MB6-03326

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 : MB6-03326 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 June 7, 2017 Date de la décision Panel Me Marie-Louise Côté Tribunal Counsel for the person who is the subject of the appeal Me Azadeh Tamjeedi Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] This is an appeal filed by XXXX XXXX XXXX against a decision rendered on April 20, 2016, by the Refugee Protection Division (RPD) rejecting his refugee protection claim and determining that he is neither a Convention refugee nor a person in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant is asking the Refugee Appeal Division (RAD) to allow the appeal, refer the matter to the RPD for another hearing, or grant him status as a Convention refugee or a person in need of protection. [3] The appellant presented new evidence pursuant to subsection 110(4) of the IRPA. He is asking the RAD to hold a hearing under subsection 110(6) of the IRPA. [4] The Minister did not intervene on appeal. DETERMINATION OF THE APPEAL [5] Pursuant to subsection 111(1) of the IRPA, the RAD allows the appeal, sets aside the determination of the RPD and substitutes it with the determination that, in its opinion, should have been made, namely, that XXXX XXXX XXXX is a "Convention refugee" under section 96 of the IRPA. [6] The appeal is allowed. FACTUAL BACKGROUND [7] The appellant is a citizen of the Democratic Republic of the Congo (DRC) who worked as the head of missions of the deputy minister of the ministry of planning and revolution of modernity. On March 15, 2015, he was arrested by soldiers because of his presence at the official launch ceremony for Filimbi, a new pacifist civilian action movement of Congolese youth. He was detained, abused and humiliated in a cell of the Agence nationale de renseignements [national intelligence service] (ANR). At the end of the second day, he managed to flee the prison and hide with the intervention of the deputy minister. In April 2015, police officers ransacked his house, and struck and threatened his spouse. In July 2015, agents from the ANR gave his spouse a letter for the appellant to appear at their offices. The appellant left the DRC on XXXX XXXX XXXX XXXX. IMPUGNED DECISION [8] The RPD rejected the appellant's refugee protection claim because it found that he was generally not credible because of omissions, contradictions and inconsistencies in his testimony. It drew a negative inference regarding his credibility based on three factors, that is, the misrepresentations in his Canadian visa application, the failure to mention in his Basis of Claim Form (BOC Form) the alleged sexual abuse and the absence of evidence corroborating his allegation that the RPD had recognized his colleague XXXX XXXX XXXX XXXX XXXX XXXX as a refugee. APPELLANT'S ARGUMENTS [9] The appellant submits that the RPD erred by making findings regarding his credibility, and that it failed to assess the objective basis of his refugee protection claim. ADMISSIBILITY OF NEW EVIDENCE [10] The RPD hearing was held on March 30, 2016, and the decision to reject the refugee protection claim was dated April 20, 2016. [11] The appellant is requesting that the RAD admit new evidence under subsection 110(4) of the IRPA. It is the RPD's reasons and decision concerning XXXX XXXX XXXX XXXX XXXX XXXX [12] The admissibility of new evidence before the RAD falls under subsection 110(4) of the IRPA and jurisprudential tests. [13] Subsection 110(4) of the IRPA states that the person who is the subject of the appeal may present to the RAD only evidence that arose after the rejection of their 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. [14] In Singh,1 the Federal Court of Appeal insists on a narrow interpretation of subsection 110(4) of the IRPA. It indicates that the explicit conditions set out therein have to be met and leave no room for discretion on the part of the RAD. Moreover, the implied conditions of admissibility identified in Raza are also applicable, subject to certain adaptations, specifically credibility, relevance and newness.2 However, the Court adds that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case.3 [15] In this case, the new evidence is the RPD's positive decision concerning the appellant's colleague (XXXX XXXX XXXX XXXX XXXX.) rendered on April 11, 2016.4 That decision was rendered before his claim was rejected on April 20, 2016. [16] I am of the opinion that the appellant demonstrated that that evidence was not reasonably available before the RPD's rejection of his claim for the following reasons. [17] The record does not indicate when the RPD decision concerning XXXX XXXX XXXX XXXX XXXX XXXX was mailed or when it was received. One thing is certain-the Refugee Protection Division Rules5 indicate that a document provided by regular mail is considered to be received seven days after the day on which it was mailed. Because the notice of decision is dated April 11, 2016, it is reasonable to believe that XXXX XXXX XXXX XXXX XXXX. received the RPD decision on or around April 18, 2016, at almost the same time as the rejection of the appellant's claim. Consequently, the appellant's claims that it was in late April 2016 that he learned of the decision concerning XXXX XXXX XXXX XXXX XXXX XXXX and obtained her consent to present it in support of his refugee protection claim seem reasonable. [18] The RPD decision concerning XXXX XXXX XXXX XXXX XXXX XXXX is credible. It is relevant because it is evidence from which the RPD drew a negative inference regarding the appellant's credibility. The facts in that matter are similar to those alleged by the appellant in that his colleague XXXX XXXX XXXX XXXX XXXX. was arrested and abused by the authorities because of her participation in the Collectif Filimbi conference on March 15, 2015, and that she was able to get out of prison with intervention from their superior. [19] Moreover, the decision concerningXXXX XXXX XXXX XXXX XXXX XXXX. meets the newness criterion in that it provides evidence that the appellant was unaware of before the rejection of his claim, that is, that the RPD had recognized his colleague as a Convention refugee. [20] For these reasons, the RPD decision concerning XXXX XXXX XXXX XXXX XXXX. is admitted into evidence under A-1 because it meets the explicit conditions mentioned in subsection 110(4) of the IRPA. HEARING BEFORE THE RAD [21] The appellant is requesting a hearing under subsection 110(6) of the IRPA. He argues as follows in his appeal memorandum: [Translation] 18 In addition, we are asking for a hearing because we are submitting that the evidence on the record contradicts the credibility and identity findings concerning the appellant. We are asking that the hearing be held in French in Toronto.6 [22] Subsection 110(6) of the IRPA sets out that the RAD may hold a hearing if, in its opinion, there is new evidence that is admissible and that meets the three conditions listed.7 The new evidence must raise a serious issue with respect to the credibility of the person who is the subject of the appeal; be central to the decision with respect to the refugee protection claim; and, if accepted, justify allowing or rejecting the refugee protection claim. Furthermore, the RAD is not required to hold a hearing merely because it is admitting new evidence.8 [23] In this case, I am of the opinion that there is no reason to hold a hearing because the appellant did not demonstrate how the RPD decision concerning his colleague could justify allowing or rejecting his refugee protection claim. [24] For these reasons, the request to hold a hearing before the RAD is denied. SCOPE OF THE APPEAL [25] The role of the RAD in considering an appeal is defined by the Federal Court of Appeal in Minister of Citizenship and Immigration v. Huruglica9 and by the three-member RAD panel in the case of X(Re), 2007 CanLII 33034 (CA IRB),10 the decision of which has precedential value for this panel under paragraph 171(c) of the IRPA. [26] As established in Huruglica, mentioned above, the RAD must conduct an extensive, thorough, comprehensive and independent review of the evidence filed. The RAD must usually apply the standard of correctness to all RPD findings. [27] However, with respect to RPD findings that are based on the credibility of oral testimony, the RAD must determine, in each case, whether it owes a measure of deference, by determining whether the RPD enjoyed a meaningful advantage. When it finds that it owes deference, the RAD must explain how the RPD enjoyed a meaningful advantage in arriving at its credibility finding. When appropriate, the RAD may assess the finding based on the standard of reasonableness, by adapting the standard to the context of the RAD, as set out in X(Re), 2007 CanLII 33034 (CA IRB). [28] In this case, I will give deference to the RPD's findings if I am of the opinion that it enjoyed a meaningful advantage in assessing the appellant's testimony. Nevertheless, I will review the overall credibility finding on a standard of correctness. ANALYSIS [29] It must be determined whether the RPD erred by finding that the appellant is not credible. [30] Having listened to the recording of the hearing before the RPD and reviewed the RPD's record as a whole, the appeal record and the new evidence admitted under subsection 110(4) of the IRPA, I will not give deference to the RPD's findings because I am of the opinion that it did not enjoy a meaningful advantage in assessing the appellant's testimony. [31] For the following reasons, I am of the opinion that the RPD's overall finding regarding the appellant's credibility is incorrect. A. Visa application [32] The RPD made a negative finding regarding the appellant's credibility because his application for a Canadian visitor visa contains misrepresentations about his siblings, his studies and his adopted children. The RPD did not accept his explanations, that is, that he could not declare his brother because he did not have his date of birth when he completed his visa application and he was not the one who completed the forms for that application. [33] The appellant argues that the RPD erred by using the false visitor visa application to undermine his credibility. It is an error of law that should be assessed on the "correctness" standard. [34] On the one hand, I am of the opinion that the issue of the visa application is generally of a very limited value for the purposes of assessing the general credibility of a refugee protection claimant with regard to the basis of the claim.11 It is often necessary to use false documents to flee a country of persecution.12 [35] In this case, the RPD erred by drawing a negative inference from the fact that the appellant lied in the application that was reviewed by a visa officer.13 I conclude that the RPD placed too much importance on the issue of the visa, which is wholly peripheral and detrimental to the facts that make up the basis of his refugee protection claim. [36] On the other hand, the appellant's misrepresentations are not of such a nature as to have an excessive negative effect on his overall credibility given that his explanations seem reasonable considering the particular context in which the visa application was completed. The appellant testified that he was on the run and was hiding from the government authorities. He was confused and was losing his memory. It was the deputy minister who made all the arrangements for his trip by using the pretext of training in Canada, which the appellant never had the intention of attending. She appointed her protocol officer, who took over the procedures necessary to obtain a visa. That intermediary went to see the appellant with some forms that he asked him to partially fill out and quickly sign. The purpose of the misrepresentations in the visa application was to improve his chances of obtaining it in order to leave the country as smoothly as possible. B. Omission of the sexual abuse [37] The RPD made a negative finding regarding the appellant's credibility because he failed to mention in his BOC Form the sexual abuse that he was allegedly the victim of while he was detained by the Congolese authorities in March 2015, which is described in the psychological report. [38] The appellant argues that the RPD erred by concluding that he omitted his sexual abuse. He stated that there is no real discrepancy between the BOC Form and the psychological report with regard to the use of the term [translation] "sexual abuse." [39] After reviewing all the evidence, I find that the RPD's conclusion is erroneous for the following reasons. On the one hand, the appellant describes the material facts in his BOC Form as follows: [Translation] When they arrived on the scene, they came to greet us by kicking us and hitting us with batons, while intimidating us in Swahili. I don't know the language, the only word that I remember is "RAÏS." They took everything that we had on us (telephone, belt, shoes, wallet) and finally asked us to take off all our clothes and stay totally nude. It was the most humiliating day of my life, they undressed me from head to toe and we kneeled with our hands on our heads. Then, they threw us into a dark, tight, dirty space that reeked of urine and fecal matter, where other people were. We could not breathe, or live there. We were there not knowing what we did wrong. A few hours later in the night, two armed men came to get me, they gave me my clothes and brought me into a room where there was another officer sitting behind a bench. They began interrogating me about my tribal roots, my profession and my membership in the F.N.J.E. and Filimbi groups...14 [reproduced as it appears in the French version] [40] The psychological report indicates that the appellant told the doctor that he was sexually abused and mentally and physically tortured during his captivity. He was beaten on a number of occasions with the butt of a gun. He had to undress completely and soldiers touched his genitals. They took photographs while laughing and mocking him.15 [41] In his testimony, the appellant explained that he simply described to the doctor what he experienced without using the term "sexual abuse." It was the doctor who used that term in his report. When the doctor wanted to know what they did to him in detention, the appellant responded that they took photographs of his genitals and mocked him. [42] It is plausible that the appellant did not use the term "sexual abuse" in his conversation with the doctor and that it was actually the clinical description that the doctor used to designate the abuse described by the appellant. Moreover, there are a number of definitions for the terms "sexual abuse" and [translation] "sexual assault" that vary based on the perspective considered (political, legal, clinical or scientific), and may describe a wide range of behaviour, with or without physical contact, going from touching to full sexual relations. Moreover, the definition of "sexual abuse" may vary depending on culture. Consequently, it seems more appropriate to stop at the specific acts that the appellant alleges to have experienced rather than at the generic term used. I am of the opinion that the fact that he did not describe the behaviour as "sexual abuse" should not be interpreted as being an omission of a fact. [43] I retain from the BOC Form that the appellant experienced the most humiliating day of his life in detention when he was undressed from head to toe and made to kneel completely naked with his hands on his head. The facts as described make it possible to understand that the appellant was subjected to sexual humiliation because he had to reveal his sexual organs by holding a degrading position. This can constitute sexual abuse in my opinion. [44] It is true that the appellant's BOC Form does not describe all the humiliating acts that he allegedly experienced. However, I do not consider those omissions determinative given all the other details provided regarding his abuse. I point out that the appellant provided an exhaustive account in which he describes in detail all the main facts relating to his refugee protection claim. [45] Moreover, the RPD did not take into account the findings of the psychological report, which are relevant when assessing the impact of the omissions in the BOC Form on the appellant's credibility. The report concludes that the appellant presented symptoms of post-traumatic stress and might not be able to discuss certain aspects of his story. It seems to me that the findings of the psychological report did not receive the attention they deserve because they can explain the appellant's hesitancy to recount the facts that were particularly humiliating for him, that is, the touching and the mocking by the prison guards. In this regard, I refer to the decision of the Federal Court in Ogbedor16 that the appellant cited in his appeal memorandum. C. RPD decision regarding the appellant's colleague [46] The RPD drew a negative inference regarding the credibility of the appellant, who claimed that the RPD allegedly recognized as a refugee his colleague XXXX XXXX XXXX XXXX XXXX XXXX who was arrested and abused on the same day and for the same reasons that he was, because he did not provide any evidence confirming that allegation. [47] I note the appellant's claims that the RPD erred in fact by indicating that he had informed the member at the hearing that his colleague XXXX XXXX XXXX XXXX XXXX XXXX had received a positive decision. The RPD's conclusion is not supported by the transcript of the hearing.17 It appears from the transcript that the appellant affirmed that his colleague had had her hearing before the RPD in early March 2016, and nothing more. [48] Moreover, the RPD's decision regarding XXXX XXXX XXXX XXXX XXXX XXXX was admitted as new evidence under A-1. As mentioned above, that decision dated April 11, 2016, was not available to the appellant before his refugee protection claim was rejected. That said, the RPD could not criticize him for not producing it as evidence to support his allegations. [49] For all these reasons, I conclude that the RPD's decision regarding credibility cannot be maintained because it contains major errors. D. Objective basis of the refugee protection claim [50] The appellant states that the RPD erred by failing to assess the objective basis of his refugee protection claim. He criticized it for not reviewing his personal documents that establish, in particular, his ties with the deputy minister and the persecution that he experienced for that reason. [51] It does not seem necessary to deal with this issue because I am of the opinion that the errors committed by the RPD regarding the credibility findings are determinative to the appeal. SUBSTITUTION OF THE DETERMINATION [52] I am able to substitute the determination that, in my opinion, should have been made by the RPD for the following reasons. Having listened to the appellant's testimony in the audio recording of the hearing before the RPD, and taken into account the record as a whole, I am of the opinion that the RPD did not enjoy an advantage in assessing the evidence. [53] The appellant testified in a direct, spontaneous, detailed and nuanced manner. I noted no contradictions or inconsistencies in his testimony, which is wholly consistent with his exhaustive seven-page account in the BOC Form. Moreover, the appellant's allegations are corroborated by the documentary evidence as a whole. The appellant established his credibility. [54] I retain from the evidence that appears credible that the appellant had the position of head of missions for the deputy minister of the ministry of planning and revolution of modernity. The photographs showing him next to the deputy minister, her statement and the mission orders support his statements.18 [55] On March 15, 2015, the appellant participated as a representative of the deputy minister and as a member of the Forum national pour la jeunesse et l'excellence [national forum for youth and excellence] in the official launch ceremony for Filimbi, a new pacifist civilian action movement of Congolese youth. He was present when the soldiers burst in and accused the participants of preparing a popular unrest against President Kabila and terrorist acts in order to overturn the government by force. The documentary evidence describes the brutal arrest of at least 26 activists and other people, including some foreign journalists and an American diplomat.19 [56] The appellant was arrested, struck, forced to undress, humiliated, interrogated, intimidated and detained at the ANR office over two days. He managed to flee with the intervention of the deputy minister. He hid until he left the country. [57] The documentary evidence reveals that the deputy minister was relieved of her duties in September 2015.20 [58] The Invitation de l'ANR document21 issued on July 22, 2015, indicates that the appellant is asked to appear at the ANR offices for a reason that will be communicated to him on site. It corroborates the appellant's testimony that he is wanted by the authorities. I have no reason to set aside the probative value of that summons. [59] The psychological assessment report22 retains my attention and reveals that the appellant is showing symptoms of severe post-traumatic stress disorder and major depression, which is consistent with his allegations. [60] Moreover, I take into account the RPD's positive decision concerning XXXX XXXX XXXX XXXX XXXX., the appellant's colleague, because she was in a similar situation.23 The reasons for decision indicate that XXXX XXXX XXXX XXXX XXXX. was arrested on March 15, 2015, when she participated in the ceremony for the Filimbi movement. She managed to leave the prison the following day with the intervention of her superior, the deputy prime minister, who also facilitated her coming to Canada. I note that the RPD concluded that there was no state protection or internal flight alternative (IFA) available to the appellant's colleague. [61] I am of the opinion that the appellant demonstrated, on a balance of probabilities, that he is facing a serious possibility of being persecuted in the DRC by reason of the political opinion imputed to him by the authorities of his country. He is perceived as being an opponent who wants to overthrow the current government. His objective fear is established using the documentary evidence that highlights the persecution that is inflicted on members of the Filimbi movement and that falls under the context of the generalized restriction by the Congolese authorities of the freedoms of expression and peaceful assembly.24 [62] The appellant rebutted the presumption of state protection because the agents of persecution are Congolese authorities. In this context, there is no IFA. CONCLUSION [63] For these reasons, I set aside the RPD determination and substitute it with the determination that, in my opinion, should have been made, namely, that XXXX XXXX XXXX is a "Convention refugee" under section 96 of the IRPA. [64] The appeal is allowed. Marie-Louise Côté Me Marie-Louise Côté June 7, 2017 Date IRB translation Original language: French 1 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. 2 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 3 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96, at paragraph 94. 4 The date of the RPD decision is March 11, 2016, but the notice of decision is dated April 11, 2016. 5 Subrule 41(2) of the Refugee Protection Division Rules. 6 Appellant's record, page 289. 7 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96, at paragraph 51. 8 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 9 Minister of Citizenship and Immigration v. Huruglica, March 29, 2016; 2016 FCA 93. 10 RAD decision rendered on May 17, 2017, and amended on May 23, 2017, in file No. TB6-03419. 11 Lubana v. Minister of Citizenship and Immigration, 2003 FCT 116. 12 P.K. v. Minister of Citizenship and Immigration, 2005 FC 103. 13 Tamtanis v. Minister of Citizenship and Immigration, 2006 FC 495. 14 RPD record, pages 20 and 21, lines 56 to 69. 15 Ibidem, pages 244 to 248. 16 Ogbedor v. Minister of Citizenship and Immigration, 2001 FCT 490. 17 Appellant's record, page 270. 18 RPD record, pages 110, 131, 132, 137. 19 RPD record, pages 154 to 195. 20 Ibidem, pages 150 to 153. 21 Ibidem, page 239. 22 Ibidem, pages 244 to 248. 23 Appellant's record, pages 274 to 280. 24 National Documentation Package on the DRC, July 17, 2015, Tab 2.1: Country Reports on Human Rights Practices for 2014. June 25, 2015. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB6-03326 14 RAD.25.02 (2014.09.11) Disponible en français