much of a credibility issue if the Appellant simply decided to focus on seeking protection and earning a living. After all, does she know anyone at the Canadian office of UDPS? Would anyone at that office be aware of the aid given the Appellant to escape DRC? One conclusion that can be reached based on the evidence available is that the UDPS is a mass party with many units. [22] With respect to the objective evidence cited by the RPD to find that the Appellant's membership lacks credibility, as far as I can tell, the only UDPS source for the information in the RIR is from an 'official' of the UDPS in Canada (RPD Record, p. 180-183). In other words, the people who provided the information on how membership cards are distributed by the UDPS and which is being used to find the Appellant not credible are possibly the same people who, as noted above, confirm that the Appellant membership cards are genuine. I must conclude that in this area, the analysis of the RPD is insufficient to reach a negative credibility conclusion. In addition, I would conclude that the Appellant has met her burden of establishing, on a balance of probability, that she has been a member of the UDPS. This may not be an important finding, however, because as a mass party it is possible that the UDPS has millions of members. [23] This leaves two elements of the RPD decision analysis remaining. The second relates to the subjective fear in that the RPD identifies a delay in departure from DRC. According to the RPD decision, although the Appellant is alleging numerous assaults and was alleging being searched for by security forces from 2011, the Appellant did not leave until 2013, which is viewed as a credibility issue. According to the RPD, "When she was asked, if the police had started being after her in December 2011, whether she thought her life was at risk then, she answered that she knew she was sought after. Asked whether she thought of leaving the country at that time, she answered that she did not have the possibility, as she was also studying. The panel does not believe these explanations to be reasonable and considering the fear alleged by the claimant, her delay in departing undermines her credibility with regards to her subjective fear" (RPD Decision, paragraph 16). [24] On this issue, I find the Appellant is relatively consistent and the allegations coherent. Prior to 2013, the Appellant alleges that she was simply arrested and beaten on occasion and she did not have the resources to flee and besides, she was in school. This changed, however, when she was involved in a protest on April XXXX, 2013, and was beaten and arrested. The Appellant at this time alleges that she was singled out and told that there would be an investigation but regardless she was released after two days. The allegation is that the police then raided her home and arrested everyone there on August XXXX, 2013, and at this point, the Appellant alleges she was severely tortured. The Appellant alleges that while in custody, by clandestine means, members of the UDPS got her out of jail and out of the country (RPD Record, pp. 39-40). In listening to the questions of the Appellant's counsel, the addition of the RPD's questions and the answers of the Appellant, the story seems clear and relatively consistent with the Narrative (Oral Hearing at minute 2:09-2:13 - Hearing Transcript, Appellant's Record, pp. 222-223). The key response to the question of why she did not leave earlier was "I did not have a way, a possibility, and I was also studying" (Oral Hearing at minute 2:15). [25] In this claim, the question of delay of flight is countered with the logic, setting aside the fact that she would have graduated in 2012, that there was an escalation in danger in 2013 coupled with a trigger event that caused others to aid her to flee such that, in the end, the date of leaving was not in her hands. Again, I do not find that the RPD provided a 'delay in claiming' analysis effective or sufficient to reach an adverse credibility conclusion. [26] The only remaining concern of the RPD is to note that while the Appellant is alleging grave treatment at the hands of police, including being tortured with electric wires, the Appellant is on record as stating that she has no scares (RPD Decision, paragraph 14). On this issue, I find there is a credibility issue which also relates to the basic profile of this Appellant. On the face of it, the Appellant does not appear to be an individual who would normally be the target of political persecution or someone committed to political action such that she would regularly seek out demonstrations that end in violence and jail. [27] To begin with, the Appellant has been a university student in the field of XXXX XXXX and XXXX XXXX - as opposed to some more politically orientated area of study - for many years (2007-2012) (RPD Record, pp. 132-137). The Appellant does not appear to have ever been formally employed and was a newlywed as of 2012 to an individual who is allegedly not politically active. [28] Before marriage, the Appellant lived on XXXX XXXX, XXXX XXXX, Ngaliema, Kinshasa. This area (XXXX XXXX) is home to many of the aid agencies that are headquartered in Kinshasa and depending on where in this area the Appellant lived, she might not have lived far from the Residence of the Prime Minister and many important diplomatic facilities or even the Mont Fleury area and the Marble Palace. XXXX is an upscale quartier in a very large city. By large, I mean that while Ngaliema has a 'commune' population of perhaps 700,000, Kinshasa is a city with a population approaching 10 million. Put simply, the Appellant's family is likely well off and might be expected to theoretically support democracy and the UDPS which is a mass party which has large numbers of supporters in Kinshasa. The question is, however, does this Appellant match a profile of an individual who regularly participates in demonstrations and braves violence and regular arrests such that government authorities now seek to kill her? [29] The additional credibility concern is that, even if all the allegations are accepted, the Appellant does not appear to be anything more than an individual who attends demonstrations. The Appellant does not appear to have had any leadership position. In looking at the Appellant's membership cards (RPD Record, p. 62) they set out the complexity of the structure of the UDPS party. In one, based on her testimony about how cards are handed out, which has an air of credibility (Hearing Transcript, Appellant's Record, p. 211), in 2011 she was the XXXX person to receive a card in the XXXX XXXX section (this is an area of Ngaliema) of the 'Lukunga' Federation (Lukunga is one of the four 'districts' of Kinshasa). In 2012, the Appellant was the 134th person to receive a card in the XXXX XXXX section of the Mont Amba federation, Mont Amba being a different district of Kinshasa. The scale of these sub level political units of UDPS is clearly great and the obvious question is: what interest would authorities have with the Appellant regardless of how many times she demonstrated against the government? [30] I would also question the credibility of the Appellant's allegation of how she traveled to Canada. The Appellant told CBSA officials that she arrived at a US airport but cannot name the airport or the nationality of the passport (RPD Record, p. 88). I find this very hard to believe. The Appellant is 25 years old with many years of education. She alleges that she is traveling with "a man" to the US. I note that biometric review did not return a hit with respect to the Appellant with US authorities (RPD Record, p. 191). Arrival by air from anywhere to the US involves a screen and with respect to an arrival from Ethiopia, it is hard to imagine that TSA officials would set aside standard operating procedures. This is to say, if the Appellant was arriving by air and even if she had somehow managed to secure a required machine readable passport from a visa waiver country, she would still have been fingerprinted (US-Visit). In addition, it is hard to imagine that prior to arrival any 'agent' that was traveling with her would not have coached her to be able to respond to TSA questions on arrival. People smuggling is a major criminal offence in the US and it is simply hard to believe that this border/airport arrival would not have focused the mind of the Appellant on what she had to know to accomplish her task of securing entry to the US, including having a story ready which incorporated knowledge of the country of the passport she was carrying. On a balance of probability, I do not find the Appellant credible on the question of transiting the US by arrival by air. [31] In this appeal, I conclude that the RPD did not effectively establish that the Appellant's allegations were not credible on a balance of probability. At the same time, I cannot conclude that the Appellant is credible with respect to her allegations because I can identify issues related to credibility which were not addressed by the RPD. I conclude that this file must be returned to the RPD for another review of the issues. I note that at this time it might be necessary to identify and review additional evidence and the new evidence which has been introduced for this appeal can be available for a new hearing at the RPD level. CONCLUSION [32] The RPD decision is wrong in fact and the RAD is unable to confirm or set aside the RPD decision without hearing additional evidence. The RAD therefore under paragraph 111(1)(c) and 111(2) of IRPA refers the matter back to the RPD for a redetermination to a differently constituted RPD panel. [33] Therefore, the appeal is allowed. Stephen J. Gallagher Stephen J. Gallagher March 19, 2015 Date /cl 1 Alvarez v. M.C.I. (2014) FC 702. 2 Eng v. M.C.I. (2014) FC 711. 3 Spasoja v. M.C.I. (2014) FC 913. 4 Huruglica v. M.C.I. (2014) FC 799. 5 Njeukam v. M.C.I. (2014) FC 859, paragraph 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-05375 2