MB7-16088

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 : MB7-16088 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision October 2, 2018 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the appellant(s) Me Dieudonne Kandolo Conseil(s) du (de la/des) appelant(e)(s) Designated representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS AND DECISION INTRODUCTION [1] This is the appeal filed by XXXX XXXX XXXX against a decision of the Refugee Protection Division (RPD) rendered on November 1, 2016, rejecting his refugee protection claim. [2] The appellant is asking the Refugee Appeal Division (RAD) to allow the appeal and to determine that he is a Convention refugee or a person in need of protection. [3] The appellant is seeking to present new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act1 (IRPA) and is asking that a hearing be held pursuant to subsection 110(6) of the IRPA. [4] The Minister's representative did not intervene on appeal. DETERMINATION [5] Pursuant to subsection 111(1) of the IRPA, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. [6] The appeal is dismissed. ALLEGED FACTS [7] According to the Basis of Claim Form (BOC Form), the appellant is a citizen of Djibouti who was born on XXXX XXXX, 1984. [8] He alleges in his written account that, in XXXX 2013, he joined the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX [XXXX XXXX XXXX XXXX XXXX XXXX]. Still in XXXX 2013, eight opposition parties, including his own, formed a coalition to run in the legislative elections of XXXX 2013. [9] On XXXX XXXX, 2014, activists and leaders from his party were arrested. The appellant was put in charge of communications. His problems began in XXXX 2014. [10] On XXXX XXXX, 2014, armed officers broke down the door of his home. Ten days later, he was arrested and detained for one day. [11] On XXXX XXXX, 2015, the appellant was arrested and detained for approximately XXXX months. He was released on XXXX XXXX, 2015. At that point, he decided to flee the country. [12] On XXXX XXXX, 2015, during a cultural ceremony, the government cracked down on the demonstrators. [13] With a passport and a Canadian visa issued on XXXX XXXX, 2016, he left his country on XXXX XXXX of the same year and went to Ethiopia, arriving in Canada on May 19, 2016. He indicated his intention to claim the protection of our government on August 7, 2016. IMPUGNED DECISION [14] The RPD rejected the appellant's refugee protection claim after determining that he was not a Convention refugee or a person in need of protection because of he lacked credibility. APPELLANT'S ARGUMENTS [15] The appellant submits that the RPD erred in assessing his credibility and that he did not testify in a hesitant and vague manner. He adds that the first panel looked for contradictions regarding his incarcerations and the number of people imprisoned in order to reject his claim. Furthermore, the appellant submits that the panel erred in its analysis of the XXXX XXXX sub-clan. SCOPE OF THE APPEAL [16] For questions of fact, of law, and of mixed fact and law, the RAD has applied the standard of correctness in accordance with Huruglica.2 In assessing issues involving the credibility of oral testimony, the RAD may apply the standard of reasonableness, modified to the RAD's context, in those situations where it indicates and explains that it is of the view that the RPD enjoys a meaningful advantage in making credibility findings, as per the decision in X(Re).3 [17] I conducted an independent assessment of all the evidence on the record, including a thorough reading of the full transcripts of both hearings, in order to form my own opinion about this refugee protection claim and to determine whether the decision rendered by the RPD is correct. ADMISSIBILITY OF THE NEW EVIDENCE BEFORE THE RAD [18] The appellant is requesting that the RAD admit new evidence under subsection 110(4) of the IRPA. It is an excerpt from the Journal officiel de la République de Djibouti [official gazette of the Republic of Djibouti], publishing the Code de la famille de Djibouti [Djibouti family code] and, specifically, article 80 of that Code regarding adoption. This document is dated January 31, 2002. [19] The purpose of this document is to demonstrate that adoption does not exist in Djibouti. It should be noted that the hearing was held in two stages, on October 5 and 11, 2016, and that the decision is dated November 1, 2016. The appellant must demonstrate that the new evidence complies with the requirements of subsection 110(4) of the IRPA. Thus, the person who is the subject of the appeal may present to the RAD only evidence that arose after the rejection of the 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. [20] Counsel filed this document to support his assertions with respect to adoption. First, the document submitted predates the hearing; as well, there was no disagreement between the refugee protection claimant and the member on that subject. He used the word adoption many times to mean that he had taken an abandoned young child into his family. The issue with respect to this child relates to the family's dealings with the authorities and not whether the child is actually adopted or not. The panel will come back to this in the analysis. [21] For these reasons, the RAD finds that this document is not admissible as evidence under subsection 110(4) of the IRPA. HEARING BEFORE THE RAD [22] The appellant is asking the RAD to hold a hearing under subsection 110(6) of the IRPA. Subsection 110(6) of the IRPA states that the RAD may hold a hearing if, in its opinion, there is new evidence that is admissible and it meets the three conditions listed.4 In this case, I find that it is not appropriate to hold a hearing since the new evidence received (the excerpt from the Journal officiel de la République de Djibouti publishing the Code de la famille) that the appellant wanted to present was found to be inadmissible under subsection 110(4) of the IRPA. [23] For these reasons, the request to hold a hearing before the RAD is denied. ANALYSIS [24] Having reviewed all the testimonial and documentary evidence on the record, the RAD has arrived at the same conclusion as the RPD, namely that the appellant is not credible. [25] In the appellant's view, the RPD erred when it stated that he gave vague testimony with respect to the event of XXXX XXXX, 2014. The RPD pointed out to the appellant that at that time the couple had only one child. It was then that he informed the first panel of the arrival of a little girl whom the couple adopted because they found her alone in the street. The RAD is of the opinion that, on top of the fact that this little girl the couple took in constitutes an omission from and addition to the written account and the BOC Form, this portion of the testimony is erratic. This found child was only a year old, according to him! Asked to explain why this was not mentioned on the form, the appellant replied that since she had died as a result of diarrhea a few months later, he did not believe it necessary to include her on the BOC Form. The RAD must reject that explanation, because it is clearly stated on the form to include all significant events from the past, and the appellant indicated at the start of the hearing that the said form was complete and correct, to the best of his knowledge. This major omission greatly undermines his credibility, and his testimony on that part of the story is hesitant and muddled. [26] The RPD properly analyzed that portion of the hearing. [27] The second point raised in the memorandum is about the fact that the appellant's wife cared for one or two children. The other point raised relates to the detention facility where the appellant was allegedly held. The RPD indicates in its decision that, considering that her adopted daughter had died in XXXX 2014, the appellant's wife could only care for one child, whereas the adopted child had already died of a serious illness. The appellant argues that this does not change his claim. The RAD is of the opinion that this does not change the written account that was filed. However, he testified that his wife was caring for two children when there was only one; the fact that this child was adopted in special circumstances and that she died after a long illness should have left a mark on the family. The story filed at the hearing is convoluted because sometimes the appellant indicates that there is one child and sometimes that there are two children in the family. This cannot be considered clear testimony. The RAD is of the opinion that this is not a minor contradiction. On the contrary, the number of children is an element to be considered, especially in the alleged circumstances. This undermines the appellant's credibility. [28] The other point raised involves the description of the prison where the appellant was allegedly taken. The debate is around identifying the name of the prison and who is detained there. The RPD indicates that the appellant's testimony was hesitant. Asked to name the location, he stated that he did not know and then that it was a place for political opponents. The RAD is of the opinion that the appellant's testimony is definitely hesitant, and even contradictory. He did not know the name of the prison, and then stated that opponents were incarcerated there. Worse, upon release, he walked for approximately thirty minutes to return home. This place seems to be located in his district, as it is just walking distance, a stone's throw from his home. The paucity of information provided to the panel greatly undermines his credibility, considering that this location where he was held against his will might have been of interest. Being incarcerated is no trivial matter and, furthermore, the location is near his home. [29] The RPD did not err on these two points. [30] The appellant cites another element in his lengthy memorandum: the number and names of the people who were arrested with him on XXXX XXXX, 2015. He submits that it is not necessary for him to remember all of the names of the people who were arrested. The RPD indicates that the appellant was unable to provide any details. Indeed, the appellant hesitated a great deal in this portion of the testimony. He indicated that several people were arrested when the police raided the party headquarters. He added that he knew them. He went on to state that he did not know their roles and responsibilities. However, the appellant indicated that the party office is just a little room with two computers, a printer and tables and chairs. It is curious, to say the least, that a person who works long hours for his political party and who stated that he goes there five evenings a week to do volunteer work should be unable to identify the other people in the party and their roles. The RAD would also point out that the appellant's testimony changed from one question to the next. When they were more sensitive or difficult, he indicated that he did not understand the question and asked for it to be repeated. [31] The panel rejects the explanations provided. [32] Another point raised in the memorandum concerns his imprisonment and the RPD's attempt to find contradictions in order to reject the claim. What is the reality? The RPD asked the appellant if he was imprisoned in the same place both times. The answer was that he did not remember. The reason provided was that he was in a group on the second occasion. As well, the appellant later indicated that it was because of his injury that he could not remember the location. Again, the appellant's testimony was arduous and varied throughout the hearing. He indicated that he was taken to the XXXX prison, which is the central prison. He added that he did not know if this was the same prison where he was detained when he was arrested the first time. Considering the fact that he knows the location of the first prison because he was released from there and that he walked home, the hearing testimony is contradictory. [33] The RPD did not err on this point. [34] The surveillance of his home was a point that was addressed during the hearing. The appellant stated that this [translation] "was not the aspect of the persecution that made him seek political asylum." It was incidental, he added. The RPD indicates that it was an addition to his written account and that he hesitated during the hearing. He indicates that he wanted to offer details at the hearing. Despite the explanation offered by the appellant in his memorandum to the effect that this is not the central point of his claim, it must be noted that the appellant was being watched for XXXX days. He could not leave his residence from XXXX XXXX to XXXX, 2015. Again, the RAD notes that this is an addition to his written account and that it is significant, to say the least, because the family could not leave the house for XXXX consecutive days. The argument to the effect that he wanted to give details at the hearing does not hold water. The details are required by the member and the lawyer representing the person. Again, I come back to the fact that all refugee protection claimants must complete their information form correctly. Moreover, he was helped by his counsel, who prepared him for this. I am of the opinion that this element is significant enough that it ought to have been included in the written account that was filed. This major omission undermines, once again, the appellant's credibility. [35] The RPD looked at the appellant's membership in the XXXX. The appellant indicates that he could be persecuted by the government because he is a member of a political party. The RPD found that the membership card served only to establish that he is a party member, not an active or important member. The RAD is of the opinion that his involvement in the party is limited to communications, according to his testimony. The panel of first instance could have been more explicit concerning his involvement. I understand that the appellant had a role within the party in his community, but he was not on the national executive and did not have a major role or public presence. In that sense, he was not a member of the political party leadership. In light of the appellant's hesitant and laboured testimony, the RPD was right to point out that it assigned little weight to the membership card. [36] The RPD did not err on this point. [37] In the memorandum, he also asserts that his dealings with the XXXX authorities in North America are not contradictory. The RPD found that there were contradictions in the chain of events. The RAD is of the opinion that his testimony on the subject is convoluted at the very least. He testified that he obtained this letter upon his arrival in Canada. He corrected that statement, indicating that he contacted these individuals in XXXX 2016. Already, I see an error of three months arising. The content of the letter from the Ottawa office indicates that the appellant was arrested and not imprisoned. This contrasts with his testimony to the effect that he was imprisoned on two occasions. He testified that his party's authorities in Ottawa communicated with those in Djibouti to learn the details of his past in the country. The conclusions are not similar. Accordingly, the RAD has serious doubts as to his membership and his involvement in the party because the information is contradictory. I can only draw a negative conclusion from this letter. [38] The last point raised by the appellant is his description of himself as someone from the XXXX XXXX sub-clan. He adds that members of this sub-clan are persecuted by the current regime. The RPD's position on this issue is that the government may persecute these individuals, not because of the sub-clan they are from, but because of their political opposition. The appellant seemed to have quite a bit of difficulty giving his testimony about the recognition of individuals associated with the XXXX XXXX sub-clan. He indicated that one is recognized at first by one's tribe and after by the sub-clan one is from, XXXX XXXX in his case. He added that, at work, one is recognized as coming from a sub-clan. The surname is of no importance, according to him. People ask what tribe you are from and then what sub-clan long before they ask what your surname is. The appellant testified that it was because of his opposition to the government that he lost his job in the XXXX XXXX. His arguments contained in the memorandum fall flat because they contradict the hearing testimony. He indicates as follows: "... The members of this sub-clan are recognized by their names, and also, they identify themselves as such with other Djiboutians. The claimant's testimony relates to his culture, and the panel is obliged to believe this testimony because it has no information to contradict it." [Translated as it appears in the French version.] Considering that he was under house arrest during that period and that he did not take part in the activity of XXXX XXXX, 2015, his problems, by his own admission, stem from his political opinion and not his membership in the XXXX XXXX sub-clan. Furthermore, as mentioned above in the analysis, his work or his political involvement seem quite tenuous and not very public. The RAD shares the RPD's conclusion to the effect that the appellant has not adduced sufficient credible and reliable evidence to establish that he would be persecuted by reason of his membership in the XXXX XXXX sub-clan. [39] The RPD did not err on this point. [40] For the reasons set out in this decision, the RAD is of the opinion that the RPD's decision was right and correct. REMEDY [41] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the same act. [42] The appeal is dismissed. Michel Jobin Me Michel Jobin October 2, 2018 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Canada (Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., No. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 X(Re), 2017 CanLII 33034 (CA IRB). 4 M.C.I. v. Singh, 2016 FCA 96, paragraph 51. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB7-16088 11