MB7-22105

RAD File No. / No Dossier de la SAR : MB7-22105 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 Ottawa, Ontario Appel instruit à Date of decision July 9, 2019 Date de la décision Panel Me Philippe Rabot Tribunal Counsel for the person who is the subject of the appeal Me Richard Wazana 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 OVERVIEW [1] The appellant, XXXX XXXX XXXX, a citizen of the Democratic Republic of the Congo (DRC), is appealing the decision of the Refugee Protection Division (RPD) which rejected her refugee protection claim. The appellant claimed that the police were searching for her and that she was the subject of a judicial inquiry for having insulted the president of the DRC, Joseph Kabila. The RPD concluded that the appellant's testimony was not credible, specifically because she did not submit any documentary evidence to corroborate her allegations. I find that the RPD's decision contains several errors, including the requirement that the appellant corroborate her testimony, the failure to comment on her credibility with respect to her claim that she was arrested and detained by the police, and the negative inference drawn from the fact that the appellant waited XXXX months after her arrival in Canada to submit her refugee protection claim. From my own analysis of the evidence, including the new evidence submitted on appeal, I find that the appellant's testimony is credible and that she has demonstrated that she still faces a serious possibility of persecution for having insulted the former president, Kabila. He left office in January 2019, but the appellant continues to face the same risk of being arrested and prosecuted if she returns to the DRC. The appeal is therefore allowed. The RPD's decision is set aside, and the appellant is granted refugee status. BACKGROUND [2] The appellant stated that she was arrested by police on XXXX XXXX, 2016, for yelling a demand for the XXXX XXXX of the country's president, Joseph Kabila, at a police patrol. She was released after her mother payed $XXXX to the police. She also had to agree to report to a police station XXXX every week and to pay $XXXX each time. [3] For several weeks, the appellant complied with this commitment. However, no longer having the financial means to pay the required amounts, she decided to hide. Police officers allegedly came to her family home twice in XXXX 2016 and told the appellant's father that she was wanted. To avoid discovery by the police, the appellant left the DRC on XXXX XXXX, 2016, with a study visa for Canada, where she arrived XXXX days later. Her refugee protection claim was submitted on XXXX XXXX, 2016. [4] In the RPD's written decision,1 it stated that it did not believe the appellant's allegations since no documentary evidence was provided to corroborate them. A summons2 stating that the appellant is the subject of a judicial inquiry, for [translation] "breach of state security and offence to the Head of State", was not considered to be authentic because it contained spelling errors and lacked a clear indication of who issued it. The RPD also concluded that the fact the appellant waited more than XXXX months after her arrival in Canada to claim refugee protection undermines her credibility regarding her alleged fear. [5] In the appellant's appeal memorandum,3 she states that the RPD erred in finding that she had an obligation to corroborate her testimony with documentary evidence. She also contests the RPD's conclusion on the authenticity of the summons, arguing that its wording is similar to that of other summonses. Finally, according to the appellant, the RPD should have considered the fact that she was arrested by the police on XXXX XXXX, 2016, for yelling slogans against President Kabila and that she was interrogated afterward by the police about her political affiliation. [6] Two new pieces of evidence are submitted in support of the appeal. The first document is titled "Ordre de Mission" [mission order] and dated XXXX XXXX, 2016,4 which is an arrest warrant against the appellant. In an affidavit attached to the appeal, the appellant explains that she provided this document to her counsel that represented her before the RPD but he did not present it to the panel. The second document is a reproduction of three summonses for other individuals issued by the public prosecutor's office. The purpose of this evidence is to demonstrate that the appellant's summons is very similar to other summonses. ADMISSIBILITY OF NEW EVIDENCE [7] The admissibility criteria for new evidence are provided in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). It must be evidence that was not reasonably available to the appellant before the RPD made its decision. I conclude that the appellant has demonstrated that this is the case for the summoses for other individuals. However, I am not persuaded that this is the case for the arrest warrant that the appellant acknowledges having access to before the RPD made its decision. [8] It was not established what the motive was for the appellant's former counsel to decide not to submit the arrest warrant as evidence. I cannot assume that this decision constitutes negligence on his part, especially since he did not have the opportunity to be heard on it. If this is what the appellant intended to claim, it would have been her responsibility to notify her former counsel of the accusation she intended to make against him and to give him the opportunity to respond in writing. [9] However, I find that the document containing other examples of summonses meets the admissibility test provided by subsection 110(4) of the IRPA. The relevance of this document was not clear before the RPD made its decision. From the hearing recording, there is nothing that would lead to a conclusion that the appellant should have realized the panel had concerns about the authenticity of the summons that was issued in her regard. In addition, the document submitted on appeal meets the admissibility criteria established by case law.5 This evidence is both credible and determinative, since it has a direct impact on the question of whether the appellant was the subject of a judicial inquiry in the DRC for having insulted the former president, Kabila. DETERMINATIVE ISSUES [10] In this appeal, these are the issues that I identified to determine the merits of the appeal: * Does the evidence establish that the appellant's testimony is credible, on a balance of probabilities? * If applicable, does the evolution of the political situation in the DRC, specifically the resignation of Joseph Kabila as president, eliminate the risk that the appellant would be subjected to if she returns to the DRC? SCOPE OF THE APPEAL [11] The Refugee Appeal Division reviews RPD decisions by applying the standard of correctness after conducting its own analysis of the record. The exception to this rule concerns the RPD's findings in assessing the credibility or weight to be given to the oral evidence it hears, in situations where it enjoys a meaningful advantage. [12] In this case, I am of the opinion that there are no findings for which the RPD enjoyed a meaningful advantage. Therefore, I have applied only the standard of correctness. MERITS OF THE APPEAL [13] There are at least three reasons for which the RPD's decision is ill-founded. First of all, it errs in stating that the absence of documentary evidence to corroborate certain allegations made by the appellant diminishes the probative value of her testimony. It was also too harsh in its judgment of the deficiencies identified in the summons issued against the appellant. Last, the appellant's delay in claiming refugee protection in Canada does not undermine her credibility. [14] At the outset, the RPD should have clearly stated whether or not it accepted that the appellant was arrested by police on XXXX XXXX, 2016, and detained in a police station because she had yelled slogans against President Kabila. Instead, the RPD chose to highlight the events that followed, such as the issue of the conditions of release that were imposed on the appellant. As such, the fact that she was arrested and detained for an act perceived as political in nature was likely to establish that the appellant was identified by the police as a political opponent. If this fact is established, it can be determinative to the analysis of a refugee protection claim that concerns a fear of persecution based on the claimant's political opinion. [15] In this case, the absence of documentary evidence to corroborate some of the appellant's allegations cannot be used as a reason by the RPD for a conclusion that the appellant's testimony as a whole lacked credibility. I am of the opinion that the RPD misinterpreted the requirements of section 11 of the Refugee Protection Division Rules. The case law establishes that a refugee protection claimant's testimony benefits from the presumption of truth at the outset.6 It is not necessary for the testimony to be corroborated by documentary evidence, unless there are contradictions, omissions or inconsistencies in the testimonial evidence. [16] The RPD implied in its decision that there were contradictions in the appellant's testimony. I do not believe that this is the case. She clearly testified that the payments required by the police from her and her mother were more like bribes than actual conditions of release set by law. I find that her testimony on this subject is credible, as is her testimony that the police started to search for her after she stopped making her weekly payments. [17] I also consider that the RPD erred in concluding that the appellant's summons by the public prosecutor's office was not authentic. While the RPD was right to state that there is a high prevalence of fake documents in the DRC, I find that the anomalies identified in the summons are relatively minor and wholly insufficient to justify a conclusion that it is a fake document. The new evidence submitted on appeal confirms that this is the usual state of this kind of document. Consequently, I conclude that the appellant has demonstrated, on a balance of probabilities, that her actions were reported by the police to the public prosecutor's office and that this subsequently led to a judicial inquiry. [18] Lastly, the negative inference that the RPD drew from the appellant's delay in submitting her refugee protection claim is not justified, in my opinion, because the RPD did not consider that the appellant had a student visa at the time that the appellant submitted her refugee protection claim. [19] For all these reasons, I set aside the RPD's decision. From my own own analysis of the evidence on the record, including the new evidence submitted on appeal, I consider that I am able to make a decision on the merits of the claim. In my opinion, the evidence establishes the following facts, on a balance of probabilities. First, the appellant was arrested by the police on XXXX XXXX, 2016, and detained in a police station after she yelled slogans against President Kabila. Second, the arrest and detention of the appellant are the result of this incident. Third, the appellant was required, as part of her release, to report to a police station XXXX XXXX and pay a sum equal to $XXXX. Fourth, the appellant stopped meeting these conditions, and the police went to her family home twice with the goal of arresting her. Fifth, the incident for which the appellant was arrested led to a criminal investigation by the public prosecutor's office, and the appellant failed to comply with a summons issued against her in the context of this investigation. Together, these facts show that the appellant would be subjected to serious possibility of being arrested upon her return to the DRC and of being the subject of a criminal investigation in relation to her political acts. This is sufficient to establish that she has met the requirements of section 96 of the IRPA in order to be recognized as a refugee. [20] In evaluating the risk that the appellant will be subjected to by returning to the DRC, I considered the recent political changes in the DRC. On January 25, 2019, President Kabila resigned from office and gave his position to the leader of one of the opposition parties. The appellant was asked to submit written observations on this subject, which she did. I have come to the conclusion that the political situation in the DRC is still unstable and that past political opponents are not safe in this country at the moment, especially given that the machinery of government, including the police, remains under the control of persons who worked under President Kabila. [21] Under the circumstances, I conclude that the appellant has discharged her burden to demonstrate that she would still be subjected to a serious risk of persecution on the grounds of her political opinion if she were to return to the DRC. CONCLUSION [22] The RPD erred in not commenting on the credibility of the appellant's claim that she was arrested and detained by police for her political opinion. The RPD also erred in concluding that the evidence did not establish that the appellant was the subject of a judicial inquiry for the incident for which the appellant was arrested. This evidence establishes that there is a serious possibility that the appellant would be persecuted if she returns to the DRC without state protection or an internal flight alternative. [23] The appeal is therefore allowed. The RPD's decision is set aside, and the appellant is granted refugee status. (signed) Philippe Rabot Philippe Rabot July 9, 2019 Date 1 RPD-1, RPD Record, pp. 3-10. 2 Ibid, page 125, Exhibit C-11. 3 P-2, Appeal Record, pp. 22-40. 4 Ibid, p. 12. 5 Raza v. Minister of Citizenship and Immigration. 2007 FCA 385; Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96. 6 Maldonado v. Canada (Minister of Employment and Immigration) [1980] 2 F.C. 302 (C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No Dossier de la SAR : MB7-22105 RAD.25.02 (April 4, 2019) Disponible en français 2 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.25.02 (September 18, 2018) Disponible en français