MB6-06811

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 / Dossier de la SAR : MB6-06811 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered at Ottawa, Ontario Appel instruit à Date of decision December 21, 2017 Date de la décision Panel Me Christina Harrison Baird Tribunal Counsel for the person(s) who is(are) the subject of the appeal N/A Conseil(s) (de la/des) personne(s) en cause Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, a citizen of Cameroon, appeals the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant was not represented by counsel during the claim process or on appeal to the Refugee Appeal Division (RAD). The Appellant requests to submit new evidence and to have an oral hearing. He requests that the RAD set aside the decision of the RPD and grant him protection in Canada. [2] The Minister did not intervene in the claim or the appeal. DECISION [3] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. The Appellant has failed to demonstrate an objective basis for fearing harm upon return to Cameroon. The Appellant is neither a Convention refugee under section 96 nor a person in need of protection under section 97 of IRPA. [4] The appeal is dismissed. BACKGROUND [5] The Appellant alleges that if he is returned to Cameroon, he may face retaliation from the XXXX Church (also known as the XXXX) for speaking out about the dishonesty of that church. He left Cameroon to work as a XXXX with the XXXX Church in the United States of America (USA) in 2002. He claims the church promised that in return for his service, it would support him to pursue a college degree in the USA. He did not receive the promised support, despite doing the XXXX XXXX for several years. As a result, he became outspoken about the deception he had suffered and threatened to sue the church. Neither the Appellant nor his mother in Cameroon is in touch with the XXXX Church any longer. [6] The RPD determined that the Appellant had failed to establish an objective basis for his fear of return to Cameroon. [7] The RAD summarizes the submissions of the self-represented Appellant in the following way - he argues the RPD erred by: * Misstating his age and number of years of education; * Failing to appreciate the mistreatment and discrimination he suffered while serving the XXXX Church in the USA; * Failing to recognize the negative health, education and financial consequences he suffered as a result of that mistreatment and discrimination; and * Misunderstanding his evidence about his mother's relationship with the XXXX Church in Cameroon. [8] For these reasons, the Appellant requests that the RAD allow the appeal and grant him refugee protection or give humanitarian consideration to his case. ISSUE [9] Was the RPD wrong to conclude there was insufficient evidence to support a risk of harm in Cameroon under either section 96 or 97 of IRPA? ANALYSIS [10] I have considered all of the arguments and admissible evidence of the Appellant, including reviewing the transcript and audio recording of the RPD hearing. I find that although the Appellant may have experienced persecution by the XXXX Church in the USA, the evidence does not support a conclusion that he would suffer mistreatment in Cameroon. I conclude that the RPD was correct to find that the Appellant had failed to establish an objective reason to fear return to Cameroon. Decision on whether to admit new evidence [11] The RPD signed reasons on August 16, 2016, following a hearing on August 4, 2016. In light of the RPD's negative conclusion, the Appellant requests to submit the following as new evidence: * Medical records dated May and December 2009; * Medical records dated October 2013; * Educational certificates dated May 2005, and May and July 2008; * A photograph of the Appellant with a soccer team dated Spring 2016; * Medical records dated July 2016; * Certain facts alleged in the document entitled My Refugee Appellant Points; and * Medical records dated September 2016. [12] In an appeal before the RAD, the Appellant may present only evidence that arose after the rejection of his claim, or that was not reasonably available, or that he could not reasonably have been expected to have presented, at the time of the rejection.1 In addition, case law requires the evidence to be new, credible and relevant.2 [13] With the exception of the Medical records dated September 2016, all of the proposed new evidence predates the Appellant's refugee hearing and the RPD decision. As a result, he was required to give full and detailed information about why these documents were not reasonably available or could not reasonably have been expected from him before his claim was rejected.3 He has not done so. Therefore the first six documents listed above do not meet the statutory criteria for new evidence on appeal. These documents are not accepted as new evidence. [14] The medical records dated September 2016 postdate the rejection of the Appellant's claim and therefore meet the statutory criteria to be admissible as new evidence on appeal. The three pages offer new information about the Appellant's XXXX, which he claims has resulted from the stress of the deception by the XXXX Church. They are issued by a credible source, the XXXX XXXX XXXX XXXX. While their relevance to the determinative issue in this claim is arguably low, I am prepared to admit them as Exhibit A-1. Decision on whether to hold an oral hearing [15] The general rule is that the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD. 4 The RAD only has discretion to hold a hearing when there is additional documentary evidence and all of the conditions in section 110(6) of IRPA are met. 5 In this case, that means that the additional documents would have to raise a serious issue with respect to the Appellant's credibility. The documents also would have to be central to the RAD's decision. In addition, the documents would have to be so important that they would justify either granting refugee protection or refusing it. [16] While I have held that one new document proposed by the Appellant meets the criteria for admission into evidence, it is not necessary to hold a hearing. The evidence that I have accepted does not raise an issue so serious and central to my decision that it would require examination at an oral hearing. The accepted evidence also would not justify either granting or refusing this refugee claim. Past treatment by XXXX Church was persecution [17] The RPD found the Appellant credible. To analyse the likelihood that he would risk harm by the XXXX Church if returned to Cameroon, the RPD looked at how the Church treated him in the past. The RPD reviewed the Appellant's allegations that the XXXX Church mistreated him when it: * Induced him to travel to the USA by promising education and immigration status; 6 * Used him as an unpaid XXXX from 2002 to 2007;7 * Broke the promise to support him in pursuing college education;8 * Discriminated against him based on his African origin;9 * Ostracised him when he spoke out about problems he observed in the Church;10 and * Refused to provide legal help to regularize his immigration status in the USA. 11 [18] In my mind, the Appellant's experience meets the international definition of human trafficking. He was recruited and deceived into traveling to the USA on the false promise of support to further his education or attain permanent residence. Once in the USA, the XXXX Church exploited him as an unpaid XXXX and broke the promises about education and immigration with which they had lured him. The Appellant denies that he was physically coerced.12 However, his consent to travel and to work for the Church is irrelevant because it was obtained by fraud.13 [19] The Appellant was exploited by the XXXX Church for five years. He has shown that he suffered deception and discrimination, indignities and disappointments at the hands of representatives of this Church. Considered cumulatively, his experience during five years of servitude does meet the threshold of persistence and injury inherent in the definition of persecution. [20] The RPD was incorrect to find that this mistreatment did not amount to persecution. 14 The Church maintained its hold over the Appellant by feeding his hope to obtain a college education, by forcing him to obey a strict hierarchy, and by taking advantage of his precarious immigration status. Despite his contributions, the XXXXChurch treated him as if he was worth less than other members because he was African. As a result of the exploitation and discrimination he experienced, the Appellant was cheated of an income for his work. He also incurred unanticipated expenses due to the broken promises of the XXXXChurch. He suffered negative health consequences relating to stress and uncertainty about his status in the USA and his unrealized dream of a college education. He was unable to access the college education that he was promised. I have made an independent analysis of "the essential question whether the claimant's basic human rights" were in "fundamental jeopardy" at the hands of the XXXX Church in the USA.15 On the evidence in this case, I find it more likely than not that during the period 2002 to 2007, the answer to this essential question was yes. [21] However, this finding does not end the matter. A refugee claimant must prove he has a future risk of harm in his country of origin. The exploitation that the Appellant suffered took place years ago in the USA. There is no indication that it continued in the USA after he parted ways with the XXXX Church in 2007. There is also no evidence that any representative of the XXXX Church will pursue him in Cameroon. Having matured and escaped the influence of the XXXX Church, the Appellant does not appear to be at risk of being trafficked again. No reason to fear future harm from XXXX Church [22] The RPD considered the likelihood that representatives of the church would harm the Appellant in the future in Cameroon. It found that the XXXX Church did not have any motive to harm the Appellant,16 since: * although he vowed to take the Church to court, in fact, he did not sue the Church; * he was not seeking restitution of any of the money he had raised for the Church; * there was no evidence that he had damaged the reputation of the Church; and * he was no longer in contact with members of the Church. 17, 18 [23] On appeal, the Appellant clarified that his mother was not a member of the XXXXChurch, but had befriended some of its members while she was an active member of the XXXXchurch in Yaoundé.19 This fact is also stated in his Basis of Claim.20 [24] In light of his evidence that the Church had left the Appellant and his mother alone since they separated from the Church,21 the RPD found it more likely than not that the Church would continue to leave them alone. There was not enough evidence to show that the XXXX Church was interested, able or willing to target the Appellant or his mother for mistreatment of any kind in Cameroon. 22 [25] Also, although he alleged in his Basis of Claim that the XXXX Church made threats against him, the RPD found the Appellant's oral testimony does not support that allegation.23 He claimed that he had to leave the USA in XXXX 2016, because of threats by the leadership of the XXXX Church. 24 However, when the RPD tested this evidence, the Appellant testified that he came to Canada to pursue his dream of furthering his education, and that once he has accomplished this, he wants to go back home.25 I agree with the RPD that the record does not demonstrate the Appellant received serious threats of harm from the XXXX Church. [26] The Appellant also did not present clear and convincing evidence that others with similar experiences to his own had suffered sustained or systemic harm after leaving the Church.26 [27] I cannot conclude on this record that in the future in Cameroon, the Appellant faces a serious possibility of the persistent mistreatment that he suffered as a young man. In legal language, I find no serious possibility of persecution under section 96 of IRPA. [28] I recognize that the Appellant has suffered and have no doubt that the Appellant experienced his previous treatment as "cruel". He may fear uncomfortable or "unusual" social consequences upon return to Cameroon. I note for his information some examples of treatment that has been considered "cruel and unusual" by Canadian courts under section 97. "Cruel and unusual treatment" includes assault, extortion, kidnapping, or murder of a refugee claimant's family members.27 [29] I find it more likely than not, on the evidence before me, that the Appellant will not face torture, a risk to his life or cruel and unusual treatment if returned to Cameroon. In legal language, I find on a balance of probabilities, that he will not suffer any of the types of harm described in section 97 of IRPA. No other material error by the RPD [30] The Appellant is correct that the RPD misstated his age. However, I do not find this to be a material error and it is not representative of the care and attention that the RPD invested in the hearing of this claim. In addition, the RPD gave an accurate approximation of the Appellant's total years of education, including what he received in Cameroon and the USA. [31] For all of these reasons, I agree with the RPD's conclusion that there is no objective basis for the Appellant to fear harm upon return to Cameroon. RAD does not consider Humanitarian and Compassionate Grounds [32] Finally, it is not the role of the RAD to consider humanitarian grounds under section 25 of the Immigration and Refugee Protection Act (IRPA). CONCLUSION [33] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. The Appellant is neither a Convention refugee under section 96 of IRPA, nor a person in need of protection under section 97 of IRPA. DECISION [34] The appeal is dismissed. (signed) Christina Harrison Baird Me Christina Harrison Baird December 21, 2017 Date 1 Section 110(4) of IRPA. 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII) at paras. 38 and 44 to 49. 3 Rule 3(3)(g)(iii), RAD Rules. 4 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII) at para. 48. 5 Balde v. Canada (Minister of Citizenship and Immigration), 2015 FC 624 at para. 32. 6 Transcript of RPD Hearing on August 4, 2016, page 12. 7 Ibid., page 19. 8 Ibid., pages 11, 13 and 16. 9 Ibid., page 12. 10 Ibid., page 15. 11 Ibid., pages 11-12. 12 Transcript of RPD Hearing on August 4, 2016, page 17. 13 Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, article 3, in force December 25, 2003. 14 RPD Reasons, paras. 49-50. 15 Chan v. Canada (MEI), [1995] 3 S.C.R. 593, at para. 69. 16 RPD Reasons, paras. 24-25, 30, 36-37, 42-45. 17 Basis of Claim, RPD Record, page 15. 18 Transcript of RPD Hearing on August 4, 2016, pages 15 and 17. 19 Note 6, page 3, My Refugee Appellant Points. 20 Basis of Claim, RPD Record, page 15. 21 Transcript of RPD Hearing on August 4, 2016, page 17. 22 RPD Reasons, paras. 31, 37, 39 and 41. 23 Ibid., paras. 26-27. 24 Basis of Claim, RPD Record, page 16. 25 Transcript of RPD Hearing on August 4, 2016, page 13-14. 26 Ibid., page 17. 27 Portillo v. Minister of Citizenship and Immigration, 2012 FC 678. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 7 RAD.25.02 (September 11, 2014) Disponible en français RAD File / Dossier de la SAR : MB6-06811