MC1-00972

RAD File No. / No de dossier de la SAR : MC1-00972 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 August 5, 2021 Date de la décision Panel Me Michel Colin Tribunal Counsel for the person who is the subject of the appeal Brice Haziel Samba Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (appellant) is a citizen of Angola. [2] The appellant fears his business partner, a general, for whom he agreed to transfer money abroad in XXXX 2018. While the appellant was in Europe from XXXX 2018 to XXXX 2019, the general deposited another large amount of money to his Angolan bank account, and the appellant discovered that the intelligence service was looking for him in relation to these transactions. After returning to Angola in XXXX 2019, he spotted people in civilian dress outside of his home whom he believed to be people from the intelligence service. Frightened, he rented a hotel room, but he began receiving calls from the intelligence service telling him to come in to explain the bank transactions as well as calls from the general and his associates threatening to kill him if he betrayed the general. The general also accused him of having sex with his wife while the three of them were on a trip in China. Fearing for his life, he left Angola for the United States and travelled to Canada in XXXX 2020. [3] The Refugee Protection Division (RPD) rejected his refugee protection claim because it found him not credible. It noted contradictions between the information in his forms and his testimony regarding the periods when he allegedly operated his clothing sales business and when he met the general there. It concluded that the appellant had not established that he met the general in 2017 or that he entered into a business relationship with him. The RPD did not believe that he discovered while travelling in Europe that his bank account had been frozen due to the general's transactions, since by his own admission the appellant had been able to conduct transactions on it during the trip. The RPD considered that it would have been reasonable to expect the appellant to provide communications from his bank advising him that his account had been frozen and the statements establishing which general had deposited money to it, and it drew a negative inference about his credibility for not having attempted to obtain them. The appellant was unable to indicate the amounts of the deposits to his account, and the RPD considers that it would have been reasonable to think that the general would have advised him before or after the deposits, which adds to the inconsistency of the testimony. The evidence is contradictory as to whether the funds were transferred abroad or were instead frozen in his account. The RPD considered that it was also contradictory that the appellant remained in Angola for only five days before fleeing without meeting with the intelligence service when the purpose of his return was specifically to meet with them in order to unblock his account. The RPD concluded that he had not established having received large amounts of money from the general in his Angolan bank account and that they were to be transferred to a foreign account. The RPD considered it speculative to assert that he would be tortured by the intelligence service in order to get information concerning the general. It did not believe that the general and his associates had threatened him, given the appellant's failure to mention these threats in his Basis of Claim Form (BOC Form). It did not accept that the general accused him of having sex with his wife. The RPD refused the filing of documents C-1 to C-7 submitted the day before the hearing due to the fact that they were not translated; the documents were not relevant to the basis of the claim, the appellant had had months to get them translated, and he did not provide a reasonable explanation for producing them so late. [4] The appellant argues in his memorandum that some of the evidence the RPD did not believe is established by documents he wishes to submit before the Refugee Appeal Division (RAD). It is evidence that he registered a company called XXXX XXXX XXXX XXXX XXXX XXXX in 2016 and that he transferred XXXX XXXX XXXX euros from his account in Angola to the one in Portugal to test whether it was possible to do so. He argues that the RPD did not believe that he had met with the general in 2017 when, based on his testimony, they had entered into a verbal agreement together and he had even gone on to travel to China with the man's wife. He argues further that anyone is his place would never have thought to save their communications with the bank, as this would have looked as if the appellant were planning from the start to come claim refugee protection, which is not the case. The general's failure to inform him when he made the deposits to his account is attributable to the fact that this had been agreed in advance and he was abroad when the deposits were made. He did not contact the intelligence service when he went back to Angola because he was afraid of the general, who had branded him a traitor. He argues that he has established that he is being sought by the intelligence service to explain the origin of the funds in his account and the threats made against him by the general, who is afraid that the appellant will betray him. He filed seven documents for consideration as new evidence before the RAD, six of which are translations of those rejected as evidence by the RPD, and is asking that an oral hearing be held before the RAD. [5] The determinative issue for the RAD is credibility. [6] I reject the new evidence and the request to hold an oral hearing. I determine that the appellant's arguments based on the documents that were not admitted in evidence are neither admissible nor relevant. I consider that the RPD erred in concluding that the appellant never met with the general in 2017. However, that error is not determinative in the context of this appeal. The RPD was correct to find that the appellant's failure to attempt to corroborate the freezing of his bank account and the deposits made to it by the general undermines his credibility in light of the vague and contradictory testimony concerning the central elements of the claim. These contradictions and inaccuracies with regard to the deposit amounts, the existence of transfers and the freezing of his account seriously undermine the appellant's credibility. The RPD was correct to conclude that the appellant's failure to contact the intelligence service when that was the main reason for his return is inconsistent, at the very least before the general made threats against him. I also consider that the appellant has not established that these threats were made against him. The RPD's findings, which are not contested by the appellant, are correct. The appellant is not credible. DETERMINATION [7] I dismiss the appeal. The RPD correctly determined that the appellant is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE [8] The appellant has submitted the seven documents for consideration as new evidence before the RAD. Summary Table of New Evidence Presented after perfection of appeal? Location in appellant's record Description of new evidence Date of document Is document dated before or after RPD decision (March 2, 2021)? 1) N 14-17 Translation from Journal de la république (corporate documents) C-6 before RPD Feb. 17, 2017 Before 2) N 18-20 Translation of company registration certificate C-5 before RPD XXXX XXXX XXXX XXXX 2017 Before 3) N 21-23 Translation of statistics registry certificate C-2 before RPD XXXX XXXX XXXX XXXX 2017 Before 4) N 24-26 Translation from collective taxpayer register C-3 before RPD XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2017 Before 5) N 27-29 Translation of authorization to provide business services C-1 before RPD ? Before* 6) N 30-33 Translation of bank transfer order C-7 before RPD ? Before* 7) N 34-38 Arrest warrant Not filed before RPD XXXX XXXX XXXX XXXX 2019 Before * Before in that the appellant forwarded the Portuguese version of this document the day before the hearing Evidence provided by the appellant is rejected, as is request to hold oral hearing before Refugee Appeal Division [9] In accordance with the Immigration and Refugee Protection Act1 (IRPA), I can only admit evidence: i) that arose after the RPD rendered its decision; ii) that was not reasonably available at the time of the decision; or iii) that the person could not reasonably have been expected in the circumstances to have presented to the RPD before the decision was rendered. [10] If the evidence meets one or more of these requirements, I must decide whether the evidence is new, credible and relevant before admitting it.2 [11] The appellant argues that this evidence was obtained after the hearing. Now, I agree that these translations were obtained after the hearing, but this in no way changes the fact that all the evidence they contain arose before the RPD's decision. [12] The appellant indicates that despite making an effort, he was unable to obtain these documents in time, translate them and file them by the deadline. In view of the fact that he does not provide any details as to what efforts were made, when, why he was unable to make these efforts before and what the obstacles were, I consider that he has not established that these documents were not reasonably available at the time of the decision, particularly since he never asked the RPD to adjourn the hearing or to grant him time afterwards to supply the translations and this arrest warrant. [13] The appellant does not explain why these documents could not reasonably have been expected in the circumstances to have been presented to the RPD before the decision was rendered.3 [14] Given that these documents do not meet any of the requirements of subsection 110(4) of the IRPA, I do not admit them in evidence. [15] I reject the request to hold an oral hearing, since subsection 110(6) of the IRPA does not permit me to hold one unless there is new evidence determined to be admissible. ANALYSIS [16] My role is to examine all the evidence and determine whether the RPD's decision is correct.4 The appellant's arguments based on the documents that were not admitted in evidence are neither admissible nor relevant. [17] The appellant argues in his memorandum that certain evidence that the RPD did not accept is established by documents that he wishes to submit before the RAD. It is evidence that he registered a company called XXXX XXXX XXXX XXXX XXXX XXXX in 2016 and that he transferred XXXX XXXX XXXX euros from his account in Angola to the one in Portugal to test whether it was possible to do so. [18] Although I have not admitted the documents in question and this is sufficient to reject these arguments, I consider it useful to explain their lack of relevance. Nowhere in its decision does the RPD indicate that it does not believe that the appellant registered a company called XXXX XXXX XXXX XXXX XXXX XXXX in 2016. Additionally, a company's registration date is not proof of the start-up date of the XXXX XXXX, which may have been long after, and possibly even before, the registration. As for the XXXX XXXX XXXX euros transferred from the account in Angola to the one in Portugal, this is not, according to the decision, what undermined the appellant's credibility. It was in relation to the transfer of the funds subsequently deposited, for which the appellant was unable to indicate the amounts; the evidence is contradictory as to whether the funds were transferred abroad or were instead frozen in his account. The RPD erred in concluding that the appellant never met with the general in 2017. However, that error is not determinative in the context of this appeal. [19] The appellant argues that the RPD did not believe that he had met with the general in 2017 when, based on his testimony, they had entered into a verbal agreement together and he had even gone on to travel to China with the man's wife. [20] I agree with the appellant that this testimony is not contradicted. According to his IMM 5669 form, the appellant indicates that he began selling XXXX in XXXX 2017. The RPD saw in that a contradiction with the allegation that the general went to his XXXX store in 2017. [21] With respect, I do not see the contradiction. The appellant did not claim that the general approached him prior to XXXX 2017. I therefore conclude that the RPD erred in finding that it was not credible that he met with the general, due to a supposed contradiction in the dates concerning the operation of the XXXX store. However, I consider that this error is not determinative in this appeal, as I have independently found other significant credibility issues, which are set out below. The RPD was correct to find that the appellant's failure to attempt to corroborate the freezing of his bank account and the deposits made to it by the general undermines his credibility in light of the vague and contradictory testimony concerning central elements of the claim. [22] The appellant argues that anyone in his place would never have thought to save their communications with the bank, as this would have looked as if the appellant were planning from the start to come claim refugee protection, which is not the case. He adds that the general's failure to inform him when he made the deposits to his account is attributable to the fact that this had been agreed in advance and he was abroad when the deposits were made. [23] I do not share this viewpoint. To begin, the RPD was correct to conclude that corroboration would have been required in this case. Although this requirement does not always apply, it did in this case in light of the fact that the appellant contradicted himself more than once, asserting at times that the funds were transferred abroad, at others that the account had been frozen and that no transactions were possible, and on occasion that he had been able to conduct transactions from abroad. In addition to this, he was unable to indicate the amounts of the general's deposits even though these triggered the freezing of his account and caused all his problems, an issue I will address below. [24] The argument that anyone in his place would never have thought to retain their communications with the bank does not seem very convincing, particularly since, assuming that he neglected in good faith to retain them, this does not at all explain why he did not contact his bank during the 12 months he had to prepare for his hearing in order to ask his banker for a letter confirming that his account had been frozen for approximately a year and a half prior to his departure in XXXX 2019 and possibly afterwards. [25] Moreover, I fail to understand how he could have a document concerning the transfer of XXXX XXXX XXXX euros in 2017 but has been unable to produce in evidence any statements indicating the subsequent deposits of large amounts by the general and showing whether any money was transferred abroad. If the transfers actually occurred, it seems likely to me that statements from the Portuguese account that was not frozen would also be available. [26] Regarding the assertion that the general's failure to inform him when he made the deposits to his account is attributable to the fact that this had been agreed in advance and he was abroad when the deposits were made, I do not consider this argument very persuasive. Even if it had been agreed in advance that money would be transferred in this manner at some point, it does not appear likely that the general would not want to indicate to him the amounts he had deposited and belonging to him personally once deposited. [27] Even if the general did not specify the deposit amounts, it seems odd that the appellant would still not know the amounts in question and not request this information from his bank when he intended to ask the intelligence service to unblock the funds in his account that were frozen specifically because of the general's deposits or, at the very least, while preparing his refugee protection claim in Canada. [28] I agree with the RPD that the evidence that his account was frozen and the statements indicating the deposits made by the general are central to his claim, and his failure to attempt to obtain these documents, undermines his credibility the co, given the contradictions and inaccuracies in his testimony. [29] These contradictions and inaccuracies with regard to the deposit amounts, the existence of transfers and the freezing of his account seriously undermine the appellant's credibility. The RPD was correct to conclude that the appellant's failure to contact the intelligence service when that was the main reason for his return is inconsistent, at the very least before the general made threats against him. I also consider that the appellant has not established that these threats were made against him. [30] The appellant argues that he did not contact the intelligence service when he went back to Angola because he was afraid of the general, who had branded him a traitor. [31] However, based on the sequence of events in the BOC Form, the appellant spotted the intelligence service outside of his home and left to seek refuge at a hotel before the threats were made. It was only then that the telephone threats from the general and his associates began. For this reason, I agree with the RPD that his failure to approach the intelligence service, which was, moreover, right outside his door, when this was his very reason for returning to Angola is inconsistent, at the very least, before the general made threats against him. [32] I also agree with the uncontested conclusions of the RPD that the appellant did not establish that the general and his associates made telephone threats against him, since he failed to mention them in the BOC Form and this was his main reason for leaving Angola. [33] After conducting an independent assessment of the evidence, I agree with the conclusions that are uncontested by the appellant. [34] I find, as the RPD correctly did, that the appellant is not credible. CONCLUSION [35] I dismiss the appeal and confirm the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Michel Colin Me Michel Colin August 5, 2021 Date IRB translation Original language: French 1 Subsection 110(4) of the Immigration and Refugee Protection Act. 2 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96. 3 It is important to note that he argues in his memorandum that other documents would not reasonably have been retained and provided; I will return to this argument later. 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. --------------- ------------------------------------------------------------ --------------- RAD File No. / No de dossier de la SAR : MC1-00972 RAD.25.02 (May 19, 2021) Disponible en français 5 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 (May 19, 2021) Disponible en français