MB7-21544

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No / N° de dossier de la SAR : MB7-21544 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision June 12, 2019 Date de la décision Panel Normand Leduc Tribunal Counsel for the Appellant(s) Me John Rokakis Conseil(s) du (de la/des) appelant(e)(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of the Democratic Republic of the Congo (DRC), is appealing against the decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] She is not presenting any new evidence on appeal and is not requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Under paragraph 111(1)(a) of the Immigration and Refugee protection Act (IRPA), the RAD confirms the RPD's determination, namely that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. BACKGROUND [4] The appellant, who is now 79 years old, alleges in her Basis of Claim Form (BOC Form) that, while she has been in Canada since XXXX 2014 visiting one of her daughters, she learned in XXXX 2015 that her son XXXX was arrested in the DRC on the ground that he had organized political meetings at their home, in the city of Lubumbashi. [5] The appellant alleges that she is being sought by Congolese authorities as the owner of the house where the political meetings were organized. [6] The RPD rejected the refugee protection claim on the ground that the appellant's key allegations were not credible. [7] Before the RAD, the appellant submits that the RPD erred by committing a breach of procedural fairness and the principles of natural justice in that, after the hearing, the RPD accepted evidence which was found to be not credible without reconvening the hearing to give her the opportunity to explain this matter. [8] For these reasons, the appellant is asking the RAD to set aside the RPD's determination and grant her refugee protection or, alternatively, to refer the matter to the RPD for re-determination by a differently constituted panel. STANDARD OF REVIEW AND THE REFUGEE APPEAL DIVISION'S ROLE [9] The RAD's role is to review RPD decisions using the correctness standard of review after conducting its own analysis of the record in order to determine whether the RPD erred, as submitted by the appellant. The exception to this rule concerns the RPD's findings in the assessment of the credibility or the weight to be given to the oral evidence it hears, in cases where it has a meaningful advantage. The RAD must then show a degree of deference to the RPD's findings (Canada v. Huruglica, F.C.A., No. A-470-14). If I am of the opinion that the RPD enjoyed a meaningful advantage, I will provide reasons in my analysis. ANALYSIS [10] Did the RPD commit a breach procedural fairness and the principles of natural justice? In my view, after analyzing all of the evidence submitted, including listening to the recording of the RPD hearing and taking into consideration the RPD's reasons and the appellant's submissions, I am of the opinion that the RPD's decision is not wrong, for the following reasons. [11] The RPD's finding regarding the appellant's lack of credibility is essentially based on the following two elements: * She alleges that she is being sought by DRC authorities as the owner of the house (or plot) where political meetings organized by her son XXXX were allegedly held, whereas the documentary evidence (pages 169 and 175 of the RPD record) shows that it is her other son, XXXX XXXX XXXX, who has owned the plot since 1987; * The copy of the summons to appear (page 178 of the RPD record) issued against the appellant does not indicate the reasons for this summons, and there is no explanation why it would have been issued in 2017, when the appellant alleges that she has been sought by authorities since 2015. [12] In her memorandum, the appellant submits that the RPD erred in the interpretation of the French word "propriétaire," in that it could mean that she is responsible for the property, as indicated in her son's notarial deed submitted as evidence (pages 175 and 176 of the RPD record). [13] I do not agree with this argument. This explanation was never put forward at the RPD hearing. The appellant alleged, and wrote in her BOC Form, that she owned the plot, which was why she was being sought, and not that she was only responsible for the plot. [14] Moreover, the appellant does not explain why or how the Congolese authorities allegedly came to the conclusion that she was [translation] "responsible" for the property. First, the documents of title indicate that it is her son who is the owner. Second, the appellant has been in Canada since XXXX 2014, whereas her son XXXX was allegedly arrested in XXXX 2015. It must be noted that in XXXX 2015, someone other than her would have been "responsible" for the property. [15] In her memorandum, the appellant does not directly dispute the RPD's conclusion with respect to the summons to appear dated in 2017. I do not see where the RPD erred in this matter. The appellant alleges that she has been sought since 2015 and, following the hearing and further to questions from the RPD, submitted as evidence a copy of a warrant dated in 2017 (the month is not clearly indicated, it appears to be "XXXX" or "XXXX"). The content of the warrant in relation to the reason for the appearance is imprecise, and the place of appearance is not indicated, as the line where this location had to be written was left blank. [16] Consequently, I find that no credibility should be given to this document. [17] In my view, these two factors noted by the RPD, and the RAD, are sufficient to find that the credibility of the appellant's key allegations is undermined. [18] Due to these credibility issues, no credibility should be given to the letters submitted after the hearing, which were intended to corroborate the appellant's claims, namely the email and the letter from XXXX XXXX, the email from XXXX XXXX and the letter from XXXX XXXX, which are not official sources, but rather sources unknown to the panel. [19] The appellant also submits that the RPD erred by failing to reconvene the hearing to question her in regard to the documents she submitted after the initial hearing. [20] They consist of a series of twelve documents (pages 157 and following of the RPD record) submitted after the hearing upon request of the appellant, who asked the RPD for a deadline to do so. Written submissions were also filed after the hearing (pages 186 and following of the RPD record). [21] In my view, the RPD did not err by failing to summoning the appellant for another hearing. [22] Firstly, these are documents filed by the appellant herself. They contradict her testimony, and she provides no explanation for these contradictions in her written submissions. It was therefore open to the RPD to identify the contradictions and to draw negative inferences as to the appellant's credibility. [23] Then, at the end of the RPD hearing, the RPD told the appellant and her counsel that they could ask to reappear at a hearing concerning these documents if they considered it appropriate. Neither the appellant nor her counsel requested another a hearing. [24] In her memorandum, the appellant cites two decisions of the Federal Court of Canada in support of her assertions, namely Albert v. Canada, (2000) Can LII 14771 (FC) and Cifuentes Bonilla v. Canada, 2010 FC 889. [25] In my view, however, those two decisions do not apply in this case, since the facts of those cases are different from the facts of this case. [26] In those two cases, the new evidence was submitted after the hearing by the Court itself, and not by the refugee protection claimant, as is the case here. In Albert, the application for judicial review was dismissed because the evidence filed after the hearing did not have any impact on the decision of the RPD (then called the Convention Refugee Determination Division). In Cifuentes Bonilla, the application for judicial review was allowed because the claimants did not waive the requirement for a new hearing and the RPD had explicitly agreed to reconvene the hearing, which it did not do. [27] Consequently, in light of the foregoing, I conclude that the appellant failed to demonstrate that the RPD committed errors that justify the RAD's intervention. REMEDY [28] For these reasons, I confirm the RPD's determination, namely that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA, or a "person in need of protection" within the meaning of section 97 of the IRPA. [29] The appeal is dismissed. Normand Leduc Normand Leduc June 12, 2019 Date IRB translation Original language: French 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No / N° de dossier de la SAR : MB7-21544 6