MB7-23757

RAD File No. / Nº de dossier de la SAR: MB7-23757 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 Willy Arnold Ndongo Nguele 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 a decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim. He claimed that upon his return to the DRC, he was imprisoned and beaten by soldiers. This was after a trip to Canada, during which he participated in a demonstration in front of his country's embassy. The RPD found that the appellant was not credible, notably because the photographs of the demonstration did not establish that the participants were chanting slogans against the government of the DRC. In addition, the RPD concluded that the appellant did not have a political profile in the DRC. The appellant submitted a video of the demonstration as part of the appeal, which indeed established that it was a political event. In light of this new evidence, I am of the opinion that the RPD erred in regard to the nature of the demonstration. Furthermore, the RPD erred when it affirmed that the appellant's refugee protection claim contained significant omissions. Therefore, its assessment of the credibility cannot stand. The video of the demonstration-introduced as a new piece of evidence in the appeal-confirms that this was a political event and establishes that the appellant was present. The recent political changes in the DRC have not reduced the risk to which the appellant would be exposed if he returned. The appeal is therefore allowed. The RPD's determination is set aside and the appellant is granted refugee status. BACKGROUND [2] In XXXX 2016, the appellant came to Canada to visit his grandmother. During his stay, he allegedly participated in a gathering in front of the Embassy of the DRC in Ottawa, organized by members of his country's diaspora. The appellant explained that the objective of this gathering was to protest against a decision made by the country's president, Joseph Kabila, to remain in office despite his term ending. He stated that following the event, the organizers of the demonstration heavily publicized it on social media platforms. The government of the DRC was, therefore, informed about the event, along with who was present. [3] XXXX weeks later, the appellant returned to the DRC. A few days after his return, he was kidnapped by several people whom he suspected worked for the Agence nationale des renseignements (ANR) [national intelligence agency]. They drove him to a prison, where he was interrogated about his participation at the demonstration in Ottawa. They also allegedly beat him and threatened to kill him. After XXXX days, an army officer intervened and he was freed. The appellant was able to leave the country immediately by taking a boat that crossed the Congo River. He then got on a flight to Canada and claimed refugee protection as soon as he arrived. [4] According to the written RPD decision,1 the appellant's testimony was not credible because it contained several significant details that were not mentioned in the refugee protection claim. The RPD also dismissed the appellant's claim regarding the political nature of the gathering in Ottawa. It noted that, in pictures from the event, the participants were not carrying signs and did not appear to be shouting slogans. Due to the fact that the appellant never had a political profile in the DRC, the RPD concluded that it was unlikely that his country's authorities viewed him as a political opponent. [5] In his appeal memorandum,2 the appellant submits that all of the significant events were described in his refugee protection claim; specifically, that he was detained and tortured when he returned from Canada, and that his imprisonment was related to his participation in the Ottawa demonstration. The appellant also submits that the RPD erred when it concluded that the demonstration was not a political event. In addition, he asks to submit a new piece of evidence, a video of this demonstration found on the internet website YouTube and in which it is apparent that he was present. [6] On June 10, 2019, I wrote to the appellant's lawyer asking him to provide written submissions on the impact recent political changes in the DRC have had on the appellant's alleged fear; that is, the fact that President Kabila left office in January 2019 and was replaced by the leader of the opposition party, the Union for Democracy and Social Progress (UDPS), Felix Tshisekedi. [7] In his written submissions, the appellant's lawyer indicates that the transfer of power was nothing more than symbolic. The political party led by former president Kabila continues to control all of the levers of power, including the National Assembly and the Senate. Furthermore, leaders of the army, police, and the ANR who were in power at the time of President Kabila's period in office continue to hold their positions. He also submitted a report from the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), which reveals that significant human rights violations continue and that the majority of the documented violence is being committed by government officials. ADMISSIBILITY OF NEW EVIDENCE [8] Pursuant to subsection 110(4) of the Immigration and Refugee Protection Act, evidence is not admissible in an appeal unless that evidence was not reasonably available before the RPD made its decision, or the appellant could not reasonably have been expected in the circumstances to present it before the RPD. In this case, I note that the video in question was uploaded to YouTube in XXXX 2016. I, therefore, cannot conclude that this video was unavailable to the appellant before the date of the RPD decision. However, I am prepared to accept that it was not reasonable to expect that the appellant would present this video before the RPD. The photographs submitted as evidence should have been considered sufficient. [9] In accordance with the case law,3 it must also be established that the new evidence respects three criteria. First, it must be credible. Second, the evidence must indeed be new. Third, it must be determinative. I am of the view that in this case, the three conditions are met. There is no apparent reason why I should question the authenticity of this evidence. Therefore, the significance stems from the fact that, by watching this video, it is apparent that it corroborates the appellant's claim in regard to the political nature of the demonstration. [10] Furthermore, I am of the opinion that the report by MONUSCO is equally admissible as new evidence. This report was submitted by the appellant in response to my request for written submissions regarding the recent political changes in the DRC. DETERMINATIVE ISSUES [11] The following are the issues in this appeal. [12] First, are the omissions in the refugee protection claim significant enough to undermine the credibility of the appellant's testimony during the RPD hearing? [13] Second, taking into account the new evidence, is it established that the gathering before the Embassy of the RDC in Ottawa in XXXX 2016, which the appellant participated in, was a demonstration against President Kabila? [14] Third, due to the political changes in the DRC as of January 2019, does the appellant no longer have to fear being persecuted by the DRC authorities by reason of participating in the demonstration in Ottawa in December 2016? SCOPE OF THE APPEAL [15] 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 assessing the credibility or the weight to be given to the oral evidence it hears, in situations where it enjoyed a meaningful advantage. [16] 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 of review. MERITS OF THE APPEAL Omissions in the refugee protection claim [17] The RPD erred in criticizing the appellant for failing to state certain information in his refugee protection claim that was central to his story. Furthermore, the RPD was wrong to indicate in paragraph 11 of its decision that the appellant had not mentioned the abuse that he had suffered during his detention. Moreover, his credibility is not undermined by the fact that he did not mention the location where he was detained or the name of the person who rescued him. [18] I note that, in his refugee protection claim, the appellant mentions that he was kidnapped and confined by the RDC's national intelligence agency on XXXX XXXX, 2017. The appellant also mentioned that his arrest was related to his participation in the Ottawa demonstration on XXXX XXXX, 2016. During the arrest, he suffered mistreatment, including torture. The appellant travelled through a neighbouring country in order to take a flight to Canada on XXXX XXXX, 2017. The information that was not mentioned is of secondary importance. The nature of the gathering in Ottawa in XXXX 2016 [19] After watching the video that was presented on appeal, I note that this new evidence corroborates the appellant's testimony that the gathering he attended in Ottawa on XXXX XXXX, 2016, was a demonstration denouncing President Kabila's attempt to remain in power. The impact of President Kabila's departure and replacing him with a leader from the opposition [20] Taking the appellant's written submissions into consideration, I am of the opinion that the evidence does not establish that those perceived as former president Kabila's opposition have ceased to be at risk of persecution in the DRC. CONCLUSION [21] The RPD erred when it concluded that there were significant omissions in the appellant's refugee protection claim. Due to this error, the RPD's assessment of the appellant's credibility cannot stand. The new evidence confirms that the appellant participated in a demonstration against President Kabila. As a result, I am of the view that his testimony on the political grounds for his arrest in XXXX 2017 is credible and, due to his political opinion, he faces a serious possibility of persecution should he return to the DRC. [22] The RPD's determination is, therefore, set aside and the appellant is granted refugee status. (signed) Philippe Rabot Philippe Rabot July 17, 2019 Date 1 RPD-1, Refugee Protection Division record, pages 3 to 8. 2 P-2, appeal record, pages 1 to 14. 3 Raza v. The Minister of Citizenship and Immigration. 2007 FCA 385; Canada (The Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / Nº de dossier de la SAR: MB7-23757 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