MC0-09779

RAD File No. / No de dossier de la SAR : MC0-09779 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 / heard at Montréal, Quebec Appel instruit / entendu à Date of decision February 22, 2021 Date de la décision Panel Guerlain Guerrier Tribunal Counsel for the person who is the subject of the appeal Joseph-Alphonse Andre 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 XXXX, is a citizen of the Democratic Republic of the Congo (DRC). He is appealing the decision of the Refugee Protection Division (RPD) rendered on September 3, 2020, rejecting his claim for refugee protection. [2] The appellant states that, should he return to the DRC, he fears for his life by reason of his political opinion. He states that he advocated on behalf of the La Lucha movement, a group of young people advocating for political change in the DRC. The appellant was allegedly detained and tortured in XXXX 2017 for statements he made on a television program. He was released by a police officer who was a friend of his mother. The appellant fled to Canada on XXXX XXXX XXXX 2017. [3] The RPD found that the appellant was not a credible witness and had not established his allegations. [4] The appellant is submitting on appeal that the RPD made a number of errors in finding that he was not credible and that his documents were not trustworthy. [5] The determinative issue for the Refugee Appeal Division (RAD) is credibility. DETERMINATION [6] I dismiss the appeal. The RPD correctly determined that the appellants are neither Convention refugees nor persons in need of protection. NEW EVIDENCE The new evidence submitted by appellant is not admitted [7] Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. In Singh,1 the Federal Court of Appeal interpreted subsection 110(4) narrowly: the conditions set out in the IRPA must be met and leave no room for discretion on the part of the RAD. If the conditions in subsection 110(4) are met, then the new evidence must also meet the requirements established in the case law with respect to credibility, relevance and newness.2 [8] The appellant submitted new evidence in the form of an affidavit from his mother, XXXX XXXX. This document is undated. This affidavit attempts to explain why there is a contradiction between the appellant's written account and the letter from his Congolese lawyer concerning the circumstances of his release from prison. The written account indicates that the appellant was released illegally by a police officer who was a friend of his mother. However, the letter from his Congolese lawyer states that he was provisionally released by the high court in Kinshasa through the efforts of human rights advocates working in partnership with his firm. [9] The appellant did not provide any explanation as to why his mother's affidavit was not submitted to the RPD. The Refugee Appeal Division Rules3 indicate clearly that the appellant's memorandum must include full and detailed submissions regarding how the evidence meets the requirements of subsection 110(4) and how that evidence relates to the appellant.4 [10] The affidavit concerns events that preceded the RPD's decision. The appellant has not established that this document was not reasonably available at the time of the decision. Nor does he explain why this document could not reasonably have been presented to the RPD prior to the decision. In my opinion, the affidavit could and should have been presented to the RPD: the appellant, who was represented by counsel, knew that a contradiction existed between his written account and the letter from his Congolese lawyer, which he himself submitted to the RPD. If he considered that any clarification was needed, he had an obligation to present his mother's affidavit to the RPD. However, the appellant does not explain in his memorandum why he did not do so. I am of the opinion that the appellant's mother's affidavit does not meet the conditions of subsection 110(4). This evidence is not admitted. [11] Parliament expressed clear intent to authorize the introduction of new evidence before the RAD only under specific and carefully defined circumstances, as its role is not to provide the opportunity to complete a deficient record submitted to the RPD or to remedy problems with the evidence presented before the RPD but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected. These criteria exist to help preserve the integrity of the process by promoting finality with respect to the factual record at first level of decision-making (with very limited exceptions) and by encouraging the narrowing of issues as matters move up the appellate ladder.5 The request for an oral hearing is denied [12] The appellant's request for an oral hearing is dismissed because no new evidence has been admitted on the record. ANALYSIS [13] The role of the RAD is not to conduct a de novo consideration of a claim for refugee protection but rather to determine whether the RPD erred as alleged.6 I conducted an independent assessment of the record in order to draw my own conclusions,7 notably by listening to the recording of the RPD hearing and reviewing the RPD record and the appellant's record. [14] The recording of the hearing is of poor quality. Some of the member's questions and appellant's responses are inaudible. The recording issues are particularly noticeable during the first hour of the hearing when the panel reviewed the allegations set out in the appellant's written account. However, the appellant's testimony and explanations concerning the issues raised in his memorandum, including the probative value to be given to the letter from his lawyer and the missing notice published in the newspaper, are audible, and the quality of their recording is satisfactory (beginning at 1:05:30). I listened to the appellant's testimony and explanations concerning the issues raised in the memorandum, and I consider that I am able to conduct my own analysis of the record. It is also noted that the potential errors identified by the appellant in his memorandum are errors in law. He is not challenging the accuracy of the facts set out or the statements attributed to him in the RPD's decision. [15] I am of the opinion that the correctness standard must be applied.8 The appellant's explanations concerning the letter from his Congolese lawyer are unsatisfactory [16] In his written account, the appellant states that a police officer helped him get out of prison. The RPD confronted him with the letter from his Congolese lawyer indicating that he was released by the high court in Kinshasa. [17] The appellant asserts that the RPD erred in rejecting his reasonable explanations concerning the contradiction noted between his written account and the documentary evidence on the record. He argues that there is a [translation] "disconnect" between the RPD's inferences and the evidence on the record. The appellant submits further that, contrary to the principle established in Maldonado, the RPD did not presume that his testimony was truthful. [18] The appellant explains that his release occurred the way that he explained under oath at the hearing. The letter from his lawyer, [translation] "a cover document [sic]," was issued solely so that the Congolese authorities would not know that a police officer who was a friend of his mother was involved in his escape. He adds that he does not know the lawyer in question and has never spoken with him. His colleagues from La Lucha allegedly asked this lawyer to prepare the letter. Where the lawyer's letter indicates that the appellant contacted him directly, this was a strategy to avoid creating problems for the police officer who helped him or for his activist friends who are still in the country. This document was allegedly submitted to the RPD merely to establish that the appellant was a member of La Lucha. [19] With all due respect, I reject these explanations. [20] When they swear that certain allegations are true, refugee protection claimants are presumed to be telling the truth. However, this presumption is rebuttable where the evidence is inconsistent with the testimony or where the RPD is unsatisfied with the explanation provided for those inconsistencies.9 The RPD may draw negative inferences based on implausibilities, contradictions, inconsistencies or omissions. It is the entirety of the evidence that must be assessed.10 [21] The appellant readily acknowledges that the letter from his Congolese lawyer contains false allegations: he has never met or contacted this lawyer, and the circumstances of his release are false. I note in passing that the letter indicates that the appellant was detained for one week, whereas he indicates in his written account that it was two weeks. These contradictions between the appellant's testimony and this letter undermine the credibility of this document. In the circumstances, I do not see why I would give weight to some of the allegations made in this letter but not to others. In my view, this unreliable document does not establish that the appellant was a member of La Lucha. [22] Moreover, I am surprised that the appellant did not take the initiative to advise the RPD of the [translation] "strategy" used by his colleagues when he submitted his documentary evidence with a view to avoiding the foreseeable negative inferences by the panel. I am of the opinion that he attempted to adjust his testimony when confronted with this contradiction. [23] In addition, the lawyer's letter is addressed to the Immigration and Refugee Board of Canada. The purpose of this document was not to deceive the Congolese authorities. It was written in complete candour. The appellant does not explain why or how this document could have fallen into the hands of the Congolese authorities. What is more, the signatory of this letter does not hesitate to associate himself with the appellant's cause while also criticizing the authorities in the DRC. This document, which was supposedly prepared to protect allies who are still in the country, draws attention directly to the appellant's lawyer and his colleagues from La Lucha. [24] Lastly, according to the appellant's written account, the police officer who released him was originally ordered to [translation] "end his life." It makes no sense that the Congolese authorities would be fooled by a story invented by his lawyer to the effect that the appellant was released by the high court in Kinshasa. The authorities know that they did not release the appellant. Following the appellant's logic, this letter could, on the contrary, alert them to the fact that the appellant is not dead and that the police officer did not carry out his duty. [25] I find that the appellant's credibility is greatly undermined by this contradiction affecting a central aspect of his account. I do not find the appellant credible overall. I conclude that the appellant has not established that he was arrested, detained and tortured by the Congolese authorities due to his political activities. [26] The RPD did not err. The missing notice does not establish that the appellant was abducted and tortured [27] A missing notice concerning the appellant was published by La Lucha in XXXX 2018. In his memorandum, the appellant states that his colleagues were not aware of his arrest or the fact that he had gone to Canada and that he has never spoken with them since his release. [28] The RPD concluded that since the authors of the notice knew nothing about the circumstances surrounding the appellant's disappearance, this notice did not establish the allegations related to his detention and torture. [29] In his memorandum, the appellant simply reiterates that his colleagues from La Lucha were unaware of the circumstances of his arrest and detention. These explanations do not contradict the RPD's conclusion. While it is true that certain facts indicated in the notice do corroborate part of the appellant's written account, at the same time it acknowledges that the appellant's whereabouts are unknown, since the specific purpose of the article is to obtain information to assist in locating him. Regardless, given the appellant's overall lack of credibility, a notice published anonymously in a newspaper that fails to address the allegation forming the basis of his claim is insufficient to offset the appellant's lack of credibility. I do not give any weight to the missing notice. I agree with the RPD's conclusion. [30] After analyzing all of the evidence, the RPD concluded that the appellant had not, on a balance of probabilities, established his allegations, specifically that he was detained and tortured due to his political activities. Following my own independent review, I come to the same conclusion. DECISION [31] I dismiss the appeal. The RPD correctly determined that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Guerlain Guerrier Guerlain Guerrier February 22, 2021 Date IRB translation Original language: French 1 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. 2 Ibid. and Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 3 Refugee Appeal Division Rules, SOR/2012-257. 4 Ibid., para. (3)(e) and subpara. (3)(g)(iii). 5 Canada (Minister of Citizenship and Immigration) v. Davoodabadi, No. IMM-1047-18, Norris, March 21, 2019; 2019 FC 350, at para. 21. 6 Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, at paras. 30 and 31. Kanawati v. Canada (Minister of Citizenship and Immigration), No. IMM-6486-18, Norris, January 3, 2020; 2020 FC 12, at paras. 23 and 24. 7 Gomes v. Canada (Minister of Citizenship and Immigration), No. IMM-2283-19, Pamel, April 9, 2020; 2020 FC 506, at paras. 48-52. 8 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 9 Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, at para. 21. 10 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, at paras. 22 and 27. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-09779 RAD.25.02 (January 2020) Disponible en français 8 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 (January 2020) Disponible en français