TB9-07044

RAD File No. / No de dossier de la SAR : TB9-07044 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 August 28, 2019 Date de la décision Panel Me Philippe Rabot Tribunal Counsel for the person who is the subject of the appeal Me Ronald Shacter 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 against the decision of the Refugee Protection Division (RPD), which rejected her refugee protection claim. The appellant claims that her life is in danger in the DRC because her son, XXXX, had had a sexual relationship with the niece of an important police officer and she became pregnant. As a result, the officer in question allegedly had XXXXimprisoned at the central prison in XXXX, but he managed to escape two years later. The appellant, in turn, was then imprisoned not long after she returned to the DRC following an extended stay in Canada, as the police wanted to try to force her to disclose XXXXwhereabouts. The Minister of Immigration, Refugees and Citizenship (the Minister) intervened before the RPD to argue that the appellant was not credible in claiming to have a son named XXXXbecause she had not included him in the list of family members that appears in her visitor visa application, prepared in 2016. The RPD concluded that this was a valid reason to reject the appellant's testimony. However, according to her, the RPD should not have based its assessment of her credibility on a visa application that she acknowledged was incomplete. The appellant argues that her testimony was credible because she provided the RPD with a birth certificate for XXXX, which indicates that he is her son. [2] I am of the opinion that the evidence on the record establishes, on a balance of probabilities, that the appellant has a son named XXXX. However, she did not establish that there is a serious possibility that she would be persecuted because of her son's activities if she were to return to the DRC. The appeal is therefore dismissed. BACKGROUND [3] According to the appellant, her son XXXXhad a sexual relationship in 2015 with the niece of a high-ranking officer of the Kinshasa police, which resulted in her becoming pregnant. The officer in question then allegedly had XXXXimprisoned at the XXXX central prison. In XXXX2017, XXXXwas allegedly one of XXXX XXXX XXXXprisoners who managed to escape. According to the appellant, her son has been in hiding since that time. [4] From XXXX2016 to XXXX2017, the appellant was in Canada to visit one of her daughters who was living in the Toronto area. Two months after she returned to the DRC, XXXXallegedly briefly came to see her. A few days later, police officers allegedly went to the appellant's home and questioned her about XXXX, informing her that they were looking for him. The appellant claimed that the police officers beat her before putting her in prison because she was unable to tell them her son's whereabouts. She was released after XXXXdays, after having to pay $20 to a police officer. She immediately went to hide at her sister's home, long enough to finalize travel arrangements to return to Canada. She left the country from Kinshasa Airport on XXXX XXXX, 2017. She presented her claim for refugee protection almost XXXXmonths later, on May 25, 2018. [5] In her testimony before the RPD, the appellant stated that she feared being imprisoned if she were to return to the DRC because her son is still wanted by the police. She claimed that one of her other sons, XXXX, was arrested in XXXX2018 and detained for several months for the same reason she had been. A third son, XXXX, was in hiding because he feared he too would be arrested. [6] The Minister intervened in writing before the RPD to argue that the appellant's account was not credible, given that her three sons, named XXXX, XXXXand XXXX, were not included in the list of family members she provided in her visitor visa application, filed in XXXX2016.1 [7] In its written decision, the RPD found that the appellant was not credible. The RPD sided with the Minister's arguments that there were contradictions in the evidence regarding her children's identity. Having taken note the Minister's intervention, the appellant submitted into evidence birth certificates for her three sons. She explained that her daughter had obtained them for her from municipal authorities in XXXX 2018.2 However, the RPD found that they probably were not authentic documents, noting that the documentary evidence states that a significant proportion of identity documents from the DRC are fraudulent and the appellant's daughter did not have to present proof of identity to obtain them. In addition, the RPD did not want to give any probative value to the written statement of one of the appellant's daughters because this statement appeared to contradict the appellant's testimony.3 [8] In her memorandum of appeal,4 the appellant criticizes the RPD for not considering her profile as a refugee protection claimant abroad. She also challenges the RPD's finding with respect to her family relationship with XXXX, submitting that she had a valid reason for not mentioning him in her visa application because then she would have had to state that he was in prison, which could have resulted in her application being rejected. DETERMINATIVE ISSUES [9] To be able to establish the merits of the appeals, I must determine the following: * Whether the appellant's profile as a refugee protection claimant in Canada establishes, in and of itself, that she would face a serious possibility of persecution if she were to return to the DRC; and * Whether the evidence establishes that there are grounds for concluding that there is a serious possibility that the appellant would be detained by the authorities in the DRC, for the purpose of forcing her to disclose the whereabouts of her son XXXX, if she were to return to the country . SCOPE OF THE APPEAL [10] The Refugee Appeal Division (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 the assessment of the credibility or weight to be given to the oral evidence is hears, in cases where it enjoys a meaningful advantage. [11] 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 The appellant's profile as a refugee protection claimant [12] The evidence contained in the National Documentation Package (NDP) on the DRC does not establish that all individuals who claim refugee protection abroad are likely to be arrested and detained upon their return, but only some of them, namely, those perceived as political opponents.5 However, this is not the appellant's case. It is true that the NDP indicates that all those who claim refugee protection abroad are likely to be interviewed by the authorities upon their return about why they were expelled from the country in question. On its own, this does not amount to persecution within the meaning of section 96 of the Immigration and Refugee Protection Act (IRPA). [13] As a result, I am not of the opinion that there are valid grounds to conclude that there would be a serious possibility that the appellant would be persecuted upon returning to the DRC simply because she claimed refugee protection in Canada. The degree of risk that the appellant would be persecuted because of her son's activities [14] I do not believe it is necessary for me to rule on whether the appellant's testimony is credible with respect to the events that occurred. Even assuming that she is indeed the mother of three sons named XXXX, XXXXand XXXX, I am of the opinion that the evidence does not establish that there is a serious possibility at this time that the appellant would be subject to persecution because of her son's behaviour. [15] There is no evidence that the police continued to look for the appellant after releasing her in XXXX 2017. Indeed, she did not have any problems leaving the country, even though she would have had to go through a police checkpoint at the Kinshasa Airport in order to catch her flight to Canada. The appellant did not testify that she had to take steps to evade this checkpoint. Furthermore, the evidence does not establish that the police continued looking for her after she left the country. [16] The fact that one of her sons was arrested does not necessarily mean that the same fate would await her if she were to return to the DRC. He was eventually released, and there is no evidence that the police then continued its efforts to find XXXX. In addition, no other members of the appellant's family appear to have been contacted by the police thereafter. [17] The appellant testified that even she did not know where XXXXwas hiding. That is what she told the police officers who came to her home in XXXX 2017. According to her testimony, although she was hit when the police officers came to her home, there were no other incidents of violence against her during the XXXX days she was detained. She was eventually released on payment of what was either bail or a bribe. Although she felt she had to hide at her sister's home, there is no indication that the police were after her, which may explain why she did not feel she had to travel under a false identity when she left the country and why she was comfortable flying out of the Kinshasa Airport instead of using a false identity or attempting to cross the border more discreetly without being noticed and flying out of Brazzaville, for example, which is in the neighbouring country of Congo (Brazzaville). [18] I therefore conclude that there is, at most, a mere possibility that the appellant would face further trouble at the hands of the authorities if she were to return to the DRC. I am of the opinion that the evidence on the record does not establish that there is a serious possibility that she would be persecuted, especially as it not even clear that the police are still looking for her son, XXXX. Therefore, the appellant is not a refugee within the meaning of section 96 of the IRPA. Furthermore, the evidence does not establish, on a balance of probabilities, that she would be subject to a risk to her life or to a risk of cruel and unusual treatment or punishment. Therefore, she is not a person in need of protection within the meaning of section 97 of the IRPA. CONCLUSION [19] The appellant's profile as a refugee protection claimant in Canada, in and of itself, does not establish that there is a serious possibility that she would be mistreated by the authorities in the DRC if she were to return to that country. In addition, her son XXXXescape from prison in XXXX2017 does not currently create a serious possibility that she would be persecuted by the authorities of the RPD. The appeal is therefore dismissed. (signed) " Philippe Rabot " Philippe Rabot August 28, 2019 Date 1 RPD-1, Exhibit M-1, Refugee Protection Division (RPD) record, pages 145 to 152. 2 Ibid., pages 162 to 164. 3 Ibid., page 220. 4 P-2, appeal record, pages 16 to 20. 5 RPD-1, RPD record, Exhibit 3, National Documentation Package, DRC, July 31, 2019, Exhibit 3, Tab 14.3, Situation of people returning to the country after they either spent time abroad, claimed refugee status, or were seeking asylum (2015-July 2017), COD105818.FE, July 10, 2017, Immigration and Refugee Board of Canada, July 26, 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : TB9-07044 RAD.25.02 (April 4, 2019) Disponible en français 7 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