MB7-25122

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 : MB7-25122 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 February 26, 2019 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Stéphanie Valois Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] The appellant, XXXX XXXX XXXX, a citizen of Djibouti, presented evidence before the Refugee Protection Division1 (RPD) and he stated that in 2013, he was part of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX which is led by XXXX XXXX XXXX. As a member of that party, he witnessed how the regime treats its opponents and he himself was arrested.2 [2] The RPD found that the appellant was not a credible witness, particularly because he was vague about his knowledge of his own party and because his answers contradicted his previous statements about his arrests.3 [3] On appeal, the appellant is presenting evidence, is requesting that a hearing be held and submits that the RPD relied on inconsequential facts when finding that he was not credible. He also submits that the RPD did not take into consideration his explanations about the omissions and inconsistencies it identified.4 The Refugee Appeal Division allows the appeal [4] Some of the evidence presented on appeal is admissible; there is no cause to hold a hearing and, in light of the new evidence that I concluded was admissible, there is cause to allow the appeal. Here is why. I. EVIDENCE PRESENTED ON APPEAL [5] Referring to rule 37 of the Refugee Appeal Division Rules (RAD Rules) and subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), the appellant requests that the Refugee Appeal Division (RAD) admit evidence that was not included in his appeal record.5 [6] In his affidavit, the appellant states that from February 1, 2018, to March 1, 2018, the president of XXXX, Mr. XXXX, came to Canada and he met with him several times in Montréal and Ottawa.6 He included photographs. He also included a communiqué and a report on the composition of the executive committee of XXXX Quebec branch, of which he is the XXXX XXXX, as well as photographs of some of the committee's activities. He also included photographs of a protest held in Montréal during which participants were calling for an end to dictatorship in their country and an end to the XXXX ban.7 [7] In my opinion, these documents are credible8 and are admissible as per the criteria set out in rule 29 of the RAD Rules9 and subsection 110(4) of the IRPA.10 [8] On the other hand, I am of the opinion that the statement signed by the president of XXXX XXXX XXXX XXXX XXXX, dated April 18, 2018, according to which the appellant has been a party supporter since 2013 and his activism has made him the target of the regime's hostility,11 is inadmissible. This statement is not related to any incident that arose after the appellant's refugee protection claim was rejected. Therefore, it does not meet the first criterion set out in subsection 110(4). Furthermore, the appellant did not file any submissions to establish that this statement was not available before his claim was rejected or, if it was, to explain why it was not submitted to the RPD. It therefore does not meet the second and third criteria of subsection 110(4) of the IRPA. II. HOLDING A HEARING BEFORE THE RAD [9] In his application, the appellant requests that a hearing be held before the RAD.12 Nevertheless, the onus is on the RAD to determine whether the criteria set out in subsection 110(6) of the IRPA have been met.13 [10] Pursuant to subsection 110(6) of the IRPA, when evidence or written submissions presented on appeal are found to be admissible, it must be determined whether they raise a serious issue with respect to the credibility of the person who is the subject of the appeal, whether they are central to the decision with respect to the refugee protection claim, and whether they justify allowing or rejecting the claim. If the answer is yes, the RAD may hold a hearing. [11] In my opinion, there is no cause to hold a hearing in this case, given that the documents I found admissible on appeal demonstrate the appellant's political involvement in the XXXX and given that I am able to decide this appeal by analyzing the documentary evidence. III. ANALYSIS OF THE APPEAL [12] The RAD reviews RPD decisions applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule is where the RPD enjoys a meaningful advantage in assessing credibility.14 That said, the role of the RAD is not to carry out a de novo consideration of refugee protection claims, but rather, to determine whether, as submitted by the appellants, the RPD erred.15 [13] In this case, in the light of new evidence I found to be admissible on appeal, it is clear to me that the RPD committed an error in doubting the appellant's credibility with respect to his involvement in XXXX, at least since he arrived in Canada. [14] In light of the most recent documentary evidence, it is also clear to me that the authorities in Djibouti have a zero-tolerance approach to XXXX activities and party members. In fact, this opposition party is banned in Djibouti, and political and public leaders and everyday citizens who speak out against the authorities are beaten, harassed and sometimes arbitrarily arrested, all against a backdrop of government corruption and a lack of respect for decisions made by human rights organizations.16 [15] In light of the most recent documentary evidence, I am of the opinion that it is unnecessary for me to provide a lengthy analysis of the presumption that the state has the desire and operational ability on the ground to adequately protect an individual such as the appellant.17 I am of the opinion that the documentary evidence establishes that this presumption is now rebutted in Djibouti with respect to an individual who, because of their political involvement within the XXXX, fears becoming a victim of the abuses committed by the country's authorities. CONCLUSION [16] For these reasons, I set aside the RPD determine and substitute the determination that, in my opinion, should have been made in light of the evidence as a whole, namely, that XXXX XXXX XXXX is a refugee pursuant to section 96 of the IRPA. [17] The appeal is allowed. Alain Bissonnette Alain Bissonnette February 26, 2019 Date IRB translation Original language: French 1 The documents are reproduced at pages 65 to 72 of the Refugee Protection Division (RPD) record. 2 Basis of Claim Form, August 21, 2017, pages 10 to 22 of the RPD record. 3 RPD Reasons and Decision, December 4, 2017, pages 3 to 9 of the RPD record. 4 Appellant's memorandum, received by the Immigration and Refugee Board (IRB) on January 18, 2018, pages 9 to 13 of the appeal record. 5 Appellant's application, affidavit and documents, received by the IRB on June 19, 2018, 45 pages, page 1. 6 Ibid., pages 2 and 3. 7 Ibid., pages 4 to 37, 39 and 40. 8 Dirieh v. Canada (Minister of Citizenship and Immigration), No. IMM-5149-17, Ahmed, September 20, 2018; 2018 FC 939, paragraph 27. 9 Refugee Appeal Division (RAD) Rules, SOR/2012-257. 10 Canada (Citizenship and Immigration) v. Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96. 11 Appellant's application, affidavit and documents, received by the IRB on June 19, 2018, page 38. 12 Ibid., page 1. 13 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018; 2018 FC 147, paragraph 18. 14 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb, Near, March 29, 2016; 2016 FCA 93. Rozas del Solar v. Canada (Minister of Citizenship and Immigration), No. IMM-2645-17, Diner, November 14, 2018; 2018 FC 1145. 15 Canada (Minister of Public Safety and Emergency Preparedness) v. Gebrewold, No. IMM-4058-17, LeBlanc, April 6, 2018; 2018 FC 374, paragraph 25. Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. 16 Immigration and Refugee Board of Canada, National Documentation Package (NDP) on Djibouti, June 29, 2018, Document 2.1: United States of America, Department of State, Djibouti. Country Reports on Human Rights Practices for 2017, April 28, 2018, 26 pages, pages 1, 7, 8, 9, 13, 16 and 17. Ibid., Document 2.6: Research Directorate, IRB, Treatment of political dissidents, journalists and defenders of freedom of the press by the authorities (2016-May 2017), Response to Information Request DJI05810. FE, June 16, 2017, 13 pages. 17 G.S. C.S. v. Canada (Minister of Citizenship and Immigration), McDonald, June 15, 2017, No. IMM-4152-16 ; 2017 CF 599, paragraphs 14 and 15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB7-25122 3 RAD.25.02 (2014.09.11) Disponible en français