MB8-15641

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 / Dossier de la SAR : MB8-15641 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision November 5, 2018 Date de la décision Panel Susan Brown Tribunal Counsel for the person(s) who is(are) the subject of the appeal Solomon Orjiwuru Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the Appellant), a citizen of Cameroon, appeals a decision of the Refugee Protection Division (RPD), dated May 8, 2018, rejecting his claim for refugee protection. The Appellant fears persecution on two unrelated grounds: first, threats to his life related to a robbery; and, second, his political affiliation with the Southern Cameroons National Congress (SCNC). The RPD did not find the Appellant's claim credible on either ground. The Appellant does not submit any new evidence to the Refugee Appeal Division (RAD) under section 110(4) of the Immigration and Refugee Protection Act (IRPA) or request a hearing under section 110(6). Following my independent assessment of the evidence, testimony and arguments of the Appellant, I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [2] According to his Basis of Claim Form (BOC)1 the Appellant was born in XXXX in 1992. The Appellant alleges that he and his friends were the victims of a robbery while they were out together on December XXXX, 2013 and three laptops were stolen. A week later one of his friends accused the Appellant of being behind the theft. The Appellant says that he received multiple threats and attacks in the forms of text messages from anonymous telephone numbers and break-ins. On two occasions (February 22, 2014 and March 8, 2014) the Appellant's mother received texts warning her that the Appellant had limited time and would face severe consequences. The Appellant's apartment was broken into on May XXXX, 2014 and July XXXX, 2014 and both times items were taken and notes were left saying "your days are numbered." In August the Appellant secured a job in Douala and moved to live with his aunt but continued to receive threatening messages. The Appellant says that he filed reports about the threats with the police in both XXXX and Douala. After starting the visa application process in September 2014, the Appellant left Cameroon on January XXXX, 2015 entering Canada with a valid student visa to study at XXXX College. After arriving in Canada the Appellant received another threat on Facebook (sometime in February 2015). [3] Nearly two months after filing his original BOC the Appellant amended it to add a second narrative2 advancing a second claim for refugee protection by reason of his political opinion as a member of the SCNC. The Appellant says he joined the SCNC on August XXXX, 2012 in XXXX and participated in meetings, protest marches, rallies and propaganda campaigns including the distribution of flyers and recruitment of members. As a result of his SCNC membership he says he was arrested by the police on October XXXX, 2013 while taking part in an Independence Day march. He was detained and tortured for two days. His father persuaded the police that the Appellant was not a SCNC member so he was released with a verbal warning. The Appellant says that his father, a SCNC member and one of its local chiefs in XXXX, was arrested on March XXXX, 2016 and detained until March XXXX, 2016. On the day of his father's arrest the police searched the family home and found the Appellant's SCNC membership card. After his father confirmed the Appellant's SCNC membership during interrogation the authorities issued a convocation or summons against the Appellant. The Appellant fears that he would face arrest, detention and inhuman treatment at the hands of the Cameroonian authorities if he were to return. [4] The Appellant's original claim for refugee protection was received on January 29, 2016, the second narrative was received on March 21, 2016 and the Schedule A was amended at the RPD hearing on April 3, 2018. The RPD rendered its decision on May 8, 2018. SCOPE OF THE RAD REVIEW [5] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.3 The exception to this rule is where the RPD enjoys a meaningful advantage in assessing and weighing the oral testimony heard, which in particular cases attracts a standard of review of reasonableness adapted to the RAD.4 Unless specifically stated below, I have applied the correctness standard. ANALYSIS [6] The determinative issue on this appeal is the credibility of the Appellant. [7] The RPD found that the Appellant was not credible for the following reasons: * the omission of his claim for refugee protection by reason of his political opinion as a member of the SCNC in his original BOC and the omission of his arrest and SCNC membership in his refugee intake forms specifically Schedules 12 and A; * the absence of corroboration of the existence of the convocation allegedly issued against the Appellant in the supporting documentation; * his evasive testimony when confronted with the implausibility of the theft allegations; * the absence of the text messages corroborating the threats associated with the theft; * the Police Investigation Report submitted as evidence was not authentic; * the delay between receiving the Facebook threat in February 2015 and filing a refugee protection claim in January 2016 was not reasonable. [8] The Appellant argues that the RPD erred in all its findings that he lacked subjective fear and credibility in pivotal areas of his claim. [9] I have considered all of the Appellant's arguments regarding the RPD findings. I have also independently assessed the record and the testimony of the Appellant to determine whether he demonstrated that he is in need of protection on the basis of the threats associated with the alleged robbery or at risk of persecution on the basis of his SCNC membership and political opinion. As detailed below I have determined that the RPD did not make any determinative errors and the Appellant did not credibly demonstrate the central elements of either claim. Failure to include SCNC claim, membership and related detention in original refugee forms [10] The Appellant makes a number of arguments that the RPD erred in making negative credibility findings because he failed to include the SCNC claim in his original BOC, his SCNC membership in the Schedule A and his October XXXX, 2013 arrest in Schedule 12 of his refugee intake forms: (i) he had no ongoing problems with the authorities regarding his political activities in Cameroon following his release from detention; (ii) the arrest of his father in March 2016 posed a new risk factor; (iii) the SCNC is an outlawed organization in Cameroon and he did not think it was proper to include it in the Schedule A; (iv) he was self-represented when he completed the original refugee intake forms; (v) he took immediate steps to amend his BOC when the new risk arose in March 2016; (vi) the omission of reference to his arrest and detention in his BOC and Schedule 12 was inadvertent and does not detract from the fact in the face of corroborating evidence in the form of a letter from the SCNC Chairman (SCNC Chairman Letter)5. I will consider each of these arguments. (i) No ongoing problems [11] There is contradictory evidence on the record with respect to this argument. The Appellant's BOC says "[b]etween October 2013 and January 2016, I never had problems with the authorities in Cameroon as result of my SCNC membership and activities."6 This evidence is contradicted by the SCNC Chairman Letter which says the Appellant "has been regularly targeted by enemies, namely the Brutal colonial forces of La Republique de Cameroun" and "has been regularly threatened at different times and intervals and these threats also extend to his family as well." This contradiction which goes to the foundation of the Appellant's claim adversely affects both the Appellant's credibility and the credibility of SCNC Chairman's Letter. (ii) March 2016 arrest of father posed a new risk [12] The Affidavit of XXXX XXXX XXXX dated March 24, 2016 (2nd Lawyer Affidavit)7 does not support the Appellant's argument. It states that the deponent has served as legal counsel to the Appellant's family since 2006 and "[t]hat since May 2012 I have been called upon several times to defend and secure the liberty of [the Appellant's father] who is a militant of the ...SCNC." The 2nd Lawyer Affidavit details that the Appellant's father was elected the Divisional Secretary of the SCNC for Meme Division in May 2015 and was arrested and detained for two days in the same month. This evidence undermines another foundation of the Appellant's claim that there was a "new risk" in March 2016 related to his father's arrest because the 2nd Lawyer Affidavit says that his father had been detained on multiple occasions since 2012. (iii) the SCNC was an outlawed organization in Cameroon [13] The objective evidence does not support the Appellant's argument. The National Documentation Package for Cameroon (NDP) confirms that the SCNC was banned by the government of Cameroon on January 17, 2017.8 At the time that the Appellant was completing his original refugee intake forms in January 2016 the SCNC had not been outlawed (iv) Appellant was self-represented [14] The Appellant is well-educated having graduated with a Bachelor of Science degree in Management from the University of XXXX in 2013 and a Certificate in Project Management from XXXX College in 2015.9 As noted in a RAD decision10 "the instructions for completing the Basis of Claim (BoC) and refugee claim documents make it clear that the Appellant had the right to be represented by Counsel. The Appellant, however, has chosen to be self-represented." The Appellant's choice to be unrepresented when he completed his BOC is not a reasonable explanation for his failure to include information about his SCNC membership or his alleged arrest. (v) BOC amendment was responsive to new risk [15] As outlined above, the SCNC Chairman Letter and the 2nd Lawyer Affidavit both contradict the Appellant's evidence and argument that the SCNC claim was a new risk that arose in March 2016 following the arrest of the Appellant's father. (vi) Omission of reference to arrest [16] The Appellant's argument that his omission of reference to his arrest and detention in his BOC and Schedule 12 was inadvertent and does not detract from the fact of his arrest which is corroborated by the SCNC Chairman Letter is weakened by my finding that the SCNC Chairman Letter is not credible. [17] For the reasons outlined above I do not find any of the Appellant's arguments compelling. As prescribed by the Federal Court11 I find that the facts and circumstances of this case allow for an adverse inference to be drawn from the omissions. I agree with the RPD that the omission of the Appellant's claim for refugee protection by reason of his political opinion as a member of the SCNC in his original BOC and the omission of his arrest and SCNC membership in his refugee intake forms detracts from the credibility of his SCNC claim for protection. Failure to provide copy of convocation [18] The Appellant filed his amended BOC narrative outlining the SCNC claim on March 21, 2016 stating that a convocation or summons had been issued against him. The Appellant's argument about why he is not able to produce a copy of the convocation contradicts his BOC. The Appellant argues: "that he was unable to obtain a copy of the Convocation that was left at his home given that his father who was given the convocation was arrested and taken to jail for six days...[u]pon release..his father could not find the convocation."12 The BOC13 says the police conducted a search of the Appellant's home on the same day of his father's arrest, the Appellant's SCNC Membership card was found during the search, his father acknowledged the Appellant's SCNC membership during interrogation and that a convocation was issued against the Appellant. According to the BOC the Appellant's father would have already been in detention when the convocation was delivered to the Appellant's home. This contradiction relates to a central element of the Appellant's claim, that he is wanted by the authorities in Cameroon. In the face of this contradiction, the absence of corroboration of the existence of the convocation in the 2nd Lawyer Affidavit and the SCNC Chairman Letter affects the assessment of the Appellant's credibility. Evasive testimony, no evidence of texts and inauthentic Police Report [19] The Appellant argues that the RPD failed to pinpoint his evasive testimony in regard to the theft allegations. This is not correct. The RPD provided a specific example of the Appellant's evasive testimony where it asked the Appellant to explain how he could be accused of stealing the computers when he was out with his friends (roommates) when they were stolen and he avoided the question and identified another suspect.14 I have reviewed the audio recording of the Appellant's testimony and agree with the finding of the RPD that the Appellant did not answer the question posed, circled and avoided the question and eventually went on at length about another roommate.15 [20] The Appellant argues that his explanation for not providing evidence of the threatening texts, that he had a different telephone, was reasonable especially in light of the objective evidence submitted in the form of the Police Investigation Report.16 I note that the Appellant's BOC states that his mother received threatening texts on February 22, 2014 and March 8, 2014 but he did not explain why those texts were not submitted as evidence. [21] I agree with the Appellant that the RPD impugned the authenticity of the Police Investigation Report solely on the basis of spelling errors. It may be that spelling errors alone are not sufficient to make that determination, especially in light of the post-hearing evidence submitted by the Appellant about the prevalence of spelling errors in English-language texts in Cameroon.17 I have undertaken my own review of the Police Investigation Report and note a number of issues on its face including: * The Cameroonian motto in the pre-printed header is not properly capitalized in either French or English; * The titles used in the body of the report are not consistent with the pre-printed header of the report, i.e. the header says Directorate of Territorial Surveillance and the body of the report says Department of State Security and Territorial Surveillance; * Operational is misspelled as Operationnal in the pre-printed header; * Only the Appellant is identified by his full name in the report, his roommates are only identified by their given names (and XXXX might be a nickname) in the reference to the XXXX/12/2013 letter of complaint made about the theft; * The letter of complaint against the Appellant was made by his roommate, identified only as XXXX and is dated XXXX/12/2013 but was received on XXXX/12/2015, nearly two years later; * The report on the first count, the theft of the laptops, references three laptops belonging to four people and finds that the thief came from Douala (i.e. was not the Appellant); * The report on the second count, XXXX (again only identified by one name) accusation against the Appellant, says that the Appellant was proven not guilty; * The report on the third count, XXXX and XXXX (both identified by one name only) threats against the Appellant, says that an arrest warrant was issued against XXXX and XXXX who were arrested, made to sign an undertaking and granted bail based on the lack of witnesses. [22] I note that the procedure outlined in the report on the third count is inconsistent with criminal procedure in Cameroon as outlined in the objective evidence. According to the NDP, suspects detained by the police "can then be released unconditionally with the charges dropped, if the prosecutor does not find sufficient evidence against them; released on bail, or 'provisionally,' pending trial; or remanded in pre-trial detention."18 [23] The Cameroon Criminal Procedure Code (CPC) prescribes the manner in which bail is granted: Criminal Procedure Code, section 117: "At the close of the investigations, the suspect who has no known residence or who cannot fulfil any of the conditions referred to in section 246 (g) shall be arrested and taken before the State Counsel if there is strong corroborative evidence against him. A suspect who has a known residence or who fulfils one of the conditions provided for in section 246 (g) shall be released on bail;" Section 224 (1): "Any person lawfully remanded in custody may be granted bail on condition that he fulfills one of the conditions referred to in section 246 (g), in particular to ensure his appearance either before the judicial police or any judicial authority;" Section 246 (g): "in order to ensure his appearance he shall: - either deposit a sum of money, the amount and conditions of payment of which shall be fixed by the Examining Magistrate, taking into consideration the resources of the defendant; or provide one or more sureties in accordance with the provisions of sections 224 and following."19 (emphasis added) [24] The report says XXXX and XXXX were released on bail based on lack of witnesses which means that the charges were not dropped and they should have been remanded for further appearances. The reference to the lack of witnesses and the release on bail is not consistent with the objective evidence which suggests that they should have been "released unconditionally with the charges dropped, if the prosecutor does not find sufficient evidence against them."20 This is a serious contradiction. [25] The numerous issues I have identified on the face of Police Investigation Report and that it describes procedure inconsistent with criminal procedure in Cameroon, combined with the egregious spelling errors identified by the RPD, lead me to agree with the RPD that on a balance of probabilities the Police Investigation Report is a fraudulent document. Delay in filing refugee protection claim [26] The Appellant allegedly received a threat via Facebook in February 2015 but did not file his refugee protection claim until January 2016. Citing the Federal Court21 the Appellant argues that while delay in claiming is not a decisive factor in itself it is a relevant element that the tribunal may take into account in determining a claimant's subjective fear. It is a fact that the Appellant delayed in making his claim, however, I find that in this case delay is not determinative and can only contribute to a negative credibility finding. RAD credibility assessment [27] I have independently assessed the record and the testimony of the Appellant to determine whether he demonstrated that he is at risk of persecution on the basis of the threats associated with the alleged robbery or on the basis of his SCNC membership and political opinion. Threats [28] The RPD found that the Appellant's claim about threats to his life related to a robbery of laptops to be implausible. I note that an implausibility finding should be made only in the clearest of cases and must be thoroughly articulated.22 I am not convinced that the RPD has sufficiently met that requirement so I will do so. [29] The Appellant's claim is that his life is under threat because his friend XXXX accused him of stealing laptops from their room while the Appellant and his roommates XXXX, XXXX and XXXX were out on the night of December 7, 2013. The claim is implausible for the following reasons: * As detailed above the laptops were stolen while the Appellant was out with his friends and when confronted with the implausibility of his having stolen the laptops the Appellant gave evasive testimony; * According to his BOC the Appellant's own laptop was stolen; * The full names of the Appellant's accusers Sani and Ahmed are not given in any of the evidence; * The Appellant did not submit evidence of any of the threatening text messages he or his mother received, the threatening notes left in his apartment or a threat made on Facebook; and * For the reasons outlined above I found that the Police Investigation Report submitted as corroborative evidence by the Appellant was fraudulent. [30] I also find that that the Affidavit of XXXX XXXX XXXX dated March 20, 2016 (1st Lawyer Affidavit)23 is not credible corroborative evidence because the story detailed therein is inconsistent with the Appellant's BOC. For example, the BOC says the Appellant's mother received two text threats on February 22 and March 8 while the 1st Lawyer Affidavit says she received a text threat in January and the BOC says the Appellant filed reports on the threat with the local police in both XXXX and Douala while the 1st Lawyer Affidavit says that the lawyer wrote a complaint and filed with the police in XXXX. [31] I have independently assessed the record and the testimony of the Appellant and determined that, on a balance of probabilities, he has not demonstrated that he is a person in need of protection on the basis of the threats associated with an alleged robbery of laptops because his story is implausible, his testimony evasive and his corroborating evidence is not credible. SCNC [32] I have reviewed the record and the Appellant's testimony that he is an active member of the SCNC, that he was arrested in October 2015 and that a convocation was issued against him in March 2016. [33] While the Appellant's SCNC Membership Card24 appears to be genuine, he did not report his membership in his refugee intake forms and, as detailed above, the reason he gave for not doing so was not consistent with the objective evidence in the NDP. [34] There are also a number of issues related to the Appellant's alleged October 2013 arrest and detention: * he did not report it in the Schedule A of either of his refugee intake forms or his student visa application; * it is not reported in the criminal record check dated November XXXX, 2014 submitted for his student visa application;25 * it is not consistent that his father could be the "militant" member of the SCNC since 2012 as described in the 2nd Lawyer Affidavit and still be able to vouch to the local police that his son, the Appellant, was not a member of the SCNC to obtain his release; and, * the credibility of the only corroborative document, SCNC Chairman Letter has been impugned as detailed above. [35] I do not believe, on a balance of probabilities, that the Appellant was an active member of the SCNC or that he was arrested in October 2013. This finding is reinforced by the Appellant's own evidence that he had no trouble with the authorities between October 2013 and leaving for Canada. [36] There are also a number of issues related to the convocation allegedly issued in March 2015 which is the only evidence that the authorities in Cameroon are seeking the Appellant: * the absence of documentary evidence of the convocation; * the contradiction between the Appellant's argument and his BOC with respect to the reason why he was not able to submit evidence of the convocation as detailed above; and * the absence of corroborative evidence of the convocation. [37] I have independently assessed the record and the testimony of the Appellant and determined that, on a balance of probabilities, he has not demonstrated that he is at risk of persecution on the basis that he is an active member of the SCNC who is wanted by the authorities in Cameroon because he did not reference his SCNC membership or his October 2013 detention in his student visa application or his original refugee intake forms. I do not believe, on a balance of probabilities, he was arrested and detained in October 2013 or that a convocation was issued in March 2016. I find that the SCNC Chairman Letter is not credible independent corroboration. CONCLUSION [38] The Appellant has not established, on a balance of probabilities, that he is subject to threats to his life resulting from the robbery of laptops or that he is an active member of the SCNC and wanted by the authorities in Cameroon. As such, he has neither established that he faces a serious possibility of persecution in Cameroon, nor that on a balance of probabilities he would be personally subjected to a danger of torture, a risk to life, or a risk of cruel and unusual treatment or punishment in Cameroon. [39] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) Susan Brown November 5, 2018 Date 1 RPD-1, RPD Record, pages 14-28, Exhibit 2. 2 RPD-1, RPD Record, pages 27-28, Exhibit 6. 3 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93 (CanLII). 4 Ibid., and X (Re), 2017 CanLII 33034 (CA IRB). 5 RPD-1, RPD Record, page 198, Exhibit 7. 6 RPD-1, RPD Record, page 27, Exhibit 6. 7 RPD-1, RPD Record, page 240, Exhibit 9. 8 RPD-1, RPD Record, Exhibit 3, National Documentation Package for Cameroon dated April 30, 2018 (NDP), document 4.4 Cameroon's Anglophone Crisis at the Crossroads. Africa Report No250. International Crisis Group, Augut 2, 2017. 9 RPD-1, RPD Record, page 52, Exhibit 1. 10 X (Re), 2016 CanLII 107440 (CA IRB), paragraph 14. 11 Zhang v Canada (Citizenship and Immigration), 2007 FC 665 (CanLII). 12 P-2, Appellant's Record, page 25, Appellant's Memorandum, paragraph 17. 13 RPD-1, RPD Record, page 27, Exhibit 6. 14 RPD-1, RPD Record, page 9, paragraphs 25 and 26. 15 RPD Proceeding Audio, minutes 1:25:30-1:28:00. 16 RPD-1, RPD Record, page 234, Exhibit 8. 17 RPD-1, RPD Record, pages 242-260. 18 RPD-1, RPD Record, Exhibit 3, NDP, document 6.6, Human Rights Watch, Guilty by Association. Human Rights Violations in the Enforcement of Cameroon's Anti-Homosexuality Law, March 2013, page 13. 19 Ibid., page 14, footnote 16. 20 Ibid., page 13. 21 Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R 225 (F.C.A.) at 227. 22 Valtchev, Rousko v. M.C.I. (F.C.T.D., no. IMM-4497-99), Muldoon, July 6, 2001; 2001 FCT 776. 23 RPD-1, RPD Record, page 203, Exhibit 7. 24 RPD-1, RPD Record, page 196, Exhibit 7. 25 RPD-1, RPD Record, page 138, Exhibit 4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-15641 RAD.25.02 (September 18, 2018) Disponible en français 15 RAD.25.02 (September 18, 2018) Disponible en français