MB5-03139

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. / N° de dossier de la SAR : MB5-03139 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montreal, Quebec Appel instruit à Date of decision March 1, 2016 Date de la décision Panel Me Diane Sokolyk Tribunal Counsel for the person who is the subject of the appeal Me Isaac Owusu-Sechere 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] Mr. XXXX XXXX XXXX XXXX, a citizen of Rwanda, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Tribunal has read the Appellant's Record, reviewed all documentary evidence submitted before the RPD and has listened to the recording of the hearing. The Appellant is not submitting new evidence under s. 110(4) of the Immigration and Refugee Protection Act (the Act). The Appellant is not requesting an oral hearing. DETERMINATION OF THE APPEAL Confirms RPD determination [2] Pursuant to ss. 111(1)(a) of the Act, the Refugee Appeal Division (RAD) confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention Refugee" pursuant to s. 96 of the Act nor is he a person in need of protection pursuant to s. 97 of the Act. BACKGROUND Basis of the claim [3] The Appellant is a citizen of Rwanda, who came to Canada on XXXX XXXX, 2015, from Belgium, using a passport he had stolen from a friend. The Appellant had spent approximately XXXX XXXX in Belgium where he had claimed refugee status at least three times, but was rejected. He had claimed status in Belgium using a false identity. He claims that he used a false identity and a false story to seek refugee status in Belgium to avoid being caught by Rwandan authorities abroad. [4] The Minister intervened in this file, and divulged thirteen exhibits, M-1 to M-13, including notes from CBSA officers, the records of two detention hearings, analyses of identity documents and correspondence with the authorities in Belgium. The Minister argued in their intervention that the Appellant was not credible in his allegations. [5] The story he provided to the RPD was that in Rwanda he was the XXXX XXXX of a company called "XXXX XXXX XXXX from XXXX 2005 to XXXX 2010. He was required to travel to Uganda regularly to XXXX XXXX. The head of this company was Mr. XXXX XXXX XXXX. The Appellant alleges that on XXXX XXXX, 2010, he was arrested by six police officers who took his cell phone, his lap top and his pass. He was questioned with respect to grenades which had been launched a few days earlier in connection with the upcoming presidential elections of August 2010. He was allegedly accused of being a messenger for exiled dissidents living in Uganda. The Appellant denied any such activity. The police asked him to implicate his employer in exchange for his freedom. The Appellant refused to do so. He was tortured by police, but eventually freed on XXXX XXXX, 2010, on condition of appearing at the police station each XXXX XXXX XXXX. The Appellant suggests that the police wanted to implicate his employer because he is the brother in law of XXXX XXXX XXXX who had difficulties with the president. When he returned home, the Appellant alleges that his boss and family had disappeared. The Appellant did not sleep at his own house. However, he appeared at the police station as he had been directed to do. When he arrived there, the police asked him where he had slept. The Appellant then left for XXXX XXXX XXXX XXXX, 2010, where he spent XXXX XXXX after which he left for Uganda on XXXX XXXX, 2010. He left Uganda on XXXX XXXX, 2011, for Belgium. [6] The Appellant alleges that he would fear for his life in Rwanda on the basis of the accusations made against him in XXXX 2010. Grounds of appeal [7] The Appellant's "Memorandum of Argument" (pp. 42-52) of the Appellant's Record suggests three issues: 1. The RPD erred by applying the wrong legal test under section 96; 2. The RPD erred by applying the wrong legal test under section 97; 3. The RPD erred by failing to consider the documentary evidence that supported the Appellant's position. ROLE OF THE RAD [8] The first issue raised in this appeal relates to an alleged incorrect assessment of the Appellant's credibility. These are errors of fact. In the case of Huruglica1, followed by Yetna2 and Njeukam3, the Federal Court directed that the RAD approach its work as a "hybrid" type of appeal. According to Justice Phelan at paragraph 54, "It (the RAD) must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention Refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision." In paragraph 55, the Honourable Justice Phelan states that "In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion, but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error". Justice Phelan also notes at paragraph 38 that the RAD owes no deference to the RPD with respect to the RPD's assessment of country condition evidence. [9] In the decision of Spasoja4, Justice Roy concurs with the approach set out by Justice Phelan in Huruglica at paragraphs 12, 13, 24, and 25, with respect to the standard of review not being reasonableness and with respect to the RAD making an independent assessment of the evidence. However, at paragraph 39 of Spasoja, Justice Roy states that in his opinion, the RAD should intervene on questions of fact only where there is a palpable and overriding error. [10] In Alyafi5, Justice Martineau compares the currents of jurisprudence in the Federal Court and suggests that RAD members choose to follow either Spasoja or Huruglica until such time as we receive further direction from the Federal Court of Appeal. I choose to follow the reasoning of the Court in Huruglica. [11] In this decision, I have followed and will apply the reasoning in the Huruglica decision with respect to the issue of deference to the RPD in their assessment of credibility in this file. The RPD had the advantage of hearing the Appellant and investigated all matters of credibility thoroughly at the hearing. As I will explain in detail below, I defer to the RPD's conclusions as to the credibility of the Appellant's allegations and find that on my review of the file and the recorded hearing, I would have reached the same conclusions. The RAD will review the first two issues together regarding the appropriate legal tests to be applied. 1. The RPD erred by applying the wrong legal test under section 96; 2. The RPD erred by applying the wrong legal test under section 97; 3. The RPD erred by failing to consider the documentary evidence that supported the Appellant's position. The RPD erred by applying the wrong legal tests under sections 96 and 97 of the Act [12] The standard of proof for both the test under section 96 and under section 97 is the balance of probabilities. To be found a Convention Refugee under Section 96, the legal test a claimant must meet is to establish that there is a reasonable chance or a serious possibility of persecution. The legal test under section 97 is that the risk of death, torture or cruel and unusual punishment is more likely than not6. [13] The RPD states in paragraphs 11 and 18 of the decision that the Appellant does not have the profile of a person who would be targeted by the authorities in Rwanda. [14] Counsel for the Appellant, at paragraphs 19-21 of the Memorandum of Argument states that the Rwandan authorities were interested in the Appellant because he did not have a high profile, and that the Appellant's situation should place him in the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The question is whether, with respect to section 96, the RPD applied the correct test of "reasonable chance or serious possibility". Counsel submits three cases from the Federal Court in support of the application of the correct legal test: Mugadza7, I.F.8 and Alam9. Counsel for the Appellant, at paragraphs 24 and 25 of the Memorandum of Argument, suggests that the RPD applied the incorrect test under section 97 as well. Counsel argued that the fact that the Appellant was tortured made him a person of interest to Rwandan authorities as he was in a position to expose the regime's practice of torture. Counsel states that the Appellant's risk under section 97 needed to be analyzed separately from the risk under section 96. [15] The RAD notes that the RPD decision does not state at any point that she finds the Appellant not credible overall. The RPD decision also does not specifically divide the analysis in the decision (paragraphs 11-17) between sections 96 and 97. The RPD does not think that the Rwandan authorities would be looking for the Appellant or that the Appellant would face a risk in returning to Rwanda. (Paragraph 17, RPD decision) The RPD reaches the conclusion under both sections 96 and 97, that the allegations of risk presented by the Appellant do not meet the legal tests for either a convention refugee (section 96) or a person in need of protection (section 97). (Paragraph 18, RPD decision) In paragraph 16 of the decision, the RPD specifies that in reaching the decision about the Appellant, it considered the time that has passed since the alleged incident, and the fact that the Appellant does not have the profile of a person the Rwandan authorities might be seeking, given that his only connection was through his former employer who has since left the country. The RPD notes that it has reviewed the National Documentation Package for Rwanda, sections 2.1, 2.2 and 2.3, and Exhibits P-6, 7,8,10 and 11. [16] The RAD reviewed the decision of the RPD in detail with regard to the testimony of the Appellant, the documentary evidence submitted by the Appellant and the documentary evidence submitted by the Minister to determine how and on what grounds the RPD reached the decision. The RPD appears to have summarized the key allegations of the Appellant and commented on these allegations in paragraphs 11-17 of the decision. [17] The RAD notes that the RPD begins by saying that the Appellant did not allege having participated in any political activity in Rwanda. (Paragraph 12, RPD decision) Secondly, the RPD notes that the Appellant is not a member of the family of his employer, Mr. XXXX XXXX and nor is he a member of the family of XXXX XXXX. The RPD specified that the incidents alleged to have given rise to his alleged arrest took place in XXXX 2010, in the context of the presidential elections of August 2010, thus almost six years ago. (Paragraph 12, RPD decision) [18] The RPD notes in paragraph 13 of its decision that the Appellant alleges being arrested and tortured for XXXX XXXX XXXX XXXX 2010, in order to secure his cooperation in implicating his employer. He was, however, released from prison without having cooperated as requested. [19] The RPD analyzed the situation when the Appellant returned to report to the police station after being freed. He states that the police asked where he was at night, as they had not found him at home. He said that he had a servant tell the police he was out drinking in the bars. He alleged that the police looked for him every day. When asked what he feared the police would do if they found him at home, he said he would be re-arrested or killed. When asked why the police did not re-arrest or kill him when he had voluntarily returned to the police station, the Appellant said it was because he had a friend with him, and because the police were really seeking Mr. XXXX and he was but a tool to get to him. The RPD finds at paragraph 14 that it would have been possible for the police to re-arrest or kill the Appellant when he had returned to the police station, however they did not. [20] The Appellant alleged that an enquiry had been made at his older brother's house in 2014, with respect to how many people he had in his family and their whereabouts. The RPD did not find this was any sort of indication that the police were looking for the Appellant. (Paragraph 15, RPD decision) [21] Lastly, the Appellant says he would be at risk in returning to Rwanda because his former employer, Mr. XXXX XXXX escaped from the country and is now living in Belgium, and XXXX XXXX left Rwanda in 2008 and is living in South Africa. The RPD notes that according to the documentation, political opponents of the Government are persecuted in Rwanda but that this Appellant does not fit the profile of someone who the authorities would be seeking. [22] The RAD finds that while the RPD did not separate the two analyses under section 96 and 97, the RPD clearly enunciated the issues which led to its decision about whether or not the Appellant would be at risk. The RPD decision refers in detail to the testimony at the hearing and to the written allegations filed. A plain reading of the decision, as discussed above, leads to the conclusion that the RPD did not find that the Appellant was at risk at all of returning to Rwanda and thus did not meet either test. The RAD notes that the RPD, in its decision, referred to both exhibits filed by the Appellant and in the NDP with respect to country conditions to arrive at this conclusion. The RAD finds that the correct tests were applied by the RPD. The RPD erred by failing to consider the documentary evidence that supported the Appellant's position [23] Counsel for the Appellant alleges in paragraphs 28 and 29 of the Memorandum of Argument that the RPD erred by failing to assess the letter of recommendation by Mr. XXXX, and the affidavit XXXX XXXX XXXX XXXX XXXX XXXX XXXX These exhibits were filed at the RPD as Exhibit P-16 (letter from Mr. XXXX); Exhibit P-17 (affidavit of XXXX XXXX); Exhibit P- 18 (affidavit of XXXX XXXX) and Exhibit P-19 (a document entitled "XXXX XXXX") which appears to be a type of shareholders agreement with respect to the company XXXX XXXX, signed in 2008 or 2009 depending how one reads the document. [24] The RAD notes that the RPD does not specifically refer to any of these documents and will review each one to determine whether it could have been instrumental in changing the decision had it been reviewed in the RPD decision. [25] Exhibit P-16 is a letter written on May 23, 2015, by Mr. XXXX to the IRB for the purposes of the hearing of the Appellant. Mr. XXXX states that the Appellant was the purchasing and distribution officer for XXXX XXXX and that he suffered political harassment from the Government of Rwanda. Mr. XXXX affirms that he has taken refuge in Belgium and that he recommends to the IRB that the Appellant be considered for asylum in Canada. A photocopy of an identity card is attached to this letter that is difficult to read but that does appear to identify the sender as Mr. XXXX. The RAD does not find this document adds a different element to the information already contained in the RPD decision. The RPD did not contest the fact that the Appellant worked for XXXX XXXX, or for Mr. XXXX, or that the Appellant had endured XXXX XXXX of imprisonment. [26] Exhibit P-17 is an affidavit written by XXXX XXXX from XXXX, South Africa, and dated March 12, 2012. The affidavit appears to have been written in support of Mr. XXXX refugee claim before the Belgian authorities. The affidavit states that Mr. XXXX is her brother and that she is married to XXXX XXXX XXXX XXXX XXXX The affidavit further states that Mr. XXXX worked for XXXX XXXX in Rwanda and that he was arrested in 2010, when XXXX XXXX and the affiant fled the country. The RAD finds that this affidavit supports the background story told by the Appellant but does not name him or add any new information to the information already assessed by the RPD. [27] Exhibit P-18 is entitled "Confirmatory affidavit" and is alleged to be an affidavit by XXXX XXXX XXXX XXXX confirming that he is living as a refugee in South Africa and confirming the facts of his wife's affidavit filed as P-17. The RAD finds that this affidavit supports the background story told by the Appellant but does not name him or add any new information to the information already assessed by the RPD. [28] Exhibit P-19, entitled "XXXX XXXX XXXX appears to be a shareholders agreement for the XXXX shareholders of XXXX XXXX Ltd. One of the shareholders is listed as "XXXX XXXX XXXX also known as Mr. XXXX and the other two are not mentioned in the claim. The RAD finds that this affidavit supports the background story told by the Appellant but does not name him or add any new information to the information already assessed by the RPD. [29] The RAD does not find the RPD erred by not specifically mentioning these documents as they do not add any significant information to the claim. The RPD appears to have accepted the information contained in these documents when evaluating the claim. REMEDIES [30] For all these reasons, the Tribunal confirms the determination of the RPD that the Appellant, XXXX XXXX XXXX XXXX, is neither a "Convention refugee" pursuant to s. 96 of the Act, nor a "person in need of protection" pursuant to s. 97 of the Act. CONCLUSION [31] The appeal is dismissed. Diane Sokolyk Me Diane Sokolyk March 1, 2016 Date /cos 1 Huruglica v. M.C.I. 2014 FC 799. 2 Yetna v. M.C.I. 2014 FC 858. 3 Njeukam v. M.C.I .2014 FC 859. 4 Spasoja v. M.C.I. 2014 CF 913. 5 Alyafi v. M.C.I. 2014 CF 952. 6 Adjei v. M.E.I. [1982]2 FC 680; Li v. M.C.I. [2005] 3 FCR 239 (C.A.). 7 Mugadza v. M.C.I. 2008 FC 122. 8 I.F. v. M.C.I. 2005 FC 1472. 9 Alam v. M.C.I. 2006 FC 1407. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB5-03139 10