MB5-04053

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 : MB5-04053 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 Montréal, Quebec Appel instruit à Date of decision May 6, 2016 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Vincent Desbiens 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 I. INTRODUCTION [1] XXXX XXXX XXXX XXXX, the appellant, who is a citizen of Cameroon, is appealing against a decision of the Refugee Protection Division (RPD). She submits that the RPD erred in the assessment of her credibility. II. DETERMINATION OF THE APPEAL [2] Under subsection 111(1) 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 "refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. III. BACKGROUND A. Summary of the alleged facts [3] In her memorandum, the appellant presents the facts in the following manner: - In Cameroon, she fears for her life because of her activities as a journalist. She is in danger there because of the newspaper articles that she wrote and in which she denounced the Cameroonian government's abuses in XXXX XXXX XXXX XXXX, which resulted in her receiving a number of death threats from important government officials.1 [4] In addition to her Basis of Claim Form (BOC Form),2 the appellant, then designated the claimant, submitted a few documents before the RPD.3 B. RPD decision [5] The hearing took place on August 11, 2015, before the RPD, and the decision to reject the refugee protection claim was rendered on August 28, 2015.4 [6] In the reasons for the decision, the RPD states that it identified a number of credibility problems, in particular some substantial omissions. It also states that the claimant's testimony was vague and that a number of questions had to be repeated in order to obtain clarifications on the problems she experienced in Cameroon. In the end, the RPD found that the claimant lacked credibility with respect to key elements forming the basis of her refugee protection claim.5 [7] The RPD specifies the omissions that it identified, the explanations provided by the claimant but that it did not find satisfactory, and its conclusions. First, the claimant's fear of the Boko Haram group should have been in her BOC Form. Second, the fact that there were death threats in recent years is an important point that should have been in her BOC Form. Finally, having written articles in 2014 that resulted in death threats is an important fact that should have been mentioned in her BOC Form.6 [8] The RPD also finds that the claimant's behaviour is inconsistent with that of a person who has received death threats since 2011, even though she returned to Cameroon in 2012 and 2013 after travelling abroad and took her time before seeking protection from these threats.7 [9] Finally, the RPD finds that the claimant remained vague in relation to requests for information concerning a number of her allegations. It states that the claimant did not have any documents so that it could better assess her problems, such as the articles that she allegedly wrote denouncing the Cameroonian government.8 C. Grounds of appeal and decision sought [10] In her memorandum, the appellant submits that the RPD conducted an unreasonable analysis of the evidence on the record, namely regarding her credibility, and that it erred in the analysis of her behaviour, having failed to take her profile into consideration.9 [11] She submits that the RPD erred in finding that her credibility was undermined by what she verbalized at the hearing regarding her fear of the Boko Haram group, as what she expressed was in no way meant to be an attempt to lie or conceal information.10 [12] She also submits that, although the threats were not written in detail in her BOC Form, they are nevertheless mentioned therein. She adds that in her BOC Form, she did not write the number of threats because she had never attempted to add them up. In her opinion, at the hearing, her answers were acceptable, and the RPD should not have concluded that her credibility was diminished.11 [13] She also submits that since she wrote articles against the government and was subjected to intimidation for a number of years, it is acceptable that she was not as specific as to write in her BOC Form that she wrote articles in 2015.12 [14] Regarding her behaviour, she submits that the RPD did not take her profile as a journalist into consideration, which involves revealing the truth to the public, even when certain people do not like it, which explains why she did not react as promptly to the threats she received, given that risks are part of the profession.13 [15] She also submits that the situation deteriorated in 2014 with the XXXX XXXX, and it was from that point on that she felt the risk to her life was too great, exceeding what she could bear in her profession as a journalist. She adds that her passport was issued to her only on XXXX XXXX, 2015.14 [16] Finally, regarding the newspaper articles that she wrote criticizing the Cameroonian government but that she does not have with her, the appellant submits that her explanations presented to the RPD are reasonable. First, when she wrote them, she could not have expected that she would need them in the future, which explains why she did not hold on to them. Second, the newspaper archives in Cameroon are not as sophisticated as in Canada because articles are not scanned or made available by computer, which explains why obtaining them is much more complicated and why she failed to obtain them.15 [17] Finally, the appellant is asking the RAD to set aside the RPD's determination and grant her refugee protection or to refer the matter to the RPD for re-determination by a new member and give any directions that it considers appropriate.16 [18] In a written submission, the appellant's lawyer states that they are not raising any evidence described in subsection 110(4) and that they are not requesting that a hearing be held under subsection 110(6) of the IRPA.17 IV. APPROACH TO BE TAKEN IN THIS APPEAL A. The appellant's position [19] In her memorandum, the appellant does not state the approach that must be taken in her appeal, although she submits that the RAD conducted an unreasonable analysis of the evidence on the record and erred in the analysis of her behaviour.18 B. A brief summary of the Federal Court of Appeal decision in Huruglica [20] Following an exhaustive analysis of the legislative history and the various arguments used to date, in a recent, long-awaited decision, the Federal Court of Appeal found that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law.19 It also found, however, that an appeal to the RAD is not a true de novo proceeding.20 Moreover, 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.21 [21] 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.22 C. An independent review to correct any errors [22] Drawing on the Federal Court of Appeal decision, I consider it clear that I must fully exercise the role of the RAD, which is to correct any errors that the RPD might have made and to render the determination that should have been made or must be made in light of the most recent evidence on the record.23 That being said, if required, I must justify whether the circumstances warrant a degree of restraint or a measure of deference regarding the RPD's findings as to the appellant's credibility based on her testimony. V. ANALYSIS OF THE MERITS OF THE APPEAL [23] Having conducted an independent assessment of the record, I find that the RPD did not err in its assessment of the appellant's credibility. I will explain why. [24] In the reasons for the decision, the RPD was very clear and meticulous in its assessment of the claimant's credibility. These conclusions are based on an analysis of her testimony, including her explanations and the evidence on the record. I find that, in this case, before coming to its conclusions that undermined the credibility of the key allegations of the claimant, the RPD did not err in hastily casting aside the presumption that when a refugee claimant swears to the truth of certain allegations, they are unless there are reasons to doubt their truthfulness. 24 i) Omissions of key elements in her refugee protection claim [25] In the reasons for its decision, the RPD identified omissions regarding key elements in the refugee protection claim.25 The omissions must be examined in their context and be assessed in light of all the evidence; a claimant's credibility cannot be impugned when the changes made to the BOC Form are minimal and the claimant has provided a plausible explanation of the corrections made. However, credibility can be undermined by omissions that have to do with the facts that directly concern the very basis of a claim for refugee protection.26 [26] In her BOC Form, the appellant declares that the information provided in this form is complete, true and correct, that she knows how to read French, is able to clearly read the form, clearly understands the content of this form and of all the attached forms, and that she knows that her declaration has the same force and effect as if made under oath.27 In carefully reading the information provided in the BOC Form, it is possible to conclude that she failed to mention that she feared the Boko Haram group, that she had received death threats between 2011 and 2014, or even that she had written any newspaper articles that resulted in death threats directed at her personally.28 In my opinion, even in accepting that her fear of the Boko Haram group is similar to that felt by all her fellow citizens, the fact remains that the other omissions-the existence of death threats and the publication of articles that led to such death threats aimed directly at her-are elements that are fundamental to her refugee protection claim. [27] Regarding the explanations that she had not thought to indicate these threats in her BOC Form and that she was in a situation of continual stress, I find, just as the RPD did, that they are unsatisfactory, given the importance of these facts to the very basis of her refugee protection claim, not to mention that the appellant is a journalist whose job is precisely to report the facts. [28] Consequently, I find that the RPD did not commit any errors in concluding that these omissions undermined the claimant's credibility regarding the very existence of the articles in which she allegedly criticized the government, as well as the death threats that resulted from them. ii) The fact of not seeking asylum in Gabon or South Africa, as well as the time it took to leave Cameroon [29] Failing to seek international protection at the first opportunity may impugn the credibility of a person seeking refugee protection in Canada.29 Furthermore, the fact of staying longer than necessary in a country where one fears persecution, returning voluntarily to this country, passing through other countries without seeking asylum and not claiming refugee protection immediately upon arriving in Canada constitutes behaviour that demonstrates an absence of subjective fear.30 If no convincing or reasonable explanation is provided, failing to claim refugee protection at the first opportunity can negatively affect a refugee protection claimant's credibility.31 The delay in claiming can even, in appropriate cases, be in itself a sufficient reason for its rejection.32 [30] In her memorandum, the appellant submits that she returned to Cameroon after her trips to Gabon in 2012 and South Africa in 2013, because it was only in 2014 that her problems reached a point that she could no longer bear.33 [31] Yet in her BOC Form, the appellant writes that between 2011 and the end of 2013, she wrote a number of articles that caused her problems, that she was rejected by some of her colleagues and that she was under psychological pressure from the fact that she was a persona non grata after being poisoned in 2013.34 Not to mention that, at the time of the hearing, she stated that she had received death threats since 2011. [32] In my opinion, the fact that she did not make any effort to seek protection while staying in Gabon or in South Africa undermines her subjective fear of being persecuted as a journalist who criticized the Cameroonian government. [33] Whatever the case, the RPD did not limit itself to just this issue. It also analyzed the time it took the claimant before she left her country. In her memorandum, the appellant submits that the RPD then committed an error because in the fall of 2014, she did not have a valid passport because her country issued her one only on XXXX XXXX, 2015.35 In my opinion, this argument must be rejected. In fact, before obtaining this recent passport, the appellant had another passport that allowed her to travel abroad in the past. Although the evidence is not on the record, there is no reason not to think that in the fall of 2014, she still had her previous passport. Regardless, this is not a determinative issue in the refugee protection claim. iii) The absence of articles written by the appellant in which she allegedly criticized the Cameroonian government [34] It is important to point out that "in determining an application for refugee status, it was up to the female applicant to establish, on a balance of probabilities, the facts on which she based her application." Yet, whether before the RPD or RAD, the appellant did not submit any document that could have corroborated her allegations that she had written articles in which she criticized the Cameroonian government. [35] Failing to file supporting documentation that is reasonable to expect may have an impact on a refugee protection claimant's credibility.36 In reading rule 11 of the Refugee Protection Division Rules,37 it is clear that a person claiming refugee protection has a duty to provide the documents and other elements of the claim; the English version speaks more directly than the French and states, "The claimant must provide...."38 However, it should be noted that in French, writing in the present indicative, including in federal legislation, is enough to show the imperative nature of a rule. The main point is that a lack of diligence in not trying to obtain an important document that could have corroborated the person's testimony can undermine the person's credibility.39 [36] Although the explicit conditions set out in subsection 110(4) of the IRPA are inescapable, the appellant could have presented before the RAD some articles that were published in newspapers in Cameroon in which she criticized the government of that country; these documents were not reasonably available to her or she could not reasonably have been expected in the circumstances to have presented them before the RPD rejected her claim.40 However, she did not do this. [37] The appellant's explanations that in Cameroon, the articles are not scanned or made available by computer and that obtaining them is much more complicated than in Canada do not seem satisfactory to me. First, without it concerning determinative information, I wish to state that from a simple online search, it can be noted that the newspaper for which the appellant worked from 2011 until the end of 2013 keeps archives of articles that were published there, the articles in question being available online.41 Second, and more importantly, even in accepting that the articles that she alleges to have published are not archived electronically, in my opinion, there was nothing preventing the appellant from taking steps with her colleagues and friends and asking them to obtain copies, specifically by using their own archives, those of the newspapers concerned or even of some libraries. Finally, as the RPD noted, how can it be explained that the appellant brought a number of articles with her for the purpose of establishing that she is indeed a journalist but that she did not bring any articles in which she criticized the government? According to the RPD, this is an inconsistency. As for me, I am simply stating that the appellant's failure to have submitted these articles when it is reasonable to expect that she would do so undermines her credibility. [38] Consequently, I find that the RPD did not commit any errors in concluding that the claimant failed to establish that she is the author of articles denouncing corruption in Cameroon. VI. CONCLUSION [39] For these reasons, I confirm the determination of the RPD, namely that XXXX XXXX XXXX XXXX is not a "refugee" under section 96 or a "person in need of protection" within the meaning of section 97 of the IRPA. [40] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette May 6, 2016 Date IRB translation Original language: French 1 Appellant's memorandum, September 26, 2015, paragraphs 1.4 and 1.5, page 18 of the appeal record. 2 Appellant's Basis of Claim Form (BOC Form), pages 12 to 25 of the Refugee Protection Division (RPD) record. 3 The list of documents appears at pages 66 and 70 of the RPD record. The documents themselves are reproduced at pages 67, 68, 69 and 71 to 87 of the RPD record. 4 RPD reasons and decision, pages 3 to 11 of the RPD record. 5 Idem, paragraph 9, page 5 of the RPD record. 6 Idem, paragraphs 10 to 27, pages 5 to 8 of the RPD record. 7 Idem, paragraphs 28 to 32, pages 8 and 9 of the RPD record. 8 Idem, paragraphs 33 to 39, pages 9 and 10 of the RPD record. 9 Appellant's memorandum, paragraphs 2.1 and 2.2, page 19 of the appeal record. 10 Idem, paragraphs 2.6 to 2.11, pages 21 and 22 of the appeal record. 11 Idem, paragraphs 2.12 to 2.17, pages 22 and 23 of the appeal record. 12 Idem, paragraphs 2.18 to 2.21, pages 23 and 24 of the appeal record. 13 Idem, paragraphs 2.22 to 2.26, pages 24 and 25 of the appeal record. 14 Idem, paragraphs 2.27 to 2.31, page 25 of the appeal record. 15 Idem, paragraphs 2.32 to 2.36, page 26 of the appeal record. 16 Idem, page 27 of the appeal record. 17 Written statement from Counsel Vincent Desbiens, page 15 of the appeal record. 18 Appellant's memorandum, paragraphs 2.1 and 2.2, page 19 of the appeal record. 19 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. 20 Idem, paragraph 79. 21 Idem, paragraph 103. 22 Idem, paragraphs 70 to 74. 23 Idem, paragraphs 96, 97 and 98. 24 Anthonimuthu v. Canada (Minister of Citizenship and Immigration), No. IMM-1854-04, de Montigny, January 28, 2005; 2005 FC 141, in paragraph 46. 25 RPD reasons and decision, paragraphs 10 to 27, pages 5 to 8 of the RPD record. 26 Hamidi v. Canada (Minister of Citizenship and Immigration), No. IMM-5049-14, Shore, February 26, 2015; 2015 FC 243, paragraphs 27 and 28. 27 BOC Form, page 23 of the RPD record. 28 Idem, pages 17, 18 and 19 of the RPD record. 29 Mesidor v. Canada (Minister of Citizenship and Immigration), No. IMM-2233-09, Shore, December 4, 2009; 2009 FC 1245, in paragraph 11. 30 Rivera v. Canada (Minister of Citizenship and Immigration), No. IMM-5826-02, Beaudry, November 5, 2003; 2003 FC 1292, in paragraphs 29 and 30. 31 Medina Canchon v. Canada (Minister of Citizenship and Immigration), No. IMM-3359-12, Noël, November 27, 2012, 2012 FC 1374, in paragraph 28. 32 Milovic v. Canada (Minister of Citizenship and Immigration), No. IMM-7773-14, LeBlanc, August 25, 2015; 2015 FC 1008, in paragraph 17: "Although a delay in claiming refugee protection is not determinative with respect to the outcome of a refugee claim it may constitute sufficient grounds for rejection in itself, in the right circumstances. This would generally be the case when the refugee claimant cannot provide a satisfactory explanation for the delay in claiming." 33 Appellant's memorandum, paragraph 2.28, page 25 of the appeal record. 34 BOC Form, page 17 of the RPD record. 35 Appellant's memorandum, paragraphs 2.29 and 2.30, page 25 of the appeal record. 36 Mercado v. Canada (Minister of Citizenship and Immigration), No. IMM-4493-09, Gauthier, March 12, 2010; 2010 FC 289, in paragraph 32 in reference to the following decisions: A.M. v. Canada (Minister of Citizenship and Immigration), 2005 FC 579, [2005] F.C.A No. 709 (QL) in paragraph 20 and Nechifor v. Canada (Minister of Citizenship and Immigration), 2003 FC 1004, [2003] F.C.A. No. 1278 (QL) in paragraph 6. 37 Refugee Protection Division Rules, SOR/2012-256. 38 Villanueva Pinon v. Canada (Minister of Citizenship and Immigration), No. IMM-4906-09, Boivin, April 20, 2010; 2010 FC 413, in paragraph 16. 39 Idem, in paragraph 15. 40 Minister of Citizenship and Immigration v. Parminder Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, paragraph 51. 41 http://www.journalducameroun.com/archivem.php. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-04053 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB5-04053 2