MB7-24212

RAD File No. / No de dossier de la SAR : MB7-24212 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 Ottawa, Ontario Appel instruit à Date of decision July 17, 2019 Date de la décision Panel Me Philippe Rabot Tribunal Counsel for the person who is the subject of the appeal Me Jamal Addine Fraygui 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] The appellant, XXXX XXXX XXXX, a citizen of the Democratic Republic of the Congo (DRC), is appealing a decision of the Refugee Protection Division (RPD) to reject his refugee protection claim. The appellant claimed that his life had been threatened by the XXXX of the Agence nationale des renseignements (ANR) [national intelligence agency] of the DRC because he had angered him on the telephone for having flirted with his partner. The RPD found that the appellant was not credible because of major contradictions in the evidence. I am of the opinion that the RPD placed too much significance on the contradictions. However, it seems improbable to me that the XXXX of the ANR would still be interested in attacking the appellant for the disparaging way in which he allegedly spoke to him on the telephone more than four years ago. The appeal is therefore dismissed. BACKGROUND [2] According to the appellant, his partner informed him in XXXX 2015 that someone named XXXX XXXX (KM) had flirted with her. What the appellant did not know at the time was that KM was the head of the ANR, so he telephoned him to complain about his behaviour. He claims to have insulted him and warned him to stop bothering his partner. [3] XXXX months later, the appellant left for XXXX to continue his university studies. He did not return to the DRC until XXXX 2016. [4] XXXX month after returning to the DRC, armed men confronted the appellant and warned him that he had to stop seeing his partner, or else he would be killed. The appellant believed that those individuals were ANR agents acting under KM's orders. Subsequently, he felt like he was being followed whenever he went out. [5] Therefore, the appellant made the decision to leave the DRC for his own safety. Using a passport issued under his father's identity, but bearing his photograph, the appellant travelled to the neighbouring country of Congo (Brazzaville) and then took a flight to XXXX. The purpose of this route was to conceal his true intention, namely, to travel to Canada, where he arrived on XXXX XXXX, 2016. [6] The Minister of Immigration, Refugees and Citizenship intervened in writing before the RPD,1 stating that the appellant had submitted visa applications for Canada four times before arriving in Canada and that all of those applications had been rejected. [7] In its written decision,2 the RPD found that the appellant's testimony was not credible. According to the RPD, the testimony was contradicted by other evidence on the record, including the notes from the appellant's interview with an immigration officer that took place when he arrived in Canada. The RPD also stated that it was implausible that the appellant would have been able to speak on the telephone with the head of the ANR in XXXX 2015 to criticize him for his behaviour towards his partner. [8] In his appeal memorandum,3 the appellant argues that the RPD exaggerated the significance of the contradictions in the evidence. The appellant also requests a hearing before the Refugee Appeal Division (RAD) but states that he has no new evidence to present. DECISION REGARDING THE REQUEST FOR A HEARING [9] The appellant's request for a hearing cannot be granted, as he is presenting no new evidence. According to subsection 110(6) of the Immigration and Refugee Protection Act (IRPA), the RAD is authorized to hold a hearing solely for the purpose of considering new evidence presented in accordance with subsection 110(4). DETERMINATIVE ISSUE [10] I consider that the determinative issue is whether it is likely that the XXXX of the ANR would want to attack the appellant if he were to return to the DRC because he still holds a grudge against him for the way in which he spoke to him on the telephone in XXXX 2015. SCOPE OF THE APPEAL [11] The RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule concerns the RPD's findings in assessing the credibility or weight to be given to the oral evidence it hears, in situations in which it enjoyed a meaningful advantage. [12] In this case, I am of the opinion that there are no findings for which the RPD enjoyed a meaningful advantage. Therefore, I have applied only the correctness standard. MERITS OF THE APPEAL [13] The appellant's testimony regarding the events that allegedly occurred in XXXX 2015 and XXXX 2016 is clearly insufficient, in my opinion, to establish that he is a person in need of protection as defined by section 97 of the IRPA. He would have needed to establish that it is probable, and not merely possible, that his life would be personally threatened or that he would be subjected to cruel and unusual treatment or punishment if he were to return to the DRC now, in 2019, because KM has a grudge against him for having made disparaging remarks to him during a telephone conversation that took place more than four years ago. [14] I will not go so far as to find, as the RPD did, that it is implausible that the appellant could have managed to reach KM by telephone in XXXX 2015. Although this may seem improbable, I concede that it is within the realm of possibility. The same holds true for the incident of XXXX 2016 in which ANR agents allegedly confronted the appellant. [15] As for the contradictions that the RPD identified in the evidence, in my opinion they are not as significant as the RPD believed. Thus, I cannot find that the presumption of truthfulness of the appellant's testimony had been rebutted. [16] However, several years have passed since then. The appellant gave no indication in his testimony that KM had continued to approach his partner since they had spoken on the telephone. Although the ANR has a bad reputation, it is very difficult for me to fathom that its head would still want to attack the appellant so many years later for such a trivial incident. Moreover, I find that the evidence fails to establish that there is a connection between this telephone conversation and the incident of XXXX 2016, when the appellant was allegedly warned to stay away from his partner. CONCLUSION [17] The appellant failed to demonstrate, on a balance of probabilities, that he would be subjected to a risk to his life if he were to return to the DRC or to cruel and unusual treatment or punishment. [18] The appeal is therefore dismissed. (signed) Philippe Rabot Philippe Rabot July 17, 2019 Date IRB translation Original language: French 1 RPD-1, Refugee Protection Division record, pages 260 to 275. 2 Ibid., pages 3 to 7. 3 P-2, Appeal record, pages 17 to 27. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB7-24212 RAD.25.02 (April 4, 2019) Disponible en français 3 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 (April 4, 2019) Disponible en français