MB9-23289

RAD File No. / No de dossier de la SAR : MB9-23289 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 / entendu à Date of decision October 7, 2020 Date de la décision Panel Me Toni Jedid Tribunal Counsel for the person who is the subject of the appeal Samuel Cyrille Munyika 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] XXXX XXXX XXXX (the appellant) is a citizen of the Democratic Republic of the Congo (DRC). He is appealing the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection on the grounds of lack of credibility. [2] The appellant alleges that he was targeted by the authorities in his country due to his political opinion within the Mouvement lumumbiste progressiste (MLP) [progressive Lumumbist movement]. [3] The appellant submits that the RPD breached the principles of natural justice and procedural fairness. He submits that the RPD identified contradictions that are not significant and that its unfavourable conclusions with regard to his credibility are unfounded. The RPD, for its part, found that the appellant was not credible. [4] The determinative issues for the Refugee Appeal Division (RAD) are whether the RPD erred in its assessment of the appellant's credibility and whether it breached the principles of natural justice and procedural fairness. [5] I find that the appellant is not credible and that there was no breach of the principles cited. I am of the opinion that the RPD's determination is correct. DETERMINATION [6] I dismiss the appeal. The RPD did not err in determining that the appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [7] In his Basis of Claim Form (BOC Form), the appellant alleges that he was a mobilizing member of the MLP. On January 25, 2015, agents from the national intelligence agency allegedly went to his home looking for him because of his political activities and threatened his family. The security forces allegedly conducted an investigation and learned of his political participation and the fact that his father had contributed financially to the MLP. On XXXX XXXX XXXX 2017, he alleges that he was arrested by the national intelligence agency and detained for one month. On XXXX XXXX, 2017, he alleges that he left his country and travelled to Canada, where he made a claim for refugee protection. ANALYSIS Standard of review [8] In his appeal memorandum, the appellant cites the standard of reasonableness set out in Dunsmuir.1 [9] With all due respect, the RAD reviews RPD decisions and applies the standard of correctness after conducting an independent analysis of the available evidence. The RAD may apply a deferential standard in certain circumstances. I carried out my own independent examination of all of the evidence, including listening to the audio recording of the hearing, and I am of the opinion that the standard of correctness is the one that should be applied.2 [10] I note that in a letter addressed to the appellant and his counsel on September 16, 2020, bearing on the disclosure of the update of the National Documentation Package (NDP) on the DRC on May 11, 2020, the RAD indicated that it had received new information on October 1, 2020, that the arrest of the party's president, Franck Diongo, and the current situation of its members corroborated the basis of the appellant's claim for refugee protection and his testimony during the hearing. He refers to the objective documentary evidence, which mentions that the fact that an event, a person or a specific organization is not mentioned in that report does not preclude its existence.3 He submits that the RPD did not clearly establish what the [translation] "relevant elements" of the case were and what probative value they should be given. He submits that his problems occurred in the same time period and around Franck Diongo's arrest, as corroborated by his BOC Form and testimony. [11] Although I agree that the president, Franck Diongo, was arrested and detained, it is my opinion that these facts do not outweigh the contradictions observed in the appellant's testimony and do not consist of sufficiently new and different information from that in the RPD record. In the version dated March 29, 2019, the NDP on the DRC reported the arrest and detention of President Diongo and his supporters and, in my opinion, this information does not take into account the changes to the country's situation that have arisen since the publication of the latest version of the NDP on the DRC. Contradictions observed between the appellant's testimony and his BOC Form [12] In his appeal memorandum, the appellant submits that the RPD made errors in its assessment of his credibility. He submits that its conclusions were based on issues that had nothing to do with the merits of his claim for refugee protection. He submits that he was not asked any clear questions to determine the merits of his claim. He submits that he was not given any opportunity to present his case and to benefit from the right to make full answer and defence. He submits that the RPD concentrated all its efforts on questions concerning his father's political involvement although he was not able to put himself in his father's shoes to answer them. He submits that paragraphs 7 and following of the RPD's reasons related to issues that are irrelevant. He submits that during the hearing, the RPD only focused on what appeared, to it, to be contradictions, leading it to find that he was not credible. He submits that the RPD did not examine his subjective and objective fears. He submits that the RPD underestimated and failed to recognize the gravity of the situation in the DRC and the personal risk he faced, as well as the irrevocable consequences that could result from it. [13] I wish to indicate that the appellant is not disputing the RPD's unfavourable findings regarding his credibility in a concrete and precise manner. The appellant is simply citing case law principles without explaining in what way they are favourable to him or applicable to this case. [14] The RPD did indeed identify a contradiction between the appellant's testimony and his BOC Form concerning his and his father's involvement in their political party, namely, the MLP. The appellant declared that he joined the MLP and that, after that, his father had the idea to donate money to the party. In answering another question, the appellant stated that he joined the party in November 2014 since his father was already donating to the party. When confronted with the contradiction relating to his father's involvement, the appellant declared that his father started play a role at the same time as he did, but that his father was the first to do it.4 I am of the opinion that the appellant's explanations are inconsistent, and that the appellant adjusted his testimony as he went along to justify the contradiction that was observed. I am of the opinion that the contradictions pointed out are well-founded and are connected to a central element of the appellant's claim for refugee protection, namely, his political opinion. I note that the appellant's political involvement is at the core of his claim for refugee protection and I do not agree with his submissions that the RPD's questions with regard to it were not relevant. [15] Furthermore, I do not agree with the appellant's remark that he was not able to express himself during the hearing. I listened to the audio recording of the hearing and I note that the appellant's right to be heard in a fair hearing were not violated. The appellant does not explain in what particular circumstance his right to a fair hearing was contravened. The Refugee Appeal Division Rules state that the appellant's record must contain a memorandum that includes full and detailed submissions regarding the errors that are the grounds of the appeal and where the errors are located in the written reasons of the RPD's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the RPD hearing.5 The burden of establishing that the RPD erred falls on the appellant.6 [16] With regard to the subjective fear mentioned in the appellant's submissions, I am of the opinion that the RPD examined all of the evidence and correctly decided that the appellant did not meet his burden of demonstrating that he had a well-founded fear of persecution. [17] Altogether, it is my opinion that the RPD did not err and that its conclusion is correct with regard to the contradictions identified. Principles of natural justice and procedural fairness [18] In his appeal memorandum, the appellant submits that the RPD's findings breach the principles of natural justice and procedural fairness. He submits that he testified in a spontaneous, clear and precise manner, despite his stress. He submits that the RPD attempted to trick him in order to find contradictions between his testimony and the BOC Form. He submits that the RPD's determination is based on erroneous conclusions of fact and/or law, drawn in an abusive or capricious manner. [19] To start with, I wish to emphasize that the RPD identified significant contradictions between the appellant's testimony and his BOC Form. The contradictions it pointed out affect central elements of the claim for refugee protection. I do not agree with the appellant's submission that his testimony was consistent and spontaneous. The RPD's reasons and the audio recording of the hearing demonstrate the opposite. For example, the appellant's responses were evasive with regard to the goals of his party. They were contradictory with regard to the issuance of his membership card.7 I repeat that the RPD's conclusions on these issues are not disputed. [20] With regard to the stress factor, I agree that it is normal for a refugee protection claimant who is testifying before a panel to experience a certain amount of stress, but I am of the opinion that the stress to which the appellant refers does not satisfactorily explain the contradictions found in his testimony, which significantly undermine his credibility. [21] I examined the appellant's submission with regard to the principles mentioned above and I note that, apart from citing the principles established by the case law, he has not referred to any specific error made by the RPD. There is nothing in the evidence demonstrating that the RPD failed to meet its obligations. I am therefore of the opinion that the RPD did not err and that there was no breach of the principles of natural justice and procedural fairness. Prospective fear [22] The RPD informed the appellant of the easing of political tensions in the DRC since Félix Tshisekedi, of the opposition party Union pour la démocratie et le progrès social [union for democracy and social progress], became president in December 2018. It informed him that Franck Diongo of the MLP was released from prison in March 2019, as one of a total of 700 political prisoners. In response, the appellant declared that the situation does not reflect a true change and that he is still subjected to risk from the Kabila regime.8 He also stated that should he return to the DRC, he would make an effort to become the XXXX XXXX of his party. [23] The RPD was of the opinion that the appellant was not sincere in his political ambitions. It did not believe his allegations of fear and of a risk in the DRC due to his political opinion. [24] In his appeal memorandum, the appellant submits that the RPD engaged in hypothetical thinking in concluding that he was not sincere in his political ambitions when he affirmed that the situation did not reflect a true change and that he is still subjected to risk from Kabila and his forces. He submits that the RPD attempted to mislead him in order to draw negative inferences, as demonstrated in its analysis at paragraph 23 of its reasons. He submits that the RPD always arrives at its negative conclusion on the basis of its own perceptions of the situation and on the basis of pre-established preconceptions on the merits of his claim. [25] With all due respect, it is my opinion that the appellant's submissions are unfounded. First of all, I note that the RPD disclosed to the appellant the content of the NDP regarding the easing of political tensions since the new president, Tshisekedi, took office. The appellant has not produced any other evidence to rebut the information in the NDP. I am therefore of the opinion that the RPD is correct in basing its conclusions on the evidence in the NDP. [26] According to Human Rights Watch, there has been a decline in "political repression" in the DRC under the new government. Sources report that President Tshisekedi has freed political prisoners. Sources report that on March 13, 2019, Tshisekedi's government announced the conditional release of approximately 700 political prisoners under those orders. In September 2019, Human Rights Watch reported that most political prisoners and activists detained "solely for exercising their fundamental rights" were now free. According to Human Rights Watch, many activists and politicians in exile have been allowed to return to the country.9 [27] Furthermore, it is my opinion that some of the RPD's unfavourable conclusions, which, incidentally, are not disputed, are supported by the evidence. The RPD confronted the appellant with the inconsistencies between his testimony and the evidence on the record, and it concluded, correctly, that his explanations were not satisfactory. [28] In his appeal memorandum, the appellant submits that the RPD had prejudged the merits of his claim. I examined the evidence on the record and it did not contain any element suggesting that the RPD had prejudged the appellant's claim. I also note that such a serious allegation cannot be based solely on the appellant's suspicions, impressions or insinuations that the RPD prejudged his claim. In my opinion, the RPD's determination is correct on this matter. Weighing of evidence [29] In his appeal memorandum, the appellant submits that the RPD did not take all of the evidence into account. [30] I disagree with the appellant. In fact, the RPD's reasons clearly show that the RPD considered all of the evidence in its determination, including the appellant's membership card.10 Although the appellant produced a membership card, he did not succeed in dissipating the doubts with regard to its date of issue. His explanations that the card was only issued after his release in February 2017 are inconsistent with his allegation that he became a member of his party in November 2014. [31] I wish to point out that the appellant does not dispute the RPD's conclusions with regard to the allegations omitted in his BOC Form, to the effect that his arrest occurred further to his participation in a public demonstration on December 19, 20 and 21, 2016. The appellant also does not dispute the failure to indicate in his BOC Form that he had been injured during his arrest and his detention.11 I share the RPD's conclusions that these omissions are significant because they highlight central elements of the claim for refugee protection, namely, the harmful consequences related to his political opinion. [32] Finally, in his appeal memorandum, the appellant cites the presumption in Maldonado12 that a claimant's testimony must be presumed to be truthful. I agree with the appellant, but it is my opinion, however, that this is a rebuttable presumption that can be overturned if the decision-maker finds that the claimant lacks credibility. It has been well established that the RPD may consider a claimant to be not credible due to a variety of implausibilities, omissions, contradictions or inconsistencies. [33] In summary, it is my opinion that the RPD's determination is based on the evidence and that it is correct. CONCLUSION [34] I dismiss the appeal and confirm the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Toni Jedid Me Toni Jedid October 7, 2020 Date Original language: French IRB translation 1 Dunsmuir v. New Brunswick, 2008 SCC 9. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 SAR-1, National Documentation Package (NDP), Democratic Republic of the Congo, May 11, 2020, Tab 4.13: ?RDC : Information sur le Mouvement Lumumbiste Progressive (MLP). L'arrestation du président du parti Franck Diongo et la situation actuelle de ses partisans [DRC: Information on the progressive Lumumbist movement. The arrest of party president Franck Diongo and the current situation of its members]. France. Office français de protection des réfugiés et apatrides [French office for the protection of refugees and stateless persons]. August 14, 2018, at page 1. 4 Audio recording of the hearing on July 18, 2019, 01.0302 to 01.04.08. 5 Refugee Appeal Division Rules, SOR/2012-257, at subparagraph 3(g)(i) and (ii). 6 Dhillon v. Canada (Minister of Citizenship and Immigration), 2015 FC 321 (CanLII), at para. 16. 7 SPR-1, RPD record, refugee protection claimant's list of documents, Exhibit P-1, membership card, at p. 133-134. 8 Supra, footnote 4, 00.23.24. 9 SAR-1, NDP, Democratic Republic of the Congo, May 11, 2020, Tab 4.8: Treatment of opposition members, clergy members and members of the Union for Democracy and Social Progress (Union pour la démocratie et le progrès social, UDPS) since the 2018 elections (July 2019-January 2020). Immigration and Refugee Board of Canada. February 25, 2020. COD106401.FE, at page 12. 10 Supra, footnote 4, 01.04.27. 11 Ibid., 02.02.10, 02.12.24 and 02.28.50. 12 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 FC 302, 1 ACWS (2d) 167 (CA). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-23289 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français