MB5-04508

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 : MB5-04508 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered/heard at Montréal, Quebec Appel instruit à Date of decision May 30, 2016 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Salif Sangaré Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX, the appellant, a citizen of Mauritania, is appealing against a decision of the Refugee Protection Division (RPD). He submits that the RPD's findings are patently capricious, arbitrary and unreasonable. II. DETERMINATION OF THE APPEAL [2] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD, namely, that XXXX XXXX XXXX is not a refugee under section 96 or a person in need of protection within the meaning of section 97 of the IRPA. III. BACKGROUND A. Summary of alleged facts [3] In his memorandum, the appellant presents the facts as follows: - On XXXX XXXX, 2015, he arrived in Canada as a temporary resident, as an international student from Mauritania. - He claimed refugee status as a result of events in Mauritania, while he was in a relationship with XXXX XXXX, who is his spouse. - He is claiming refugee protection by reason of his membership in a particular social group and the serious risk of mistreatment or cruel and unusual treatment to which he could be subjected.1 [4] In addition to his Basis of Claim Form2 (BOC Form), the appellant, then called the claimant, filed documents in evidence before the RPD.3 B. RPD decision [5] The hearing before the RPD was held on August 18, 2015, and the decision to reject his refugee protection claim was rendered on September 18, 2015.4 [6] In the reasons for its decision, the RPD indicates that it noted numerous credibility problems, including serious omissions, implausibilities and the claimant's behaviour. As a result, several key allegations at the heart of the refugee protection claim could not be believed.5 [7] The RPD identified major omissions, notably the fact that the claimant did not indicate in his BOC Form that he has feared a certain Mr. XXXX for years, that this person was his master, that he worked for him in the XXXX field and that he had to hand over much of his earnings to him. The RPD also found that the claimant's explanation that he had wanted to summarize the situation so that his story would not be too long was not reasonable. On this issue, the RPD concluded that it did not believe that the claimant is a slave belonging to Mr. XXXX and that he fears that he will cause him serious harm.6 [8] The RPD found that the claimant's behaviour was not consistent with that of someone who fears for his life, given that he continued to work and live in the same place for several months after being threatened by the brothers of the person he loves, XXXX.7 In addition, after receiving these threats, he went to Senegal and returned to his country twice.8 [9] The RPD also identified omissions, including the fact that the claimant did not mention in his BOC Form that XXXX brothers had gone to his home three times since he left his country in XXXX 2015. Also, it found that the explanation that he wanted to summarize the situation was not reasonable.9 [10] Moreover, the RPD decided to give no probative value to a document entered into evidence, as the manner in which it was issued seemed inconsistent with how such attestations are issued.10 For similar reasons, it decided to give no probative value to a newspaper article entered into evidence. It wrote the following: [translation] [24] The second document entered into evidence is an article from the newspaper XXXX dated XXXX XXXX, 2015. It mentions the claimant's name and reports that he had escaped but there are also problems with it. First, the newspaper article is allegedly based on a report signed by a group of men who look into slavery-related violence. The claimant was asked about who and/or what group of men had signed the report. He answered that he did not know. The claimant was then questioned about the date on which this report was presented. Once again, he answered that he did not know. He was also asked why the report was not in evidence, instead of an article reporting on it. He answered that he did not know, that it was his uncle who had exposed the problems he was having when he was in Mauritania, and that he was the one who had sent him a copy of the article. Finally, the claimant was asked to comment on the fact that the article mentions that XXXX XXXX XXXX (also sometimes spelled XXXX), XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX), had signed the report, even though he has been in prison since XXXX 2015, according to the documentary evidence. The claimant stated that the person who was replacing him had signed it on his behalf. [25] The panel does not believe the claimant's explanation regarding this last point. The newspaper article clearly states that Mr. XXXX XXXX had signed the report along with other individuals. The claimant's explanation thus contradicts the newspaper article. In addition, the panel finds it implausible that the government would allow a prisoner to sign a report criticizing the Mauritanian authorities while that person is in detention. The panel notes that the claimant's uncle is the source of the two documents referred to in the previous paragraphs and that the claimant knew little about them. The panel also notes that both documents were written well after the claimant left Mauritania and that nothing was reported to the IRA or any anti-slavery group in Mauritania when the claimant was in his country and facing the alleged hardships. For all the stated reasons, the panel gives no probative value to these two documents because they raise doubts.11 [11] The RPD then indicated that the documentary evidence does not discuss IRA sympathizers who fear for their safety simply because they support the group's mission.12 [12] Finally, it found that although, according to the documentary evidence, some members of the Haratine population are still subjected to slavery and discrimination, the claimant was able to go to school and work in his country.13 C. Grounds of appeal and decision sought [13] In his memorandum, the appellant submits that the RPD's findings are patently capricious, arbitrary and unreasonable.14 [14] First, he submits that the RPD erred in assessing the evidence, as its findings are not justified or supported by the evidence, and his own explanations were clear, as was the documentary evidence.15 [15] He then submits that the RPD noted no contradictions undermining his credibility. He adds that even if there are inconsistences, exaggerations or contradictions, the RPD must assess the evidence that is credible, take into consideration the explanations provided, and make a decision based on all the evidence, including the evidence on the political and social situation in the specific country.16 [16] Finally, he submits that RPD's conclusions dismissing his testimony or finding that his fears are not credible are unreasonable and that, as a result, it erred in mixed fact and law.17 [17] In conclusion, the appellant is asking the RAD to set aside the determination of the RPD, refer the matter to a differently constituted panel and give any other direction it considers relevant.18 [18] In his memorandum, the appellant does not indicate that he is presenting new evidence, and he does not request a hearing before the RAD. However, in an affidavit, he states that he is presenting evidence that arose after the rejection of his refugee protection claim and he requests a hearing.19 After carefully reading the documents included in the appeal record, I note that they were all entered in evidence before the RPD.20 Therefore, they do not constitute new evidence within the meaning of subsection 110(4) of the IRPA, and there is no cause to hold a hearing before the RAD. IV. APPROACH TO BE TAKEN IN THIS APPEAL A. Appellant's position [19] In his memorandum, the appellant does not specify the approach to be taken in his appeal, but he submits that the RPD's findings are patently capricious, arbitrary and unreasonable.21 B. A brief summary of the Federal Court of Appeal decision in Huruglica [20] Following an exhaustive analysis of the legislative history and various arguments used to date, in a recent, long-awaited decision, the Federal Court of Appeal found that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law.22 It also found that an appeal to the RAD is not a true de novo proceeding.23 Moreover, it clearly specifies 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.24 [21] As for the degree of restraint or deference owed by the RAD to the RPD's conclusions or findings as to the credibility of any testimony, Justice Gauthier makes a number of clarifications that I find very useful: [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.25 C. An independent review to correct the errors identified by the appellant [22] Drawing on the Federal Court of Appeal decision, I consider it clear that I must fully exercise the role of the RAD, which is to correct any errors that, according the appellant, the RPD might have made26 and to make the determination that should have been made or must be made in light of the most recent evidence on the record.27 That being said, if required, I must justify whether the circumstances warrant a degree of restraint or a measure of deference to the RPD's findings as to the appellant's credibility based on his testimony. V. ANALYSIS OF THE MERITS OF THE APPEAL [23] Having conducted an independent assessment of the record, I find that the appellant's arguments must be dismissed. I will explain why. [24] In determining a refugee protection claim, it is up to the claimant to establish, on a balance of probabilities, the facts on which he based his claim.28 The RPD is entitled to make findings based on implausibility, common sense and rationality.29 A lack of credibility on an important aspect of a claim can lead to a finding that there is no credible evidence on which the claim can be based.30 i) Serious omissions [25] The omissions must be examined in their context and be assessed in light of all the evidence, as credibility cannot be undermined when the changes made to the BOC Form are minimal and the claimant has provided a reasonable explanation of the corrections made. However, credibility can be undermined when omissions have to do with the facts that directly concern the very basis of a claim for refugee protection.31 [26] In his BOC Form, the appellant declared that the information provided in the form was complete, true and correct, that the content of the form and all documents attached to his claim were interpreted to him, and that he knew that his declaration had the same force and effect as if made under oath.32 A careful reading of the information provided in his BOC Form makes it possible to conclude that there is no mention that he has feared a certain Mr. XXXX for years or that XXXX brothers have gone to his home three times since he left his country in XXXX 2015.33 In my opinion, these omissions concern important aspects of his claim for refugee protection. As for the explanation that the claimant wanted to provide a summary of the situation, I, like the RPD, find that it is not reasonable. [27] It must be noted that, when assessing the claimant's credibility, the RPD did not limit itself to just these omissions. ii) Behaviour that is inconsistent with that of someone who fears for his life [28] The failure to immediately claim international protection can impugn the credibility of a person claiming refugee protection in Canada.34 Also, staying longer than necessary in a country where a person fears persecution, deliberately returning to that country, staying in other countries without claiming refugee protection and failing to claim refugee protection immediately on arriving in Canada are behaviours that show a lack of subjective fear.35 If no convincing or reasonable explanation is provided, failing to claim refugee protection at the first opportunity can undermine a refugee protection claimant's credibility.36 [29] In my opinion, in this case, the RPD was justified in concluding that the claimant's behaviour was inconsistent with that of a person who fears for his life, given that he continued to work and live in the same place for several months after being threatened, and after receiving those threats, he went to Senegal and returned to his country twice.37 iii) Documents containing major problems [30] In his memorandum, the appellant does not provide clear, specific and explicit arguments regarding the RPD's decision not to give any probative value to two documents that he entered into evidence. [31] However, I find that, in the analysis of the evidence, the RPD was right not to give any probative value to these two documents for the reasons that it clearly expressed in its decision. Furthermore, entering documents into evidence that contain such anomalies can constitute an additional reason to doubt the truthfulness of the facts alleged by the claimant. iv) Consideration of the political and social context [32] In his memorandum, the appellant submits that the RPD completely ignored the political and social context in Mauritania with respect to the actions of people who still engage in slavery.38 However, a careful reading of the RPD's reasons and decision makes it possible to conclude that there is absolutely no basis for this argument. In fact, the RPD specifically mentions that it was aware of the fact that slavery remains a serious problem in Mauritania. However, after considering all the evidence, it did not believe that the claimant was credible when he stated that he was a victim of this Mauritanian reality.39 [33] Ultimately, after conducting an independent assessment of the record, I find that the RPD did not make any error when it assessed the claimant's credibility. VI. CONCLUSION [34] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX is not a refugee under section 96 or a person in need of protection under section 97 of the IRPA. [35] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette May 30, 2016 Date IRB translation Original language: French 1 Appellant's memorandum, October 26, 2015, not paginated, paragraphs 1, 2 and 3. 2 Appellant's Basis of Claim Form (BOC Form), pages 14 to 24 of the Refugee Protection Division (RPD) record. 3 The list of these documents is reproduced on pages 125 and 132 of the RPD record. The documents themselves are reproduced on pages 127 to 131 and 133 to 209 of the RPD record. 4 RPD reasons and decision, pages 3 to 13 of the RPD record. 5 Idem, paragraph 7, page 5 of the RPD record. 6 Idem, paragraphs 8 to 12 and 17, 18 and 19, pages 5, 6, 8 and 9 of the RPD record. 7 Idem, paragraphs 13, 14 and 15, pages 6, 7 and 8 of the RPD record. 8 Idem, paragraphs 20 and 21, pages 9 and 10 of the RPD record. 9 Idem, paragraphs 13 and 16, pages 6, 7 and 8 of the RPD record. 10 Idem, paragraphs 22 and 23, page 10 of the RPD record. 11 Idem, paragraphs 24 and 25, page 11 of the RPD record, citations omitted. 12 Idem, paragraph 26, page 12 of the RPD record. 13 Idem, paragraph 27, page 12 of the RPD record. 14 Appellant's memorandum, not paginated, paragraph 8. 15 Idem, paragraphs 10 to 32. 16 Idem, paragraphs 33 to 39. 17 Idem, paragraphs 40 to 48. 18 Idem, last page. 19 Appellant's affidavit, signed on October 26, 2015, not paginated, paragraphs 2 and 3. 20 These are the documents numbered C-2, C-3, C-4, C-5, C-6 and C-7 by the RPD and reproduced on pages 125 to 209 of the RPD record. 21 Appellant's memorandum, not paginated, paragraph 8. 22 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. 23 Idem, paragraph 79. 24 Idem, paragraph 103. 25 Idem, paragraphs 70 to 74. 26 Ghauri v. Canada (Minister of Citizenship and Immigration), No. IMM-3426-15, Gleeson, May 16, 2016; 2016 FC 548, paragraphs 30 to 34. 27 Huruglica, supra, footnote 44, paragraphs 96, 97 and 98. 28 Arreaga v. Canada (Minister of Citizenship and Immigration), No. IMM-996-13, Noël, September 25, 2013; 2013 FC 977, paragraph 45. 29 Laszlo v. Canada (Department of Citizenship and Immigration), No. IMM-3507-04, Von Finckenstein, April 6, 2005; 2005 FC 456, paragraph 10. 30 Hernandez Cortes v. Canada (Minister of Citizenship and Immigration), No. IMM-4645-08, Teitelbaum, June 4, 2009; 2009 FC 583, paragraph 30. 31 Hamidi v. Canada (Minister of Citizenship and Immigration), No. IMM-5049-14, Shore, February 26, 2015; 2015 FC 243, paragraphs 27 and 28. 32 BOC Form, page 24 of the RPD record. 33 Idem, page 19 of the RPD record. 34 Mesidor v. Canada (Minister of Citizenship and Immigration), No. IMM-2233-09, Shore, December 4, 2009; 2009 FC 1245, paragraph 11. 35 Rivera v. Canada (Minister of Citizenship and Immigration), No. IMM-5826-02, Beaudry, November 5, 2003; 2003 FC 1292, paragraphs 29 and 30. 36 Medina Canchon v. Canada (Minister of Citizenship and Immigration), No. IMM-3359-12, Noël, November 27, 2012; 2012 FC 1374, paragraph 28. 37 RPD reasons and decision, paragraphs 13, 14, 15, 20 and 21, pages 6 to 10 of the RPD record. 38 Appellant's memorandum, not paginated, paragraph 36. 39 RPD reasons and decision, paragraphs 26 to 29, page 12 of the RPD record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB5-04508 11