MB6-00348

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 : MB6-00348 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 October 6, 2016 Date de la décision Panel Me Louis Cousineau Tribunal Counsel for the person who is the subject of the appeal Abdou Gaye Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX, a citizen of Côte d'Ivoire, is appealing against the decision of the Refugee Protection Division (RPD) dated December 9, 2015, rejecting her refugee protection claim. She is asking the Refugee Appeal Division (RAD) to set aside the RPD's determination, to recognize her as a Convention refugee or a "person in need of protection," or alternatively, to refer the matter to the RPD for re-determination by a differently constituted panel. [2] The appellant filed an affidavit and she is not requesting that a hearing be held before the RAD. [3] The Minister did not intervene on appeal, but did intervene before the RPD. DETERMINATION OF THE APPEAL [4] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the RPD's determination that the appellant is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under subsection 97(1) of the IRPA. [5] The appeal is dismissed. FACTUAL BACKGROUND [6] In her Basis of Claim Form (BOC Form), the appellant alleges as follows. It all started when she was a student XXXX XXXX XXXX XXXX XXXX XXXX. In XXXX 2015, the teachers at this establishment went on strike. On XXXX XXXX XXXX 2015, with a classmate, the appellant founded a student movement for which she was the coordinator. She organized a huge demonstration on XXXX XXXX XXXX 2015, and another on XXXX XXXX XXXX 2015, which was interrupted by police action. On XXXX XXXX XXXX 2015, the appellant was questioned at her home by soldiers who took her, raped her and threatened to kill her if she filed a complaint. Then she went to a friend's home. On March 11, 2015, the appellant was informed that she was wanted, so she decided to leave Côte d'Ivoire. The next day she met with a smuggler. The appellant underwent medical examinations on XXXX XXXX and XXXX XXXX XXXX 2015. [7] The appellant left Côte d'Ivoire on XXXX XXXX XXXX 2015, for Canada, where she claimed refugee protection. IMPUGNED DECISION [8] In its decision of December 9, 2015, the RPD concluded that the appellant's identity was established, but it rejected the refugee protection claim, finding the appellant not credible. The RPD's findings may be summarized as follows: - some documents1 submitted in the appellant's visa application date back to even before the alleged difficulties, before her decision to leave Côte d'Ivoire and her alleged meeting with a smuggler who made the travel arrangements. The RPD did not believe the appellant's explanations as to her incredible luck that a person with a name identical to hers had completed a visa application and must have had to cancel her trip; - the appellant's description of the student demonstrations do not correspond to that provided in the documentary evidence.2 In addition, the strike that the appellant allegedly initiated is not reported in the documentary evidence, despite the appellant's allegations that this strike was huge; - the RPD grants little probative value to the medical report3 dated XXXX XXXX XXXX 2015. As to another report4 from the Clinique des demandeurs d'asile et réfugiés (CDAR) [clinic for asylum seekers and refugees] in Montréal, the RPD found no direct link between the diagnosis and the circumstances alleged by the appellant; - the RPD did not believe the appellant's allegations overall. APPELLANT'S ARGUMENTS [9] In her memorandum, counsel for the appellant argues that the RPD erred for the reasons that can be summarized as follows: - the RPD erred in the assessment of the appellant's credibility because she herself did not create a professional identity as a dancer. The conclusion of the RPD not to believe the appellant's explanations regarding the steps that had allegedly been taken even before the initial meeting with the smuggler is unreasonable, as the appellant explained that it was a coincidence, and also because most of the documents to obtain the visa are dated after the harm transpired and people often have the same name; - the RPD's conclusions based on the documentary evidence and the strike not being held as alleged by the appellant are unreasonable, in light of the appellant's credible evidence and the fact that the RPD could not, among other things, reject it because of a lack of corroboration in the documentary evidence; - the RPD erred by not granting probative value to the medical documents submitted; - the appellant is a "Convention refugee" and/or a "person in need of protection." ADMISSIBILITY OF NEW EVIDENCE [10] In addition to an affidavit, the appellant submitted documents in support of her appeal. Although the provisions of subsection 110(4) of the IRPA were not raised, I analyzed these documents to determine whether they constituted new evidence within the meaning of these provisions. [11] First, subsection 110(4) of the IRPA states that the person who is the subject of the appeal may present to the RAD only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [12] The Federal Court of Appeal's decision in Singh5 indicates that the explicit conditions set out in subsection 110(4) of the IRPA have to be met and leave no room for discretion on the part of the RAD. [13] In that same decision, the Federal Court of Appeal examines the issue of whether the implied conditions of admissibility identified in Raza are also applicable, specifically the credibility, relevance, newness and materiality of the new evidence.6 To this end, it seems appropriate to reproduce the following excerpt: [64] In conclusion, I am of the view that there is no valid reason not to apply, for the most part, the implicit criteria established by this Court in Raza to subsection 110(4) of the IRPA. The wording of that provision is almost identical to the wording of paragraph 113(a), and the context in which it was adopted as well as the underlying judicial policy considerations support an identical approach despite the fact that they apply to separate proceedings and different decision-makers.... Except for the materiality of evidence, which does not lend itself to the same analysis in an appeal and which subsection 110(6) already considers in determining whether a new hearing should be held, it is not necessary to interpret subsection 110(4) and paragraph 113(a) differently. It goes without saying that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case.7 [14] I have read and analyzed all the documents submitted. As these documents were submitted before the RPD, they are not new evidence within the meaning of subsection 110(4) of the IRPA. [15] In addition, the appellant's affidavit merely reiterates allegations to the effect that the RPD erred in its findings, and it introduces only the documents already submitted before the RPD. In my opinion, this affidavit does not satisfy the provisions of subsection 110(4) of the IRPA. HOLDING A HEARING BEFORE THE RAD [16] In her affidavit, the appellant raises the possibility of a hearing before the RAD. It is important from the outset to point out that, under subsection 110(3) of the IRPA, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD. In addition, under subsection 110(6) of the IRPA, the RAD may hold a hearing if, in its opinion, there is documentary evidence that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; that is central to the decision with respect to the refugee protection claim; and that, if accepted, would justify allowing or rejecting the refugee protection claim. [17] In this case, no new evidence was submitted within the meaning of subsection 110(4) of the IRPA. Consequently, there is no cause to hold a hearing before the RAD.8 SCOPE OF THE APPEAL [18] It should be noted that the appellant's counsel did not submit any arguments regarding the standard of review that the RAD must apply. [19] I am of the opinion that the scope of the RAD's appeal must be reviewed in light of the IRPA and the case law in this matter. [20] First, the IRPA does not expressly set out the standard of intervention to be applied by the RAD when reviewing decisions rendered by the RPD. The introductory wording under subsection 110(1) of the IRPA states the following: Subject to subsections (1.1) and (2) 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. [21] In addition, with respect to the RAD's decisions, subsection 111(1) of the IRPA sets out that the RAD shall confirm the determination of the RPD, set aside the determination and substitute a determination that, in its opinion, should have been made, or refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate. In Huruglica, the Federal Court of Appeal finds that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law.9 It also states, however, that an appeal before the RAD is not a true de novo proceeding.10 It clearly sets out the approach to be taken by the RAD: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [22] As for the degree of restraint or deference owed by the RAD to the RPD's findings concerning the credibility or the weight of testimony, the Federal Court of Appeal also notes the following in Huruglica: [70] This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [71] One can imagine many possible scenarios. For example, when the RPD finds a witness straightforward and credible, there is no issue of credibility per se. This will also be the case when the RAD is able to reach a conclusion on the claim, relying on the RPD's findings of fact regarding the relative weight of testimonies and their credibility or lack thereof. [72] Problems will occur when the credibility findings themselves are disputed on appeal, and the RAD has no way to reach a conclusion without endorsing or rejecting those findings. If the RAD can identify an error in situations where, for example, a claimant was not found credible because his story was not plausible based on common sense, the RPD may have no real advantage over the RAD. [73] Similarly, there may also be cases where a finding that a witness is not credible was based on discrepancies that could not justify such a conclusion or that simply did not exist. If the assessment of the oral evidence contains an error which the RAD can easily identify, but the weight to be given to this testimony is essential to determine whether the RPD decision should be confirmed or set aside, the RAD may conclude that it is a proper case to refer back to the RPD with specific directions in respect of the error identified in the credibility findings. [74] That said, it is not appropriate to say more about the various scenarios that may arise, for they are not before us. The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case. [23] I am thus of the opinion that the RAD is a specialized tribunal and that I must conduct an independent analysis of all the evidence to determine whether the appellant is a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under subsection 97(1) of the IPRA and consequently, whether the RPD's decision is well-founded, taking into account the evidence before the RPD, the appeal record and any new evidence within the meaning of subsection 110(4) of the IRPA or any evidence gathered during a hearing under subsection 110(6) of the IRPA, if applicable. It should be noted that, in this case, no document was found admissible under subsection 110(4) of the IRPA and that there was no hearing before the RAD. [24] Furthermore, in reviewing this case, I will show a measure of deference to the RPD's findings with respect to the appellant's credibility when it benefits from an advantageous position. Furthermore, if there are errors on questions of law or if there are erroneous findings or findings that are not supported by the evidence on questions of fact or of mixed fact and law that are central to the refugee protection claim, I will intervene in accordance with the provisions of subsections 111(1) and 111(2) of the IRPA. ANALYSIS [25] The determinative issue is whether the RPD erred in its decision. To this end, I assessed the RPD's reasons and I listened to the recording of the hearing before the RPD. I also read and analyzed all the evidence on the record, as well as the appellant's memorandum. RPD's findings [26] The RPD did not believe the appellant's explanations to the effect that a person with the same name as hers applied for a visa even before the start of her alleged difficulties. The appellant's counsel argues that the appellant's explanations are reasonable and that most of the documents completed for the visa application are dated after the harm she suffered. [27] From my analysis of the recording of the hearing before the RPD, the appellant testified that the alleged visit by soldiers to her home and her abduction and rape took place on XXXX XXXX XXXX 2015. A few days later, that is, on March 12, 2015, she allegedly met with a smuggler to leave Côte d'Ivoire. Questioned about the invitation letter11 from a Canadian organization dated March 2, mentioning her name, the appellant testified that it was not her, that this had to be a coincidence, happenstance; that a person with the same name as hers had previously applied for a visa. In addition, when asked about a professional card12 depicting her as a dancer and mentioning a birth date that was submitted to obtain the visa, the appellant testified that it was her photograph. [28] Like the RPD, I am not satisfied with the appellant's explanations for the following reasons. First, although some documents were issued after the appellant's alleged problems, the fact remains that the invitation letter of March 2 precedes the difficulties alleged by the appellant. Furthermore, the authenticity of the invitation letter was confirmed by an email exchange13 submitted by the Minister's representative. I also find it unlikely that two people with the same surname and given names-and with the same date of birth-could exist. That is why I concur with the RPD's finding that the appellant did not credibly establish the existence of this other person. [29] Consequently, in light of these efforts to obtain a Canadian visa even before the existence of the triggering incident alleged by the appellant, namely the visit by the soldiers and her alleged difficulties, and even before the initial meeting with the smuggler, I am of the opinion that the appellant failed to credibly establish these alleged difficulties. This undermines the appellant's credibility regarding elements central to her refugee protection claim. [30] The appellant's lawyer also argues that the RPD's findings based on the documentary evidence are unreasonable. I do not agree with this opinion for the following reasons. [31] From my analysis of the recording of the hearing before the RPD, the appellant testified that she was the coordinator of a student group called XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX hereinafter referred to as the [translation] "movement," which she co-founded in XXXX 2015. That same month, she allegedly organized a student march in order to meet the Minister responsible for education, but the students were unable to meet with him. She allegedly organized another march on XXXX XXXX XXXX 2015, which was interrupted by police forces. Faced with the documentary evidence regarding the organization of the student strikes in XXXX and XXXX 2015 and the inexistence of any references to her "movement," the appellant testified that she did not know why her marches had not received any media coverage, and she added that it was her "movement" that initiated the strikes in XXXX 2015. Confronted with the documentary evidence to the effect that it was actually the FESCI that was behind the strikes, the appellant testified that she was not too familiar with FESCI and that she had not contacted them. [32] From my analysis of the documentary evidence,14 it reports student strikes in January and March 2015, brought about mainly by the Fédération estudiantine et scolaire de Côte d'Ivoire (FESCI) [Côte d'Ivoire student and education federation]. Moreover, a source15 reports that FESCI was behind the student strikes, which contradicts the appellant's allegations. In addition, I find it surprising that the appellant testified that she was not too familiar with FESCI, because, according to the documentary evidence,16 FESCI is not only the principal actor in these strikes, but also the main student union in Côte d'Ivoire. [33] As for the absence of evidence corroborating the existence of the appellant's "movement" and its alleged activities, the RPD found that this undermined the appellant's credibility. I am of the opinion that the RPD did not commit any error for the following reasons. First, it is important to point out the following passages in Magyar:17 It is well established that a refugee claimant's testimony benefits from a presumption of truth unless there is a reason to doubt its truthfulness (Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (CA) at para 5 [Maldonado]). Accordingly, there is no general requirement for corroboration. It is therefore an error to make a credibility finding based on the absence of corroborative evidence alone (Ndjavera v. Canada (Citizenship and Immigration), 2013 FC 452 at para 6). However, it is also well established, and I agree that the onus is on a refugee claimant to establish the elements of his or her claim for protection (RPD Rules, Rule 11; Ismaili v. Canada (Citizenship and Immigration), 2014 FC 84 at paras 32-34 [Ismaili]). The case law states that although the RPD may not draw negative inferences solely from the fact that a refugee claimant failed to provide extrinsic documents that corroborate his or her claim, where there are valid reasons to doubt a claimant's credibility, the RPD may validly consider the failure to provide such documentation in making its credibility determination if it does not accept the claimant's explanation for that failure.... [34] First of all, from my analysis of all the evidence on the record, there is no documentary evidence dealing with the appellant's "movement." Indeed, the appellant testified that she did not find any. I am of the opinion that this finding by the RPD as to the absence of documentary evidence of the "movement" and its activities is consistent with the law. In fact, it is trite law that the appellant has the burden of establishing the allegations underlying her refugee protection claim. Furthermore, given its findings regarding the steps that were taken to obtain a visa, the RPD questioned the appellant's credibility regarding the very existence of the harm she allegedly suffered. Consequently, I find that the RPD did not commit any error. [35] Like the RPD, I analyzed the medical documents18 submitted in support of the appellant's allegations. It should be noted that the existence of such documents cannot establish on its own the credibility of a refugee protection claimant's allegations.19 In other words, a medical document cannot be used as an instrument to assess the truthfulness of an account presented by a person claiming refugee protection. Although I do not call into doubt the diagnosis20 regarding the appellant, for the aforementioned reasons, I am of the opinion that the alleged facts underlying the refugee protection claim have not been established in the circumstances, and I grant no probative value to these documents for the purposes of establishing them. [36] In addition, having independently assessed all of the evidence, I agree with the RPD's finding that the appellant's allegations lack credibility overall. CONCLUSION [37] Having analyzed all the oral and documentary evidence, given the aforementioned reasons and pursuant to subsection 111(1) of the IRPA, the RAD confirms the RPD's determination that the appellant is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under subsection 97(1) of the IRPA. [38] The appeal of XXXX XXXX XXXX is dismissed. Louis Cousineau Me Louis Cousineau October 6, 2016 Date IRB translation Original language: French 1 RPD record: (pages 157 to 201) a number of documents including in Exhibit M-1: Visa application and GCMS note; Exhibit M-2: Email correspondence with XXXX XXXX, signatory of the letter submitted in the visa application (in a bundle). 2 RPD record: (pages 64 to 101) Document 5: Additional documents on country conditions sent on July 30, 2015; RPD record: (pages 201 to 216): Exhibit M-5: online newspaper articles concerning the student strikes in Côte d'Ivoire. 3 RPD record: (page 126): Exhibit P-2: medical certificate. 4 RPD record: (pages 134 to 136): Exhibit P-4: medical submission. 5 Minister of Citizenshop and Immigration v. Singh, No. A-512-16, Nadon, Gauthier, De Montigny, March 29, 2016, paras 34 and 35. 6 Ibid., para. 38. 7 Ibidem, paragraph 64. 8 Sajad v. M.C.I., 2014 FC 1107, in paragraph 17. 9 Minister of Citizenship and Immigration v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93, paragraphs 36 to 103. 10 Ibidem, paragraph 79. 11 Supra, see footnote 1, letter of March 2, 2015, from XXXX XXXX XXXX XXXXXXXXXXXXX. 12 Ibidem, professional dancer card: RPD record: (page 174). 13 Supra, see footnote 1, in particular Exhibit M-2. 14 Supra, see footnote 2. 15 Idem, RPD record: (pages 83 to 86): document 5: article from Lepointsur.com on March 27, 2015. 16 Ibidem. 17 Magyar v. M.C.I., 2015 FC 750, paragraphs 34 to 36. 18 Besides the medical documents cited as exhibits P-2 and P-4, supra, see footnotes 3 and 4; I also analyzed the other documents of a medical nature, in particular Exhibit P-3: medical results dated XXXX 2015, and Exhibit P-5: PRAIDA's social functioning certificate of August 4, 2015. 19 Solomon v. M.C.I., 2004 FC 1252, in paragraph 13 in which a number of Federal Court decisions affirming the same proposition are cited. 20 In reference to Exhibit P-4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB6-00348 13 RAD.25.02 (2014.09.11) Disponible en français