MB9-17593

RAD File No. / No de dossier de la SAR : MB9-17593 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 / heard at Ottawa, Ontario Appel instruit / entendu à Date of decision December 22, 2020 Date de la décision Panel Nicole Ladouceur Tribunal Counsel for the person who is the subject of the appeal Alain Tayeye Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX, the appellant, a citizen of the Democratic Republic of Congo (DRC), is appealing the decision of the Refugee Protection Division (RPD) rendered on June 27, 2019, rejecting her claim for refugee protection on the ground of lack of credibility. a. In her Basis of Claim Form (BOC Form), the appellant, who works for a XXXX, alleges that she received threats from high-ranking members of the military after closing their XXXX XXXX because of sanctions imposed by the United States (U.S.) and the European Union (EU). She was detained and interrogated by the police. They condemned her for traveling to the U.S. and working for the opposition. On XXXX XXXX XXXX 2018, she filed her refugee protection claim on the basis of imputed political opinion. She fears for her life should she return to the DRC. b. In its decision, the RPD found that the appellant was not a credible witness by reason of inconsistencies and an omission in the evidence. The RPD also noted similarities with another refugee protection claim that were not explained to its satisfaction. c. In her memorandum, the appellant submits that the RPD erred when it assessed her credibility because it gave disproportionate weight to an omission while ignoring the evidence of threats against her. Furthermore, the appellant submits that the RPD erred when it concluded that her husband's return to the DRC undermined her credibility. d. The determinative issue for the Refugee Appeal Division (RAD) is credibility. DETERMINATION [2] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes it with the determination that the appellant is a Convention refugee and a person in need of protection. The evidence presented on appeal [3] In an affidavit attached to her memorandum,1 the appellant states that she presented evidence referred to in subsection 110(4) of the IRPA that is material and rebuts the RPD's finding that she is not credible.2 [4] Under the IRPA,3 I can only allow evidence on appeal: i. that arose after the RPD rendered its decision; ii. that was not reasonably available at the time of the decision; or iii. that the person could not reasonably have been expected in the circumstances to have presented to the RPD before the decision was rendered. [5] If the evidence meets one or more of these requirements, I must decide whether the evidence is new, credible and relevant before admitting it.4 [6] In my opinion, the evidence presented in support of the appellant's affidavit does not meet the requirements under subsection 110(4) of the IRPA. The reasons are as follows. [7] The notices to appear from the police received by the appellant's husband (Exhibit A): The notices to appear are respectively dated XXXX XXXX XXXX XXXX2018 and XXXX XXXX XXXX XXXX2018, prior to the RPD's rejection of the refugee protection claim. As a result, these documents do not meet the first requirement of subsection 110(4) of the IRPA, namely, to present evidence that arose after the date of the rejection of the refugee protection claim. [8] The appellant alleges that her husband received two notices to appear from the police.5 Therefore, it is reasonable that these pieces of evidence would be presented at the hearing in support of her allegations. When the RPD asked why they were absent from the record, the appellant testified that she did not think that it was necessary because they were related to her husband's record. At the hearing, she testified that she did not have them in her possession because she had quickly left her country in XXXX 2018.6 However, these notices were issued more than a year before the hearing and the witness would have had them in his possession for over nine months. The appellant therefore had the means and ample time to obtain them prior to the hearing. [9] These notices do not meet the other two requirements specifically set out in subsection 110(4) of the IRPA. In my opinion, their primary purpose is to complete a deficient record. However, as pointed out by the Federal Court, an appellant cannot offer new evidence every time he or she is surprised by the RPD's decision.7 Therefore, this evidence is not admissible on appeal. [10] The testimonial letter from XXXX XXXX XXXX (Exhibit B): This letter is dated XXXX XXXX XXXX XXXX2019, after the rejection of the refugee protection claim. However, it refers to events that all arose before the RPD rejected the claim for refugee protection. As a result, the letter does not meet the first requirement of subsection 110(4) of the IRPA, namely, to present evidence that arose after June 27, 2019, the date the refugee protection claim was rejected. [11] This letter of support from a former co-worker at the XXXX was reasonably available prior to the rejection of the refugee protection claim. Its purpose is to support the appellant's allegations. Indeed, the author mentions that the appellant asked her to send her XXXX documents prior to the date of the hearing on May 22, 2019, which she did. Nothing in the appellant's memorandum establishes that it was not possible to obtain this letter before the RPD's decision was rendered, given that its author, the former co-worker, was still employed by XXXX. In the letter, XXXX XXXX XXXX states that she was unable to send it to the RPD prior to the hearing because she had lost contact with her. However, XXXX XXXX XXXX is still an employee of XXXX and the appellant therefore had means of communicating with her to obtain the document for the hearing. Given the circumstances, this document does not meet the two other requirements specifically set out under subsection 110(4) of the IRPA. In my opinion, its primary purpose is to complete a deficient record. As a result, this document is not admissible in evidence on appeal. [12] Redacted copy of the written account of another claimant's refugee protection claim (Exhibit C): In her affidavit, the appellant states that the RPD gave her this document before the hearing began, because the RPD noted similarities between the main allegations of another claimant and those of the appellant and wanted to question her about it. It does not meet any of the requirements set out under subsection 110(4) of the IRPA, as it did not arise after the decision and was available at the time of the decision. As a result, this document is not admissible as new evidence on appeal. Nonetheless, it will be considered as a document that forms part of the RPD record. [13] Reports from international organizations, articles and newspapers (Exhibit D): In her memorandum, the appellant submits that these documents confirm the continued U.S. and EU sanctions against dignitaries and senior officials from the regime in power in the DRC. These documents were published in April 2019, June 2018 and October 2017 respectively, and therefore do not meet the first requirement of subsection 110(4) of the IRPA, namely, to present evidence that arose after June 27, 2019, the date the refugee protection claim was rejected. [14] There is nothing in the appellant's memorandum that establishes that these articles were not admissible or that they could not reasonably have been presented before the RPD. As a result, they do not meet the two other requirements specifically set out under subsection 110(4) of the IRPA. Therefore, they are not admissible in evidence on appeal. Oral hearing before the Refugee Appeal Division [15] In her memorandum, the appellant requests an oral hearing before the RAD.8 [16] According to the case law, it is up to the RAD to determine whether or not the criteria under subsection 110(6) of the IRPA have been met.9 [17] One of the determining criteria under subsection 110(6) of the IRPA is that evidence presented on appeal must be deemed admissible. However, the documents presented by the appellant were not deemed admissible. Consequently, there is no new documentary evidence to be analyzed in an oral hearing before the RAD.10 ANALYSIS [18] The role of the RAD is to review RPD decisions by applying the correctness standard of review after conducting an independent analysis of the evidence on the record.11 Having applied that standard of review and reviewed the evidence on the record, including listening to the recording of the hearing before the RPD on May 22, 2019, I am of the opinion that the RPD erred in assessing the appellant's credibility. Similarities with another refugee protection claim [19] Before the hearing, the RPD disclosed a redacted copy of another claimant's written account, in which it noted similarities with the appellant's written account. For example, both claimants alleged that they work for the same XXXX, received threats from generals, were interrogated, did not receive support from their employer and that a person from their entourage had been murdered. [20] When asked to comment on these similarities, the appellant testified that it is not uncommon for each of these things to occur and that it was possible that employees from other XXXX of the XXXX had interactions with clients who had several XXXX. The RPD found the appellant's explanations limited and drew a negative inference because, in its opinion, the appellant failed to provide sufficient credible explanations to establish that her allegations were her own.12 [21] In her memorandum,13 the appellant submits that the RPD conducted a microscopic analysis of the similarities while ignoring the differences between the two documents, such as the different client portfolios overseen by the two claimants. [22] I examined the redacted written account that the RPD presented to the appellant prior to the hearing. It is true that the document contains similarities; however, upon reading it, I also noted that there are many differences between the two documents and that these differences are fairly significant. [23] With all due respect, I am of the opinion that the RPD placed the appellant in an untenable situation when it confronted her with another claimant's written account prior to the hearing (even redacted) and asked her to differentiate her written account from that of another claimant who is unknown to her. In my opinion, the appellant was sincere in explaining that there could be other XXXX employees in the same situation as her, as several of them have portfolios in different XXXX made up of different individuals to whom the international sanctions applied and were threatened after XXXX XXXX and refusing to open XXXX XXXX. [24] After noting that the two written accounts contain significant differences and that the appellant's explanations regarding the similarities were reasonable, I am of the opinion that the RPD erred in drawing a negative inference from the similarities between the two written accounts. Omission of the exact wording of the threat [25] The RPD made an adverse credibility finding based on an omission from the appellant's written account. At the hearing, the appellant testified that she was threatened by XXXX XXXX, while in her written account, she states that she was threatened by three generals who were his clients. Her written account does not contain the exact words XXXX XXXX used against her. At the hearing, she testified that he had entered her office with his service weapon on his waist and had told her [translation] "you are more afraid of the Americans than of me."14 When the RPD asked her about this omission, the appellant responded that she had said enough about it in what she wrote; however, the RPD did not accept that explanation.15 [26] In her memorandum,16 the appellant submits that she provided all the details about the threats made by XXXX XXXX and the other generals in a clear and unambiguous manner. She also submits that the RPD erred in its decision when it only assessed part of the evidence, namely, her testimony concerning XXXX XXXX, as she had also been threatened by XXXX XXXXandXXXX XXXX XXXX, as stated in her written account and testimony.17 [27] I reviewed the appellant's written account, which is made up of three full, single-spaced pages (8.5" x 11") and contains a lot of detail. I also listened carefully to the recording of the appellant's testimony at the hearing. [28] Where a refugee protection claimant fails to mention important facts in his or her BOC Form, this may legitimately be considered by the RPD to be an omission that goes to lack of credibility.18 In this case, it is true that the appellant's written account does not contain the exact words XXXX XXXX used when he threatened her. However, her written account is detailed with regard to the threats the three generals made against her. Her testimony on the topic was clear and convincing. I listened to the audio recording and she testified with confidence. [29] Furthermore, in my opinion, the omission of XXXX XXXX threatening words is not determinative. I consider that her written account describes a threatening context that weighed on her more heavily than XXXX XXXX few words. She was also threatened by agents who represented the generals and was interrogated and detained by the police. In my opinion, the RPD erred when it concluded that the omission of the words used by XXXX XXXX undermined the appellant's credibility. The return of the appellant's husband to the DRC [30] In its decision, the RPD concluded that the behaviour of the appellant's husband, who returned to the DRC for work from XXXX 2018 to XXXX 2018, was inconsistent with that of a person who fears for his life, thereby undermining the credibility of the appellant, who alleges that she fears for her life and the lives of her loved ones following threats made against her by three generals. [31] In her memorandum,19 the appellant submits that the RPD erred in assessing her credibility when it concluded that her written account was not credible due to her husband's actions. She submits that, in order to determine her refugee protection claim, the RPD should consider the actions taken by the appellant rather than those of her husband. [32] It was up to the refugee protection claimant to establish, on a balance of probabilities, the facts on which she based her application20 [emphasis added]. Therefore, it is up to the appellant to establish that there is a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, she would be personally subjected to a danger of torture, to a risk to her life or to a risk of cruel and unusual treatment or punishment if she had to return to her country. [33] In this case, the appellant is claiming refugee protection because she fears the generals by reason of personal threats made against her. Her husband testified that he had returned to the DRC to work because his wife was the one being targeted and he did not feel personally targeted.21 It was only later, after being assaulted and after his assailants asked him where his wife was, that he realized that he was also at risk and decided to flee the country as well. The husband's actions are his own and were not under the appellant's control. The RPD erred when it concluded that the husband's personal behaviour, namely, when he returned to the DRC, undermined the appellant's credibility in the assessment of her personal refugee protection claim. Additional documentary evidence [34] The appellant submitted that the RPD erred when it rejected the additional documentary evidence. [35] According to my analysis of the record, the RPD did not ignore this evidence and made the effort to explain why it did not give probative value to the additional documentary evidence. [36] Probative value has to do with the capacity of the evidence to establish the fact of which it is offered in proof.22 According to the case law, a decision-maker can reach a conclusion regarding the weight to give to a document after having assessed the document's credibility or probative value or both.23 [37] Having concluded that the RPD erred in assessing the appellant's credibility, I consider it unnecessary to examine its analysis of the additional documentary evidence because, in my opinion, it relied on an erroneous analysis. [38] After reviewing the entirety of the evidence, the RAD concludes that the appellant established that there is a serious possibility of persecution on a Convention ground and that, on a balance of probabilities, she would personally face one of the risks set out in section 97 of the IRPA if she had to return to her country. CONCLUSION [39] For these reasons, after examining all of the evidence, I set aside the determination of the RPD and substitute my own determination, that XXXX XXXX XXXX is a Convention refugee under section 96 of the IRPA and a person in need of protection under section 97 of the IRPA. [40] The appeal is allowed. (signed) Nicole Ladouceur Nicole Ladouceur December 22, 2020 Date IRB translation Original language: French 1 P-2, appeal record, appellant's affidavit, at page 102. 2 P-2, appeal record, appellant's memorandum, at p. 160. 3 Subsection 110(4) of the Immigration and Refugee Protection Act. 4 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza, 2007 FC 385. 5 Recording of the hearing held on May 22, 2019, at approximately 01:18:00. 6 Ibid., 02:04:00. 7 Ilias v. Canada (Minister of Citizenship and Immigration), 2018 FC 661, at para. 34. 8 P-2, appeal record, appellant's affidavit, at page 102. 9 Horvath v. Canada (Minister of Citizenship and Immigration), 2018 FC 147, at para. 18. 10 Borubaev v. Canada (Minister of Citizenship and Immigration), 2018 FC 125, at para. 21. 11Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Minister of Citizenship and Immigration), 2018 FC 1145. 12 SPR-1, Refugee Protection Division record, reasons and decision, at paragraph 19. 13 P-2, appeal record, appellant's memorandum, at page 147. 14 Recording of the hearing held on May 22, 2019, at approximately 00:48:20. 15 Ibid., at approximately 02:11:00. 16 P-2, appeal record, appellant's memorandum, at page 138. 17 Ibid., at page 144. 18 Grinevich v. Canada (Minister of Citizenship and Immigration), 1997 CanLII 16340 (FC). 19 P-2, appeal record, appellant's memorandum, at page 153. 20 Arreaga v. Canada (Minister of Citizenship and Immigration), 2013 FC 977, at para. 45. 21 Recording of the hearing held on May 22, 2019, at approximately 02:00:00. 22 Magonza v. Canada (Minister of Citizenship and Immigration), 2019 FC 14, at para. 21. 23 Ibid., at paras. 27-31. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-17593 RAD.25.02 (January 2020) Disponible en français 10 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.25.02 (January 2020) Disponible en français