MB5-03512

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. / No de dossier de la SAR : MB5-03512 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 April 21, 2016 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Marie-José L'Ecuyer 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 [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 his refugee protection claim by determining that he is not a "Convention refugee" or a "person in need of protection" within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant is requesting that the Refugee Appeal Division (RAD) allow the appeal, set aside the determination and grant him refugee status, or give any direction considered necessary.1 [3] The appellant did not submit any new evidence in support of his appeal under subsection 110(4) of the IRPA. He is leaving the RAD the discretion to summon him for a hearing. [4] The Minister did not intervene on appeal. DETERMINATION OF THE APPEAL [5] Under subsection 111(1) of the IRPA, the RAD confirms the determination of the RPD, that is, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [6] The appeal is dismissed. BACKGROUND [7] The refugee protection claimant left the DRC on XXXX XXXX, 2015. He arrived in Canada the following day and requested to be admitted as a student. This request was denied because his registration at Université XXXX XXXX XXXX in XXXX was no longer valid (since XXXX XXXX, 2015). The Canadian authorities scheduled him an appointment at a later date for a review. [8] On or around XXXX XXXX, 2015, after being informed that the Canadian authorities had issued a warrant for his arrest, the claimant went to see the immigration authorities. He was arrested and brought to the detention centre on the ground that the department believed that he was a flight risk. He allegedly claimed refugee protection at that time. [9] On February 23, 2015, he was the subject of a detention review. [10] On March 23, 2015, the claimant submitted his Basis of Claim Form (BOC Form). He indicates that he fled his country because he was sought after given his presence at demonstrations that were held in Kinshasa from XXXX XXXX to XXXX XXXX, 2015, and because he was suspected of being involved in the vandalism of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [11] He states in the BOC Form that he was to start his courses at Université XXXX XXXX XXXX in XXXX in XXXX 2015, but that, because of visa problems he had to register for the fall 2015 term. Notice of intervention before the RPD [12] On June 11, 2015, the representative of the Minister of Public Safety of Canada submitted a notice of intervention under section 170 of the IRPA and rules 29, 36 and 50 of the Refugee Protection Division Rules (RPD Rules). [13] She is requesting that the RPD reject the claimant's refugee protection claim because it lacks credibility. Exhibits M-1 to M-3 were submitted to support these allegations.2 Impugned decision [14] On July 14, 2015, the RPD rejected the refugee protection claim, concluding that the claimant did not provide credible and trustworthy testimony. In the decision, the RPD notes that the claimant omitted certain important facts in his BOC Form, in particular, that his father was allegedly involved in politics, that he was imprisoned because of his activities and that his uncle died in prison. In short, according to the RPD, his BOC Form contains very few details. [15] The RPD seriously doubted that the claimant had difficulties in the DRC or that he was summoned to appear before the authorities because he was able to leave his country without experiencing any difficulties at the airport. [16] The RPD drew a negative inference from the claimant's behaviour when he arrived in Canada. According to the RPD, his behaviour and statements to the immigration authorities were inconsistent with a well-founded fear of persecution or with one of the risks set out in section 97 of the IRPA. [17] Ultimately, the RPD did not attribute any probative value to exhibits D-1 to D-8, which were submitted in support of the refugee protection claim. GROUNDS OF APPEAL AND REMEDY SOUGHT Appellant's claims [18] First, the appellant submits that the RPD should have taken into account his young age (he was about to be 19 in March 2015) when assessing his credibility. The RPD erred, drawing a negative inference by doubting the spontaneity of his refugee protection claim. The RPD did not take into account his particular circumstances, including the fact that he was confused, that he was waiting for advice from his father before proceeding and that he was scared. [19] The appellant submits that his BOC Form includes only information that is directly linked to his refugee protection claim and his own experiences. His claim is not based on the problems his father allegedly had because of his political activities. [20] The RPD erred by drawing a negative inference regarding his credibility because of the fact that he did not have any problems at the airport. According to the appellant, its findings on this topic are arbitrary. [21] Finally, he submits that the RPD erred by not attributing any probative value to the evidence submitted because he did not file the originals. This violates the provisions of the Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (UNHCR Handbook). Given the fact that his story is plausible, even credible in the context of the DRC, the RPD should have given him the benefit of the doubt. THE RAD'S ROLE AND FUNCTIONS [22] The appellant does not submit any particular arguments regarding the RAD's role when reviewing an RPD decision. Paragraph 28 of his memorandum is, in my opinion, incomprehensible on this topic. [23] The RAD's role when reviewing RPD decisions has resulted in differing opinions at the Federal Court, hence Justice Phelan's certified question in Huruglica,3 which reads as follows: What is the scope of the Refugee Appeal Division's review when considering an appeal of a decision of the Refugee Protection Division? [24] On March 9, 2016, the Federal Court of Appeal issued a ruling in Huruglica4 regarding the applicable standard of review when the RAD reviews RPD decisions. With respect to the certified question, Justice Gauthier states: [24] With respect to the certified question, which is set out at paragraph 2, I will simply answer the question that is determinative to this appeal, for this is the only question that should have been properly certified under section 74(d) of the IRPA. [25] On behalf of the Court of Appeal, Justice Gauthier reformulated the question as follows: [106] Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD's findings of fact (or mixed fact and law), which involved no issue of credibility? [26] The Court of Appeal, interpreting the statutory provisions and pointing out in passing the reasons for the RAD's implementation, states: [44] I agree with the position advanced by Dr. Paul Daly that the very nature of the question (that is, what role did the legislator intend the RAD to play) implies that it cannot have many answers. ... In fact, as will be explained, it is my view that the legislative intent is not ambiguous. [98] The RAD was essentially viewed as the safety net that would catch all mistakes made by the RPE, be it on the law or the facts." This confirms my prior conclusion that the legislator intended the RAD to review the RPD decisions on the standard of correctness. [27] Justice Gauthier describes in passing the similarities and the differences between the powers of the RPD and the RAD. She notes, among other things, that the RAD rarely holds hearings. Addressing the provisions set out in subsection 111(2) of the IRPA, the Court of Appeal points out that the RAD may refer a decision that is erroneous in fact, in law, and in mixed fact and law. According to the Court: [61] The applicable standard of review remained the same regardless of whether the appellate body confirmed or reversed the decision under appeal .... [28] Moreover, the Court recognizes: [70] That there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of credibility or weight to be given to the oral evidence it here. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [29] Having pointed out examples of such situations, the Court declares: [74] The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is no need for me to pigeon-hole the RAD to the level of deference owed in each case. [30] In response to the certified question reformulated by the Court of Appeal, the Honourable Justice Gauthier holds: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility or oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [31] In Singh,5 a decision of the Court of Appeal rendered shortly afterwards, Justice De Montigny, on behalf of the Court, states that the RAD's mandate is broad. The RAD "may intervene to correct any error of fact, of law, or of mixed fact and law." Justice De Montigny also states the following: "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." Holding a hearing [32] In Singh,6 the Federal Court of Appeal recalls the principle according to which the RAD proceeds without a hearing. According to the Court, this principle "is subject to an exception only where the documentary evidence '(a) [...] raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) [...] is central to the decision with respect to the refugee protection claim; and (c) [...] if accepted, would justify allowing or rejecting the refugee protection claim.'" [33] In this case, the appellant did not file any new evidence in support of his appeal. Consequently, the RAD cannot hold a hearing. ANALYSIS [34] The appellant's credibility is the main issue at hand. Generally, the RPD is in a better position than the RAD because it has the advantage of seeing and hearing refugee protection claimants and witnesses.7 In this case, the RAD will not have this privilege because it will not hold a hearing. Moreover, as Justice De Montigny indicates, the RAD has the mandate to correct any error of fact, of law, or of mixed fact and law.8 [35] I reviewed all the evidence in order to form an independent opinion of this refugee protection claim and I carefully considered the arguments presented. I am of the opinion that the RPD rendered the correct decision. Here is why. Appellant's statements when he arrived in Canada [36] A student visa was issued to the appellant in XXXX, Senegal, on XXXX XXXX, 2015.9 The claimant had a valid registration for Université XXXX XXXX XXXX in XXXX, but had to show up no later than XXXX XXXX, 2015. Given that the deadline for showing up at the university had passed, the border officer did not authorize him to be admitted to Canada as a student. A meeting was scheduled for a review on XXXX XXXX, 2015. [37] According to his testimony at the hearing, he showed up, but was not received. At this stage, I would like to point out that the appellant's statements are inconsistent on this topic. In the memorandum, he confirms that he testified at the hearing that he showed up on XXXX XXXX XXXX 2015, but that he was not received.10 However, in a sworn statement that he signed on April 13, 2015, submitted in support of an application to reinstate his refugee protection claim under rule 60 of the RPD Rules, he states: [translation] "On XXXX XXXX, 2015, I did not return to the airport because I had not received the academic documents to support my visa. My documents arrived on February 9, 2015."11 Although this factor, on its own, is not determinative, his contradictory statements undermine his credibility. [38] The evidence on the record is clear that the refugee protection claimant was insistent and wanted to be admitted to Canada as a student, and that he did not initially intend to claim refugee protection. On this topic, I refer to the minutes of a hearing held before the Immigration Division12 (ID) on February 23, 2015, which indicate as follows: [translation] "When asked why he claimed refugee status (a question from the Minister's representative) when he is a student, he stated that he did not understand, that he did not want to make a claim for refugee status. What he wants is a chance to study."13 The evidence shows that the appellant was offered an international study bursary and a room was to be made available for him.14 [39] On February 28, 2015, the claimant allegedly stated that [translation] "I misunderstood the immigration people when they spoke to me about protection. I came to Canada with a student visa and I thought I would remain a student until my studies were complete. I do not fear returning to my country." [40] Taking into account this evidence, I am of the opinion that there is reason to have very serious doubts regarding the merits of this refugee protection claim. In my opinion, the RPD was justified in taking into account his behaviour and statements to the immigration authorities. They are inconsistent with a well-founded fear of persecution or with any one of the risks set out in section 97 of the IRPA. [41] The appellant's age is not an excuse to justify the fact that, before the ID member, when asked about his intentions, he did not mention having a fear of returning to the DRC because of his alleged participation in the demonstrations in XXXX 2015. The claimant was almost 19 years old at the hearing before the ID. He was to pursue university studies. Although he preferred to speak with his father before making a decision, this is not a reason to fail to mention his problems or his fear of returning to the DRC. [42] Taking into account the particular circumstances of this case, this reason is, on its own, sufficient for rejecting this refugee protection claim. Moreover, the claimant claimed that, because of his political activities, his father had problems with the Congolese authorities, he was allegedly incarcerated and his uncle died in detention. Although these facts did not directly involve the refugee protection claimant, taking into account the context of the DRC, these are not trivial facts, and they could have an impact on the claimant's fear if he returned. The appellant tried to justify the omission of these facts, pointing out that the Claimant's Guide indicates that, when completing the BOC Form, claimants must indicate why they are claiming refugee protection. He did not believe that it was necessary to mention problems that did not concern him. [43] However, according to the appellant's arguments, the Guide also states as follows: "The questions in the form will help you include the most important parts of your life experience."15 Question 2(a) of the BOC Form states the following: Have you or your family ever been harmed, mistreated or threatened by any person or group? If "YES" explain in detail: What happened to you and your family. When the harm or mistreatment or threats occurred; Who do you think caused the harm or mistreatment or threats; What do you think was the reason for the harm or mistreatment or threats that occurred; Whether persons in situations similar to yours experienced such harm, mistreatment or threats.16 [44] Taking into account the phrasing of the question, and the fact that the appellant is a young man who knows how to read and understands French, and who was supposed to start university studies at XXXX XXXX university, the omission in the BOC Form of the problems encountered by his father and his uncle are inexcusable. The information in the initial BOC Form, as little as there is on this topic, leads to serious doubts regarding his allegations. [45] The Federal Court has indicated on a number of occasions17 that it is possible to draw a negative inference from the omission of important factors in the BOC Form. I am of the opinion that the omitted facts are important. Consequently, the RPD did not err in concluding that the omission of these facts, along with other factors, leads to serious doubts regarding the appellant's credibility. [46] In my opinion, the omission of this information in the BOC Form suggests that it is more likely than not that the refugee protection claimant tried to embellish his story by adding new facts. [47] Lastly, I would like to point out that, because of the appellant's lack of credibility, the RPD was justified in not attributing any probative value to the evidence that he filed to corroborate his allegations. Its reasons are clear and, in my opinion, do not violate the UNHCR Handbook. Although the RPD is not bound by the technical and legal rules of the presentation of the evidence, filing photocopies of documents and emails exchanged between two people cannot compensate for the claimant's lack of credibility. As already indicated in this record, there is reason to have serious doubts regarding the facts presented. [48] Having conducted an independent assessment of the evidence, I am of the opinion that the appellant did not establish that the RPD erred in fact, in law, or in mixed fact and law. Clear reasons were given for the decision rendered, which is based on the evidence on the record. I certainly would not have come to a different conclusion in the circumstances. CONCLUSION [49] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [50] The appeal is dismissed. Maria De Andrade Me Maria De Andrade April 21, 2016 Date IRB translation Original language: French 1 Appellant's memorandum, page 16. 2 Refugee Protection Division (RPD) record, pages 113 to 131. 3 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 4 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 5 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96. 6 Idem. 7 Allalou v. M.C.I. (Minister of Citizenship and Immigration), 2014 FC 1084, at paragraph 17, Sajad v. M.C.I. (Minister of Citizenship and Immigration), 2014 FC 1107, at paragraph 20. 8 Supra, footnote 5. 9 RPD record, page 96. 10 Appellant's memorandum, page 10. 11 RPD record, page 147. 12 RPD record, pages 118 to 127. 13 RPD record, pages 121 and 123. 14 RPD record, page 124. 15 Appellant's memorandum, page 13. 16 RPD record, page 17. 17 Basseghi v. Canada (Minister of Citizenship and Immigration) (1994), 52 A.C.W.S. (3d) 165, [1994] F.C.J. No. 1867 (F.C.T.) (QL); Grinevich v. Canada (Minister of Citizenship and Immigration) (1997). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-03512 11 RAD.25.02 (2014.09.11) Disponible en français