MB7-11503

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 : MB7-11503 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 February 21, 2018 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the Respondent Me Myriam Roy L'Écuyer Conseil de l'intimée 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, the appellant, a citizen of the Democratic Republic of the Congo (DRC), is appealing against a Refugee Protection Division (RPD) decision. She is arguing that the RPD erred in its assessment of her credibility and in rejecting evidence. [2] Pursuant to section 111 of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD determination, namely, that XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" under section 97 of the same act. I. BACKGROUND A. Summary of alleged facts [3] In her BOC Form, the appellant states that, in her country, she was a supporter of an opposition party, Engagement pour la citoyenneté et le développement (ÉCIDÉ) [engagement for citizenship and development]; that she was the XXXX XXXX XXXX XXXX for the commune of XXXX; and that on September 19, 2016, she participated in a peaceful protest and was then arrested and tortured by soldiers from the Garde républicaine [republican guard]. [4] She states that she was released on October 1, 2016, with a summons to appear at the office of the Agence nationale de renseignements (ANR) [national intelligence agency] the following Monday, that is, October 3, 2016, which she did at the requested time. According to her statements, she received a death threat from an inspector who swore he would burn down her business if she continued to support the opposition. [5] She also states that she was able to leave the ANR office thanks to members of the XXXX XXXX XXXX pour le développement [Pepe Tazi development foundation], who drove her to Saint Joseph Hospital, where she was admitted and stayed until October 7, 2016. [6] She also states that she received death threats via anonymous telephone calls. She was traumatized and distraught after those events, and she decided to sell her business and travel to Canada, where she sought protection from authorities because she is persuaded her life is in danger in the DRC.1 [7] In addition to her BOC Form, the appellant, then referred to as the claimant, submitted documents into evidence before the RPD.2 B. Intervention from the Minister of Citizenship and Immigration (the Minister) [8] The Minister intervened before the RPD and submitted a series of documents into evidence.3 [9] In his Notice of Intervention, the Minister notes that between September 19 and October 1, 2016, the time at which the claimant stated she had been captured and tortured, she was very active on her Facebook account, which irremediably undermines her credibility. The Minister asked the RPD to determine that the claimant is not a refugee or a person in need of protection and that her claim is fraudulent and manifestly unfounded.4 C. RPD decision [10] The RPD hearing took place on July 18, 2017, and the decision rejecting the refugee protection claim was rendered on August 9, 2017. [11] The RPD was of the opinion that the very basis of the refugee protection claim completely lacked credibility. [12] When confronted with the evidence submitted by the Minister concerning her Facebook account, the claimant explained that she used her cellphone during her detention as a way to distract herself. The RPD rejected those explanations, noting that her communications via her account between September 24 and October 6, 2016, were banal. In addition, it was of the opinion that it was not credible that the individuals she was communicating with did not enquire as to where she was being detained or ask about her health during those two weeks. Considering the documentary evidence, the RPD concluded that, during that period of systemic and violent repression by the law enforcement agencies toward those opposing the Kabila regime, there is nothing to suggest that the ANR would have been so lax. [13] Therefore, the RPD did not believe that the claimant participated in the protest on September 19, 2016, which supposedly led to her arrest, release and then hospitalization. Consequently, it attached no probative value to the summons, the medical report and the letters from lawyers that were submitted into evidence. The RPD also did not believe that the claimant was a member of the ECIDÉ and, as a result, it did not attach any value to the letter from the party that was submitted into evidence, given that the letter indicates that the claimant participated in the protest on September 19, 2016. Using that same logic, the RPD did not attach any value to the letter submitted into evidence in which an individual claims to have housed the claimant after her incarceration.5 II. GROUNDS OF APPEAL AND DECISION SOUGHT [14] In her memorandum, the appellant submits that the RPD erred in its analysis of her credibility and in rejecting evidence. [15] More specifically, the appellant argues that the RPD essentially made its decision not to grant her refugee status by not attaching any weight to her explanations about the use of her cellphone during her detention, and it did not provide reasons for doubting the credibility of her testimony as such. She also argues that the RPD did not find that her testimony lacked spontaneity or detail or that it was vague and inconsistent; it simply refused to admit that she could have used her cellphone during her detention, despite a lack of evidence contradicting her. [16] The appellant also argues that the RPD decision to reject the documents she submitted into evidence is based solely on the fact that fraudulent documents exist in the DRC. She personally believes that that reason is insufficient to reject the evidence when there is nothing to indicate that the documents should be questioned, and she submits that the RPD conclusion on this point is unreasonable. [17] In short, the appellant argues that the RPD decision is unreasonable given that there was no overall assessment of the evidence, the lack of reasonable grounds to reject all of the personal evidence and the weak explanations justifying the implausibility finding. [18] In conclusion, the appellant asks the RAD to set aside the RPD determination and grant her refugee status.6 III. EVIDENCE PRESENTED ON APPEAL AND HOLDING A HEARING BEFORE THE RAD [19] The appellant included two sworn statements in her appeal record.7 In her memorandum, she submits that this new evidence was received late and that it facilitates the assessment of the appeal. She also explains that she was unable to obtain them earlier because she has not had contact with the individuals who made the statements for some time. [20] The appellant also submits that section 110 of the IRPA creates law and must be given a broad interpretation. Citing a Federal Court decision from 2014, the appellant argues that if the decision-maker uses too strict an application, access to a true appeal would be limited. She refers to it as a de novo appeal.8 [21] In Singh, the Federal Court of Appeal finds that the explicit conditions set out in subsection 110(4) of the IRPA are inescapable, must be met and leave no room for discretion on the part of the RAD.9 It also finds that the criteria set out in case law with respect to credibility and relevance of evidence arise implicitly from the wording of the subsection in question.10 In short, there is clear legislative intention to not authorize any new evidence on appeal before the RAD other than in very specific and carefully defined circumstances, as the role of the RAD is not to provide the 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.11 [22] In my opinion, the two documents submitted with the appellant's memorandum did not meet the requirements in subsection 110(4) of the IRPA. Here is why. Sworn statement signed by the appellant's husband [23] The first document is dated September 1, 2017, and was signed by her husband in Kinshasa before a notary. The events this document refers to took place before the RPD hearing.12 Consequently, this document does not meet the first criterion set out in subsection 110(4), given that this evidence did not arise after the rejection of her refugee protection claim. [24] In that same statement, her husband indicates that he lives at XXXX XXXX XXXX in XXXX commune because he left his home in XXXX commune after the instability that was created in his family when he and his wife were brutally separated. [25] In the affidavit included in her appeal record, the appellant states that after she fled, her family had to relocate and that they were not in contact for a while. She indicates that she only recently received a letter from her husband, who relocated to another commune in Kinshasa with her children.13 [26] I note that none of the documents specify when the appellant's husband allegedly moved to XXXX XXXX XXXX in XXXX commune. I also note that the birth certificate issued for their child who was born on XXXX XXXX, 2006, indicates that the appellant's husband, who is a professional, was then living at XXXX XXXX XXXX, Kinshasa, in XXXX commune.14 The appellant knew that address. [27] In her BOC Form, the appellant does not mention the fact that her husband and children had moved or that they were not in contact. However, she indicates that her husband was unemployed because of the government's political system. She also states that on October 1, 2016, she and her family sought refuge at the home of XXXX XXXX, a friend, to ensure their safety.15 However, she failed to provide that information in response to question 12 on immigration form IMM 5669, in which she indicates that from September 2013 to November 2016, she lived at XXXX XXXX XXXX, XXXX, in Kinshasa.16 [28] During the RPD hearing, when her lawyer asked where her husband and children were, the claimant stated that they were in Kinshasa, no longer at the same house, that they all went to a friend's house because the ANR knows their address so they can longer go back there. At the very end of the hearing, when asked if there was anything she would like to add, the claimant stated that she was worried about her children and that she was asking for protection for both her and her children, including her four-year-old daughter. At no point did she mention that she and her children and husband were no longer in contact.17 [29] Having considered all of those points, I find that the appellant failed to demonstrate why her husband could not have written a similar document nor why she could not have reasonably presented the document to the RPD before her refugee protection claim was rejected. As a result, this document does not meet the two other criteria specifically set out in subsection 110(4) of the IRPA, and it is not admissible as evidence in the context of the appeal. Sworn statement signed by an ECIDÉ colleague [30] The second document is dated September 16, 2017, and was signed by XXXX XXXX XXXX XXXX XXXX in Montréal. It references facts that took place before the RPD decision was rendered. They are, therefore, not facts that took place after the rejection of the claim. This document does not meet the first criterion in subsection 110(4). [31] During the RPD hearing, the appellant spoke about Mr. XXXX and stated that he was one of her acquaintances from the ECIDÉ party.18 However, she did not indicate that she and Mr. XXXX were no longer in contact. In his sworn statement, Mr. XXXX did not indicate when he left the DRC or when he arrived in Montréal. He also failed to indicate whether, in the past, he had lost touch with the appellant or when they had made contact again, if they had indeed fallen out of touch. [32] I conclude that the appellant has failed to demonstrate why Mr. XXXX could not have written a similar document or why she could not have reasonably presented this document to the RPD before her refugee protection claim was rejected. Consequently, this document does not meet the two other criteria specifically set out in subsection 110(4) of the IRPA, and it is not admissible as evidence in the context of the appeal. No cause to hold a hearing in the context of this appeal [33] In her memorandum, the appellant requests a RAD hearing. One of the determining criteria set out in subsection 110(6) of the IRPA is that evidence presented on appeal was found admissible. However, the documents submitted by the appellant are not considered admissible; therefore, there is no new evidence to be assessed in the context of a RAD hearing.19 IV. APPLICABLE STANDARD OF REVIEW AND ANALYSIS OF THE APPEAL [34] The RAD reviews RPD decisions by applying the correctness standard of review after having conducted its own assessment of the record. The exception to that rule involves the RPD's findings when assessing credibility or the weight to be given to the oral testimony it heard, in situations where it enjoyed a meaningful advantage, the RAD must apply the reasonableness standard of review. In my opinion, the arguments raised by the appellant in her memorandum should be analyzed using the correctness standard.20 [35] Having conducted my own analysis of the record, I am of the opinion that the appellant's arguments must be rejected. Having listened to the recording of the hearing and read the RPD's decision, I am persuaded that the decision is justified. Not only did the RPD not commit an error in its assessment of the appellant's credibility, but it also had the right not to attach any probative value to certain documents submitted into evidence. Here is why. A. Assessment of the claimant's credibility [36] It is well known that the onus is on refugee protection claimants to establish, on a balance of probabilities, the facts on which their refugee protection claim is based.21 For its part, the RPD may draw conclusions based on implausibilities, common sense and rationality.22 Lack of credibility on an important aspect of a claim can amount to a finding that there is no credible evidence on which the claim can be based.23 As Justice Roy recently wrote, after having presented a summary of the principles of assessing credibility,24 "...it is the entirety of the evidence available on this record that must be assessed, applying common sense and human experience."25 [37] During the hearing, the RPD clearly noted a serious issue with credibility in light of the evidence submitted by the Minister, which indicated that during the time the appellant was supposedly incarcerated then hospitalized, she was actively using her Facebook account. The RPD asked the claimant to explain. She stated that she had kept her cellphone in her pants pocket and, when she was being detained, she and others detainees were allowed to keep their cellphones and use them. They were not, however, allowed to make telephone calls or speak publicly about their arrest. She continued, explaining that during her hospitalization, she had her telephone and she used it to keep herself busy.26 [38] The RPD concluded that those explanations were unreasonable. It found that it was not credible that the individuals she was contacting via her Facebook account would not ask about where she was being held or about her health. It also found, considering the documentary evidence about detentions, that, on a balance of probabilities, ANR officers would not allow detainees who were part of the opposition to communicate in any way with individuals outside of the detention centre.27 [39] Contrary to the arguments presented by the appellant, the RPD relied on the documentary evidence concerning detention conditions in the DRC and, implicitly, common sense, and it provided clear reasons indicating why it found that the explanations provided were not credible or reasonable. Clearly, the finding is not based on a microscopic analysis of peripheral or irrelevant aspects of this refugee protection claim. Nor is it an arbitrary conclusion. Having conducted an independent analysis of the record, I am of the opinion that this finding is determinative as it goes to the very heart of the refugee protection claim. On that point, it is worth noting that during the RPD hearing, the appellant was asked to indicate whether she had encountered problems with the government before the events that she alleged took place on September 19, 2016. She replied that she had not,28 which means that her membership alone in ECIDÉ had never caused her issues and it was her alleged participation in the protest on September 19, 2016, that started it all. B. Little weight given to some of the claimant's documents [40] The appellant submitted that the RPD committed errors of law by failing to consider all of the evidence and by systematically rejecting it without reasonable grounds. In my opinion, those arguments are unfounded. [41] In fact, the RPD considered the summons,29 the medical report,30 letters from lawyers,31 the statement from the ECIDÉ party32 and the sworn statement from the appellant's friend,33 but it decided not to attach any probative value to them given that the evidence provided information about facts that it had found were not credible as per its previous findings.34 [42] The case law on this point is very clear. As Justice Montigny, then a member of the Federal Court, writes: Despite the RPD's duty to consider all of the evidence, the finding that a claimant has no credibility may extend to all of the evidence he or she submits.... In dismissing evidence that merely repeated a version of the facts considered to be not very credible and improbable, the RPD did not err or breach the general rule that all evidence must be considered before ruling on the credibility of an applicant's account.35 [43] Not to mention, some of the documents contained anomalies or contradictions in comparison to the claimant's testimony, which raised doubts as to their authenticity. To begin, the so-called summons issued by the ANR is titled [translation] "Invitation," yet there is no number for this supposed invitation. Furthermore, there are errors in the letterhead, such as "Ministère de l'Intérieure et Securite" instead of "Ministère de l'Intérieur et Sécurité" and "Agence Nationale des Renseignements" instead of "Agence nationale de renseignement." Finally, the alleged medical report is written in a way that reminds the reader of Molière, but more importantly, and more seriously, its contents contradict the claimant's testimony before the RPD. In fact, during her testimony, she stated that she was hit on the back and the soles of her feet and that, afterwards, she had a high fever and back pain.36 However, the medical report does not refer to any injuries to the claimant's back or the soles of her feet. When the RPD confronted her about that, the claimant did not provide an explanation; she simply stated that when she arrived at the hospital, she was running a high fever, was not in a good state and had a headache.37 In my opinion, that contradiction further undermines her credibility. CONCLUSION [44] For these reasons, I confirm the RPD determination, namely that XXXX XXXX XXXX is not a "Convention refugee" pursuant to section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the same act. [45] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette February 21, 2018 Date IRB translation Original language: French 1 Appellant's Basis of Claim Form (BOC Form), pages 22 to 35 of the RPD record. 2 For more on this, see the consolidated list of documents, which is reproduced on page 21 of the RPD record. The documents submitted into evidence by the claimant before the RPD are reproduced on pages 153 to 215 of the RPD record. 3 The documents submitted into evidence by the Minister are reproduced on pages 130 to 152 of the RPD record. 4 The Notice of Intervention submitted by the Minister is reproduced on pages 123 to 129 of the RPD record. 5 RPD Reasons and Decision, August 9, 2017, pages 3 to 9 of the RPD record. 6 Appellant's memorandum, September 20, 2017, pages 135 to 142 of the appeal record. 7 The documents in question, along with other documents demonstrating the identity of the individuals who signed these sworn statements, are reproduced on pages 129 to 134 of the appeal record. 8 Appellant's memorandum, paragraphs 21 to 24, pages 141 and 142 of the appeal record. 9 Canada (Citizenship and Immigration) v. Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, paragraphs 38 to 51. 10 Ibid., paragraphs 34 and 35. 11 Ibid., paragraph 54. 12 The document in question is reproduced on pages 129 and 130 of the appeal record. 13 Appellant's affidavit, September 20, 2017, paragraph 25, page 14 of the appeal record. 14 The birth certificate in question is reproduced on page 80 of the RPD record. 15 Appellant's BOC Form, pages 24 and 28 of the RPD record. 16 This document is reproduced on pages 53 to and 56 of the RPD record. 17 Recording of the RPD hearing on July 18, 2017, 01:48:25 to 01:51:50. 18 Ibid., 01:26:35 to 01:29:35. 19 Borubaev v. Canada (Minister of Citizenship and Immigration), No. IMM-3026-17, Diner, February 5, 2018; 2018 FC 125, paragraph 21, referring to Belek v. Canada (Minister of Citizenship and Immigration), No. IMM-3459-16, Diner, February 16, 2017; 2017 FC 196, paragraph 20. 20 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93 and X (Re), 2017 CanLII 33034 (CA IRB). 21 Arreaga v. Canada (Minister of Citizenship and Immigration), No. IMM-996-13, Noël, September 25, 2013; 2013 FC 977, paragraph 45. 22 Laszlo v. Canada (Minister of Citizenship and Immigration), No. IMM-3507-04, Von Finckenstein, April 6, 2005; 2005 FC 456, paragraph 10. 23 Hernandez Cortes v. Canada (Minister of Citizenship and Immigration), No. IMM-4645-08, Teitelbaum, June 4, 2009; 2009 FC 583, paragraph 30. 24 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, paragraph 22. 25 Ibid., paragraph 27. 26 Recording of the RPD hearing on July 18, 2017, 21:50 to 38:30. 27 RPD Reasons and Decision, paragraphs 15 to 24 of the RPD record. 28 Recording of the RPD hearing on July 18, 2017, 01:19:20 to 01:19:40. 29 This document is reproduced on page 163 of the RPD record. 30 This document is reproduced on pages 166, 167 and 168 of the RPD record. 31 These letters are reproduced on pages 164, 165, 214 and 215 of the RPD record. 32 This statement is reproduced on page 159 of the RPD record. 33 This statement is reproduced on page 161 of the RPD record. 34 RPD Reasons and Decision, paragraphs 25, 26 and 27 the RPD record. 35 Nijjer v. Canada (Minister of Citizenship and Immigration), No. IMM-340-09, de Montigny, December 9, 2009; 2009 FC 1259, paragraph 27. 36 Recording of RPD hearing on July 18, 2017, 39:00 to 48:30. 37 Ibid., 58:20 to 01:01:00. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-04774 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB7-11503 11