MB8-13694

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 : MB8-13694 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 November 13, 2019 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Pia Zambelli 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] XXXX XXXX XXXX, you are a citizen of Rwanda. You submitted documents before the Refugee Protection Division (RPD).1 You stated that you are afraid of being kidnapped and forcibly recruited by the armed group, M23 (Mouvement du 23 mars [March 23 movement]), to fight in the Democratic Republic of the Congo (DRC). You also stated that you fear the Rwandan government because, in your claim for refugee protection, you denounced the fact that the government supported that rebel movement.2 [2] The RPD found that the M23 was defeated in 2013 and that the evidence does not establish that, today, this armed group wants to reform and is recruiting again. The RPD was of the opinion that you simply assumed that the Rwandan government was behind your alleged recruitment in 2013. Consequently, it concluded that you had not established that, if you were to return to Rwanda, you would be a person of interest to the M23 or that the Rwandan government would be informed of what you stated in your refugee protection claim, particularly that the government had supported the rebel movement.3 [3] You submitted evidence before the Refugee Appeal Division (RAD). You did not request an oral hearing. However, you argue that the RPD erred in finding that - the M23 no longer exists; - this movement was not supported by the Rwandan government; and - the passage of time since the M23 attempted to recruit you renders your fear unfounded.4 [4] Having analyzed your file, I conclude that the evidence you have presented on appeal is not admissible. I further conclude that the RPD rendered the correct decision in rejecting your refugee protection claim. [5] In the following paragraphs, I will explain why I have come to these conclusions. My analysis will focus first on the evidence you presented on appeal. I will then analyze the errors you believe the RPD made with respect to your fear of the M23 and the Rwandan authorities. I conclude that your appeal is dismissed. I. EVIDENCE SUBMITTED ON APPEAL [6] In Singh, the Federal Court of Appeal ruled that the explicit conditions set out in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) are inescapable, have to be met, and leave no room for discretion on the part of the RAD.5 The court further stated that the criteria set out in the case law with respect to the credibility and relevance of evidence flow from the wording of that provision.6 In short, there is a clear legislative intention to not authorize any new evidence on appeal before the RAD except in specific and carefully defined circumstances. The RAD's role is not to provide an opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.7 [7] The existence of these criteria, which must be narrowly interpreted,8 helps to preserve the integrity of the process by promoting finality with respect to the factual record at the first level of decision-making (with very limited exceptions) and encouraging the narrowing of issues as matters move up the appellate ladder.9 [8] In your record, you have submitted a report from the Secretary-General of the United Nations Organization Stabilization Mission in the DRC (MONUSCO), dated March 10, 2017.10 In your memorandum, you contend that this report explicitly confirms that the M23 still exists, thereby demonstrating that the RPD erred in finding that this movement no longer existed. You also state that this report was not formally submitted as evidence before the RPD, but was incorporated by reference in a subsequent United Nations report dated June 30, 2017.11 You further argue that you could not have been expected to have presented this report as evidence before the RPD, because it was supposed to be read with the subsequent United Nations report, which was part of the evidence before the RPD. You are asking the RAD to consider this report admissible as new evidence or, at the very least, to consider it part of the subsequent United Nations report, which is part of the evidence on the record.12 [9] Having read the evidence in this report, and considering the record in its entirety,13 I find that this evidence is not admissible under subsection 110(4) of the IRPA. In other words, it does not constitute new evidence within the meaning of this provision. My reasons follow. [10] This report, dated March 10, 2017, does not contain any facts that arose after the RPD's decision was rendered on May 24, 2018. The United Nations document is clearly a document that was reasonably available at the time of your refugee protection claim before the RPD. I am not persuaded by the argument that you could not reasonably have been expected to have presented it to the RPD because a subsequent report made reference to it. In any event, there is already evidence, to which you yourself refer in your memorandum, that, according to your interpretation, demonstrates the presence of the M23 in 2017. [11] In addition, on October 2, 2019, you forwarded a document from an African website to the RAD. According to this document, the Rwandan government allegedly sent former M23 rebels to the DRC to fight in the North Kivu region.14 In the letter accompanying this document, I found no request for authorization under rules 29 and 37 of the Refugee Appeal Division Rules (RAD Rules). [12] Rule 29 of the RAD Rules states that, if the appellant wants to use a document or provide written submissions that were not previously included in the appeal record, they must make an application to the RAD in accordance with rule 37.15 Such documents may not be used without the written authorization of the RAD. [13] Subrule 29(3) of the RAD Rules states that the appellant must include in an application to use a document that was not previously provided an explanation of how the document in question meets the requirements of subsection 110(4) of the IRPA. [14] Subrule 29(4) of the RAD Rules stipulates that, in deciding whether to allow an application, the RAD must consider any relevant factors, including the document's relevance and probative value, any new evidence the document brings to the appeal, and whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with their record. [15] In my opinion, the use of this document cannot be authorized. First, you have not applied for authorization to use it. Second, you have presented no information to establish the source of the document and how the information it contains was gathered. Finally, from reading the document myself, I am unable to conclude that the document contains reliable information that should be given probative value. II. ANALYSIS OF THE APPEAL [16] The RAD reviews RPD decisions applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule arises in situations where the RPD enjoyed a meaningful advantage in assessing credibility.16 That said, the RAD's role is not to carry out a de novo consideration of refugee protection claims, but rather to determine whether, as submitted by the appellant, the RPD erred.17 [17] After conducting my own analysis of the record, I find that the RPD enjoyed no particular advantage and that the correctness standard of review must be applied. [18] In your memorandum, you state that the RPD erred in finding that the M23 no longer exists, that this movement was not supported by the Rwandan government and that the passage of time since the M23 attempted to recruit you renders your fear unfounded.18 [19] As the Federal Court recently reiterated, in refugee law, the central fact that must be proven is that there is more than a mere possibility that the refugee protection claimant will be persecuted. Usually, this can only be established by indirect evidence and it is impossible to say in advance how much. In each case, the decision-maker must decide whether or not the evidence is sufficient.19 [20] Based on my own analysis of the record, the determinative issue in your appeal is whether the RPD erred in its forward-looking analysis of your fear. It concluded that you have not established that, upon your return to Rwanda, you would fear persecution or be subjected to a risk to your life or to a danger of torture either from members of the M23 or from the Rwandan authorities. Based on my own analysis, the RPD made no error in drawing these conclusions. My reasons follow. A. The situation with the M23 [21] During the hearing20 and in its decision,21 with reference to the documentary evidence, the RPD very clearly explained the difference between what happened in the DRC between the M23 and the DRC authorities before and after the end of the armed conflict between them. Before the conflict, the M23 was a rebel movement operating in eastern DRC. After the end of the conflict between the M23 and the DRC authorities, the DRC government recruited former M23 fighters to quell demonstrations criticizing President Kabila's regime. [22] With respect to this difference, you replied during the hearing before the RPD that the situation in eastern Congo is constantly changing, that there are still problems with the Tutsis in the Congo and that there will always be clashes. If it is not the M23, there will be another group, because Congolese Tutsis are still excluded. You also stated that Rwanda will always want to have control in eastern Congo, and Rwandan Tutsis will always be recruited.22 [23] In your memorandum, you state that the RPD erred in finding that the M23 no longer existed.23 You also state that the mere fact that time has passed since they attempted to recruit you in January 2013 does not mean that your fear of persecution is unfounded.24 [24] You were invited to make submissions regarding the information in the most recent national documentation packages (NDPs) on Rwanda and the DRC. You replied that, in the most recent NDP on Rwanda, there is no mention of recent activities by the M23. You also replied that, in the most recent NDP on the DRC, the information in tabs 1.11, 2.1 and 2.3 neither confirms nor denies any recent activities of the M23. Finally, you noted that a Human Rights Watch (HRW) document that was previously part of the NDP on the DRC is no longer included in the most recent one. That being said, you stated that it is still possible to refer to this HRW document, which indicates that M23 members have been used by the DRC authorities to quell demonstrations in that country, thereby establishing the active presence of this movement at least until January 2017.25 [25] Based on my own analysis of the record, and I say this with respect, you are confusing what the M23 did before the end of the conflict with the DRC authorities and what the movement did after the end of the conflict with the DRC authorities. In any case, former President Kabila's regime is no longer in power in the DRC. In my opinion, the most significant reference to the M23 in the latest documentary evidence is that 57 former combatants of the movement and 10 of their family members have recently been repatriated from Uganda to the DRC.26 Therefore, I find that, when considered in its entirety, the most recent documentary evidence does not support the conclusion that the M23 exists and is currently active as a rebel movement in the DRC and that it would want to recruit you, and be able to do so, if you were to return to Rwanda. [26] Furthermore, during the hearing27 and in its decision,28 the RPD noted a contradiction between your testimony and your statements in the application for asylum you filed in the United States. That claim was rejected in July 2014. The appeal against this decision was dismissed in February 2016. When confronted with this contradiction, you explained that the incident alleged in your application for asylum in the United States could have happened to you, but it did not. It is clear to me that such an explanation is not acceptable and that your credibility has therefore been undermined with respect to what happened to you personally. [27] Consequently, considering all the evidence, I conclude that you have not established that you have a well-founded fear of persecution or would face a risk to your life because of the M23 movement, if you were to return to Rwanda today. On this point, I conclude that the RPD made no error. B. The situation with the Rwandan authorities [28] In your memorandum, you state that your refusal to be recruited by the M23, a movement supported by the Rwandan government, was an expression of your political opinion. You also state that the likelihood of it being forgotten that you refused to be recruited by the M23 is proportional to the vicious nature of your agent of persecution, that is, the movement itself, but also the Rwandan government.29 [29] Based on my analysis of the record, and I say this with all due respect, these arguments are unfounded. Before it can be determined that a person would face a serious possibility of persecution, the claimant must establish the facts on which their fear of persecution is based. However, in your case, you have not established any concrete facts showing that the Rwandan authorities would know that you had refused to be recruited by the M23 in January 2013. Nor have you established any concrete facts showing that the Rwandan government is aware of the statements you made in your asylum claim in the United States and in your refugee protection claim in Canada regarding its support of the M23. CONCLUSION [30] For the foregoing reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX is not a refugee under section 96 or a person in need of protection under section 97 of the IRPA. [31] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette November 13, 2019 Date IRB translation Original language: French 1 These documents are reproduced at pages 77 to 159 of the RPD record. 2 The Basis of Claim Form is reproduced at pages 19 to 32 of the RPD record. 3 RPD Reasons and Decision, May 24, 2018, pages 3 to 14 of the RPD record. 4 Appellant's memorandum, June 28, 2018, pages 134 to 147 of the appeal record. 5 Canada (Citizenship and Immigration) v. Singh, No. A-512-14, de Montigny, Gauthier, Nadon, March 29, 2016; 2016 FCA 96, paragraphs 38 to 51. 6 Ibid., paragraphs 34 and 35. 7 Ibid., paragraph 54. 8 Casilimas Murcia v. Canada (Minister of Citizenship and Immigration), No. IMM-775-19, Pamel, September 17, 2019; 2019 FC 1182, paragraphs 43, 49 and 50. 9 Canada (Minister of Citizenship and Immigration) v. Davoodabadi, No. IMM-1047-18, Norris, March 21, 2019; 2019 FC 350, paragraph 21. 10 This document is reproduced at pages 17 to 31 of the appeal record. 11 This report is part of the National Documentation Package (NDP) on the DRC from April 30, 2018, at Tab 2.3. This NDP is identified in the consolidated list of documents as Exhibit A-1. This list is reproduced at page 33 of the RPD record. 12 Appellant's memorandum, paragraphs 32, 33 and 34, pages 141 and 142 of the appeal record. 13 As my colleague Gregg Erauw suggested in X (Re), File No. TB8-02355, 2018 CanLII 109764 (CA IRB), the reasons for this were clearly explained in paragraphs 13 to 16. 14 Letter from XXXX XXXX, October 2, 2019, 4 pages. 15 RAD Rules, SOR/2012-257. 16 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. 17 Canada (Minister of Public Safety and Emergency Preparedness) v. Gebrewold, No. IMM-4058-17, LeBlanc, April 6, 2018; 2018 FC 374, paragraph 25. 18 Appellant's memorandum, pages 134 to 147 of the appeal record. 19 Magoza v. Canada (Minister of Citizenship and Immigration), No. IMM-1506-18, Grammond, January 7, 2019; 2019 FC 14, paragraph 34. 20 Recording of the RPD hearing held on May 17, 2018, 23:30 to 36:20. 21 RPD Reasons and Decision, paragraphs 30 to 39, pages 9 to 12 of the RPD record. 22 Recording of the RPD hearing held on May 17, 2018, 36:20 to 37:30. 23 Appellant's memorandum, paragraphs 23 to 31, pages 138 to 141 of the appeal record. 24 Ibid., paragraphs 40 to 45, pages 143 and 144 of the appeal record. 25 Letter from XXXX XXXX, November 4, 2019, 2 pages. 26 SAR-1: Immigration and Refugee Board of Canada (IRB), NDP on Rwanda, July 31, 2019, Tab 2.1, United States of America, Department of State, Country Report on Human Rights Practices in 2018, 39 pages. SAR-2: IRB, NDP on the DRC, July 31, 2019, Tab 2.3, United Nations, Security Council, United Nations Organization Stabilization Mission in the Democratic Republic of the Congo. Report of the Secretary-General, March 7, 2019, S/2019/218, 17 pages, paragraph 59, page 12. 27 Recording of the RPD hearing held on May 17, 2018, 55:30 to 01:01:30. 28 RPD Reasons and Decision, paragraphs 25 to 29, pages 8 and 9 of the RPD record. 29 Appellant's memorandum, paragraphs 46 to 59, pages 144, 145 and 146 of the appeal record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB8-13694 9 RAD.25.02 (2014.09.11) Disponible en français