MB6-01058

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 : MB6-01058 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 à Date of decision November 17, 2016 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Sylvain Ngoma Matandi Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX XXXX, the appellant, who is a citizen of the Democratic Republic of the Congo (DRC), is appealing against the decision of the Refugee Protection Division (RPD). He submits that the RPD erred in its analysis of his credibility and the internal flight alternative (IFA). II. DETERMINATION OF THE APPEAL [2] Under section 111 of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. III. BACKGROUND A. Summary of alleged facts [3] In the memorandum of appeal, the appellant presents the facts as follows: * He is a citizen of the DRC. * In XXXX 2014, he opened an XXXX XXXX used by students in a popular neighbourhood in XXXX. * On XXXX XXXX XXXX 2015, he was arrested by police officers and driven to XXXX police headquarters, where he was subjected to a brutal interrogation about discussions that had taken place in his XXXX XXXX. * After the interrogation, he was released, but with an order to refrain from holding that type of meeting, which he agreed to by directing his employees to stop allowing discussions at the XXXX XXXX and also by warning students about it. * On XXXX XXXX XXXX 2015, when he was away, the students began to criticize and insult political authorities, not knowing that there were undercover police officers among them, who asked to see him and who then dispersed all the students, ransacked the XXXX XXXX and damaged the machines, while informing an employee that they were going to get him, the owner. * The employee in question called him, informed him of what had just happened at the XXXX XXXX and urged him to be careful given the police officers' threats. * Aware of the threat to his life, he did not go to the XXXX XXXX, preferring to take refuge at the home of one of his friends, for his safety, until he could leave the country with his passport and a student visa. * Though he initially came to study, he sought protection in Canada given the persecution he had suffered in his country that made him fear for his life.1 [4] In addition to his Basis of Claim Form (BOC Form),2 the appellant, then referred to as the claimant, submitted documents before the RPD.3 B. RPD decision [5] The hearing of this refugee protection claim before the RPD was held on January 25, 2016, and the decision to reject the refugee protection claim was rendered orally at the end of the hearing.4 [6] In its reasons for decision, the RPD indicated that it was not questioning the fact that the claimant had opened an XXXX XXXX in XXXX, but that the credibility of some aspects related to his fear had been undermined.5 [7] First, the fact that he had failed to report in his initial BOC Form that police officers had gone to his family's home looking for him and that they had gone there after he had left the DRC.6 [8] Then, the fact that, according to his testimony, the two employees of the XXXX XXXX had not had any problems. The RPD was of the opinion that, if the authorities really had it in for the XXXX XXXX, they would have also taken action against his staff.7 [9] The RPD also identified a contradiction with respect to a lawyer who may or may not have been the legal counsel for the XXXX XXXX, a contradiction that casts doubt on an employee's statement and undermines his credibility with respect to the facts he alleged, namely, that the claimant is being sought today.8 [10] The RPD found that the claimant had waited until XXXX XXXX before leaving his country and it found that, were the claimant actually being sought, he would have left his country sooner. It also noted the fact that the claimant had been able to leave his country using his passport at the airport, without running into any problems with the authorities who, according to his testimony, were looking for him.9 [11] Lastly, the RPD found it strange that the claimant received his visa on XXXX XXXX, 2015, and that, suddenly, on XXXX XXXX, he had problems that were putting his life at risk.10 [12] For all these reasons, the RPD concluded that the evidence produced failed to establish that the claimant was a Convention refugee or a person in need of protection, given that the XXXX XXXX was no more and that the claimant was not a political activist and was not part of a political movement.11 [13] The RPD also found that an IFA was available to the claimant, should he return to live in his country, namely, that he could settle in another region of the DRC, in Kasaï-Oriental for example, XXXX XXXX XXXX XXXX, or even in the second largest city of the country.12 C. Grounds of appeal and decision sought [14] In his memorandum, the appellant submits that the RPD erred in its assessment of his credibility. [15] He submits that the RPD drew a hasty conclusion based on its personal opinion without considering his explanations when it determined that the claimant should have included in his BOC Form information indicating that police officers had gone to see his family and that they had allegedly gone there after he had left the country.13 [16] He submits that the RPD erred by finding it implausible that the police officers were not persecuting employees of the XXXX XXXX. He states that he cannot answer for the actions of the police officers, but that he alone was the sole person in charge of the XXXX XXXX, which explains the police officers' conduct.14 [17] He also submits that the RPD's analysis was not based on any valid grounds when it found that there was a contradiction regarding the lawyer who mistakenly stated that he was the legal counsel for the XXXX XXXX.15 [18] With respect to the delay in leaving his country, the appellant submits that the RPD gave the impression that its decision had already been made and that it failed to consider his explanations. He adds that he was unable to recover his passport until late XXXX and that he explained to the RPD that it had taken him time to purchase his airplane ticket.16 [19] With respect to the fact that he left his country via the airport, the appellant submits that, since he was not a known political activist, he was easily able to go through unnoticed. He adds that, in the DRC, investigation techniques and technology are not as advanced as in Western countries.17 [20] With respect to the IFA, he submits that, since the unemployment rate is 86%, it is unreasonable to conclude that he could have found work in another area of his country. He adds that, since his agents of persecution are police officers and political authorities, he would not be safe anywhere in his country.18 [21] The appellant is asking the RAD to allow the appeal, to set aside the RPD's determination and grant him the status of a person in need of protection, or to refer the matter to the RPD for re-determination.19 IV. ADMISSIBILITY OF DOCUMENTS PRESENTED ON APPEAL A. The appellant filed a document on appeal [22] According to a statement made by the appellant's counsel, copies of the correspondence from Dakar (visa unit) are being submitted in accordance with the requirements of subsection 110(4) of the IRPA.20 B. Test for admissibility [23] Subsection 110(4) states that the person who is the subject of the appeal may present to the RAD only evidence that arose after the rejection of their refugee protection 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. It should be noted that the time limit referred to in subsection 110(4) is the rejection of the appellant's refugee protection claim, not the hearing before the RPD. A party who wants to provide a document as evidence after a hearing but before a decision takes effect may make an application to the Division.21 [24] In a long-awaited decision, the Federal Court of Appeal found that the explicit conditions set out in subsection 110(4) of the IRPA are inescapable, must be met and leave no room for discretion on the part of the RAD.22 It also found that the criteria set out in the case law with respect to the credibility and relevance of evidence arise implicitly from the wording of the subsection in question.23 In short, there is clear legislative intention not to authorize any new evidence on appeal before the RAD other than in very specific and carefully defined circumstances, as 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.24 [25] Lastly, it should be noted that the RAD Rules state that the appeal record must contain, among other things, a written statement indicating whether the appellant is relying on evidence referred to in subsection 110(4) of the IRPA, as well as a memorandum that includes full and detailed submissions regarding how the evidence meets the requirements of that subsection and how that evidence relates to the appellant.25 C. RAD decision regarding the admissibility of the document in question [26] With respect to the correspondence that the appellant wishes to use in his appeal, it concerns his study permit and his passport. The documents in question are dated XXXX XXXX, 2015, and XXXX XXXX, 2015.26 It is clear that this is not new evidence within the meaning of subsection 110(4) of the RPD. [27] In his memorandum,27 the appellant did not explain how this correspondence was not available to him before his claim for refugee protection was rejected by the RPD. [28] Consequently, considering the wording of subsection 110(4) of the IRPA and the case law, my conclusion is that the correspondence in question is not admissible on appeal. V. HOLDING OF A HEARING BEFORE THE RAD A. The appellant requests a hearing before the RAD [29] According to a statement made by the appellant's counsel, the appellant is requesting that a hearing be held before the RAD.28 B. Test under subsection 110(6) of the IRPA [30] The RAD Rules provide that the record of the person who is the subject of the appeal must contain, among other documents, a written statement indicating whether the appellant is requesting that a hearing be held under subsection 110(6) of the IRPA, as well as a memorandum that includes full and detailed submissions regarding why the RAD should hold such a hearing, if the appellant is requesting that a hearing be held.29 [31] Pursuant to subsection 110(6) of the IRPA, when evidence presented on appeal is found to be admissible, it should be determined whether it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, whether it is central to the decision with respect to the refugee protection claim, and whether it justifies allowing or rejecting the refugee protection claim. If the answer is yes, the RAD may then hold a hearing. C. RAD decision regarding whether to hold a hearing [32] The onus is on the RAD to determine whether the requirements set out in subsection 110(6) of the IRPA have been met or not.30 One of the determinative criteria in this regard is that the evidence presented on appeal is found to be admissible.31 However, in this case I found that the correspondence presented on appeal is not admissible according to the criteria set out in subsection 110(6) of the IRPA. Consequently, my conclusion is that there is no cause to hold a hearing before the RAD. VI. APPROACH TO BE TAKEN IN THIS APPEAL A. Appellant's position [33] In his memorandum, the appellant does not specify which approach the RAD should take in his appeal. However, he submits that the RPD erred in its assessment of his credibility and in the analysis of the IFA.32 B. Brief summary of the Federal Court of Appeal decision in Huruglica [34] Following an exhaustive analysis of the legislative history and various arguments used to date, in a long-awaited decision, the Federal Court of Appeal finds that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law.33 It also states that an appeal before the RAD is not a true de novo proceeding.34 And it clearly specifies the approach to be taken by the RAD: [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 of 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, either by confirming the RPD decision or setting it aside and substituting its own 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.35 [35] As for the degree of restraint or deference owed by the RAD to the RPD's conclusions or findings as to the credibility of any testimony, Justice Gauthier makes a number of clarifications that I find very useful: [70] This also recognizes 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 the credibility or weight to be given to the oral evidence it hears. 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. [71] One can imagine many possible scenarios. For example, when the RPD finds a witness straightforward and credible, there is no issue of credibility per se. This will also be the case when the RAD is able to reach a conclusion on the claim, relying on the RPD's findings of fact regarding the relative weight of testimonies and their credibility or lack thereof. [72] Problems will occur when the credibility findings themselves are disputed on appeal, and the RAD has no way to reach a conclusion without endorsing or rejecting those findings. If the RAD can identify an error in situations where, for example, a claimant was not found credible because his story was not plausible based on common sense, the RPD may have no real advantage over the RAD. [73] Similarly, there may also be cases where a finding that a witness is not credible was based on discrepancies that could not justify such a conclusion or that simply did not exist. If the assessment of the oral evidence contains an error which the RAD can easily identify, but the weight to be given to this testimony is essential to determine whether the RPD decision should be confirmed or set aside, the RAD may conclude that it is a proper case to refer back to the RPD with specific directions in respect of the error identified in the credibility findings. [74] That said, it is not appropriate to say more about the various scenarios that may arise, for they are not before us. The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.36 C. Independent assessment to correct the errors identified by the appellant [36] Based on the Federal Court of Appeal decision, it is clear that I must fully exercise the role of the RAD in correcting any errors that, in the appellant's opinion, may have been made by the RPD37 and in rendering the determination that should have been made or must be made in light of the most recent evidence on the record.38 [37] That said, I must justify whether the circumstances warrant a measure of restraint or deference to the RPD's findings regarding the appellant's credibility that are based on his testimony, given that I have not heard this oral evidence.39 VII. ANALYSIS OF THE MERITS OF THE APPEAL [38] I carefully read the appellant's arguments that the RPD erred in assessing his credibility. Having listened to the recording of the hearing before the RPD40 and having read the RPD's reasons for decision, I find that these arguments do not have merit. A. Analysis of credibility [39] It is well known that it is up to the person claiming refugee protection to establish, on a balance of probabilities, the facts on which he based his claim.41 The RPD is entitled to make findings based on implausibility, common sense and rationality.42 A lack of credibility on an important aspect of a claim can amount to a finding that there is no credible evidence on which the claim can be based.43 a. Major omissions [40] Omissions must be reviewed in their context and be assessed in light of all the evidence, since credibility cannot be impugned when the changes are minimal and the refugee protection claimant has provided a reasonable explanation for the corrections made. However, credibility can be affected by omissions having to do with facts that directly concern the very basis of the claim for refugee protection.44 [41] In his BOC Form, the appellant declared that the information provided in this form was complete, true and correct, that he was able to read French, that he fully understood the content of the form and all attached documents, and that he knew his declaration had the same force and effect as if made under oath.45 A careful reading of the information provided in the BOC Form46 shows that he failed to mention that, after he left the DRC, police officers went to his home, which is also the home of his parents, indicating that they were looking for him, which he later declared in his testimony before the RPD.47 Like the RPD, I find that this omission concerns important aspects of the claim for refugee protection. When asked to explain this omission during the hearing before the RPD, the claimant stated that he had received this information after he had introduced his story, that it was in January that his mother had called him to tell him that police officers had come looking for him. When confronted about the fact that he had, however, made other changes to certain statements made previously, the claimant replied that he had not been paying attention.48 I find this explanation unreasonable. [42] Prior to the hearing before the RPD, the claimant made changes to two immigration forms.49 These changes introduced information indicating that the claimant was arrested by the police on XXXX XXXX when he was falsely accused of organizing debates or discussions at his workplace, and that he had moved in with a friend in XXXX before leaving his country. When asked to explain this omission during the hearing before the RPD, the claimant stated that these were errors that had been made when he had completed these forms, that they were typing errors and that he had not paid attention, but that he had noticed them after his counsel had asked him to fix them. His counsel also stated that this was an innocent mistake, that these things happen because of inattention, and that the important thing is that the claimant admitted his mistake.50 I find that these omissions concern important aspects of the refugee protection claim and that the explanations given by the claimant and his counsel are not reasonable. [43] Consequently, the RPD did not err in finding that these omissions undermined the claimant's credibility. b. Behaviour inconsistent with that of a person who fears for their life [44] Failure to immediately claim international protection can impugn the credibility of a person claiming refugee protection in Canada.51 Also, remaining longer than necessary in a country where a person fears being persecuted, voluntarily returning to that country, travelling to other countries without claiming refugee protection or not claiming refugee protection immediately upon arrival in Canada are behaviours demonstrating a lack of subjective fear.52 When no reasonable or convincing explanation is provided, failure to claim refugee protection at the first opportunity may undermine the credibility of a refugee protection claimant.53 [45] In my view, in this case the RPD was justified in finding that the claimant's behaviour was not consistent with that of a person who fears for his life, since he continued to reside in XXXX, a city where, according to his allegations, police officers were looking for him and wanted to harm him because he allegedly allowed discussions and debates to take place in his XXXX XXXX. The explanation that he did not yet have his airplane ticket54 is not reasonable because he could have sought protection by going to a neighbouring country not requiring air travel. [46] At the hearing before the RPD, the claimant stated that he had decided to leave his country when he received an email confirming that his visa had been issued. When asked to clarify when he had received this message, he replied that he had received it on XXXX XXXX, 2015.55 However, according to his account, it was on XXXX XXXX XXXX 2015, a Friday evening when he was away from his workplace, that some ten police officers in uniform barged into his XXXX XXXX, used batons to disperse the students and trashed the machines. In his BOC Form, the claimant states that it was two days later, the situation still as terrible, that he realized the only solution was to immediately leave his country.56 The RPD did not draw any conclusions about this contradiction, which I consider to be significant. In my view, this contradiction undermines his credibility. According to the case law, since these are statements made by the respondent himself as part of his claim for refugee protection, he was therefore aware of them, and it is not necessary for me to confront him about his own contradiction.57 [47] In addition, even though, according to his allegations, he left his country because his life was at risk there, the claimant did not claim refugee protection as soon as he arrived in Canada. It is true that he had a visa allowing him to study in Canada, but he never went to Nova Scotia where he was supposed to be studying. When asked to explain why he had waited a few days after arriving in Canada before making his claim for refugee protection, the claimant replied that he did not know the procedure.58 It is true that the delay before claiming refugee protection is only a few days and that this issue is not determinative. The fact remains that, in my view, it is not necessary to know the procedure before making a claim for refugee protection. Rather, it is sufficient for a person to indicate to the authorities that they fear for their life and to follow the instructions that are given. [48] Lastly, when asked to explain during the hearing before the RPD whether he had encountered problems when he left his country by boarding an airplane at the airport, the claimant replied that he had not had any issues. When asked to specify how he had been able to leave his country without issue, if he were being sought by the authorities, the claimant replied that he did not know what to say.59 As part of his appeal, he states in his memorandum that because he is not a known political activist, he was easily able to go through unnoticed, and he also states that investigation techniques and technology in the DRC are not as advanced as in Western countries.60 [49] According to the documentary evidence, members of security forces in the DRC benefit from considerable impunity, are often corrupt and commit serious abuses against journalists, human rights advocates and members of opposition parties.61 Although the documentary evidence does not contain detailed information on security measures or the requirements for leaving the country by boarding an airplane at an airport,62 I find that, by choosing to travel as he did, the claimant acted in a way that is inconsistent with the behaviour of a person who fears for his life. One might think that no charges had actually been brought against him. In this regard, it is worth pointing out that he made contradictory statements. In fact, as we saw earlier, in the changes made to one immigration form, the claimant stated that he was falsely accused of having organized debates or discussions in his workplace. But, during his hearing before the RPD, he stated that he had never received the arrest warrant from the police and he gave no information indicating that false charges had actually been brought against him.63 c. A document containing information that is not true [50] In his memorandum,64 the appellant submits that the RPD's analysis was not based on any valid grounds when it found that there was a contradiction regarding the lawyer who mistakenly stated that he was the legal counsel for the XXXX XXXX in a statement made in XXXX on XXXX XXXX, 2015.65 [51] During the hearing before the RPD, the claimant himself indicated that the lawyer in question was not the legal counsel for his XXXX XXXX.66 [52] In my view, filing as evidence a document containing such an anomaly may constitute an additional reason to doubt the truthfulness of the facts alleged by the claimant. B. Degree of restraint or deference owed to the RPD's findings [53] In this case, I found that the correspondence presented on appeal was not admissible and that, consequently, a hearing could not be held.67 Therefore, I cannot hear the appellant's oral evidence about the various issues addressed at the hearing before the RPD. It is well established that, on issues of credibility, the decision-makers who see and hear witnesses during a hearing have an overwhelming advantage that a written transcript cannot replicate. This advantage stems from the ability to assess the demeanour of the witness, that is, to see how the person gives evidence and responds to cross-examination.68 [54] In this case, which is not one of criminal law, I nonetheless benefitted from slightly more than a mere transcript, since I listened to the recording of the hearing held before the RPD.69 But I still did not have the advantage provided by a hearing where the refugee protection claimant is heard. [55] In Huruglica, Justice Gauthier clearly indicates that, given the advantage that the RPD may enjoy when its findings are based on the assessment of the credibility or the weight to be given to the oral evidence it hears, the RAD ought to determine whether the circumstances of that particular case warrant a measure of restraint or deference.70 [56] The scenario in this case is as follows: the RPD member found that the appellant was not credible with respect to a number of aspects concerning his credibility and his fear of returning to live in his country. Having read the RPD's decision and listened to the recording of the hearing, I found that the RPD did not err in its assessment of the appellant's credibility. In addition, I find that the circumstances of this particular case warrant me showing restraint or deference to the RPD's findings that are based on the oral evidence presented to it by the appellant regarding the events that occurred when he was living in his country and regarding the opportunity for him to leave his country. I find that the RPD's findings on these issues are determinative, and it is therefore not necessary for me to further analyze the appellant's other arguments and make a determination on the IFA. VIII. CONCLUSION [57] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. [58] The appeal is dismissed. Me Alain Bissonnette Date IRB translation Original language: French 1 Appellant's memorandum, February 4, 2016, paragraphs 1 to 15, pages 9 and 10 of the appeal record. 2 The BOC Form is reproduced at pages 10 to 22 of the RPD record. 3 The list of these documents is reproduced at pages 130 and 147 of the RPD record. The documents themselves are reproduced at pages 131 to 146 and 148 to 150 of the RPD record. 4 RPD notice of decision, pages 1 to 8 of the RPD record. 5 Idem, page 5 of the RPD record. 6 Idem. 7 Idem, pages 5 and 6 of the RPD record. 8 Idem, page 6 of the RPD record. 9 Idem. 10 Idem, page 7 of the RPD record. 11 Idem. 12 Idem. 13 Appellant's memorandum, paragraphs 20 and 21, page 11 of the appeal record. 14 Idem, paragraph 22, pages 11 and 12 of the appeal record. 15 Idem, paragraph 23, page 12 of the appeal record. 16 Idem, paragraphs 24 and 26, pages 12 and 13 of the appeal record. 17 Idem, paragraph 25, page 13 of the appeal record. 18 Idem, paragraph 27, pages 13 and 14 of the appeal record. 19 Idem, page 15 of the appeal record. 20 Statement of counsel, page 16 of the appeal record. 21 RPD Rules, SOR/2012-256, rule 43. 22 Minister of Citizenship and Immigration v. Parminder Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, paragraphs 38 to 51. 23 Idem, paragraphs 34 and 35. 24 Idem, paragraph 54. 25 RAD Rules, SOR/2012-257, subrule 3(3). 26 These documents are reproduced at pages 18, 19 and 20 of the appeal record. 27 Appellant's memorandum, paragraph 24, pages 12 and 13 of the appeal record. 28 Statement of counsel, page 16 of the appeal record. 29 RAD Rules, SOR/2012-257, subrule 3(3). 30 Zhuo v. Canada (Minister of Citizenship and Immigration), No. IMM-2693-14, O'Reilly, July 27, 2015; 2015 FC 911, paragraph 11. 31 Parminder Singh, supra, footnote 22, paragraph 51: "...the basic rule is that the RAD 'must proceed without a hearing, on the basis of the proceedings of the [RPD]...' (s. 110(3)). The new evidence must meet the admissibility criteria set out in subsection 110(4), and a new hearing can be held only if the new evidence fulfils the conditions set out in subsection 110(6)." 32 Appellant's memorandum, paragraphs 20 to 27, pages 11 to 14 of the appeal record. 33 Minister of Citizenship and Immigration v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93, paragraphs 36 to 103. 34 Idem, paragraph 79. 35 Idem, paragraph 103. 36 Idem, paragraphs 70 to 74. 37 Ghauri v. Canada (Minister of Citizenship and Immigration), No. IMM-3426-15, Gleeson, May 16, 2016; 2016 FC 548, paragraphs 30 to 34. 38 Huruglica, supra, footnote 33, paragraphs 96, 97 and 98. 39 Daniel v. Canada (Minister of Citizenship and Immigration), No. IMM-5832-15, McDonald, September 16, 2016; 2016 FC 1049, paragraph 11. It is worth noting that, in this case, the RAD held a hearing on the identity of the respondent following an appeal by the Minister of Citizenship and Immigration. Kayitankore v. Canada (Minister of Citizenship and Immigration), No. IMM-1189-16, Gascon, September 9, 2016; 2016 FC 1030, paragraph 20. Marin v. Canada (Minister of Citizenship and Immigration), No. IMM-5066-15, LeBlanc, July 20, 2016; 2016 FC 847, paragraph 31. Kivalo v. Canada (Minister of Citizenship and Immigration), No. IMM-5429-15, Kane, June 28, 2016; 2016 FC 728, paragraphs 26 and 27. Canada (Minister of Citizenship and Immigration) v. Ali, No. IMM-3148-15, Kane, June 23, 2016; 2016 FC 709, paragraphs 35, 36, 55 and 56. 40 Recording of the RPD hearing held on January 25, 2016, 00:01 to 01:53:45. 41 Arreaga v. Canada (Minister of Citizenship and Immigration), No. IMM-996-13, Noël, September 25, 2013; 2013 FC 977, at paragraph 45. 42 Laszlo v. Canada (Minister of Citizenship and Immigration), No. IMM-3507-04, Von Finckenstein, April 6, 2005; 2005 FC 456, at paragraph 10. 43 Hernandez Cortes v. Canada (Minister of Citizenship and Immigration), No. IMM-4645-08, Teitelbaum, June 4, 2009; 2009 FC 583, at paragraph 30. 44 Hamidi v. Canada (Minister of Citizenship and Immigration), No. IMM-5049-14, Shore, February 26, 2015; 2015 FC 243, paragraphs 27 and 28. 45 BOC Form, page 19 of the RPD record. 46 Idem, pages 20, 21 and 22 of the RPD record. 47 Recording of the RPD hearing held on January 25, 2016, 01:13:00 to 01:13:58. 48 Idem, 01:13:58 to 01:15:20. 49 The changes to these two forms are reproduced at pages 148, 149 and 150 of the RPD record. 50 Recording of the RPD hearing held on January 25, 2016, 06:10 to 10:00. 51 Mesidor v. Canada (Minister of Citizenship and Immigration), No. IMM-2233-09, Shore, December 4, 2009; 2009 FC 1245, at paragraph 11. 52 Rivera v. Canada (Minister of Citizenship and Immigration), No. IMM-5826-02, Beaudry, November 5, 2003; 2003 FC 1292, at paragraphs 29 and 30. 53 Medina Canchon v. Canada (Minister of Citizenship and Immigration), No. IMM-3359-12, Noël, November 27 2012; 2012 FC 1374, at paragraph 28. 54 Recording of the RPD hearing held on January 25, 2016, 01:11:25 to 01:12:25. 55 Idem, 01:09:08 to 01:09:58. 56 BOC Form, pages 21 and 22 of the RPD record. 57 Konare v. Canada (Minister of Citizenship and Immigration), No. IMM-5313-15, Bell, August 30, 2016; 2016 FC 985, paragraph 16: [translation] "Although in general a tribunal must inform an applicant of contradictions identified between the evidence and the testimony in order to give the applicant an opportunity to respond, 'the duty [...] does not require that the applicants be confronted with information which they provided themselves' (Azali, supra, at para. 26). In this case, the complaint to the Diré tribunal was submitted as evidence by Mr. Konare. He was aware of the information it contained. In these circumstances, the RAD has no obligation to confront the applicant with his own contradictions (D'Amico, supra, at paras. 51-53). I am therefore of the view that there was no breach of the duty of procedural fairness because the RAD did not base its finding on extrinsic evidence." Also read Koita v. Canada (Minister of Citizenship and Immigration), No. IMM-2233-16, Martineau, November 8, 2016; 2016 FC 1247, paragraphs 6 and 7. 58 Recording of the RPD hearing held on January 25, 2016, 18:25 to 26:45. 59 Idem, 01:12:40 to 01:12:55. 60 Appellant's memorandum, paragraph 25, page 13 of the appeal record. 61 Immigration and Refugee Board (IRB), National Documentation Package on the DRC, July 17, 2015, Document 2.1: United States of America, State Department, Democratic Republic of the Congo. Country Reports on Human Rights Practices for 2014, June 25, 2015, not paginated, under "Executive Summary." 62 Idem, under "Freedom of Movement, Internally Displaced Persons, Protection of Refugees, and Stateless Persons." 63 Recording of the RPD hearing held on January 25, 2016, 01:10:45 to 01:11:00. 64 Appellant's memorandum, paragraph 23, page 12 of the appeal record. 65 This statement is reproduced at page 131 of the RPD record. 66 Recording of the RPD hearing held on January 25, 2016, 01:36:05 to 01:37:45. 67 Read paragraphs 22 to 32 of this decision. 68 R. v. N.S., [2012] 3 S.C.R. 726, 2012 SCC 72, paragraph 25. 69 Recording of the RPD hearing held on January 25, 2016, 00:01 to 01:53:45. 70 Huruglica, supra, footnote 33, paragraph 70. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB6-01058 14