MB6-07935

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 : MB6-07935 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 August 17, 2018 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the appellant(s) Me Camille Clamens Conseil(s) du (de la/des) appelant(e)(s) Designated representative 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 an appeal filed by XXXX XXXX XXXX against a decision of the Refugee Protection Division (RPD) rendered on December 5, 2016, rejecting his claim for refugee protection. [2] The appellant is requesting that the Refugee Appeal Division (RAD) substitute the determination that was made and grant refugee status or status as a person in need of protection, or order a de novo hearing before a differently constituted panel. [3] The appellant is asking to file new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA)1 and is requesting a hearing, as required in paragraph 85 of his memorandum, under 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 Chad and was born on XXXX XXXX, 1995. [8] In his written account, he alleges that he was beaten by his father from a very young age, as he was an unwanted child. [9] On June XXXX, 2016, he refused a forced marriage to a person he did not know. In a rage, his father forced him to leave the house. He went to live with a relative on his mother's side for several weeks in the XXXX neighbourhood, in the capital's XXXX district. He was told that his father had incurred a debt in the amount of 40 million CFA francs to the father of the future spouse. [10] Using a passport issued on XXXX XXXX, 2014, he managed to obtain a US visa on XXXX XXXX, 2016. On XXXX XXXX of that same year, he arrived on American soil. He stayed in the United States for about two weeks, and a friend told him how to reach the Canadian border through the woods, which he did on August 13, 2016. IMPUGNED DECISION [11] The RPD rejected the appellant's refugee protection claim after determining that he was neither a "Convention refugee" nor a "person in need of protection" because he had an internal flight alternative (IFA). APPELLANT'S POSITION [12] The appellant submits that the RPD erred on two points, namely, that the [translation] "panel incorrectly analyzed the personalized risk" and the IFA. SCOPE OF THE APPEAL [13] For questions of fact, of law or 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 modified standard of reasonableness adapted to the context of the RAD in situations where it states and explains its opinion that the RPD enjoys a meaningful advantage in making credibility findings as per the decision in X (Re).3 [14] I have conducted an independent analysis of all the evidence on the record and have listened to the hearing, 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 NEW EVIDENCE BEFORE THE RAD [15] The appellant asks that the RAD admit four new exhibits under subsection 110(4) of the IRPA. They are a letter, Exhibit A, issued on January 12, 2017, as well as three excerpts of press reviews, including Exhibit B, issued on March 30, 2016, Exhibit C, issued on November 22, 2016, and, lastly, Exhibit D, published on November 27, 2016. [16] The hearing before the RPD was held on October 13, 2016, and the decision is dated December 5 of that same year. The appellant must demonstrate that the new evidence meets 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 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 rejection. [17] Exhibits B, C and D are dated from before and were therefore available on the date the decision was signed. These three exhibits were available to the appellant at the time of the hearing, and he could have submitted them at the time of the hearing before the RPD. Consequently, they are rejected. As for Exhibit A, a letter from the appellant's sister, while this document postdates the signing of the RPD decision and is consistent with the wording in subsection 110(4), it does not meet the jurisprudential test for analysis in Raza.4 The letter adds nothing new to the record, nor is it relevant or credible. On the contrary, the letter's final paragraph is in clear contradiction with the appellant's testimony before the first-level tribunal. The appellant's sister states in her letter that the father has contacts with the police and state figures. She goes on to add that it is impossible for the appellant to manage on his own and that he would be easily recognized. The appellant testified in this regard that his father could not find him elsewhere. This document required by the appellant is of no use to the RAD, and the RAD grants it no weight. [18] For these reasons, the RAD finds that the four exhibits are not admissible as evidence under subsection 110(4) of the IRPA. HEARING BEFORE THE RAD [19] The appellant is asking that the RAD hold a hearing under subsection 110(6) of the IRPA. This subsection provides that the RAD may hold a hearing if, in its opinion, there is new admissible evidence that meets the three conditions set out therein.5 I find that there is no cause to hold a hearing in this case, given that the new evidence received, which the appellant wanted to present, was deemed inadmissible under subsection 110(4) of the IRPA. [20] For these reasons, the request to hold a hearing before the RAD is denied. ANALYSIS [21] Having considered all the testimonial and documentary evidence on the record, the RAD draws the same conclusion as the RPD to the effect that an IFA is available to the appellant. [22] The first point raised in the appellant's memorandum is that the RPD incorrectly analyzed the appellant's personalized risk. What was involved in the RPD's analysis? The member of the first-level tribunal addressed the points raised in the document submitted by the Minister's representative. The six points highlighted by the Minister's representative were analyzed, and the member did not draw a negative inference that could undermine the credibility of the appellant. In addition, despite the request of the Minister's representative to find that there was no credible basis under subsection 107(2) of the IRPA, the member did not share this view. He even added that the appellant, [translation] "was able to establish...the veracity of the allegations referred to above." [23] Contrary to the appellant's allegation that the risk was incorrectly analyzed, we do not share this opinion. On the contrary, the first-level tribunal found that the appellant had testified clearly with respect to his past and that he had refuted all the allegations of the Minister's representative that raised credibility issues. It concluded that the appellant had effectively demonstrated the problems he experienced in his past. [24] In the RAD's opinion, the RPD's analysis of the appellant's credibility was done properly and is correct. [25] However, the problem with the appellant's interpretation concerns the second point of his memorandum. He states that the RPD incorrectly analyzed the IFA. The RPD member asked the appellant numerous questions in relation to the two-prong analysis. It should be noted that the appellant is an adult: he was 21 at the time of the hearing and is now 24. The first-level tribunal member suggested the possibility of living in three cities: Mongo, Bongor or Abéché. [26] When asked to explain that, as an adult, he could refuse a request by his father and live his life as he pleases, he answered that he was afraid of his father because the latter persecutes him. He cannot face his father and has no opinion to give. [27] The RPD correctly applied both prongs of the IFA. The RPD questioned whether there was a serious possibility of the appellant being persecuted in the part of the country where there is a flight alternative. When asked to comment on this statement, the appellant answered, [translation] "I have nothing, I am not working." He stated that he knew no one who could offer him a place to sleep, stay and eat. [28] The appellant made a very important statement that warrants attention at this stage in the analysis. He submitted that he feared his father in the capital but answered, in response to the panel's question, that elsewhere in the country, in one of the three cities mentioned above, [translation] "he cannot find me." It is clear that, by his own admission, the father cannot find his son and bring him home. This significant statement is contrary to his sister's letter, Exhibit A, which was received after the hearing. Consequently, the RAD is of the opinion that the appellant could live in one of the three previously mentioned cities. [29] The second prong involves determining whether the conditions in that part of the country are such that it would not be objectively unreasonable, in all the circumstances, including the appellant's, for the appellant to relocate there. The appellant pointed out that he does not have the financial means to escape his father. It should be noted that the latter went to the neighbouring country with his mother for health services, travelled to the United States and managed to make it from New York City to the Canadian border through a trail in the forest. He stated that he had no way of supporting himself in order to make it. He stated that he had thought about escaping his family earlier but was unable to. When asked what was preventing him from escaping his father, he stated that he did not have the means of transportation to do so. [30] The RPD asked the appellant whether he had family elsewhere in the country, to which he responded in the affirmative, that there were a number of people. However, he added that they do not have the financial means to take him in. It should be noted that the appellant and his mother hid out for several weeks at a relative's house, in another area of the capital, N'Djamena, and that the father never came to get them there. The panel is of the opinion that he would not engage in further searches if the appellant established himself in Abéché. Considering that the appellant is an educated man with 13 years of schooling, which is well above the country average, as a number of citizens are illiterate, he could find a job and live a decent life in Abéché, where some of his family members live. [31] Consequently, it would not be unreasonable for the appellant to live in Abéché, find work there and support himself. [32] The RAD is of the opinion that the RPD correctly analyzed this part of the appellant's case and did not err. [33] For the reasons set out in this decision, the RAD is of the opinion that the RPD rendered the appropriate and correct decision. REMEDY [34] For these reasons, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the same Act. [35] The appeal is dismissed. Michel Jobin Me Michel Jobin August 17, 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 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 5 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 : MB6-07935 2