MB8-11505

RAD File No. / No de dossier de la SAR : MB8-11505 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 Ottawa, ON Appel instruit / entendu à Date of decision October 24, 2020 Date de la décision Panel Nicole Ladouceur Tribunal Counsel for the person who is the subject of the appeal Stéphanie Valois 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, a citizen of Chad, is appealing the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection on the grounds of a lack of credibility. a. In his Basis of Claim Form1 (BOC Form), the appellant alleges that he was a delegate with the Union nationale des étudiants du Tchad (UNET) [national union of Chadian students] and that, in that capacity, he led and took part in a demonstration on XXXX XXXX XXXX 2015, to support teachers with regard to their salary grievances and to claim months of student scholarship arrears. The demonstration ended violently when the police dispersed the demonstrators. As he was sought by the police, he hid at his uncle's home until he fled Chad on XXXX XXXX XXXX 2015, and travelled to the United States. He arrived in Canada on XXXX XXXX XXXX 2016. He fears that he will be mistreated should he return to Chad. b. In a decision rendered on June 9, 2016, the RPD rejected his claim for refugee protection on the grounds of a lack of credibility, specifically due to contradictions in the evidence. The decision was appealed to the Refugee Appeal Division (RAD). c. In a decision rendered on October 6, 2017, the RAD set aside the RPD's determination due to errors in the credibility assessment. The RAD referred the matter to the RPD for re-determination and for consideration of the internal flight alternative (IFA), which had not been addressed by the RPD. This appeal concerns the RPD's subsequent decision rendered on May 7, 2018, dismissing the appeal on the grounds of a lack of credibility due to contradictions and inconsistencies in the evidence. d. In his memorandum, the appellant argues that the RPD overstepped its jurisdiction when it questioned the appellant on the reasons for his fear rather than referring to the transcript of the initial hearing held on June 9, 2016. According to the appellant, the RPD should have limited its direct examination to the IFA. e. The determinative issue for the RAD is the jurisdiction of the RPD, credibility and the IFA. DETERMINATION [2] Pursuant to section 111 of the Immigration and Refugee Protection Act (IRPA), the RAD dismisses the appeal and confirms the determination of the RPD, namely, that the appellant is not credible due to contradictions and inconsistencies in the evidence. DOCUMENT PROVIDED LATE (Rule 29) [3] On XXXX XXXX XXXX 2020, the appellant provided a document to the IRB registry entitled "Mention de reconnaissance de la SPVM" [SPVM recognition award], which had been given to him after he intervened when a woman was assaulted at a Caisse Desjardins in Montréal on XXXX XXXX XXXX 2018. [4] The appeal record was perfected on June 13, 2018. The above-mentioned document was not accompanied by an application in accordance with subrules 29(2) and 37(3) of the Refugee Appeal Division Rules (the Rules) in order to be used by the appellant in this appeal. [5] Pursuant to subrule 29(2) of the Rules, in order to decide whether to allow the use of this document, I must consider the document's relevance and probative value, any new evidence the document brings to the appeal, and whether the appellant, with reasonable effort, could have provided the document with the appellant's record. [6] As indicated above, the document refers to events that took place in Quebec in 2018. These events have no relevance to the appellant's refugee protection claim; therefore, the document has no probative value. In my opinion, the document does not satisfy subrule 29(2) of the Rules and is therefore not admissible in evidence in this appeal. THE REFUGEE PROTECTION DIVISION'S JURISDICTION [7] In his memorandum, the appellant argues that the RPD overstepped its jurisdiction by not following the RAD's decision. He states that the RAD set aside the RPD's determination rendered on June 9, 2016, and added that it cannot substitute its own determination [translation] "without having evidence regarding the internal flight alternative." The appellant argues that, at the second hearing, the RPD should have limited its analysis to the transcript of the examination from the first hearing before the RPD (in 2016), and then analyzed the IFA by questioning the appellant at the second hearing. [8] With all due respect, I do not agree with the appellant's interpretation of the RAD's decision rendered on October 6, 2017. The RAD's decision reads as follows: [translation] [81] For these reasons, and after reading the RPD's reasons for decision, considering the RPD record and the appellant's record, listening to the recording of the hearing, and conducting an independent analysis of the record, pursuant to paragraph 111(1)(c) of the IRPA, I set aside the RPD's determination that XXXX XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need or protection" under section 96 and subsection 97(1) of the IRPA, and refer the matter to a differently constituted RPD panel for re-determination of this refugee protection claim. [emphasis added] [9] I am of the opinion that, in the absence of any further direction, the remedy in the RAD's decision is clear: the RPD's determination rendered on June 9, 2016, was set aside and the matter was referred to the RPD for re-determination by a different member. Therefore, the RPD had the jurisdiction to rehear the entire matter on April 27, 2018, and, in doing so, could question the appellant to assess his credibility. It was not required to limit its examination to the IFA issue. [10] I will now analyze the RPD's decision rendered on April 27, 2018. ANALYSIS [11] The role of the RAD is to review RPD decisions by applying the correctness standard of review after conducting an independent analysis of the evidence on the record.2 [12] Having applied this standard of review, analyzed the evidence on the record and listened to the recording of the hearing before the RPD on April 27, 2018, I am of the opinion that the RPD did not err in assessing the appellant's credibility. My reasons are as follows. Credibility The RPD found that the appellant was not credible. It did not believe that he had been involved in organizing the demonstration that was allegedly held on XXXX XXXX XXXX 2015, or that he was an active member of UNET or was sought by the police. The demonstration's objectives [13] The appellant testified that the objectives of the demonstration held on XXXX XXXX, 2015, were to support teachers with regard to their salary arrears and protest the high cost of living. However, in his BOC Form, the appellant alleges that the demonstration's objectives were to support teachers with regard to their salary grievances and protest student scholarship arrears. When asked about this contradiction, the appellant explained that [translation] "it was not that" and that there was an error in his BOC Form. He testified that the demonstration's objective was to support the teachers. He then added another objective, namely, to protest the arrest of the president of UNET. The RPD questioned the appellant about the demonstration's objectives several times and he maintained his response. [14] The appellant's response is unsatisfactory. It contradicts the written account in his BOC Form stating that the students were protesting their scholarship arrears. At the hearing, the appellant confirmed that the content of his BOC Form was complete, true and correct.3 If there had been inaccuracies, the appellant had the opportunity to make the necessary corrections, which he did not do. I also observed from the record that he amended his BOC Form Form once, but that no amendments were made regarding the demonstration's objectives. [15] I also noted that the appellant's letter of support4 signed by the president of UNET states that the purpose of the demonstration had been to [translation] "support the teachers who had not received their salaries for several months and to demand that state pay the salaries in order to resume the courses that had been suspended." [16] Knowing that he fled the country because of the demonstration, it is troubling to note the appellant's confusion about the objectives of this demonstration, which he allegedly organized and which he claims he raised awareness about among the students. I find that the appellant's credibility was undermined by his failure to provide a satisfactory explanation for the contradictions between his testimony and the content of his BOC Form with regard to the demonstration's objectives, an essential element of his refugee protection claim. Presence of the president of the Union nationale des étudiants du Tchad on XXXX XXXX XXXX 2015 [17] At his first hearing before the RPD, the appellant testified that the UNET president was at the demonstration on XXXX XXXX XXXX 2015.5 However, at his second hearing before the RPD on April 24, 2018, he stated that the president had been arrested and that he had not been seen at the demonstration.6 When confronted about this very significant contradiction, the appellant stated that he had not seen him personally and that he did not know if he was there or not. [18] I find that this adjustment to his testimony regarding a determinative issue undermines his credibility. [19] The RPD then asked him whether he had read a document criticizing the arrest of the UNET president during the demonstration, to which he replied no.7 However, in his BOC Form, he states that he read a document criticizing the arrest and imprisonment of the UNET president. The appellant did not explain this contradiction, which undermines his credibility. Whereabouts following the demonstration [20] The RPD identified another contradiction, this time concerning the events that followed the demonstration. At the hearing, the appellant testified that he escaped from the police and went home to clean up and change and that he then returned to join his friends. He allegedly stayed with them until sunset and then returned home at approximately 6:00 p.m. That is when his mother allegedly told him that the police had come to find him and that he should go hide at his uncle's home that night, which he did. He remained at his uncle's home until he fled on XXXX XXXX XXXX 2015. [21] However, at the first RPD hearing, the appellant testified that he returned to his home the morning following the demonstration. That is when he had allegedly found out that the police were looking for him. When confronted on this contradiction, the appellant adjusted his testimony and explained that he had returned to his home but had not spent the night.8 [22] This adjustment in his testimony does not explain the different versions of the appellant's testimony. Due to the lack of a satisfactory explanation, this contradiction undermines the appellant's credibility. Delegate of the Union nationale des étudiants du Tchad [23] The appellant provided a UNET delegate card (Exhibit P-4) to attest to his work within the organization. However, the card bears the date of the 2014-2015 academic year. The RPD does not give any probative value to it because it does not support the appellant's testimony that he worked on the demonstration on XXXX XXXX XXXX 2015. When the RPD asked him whether he had the 2015-2016 card, the appellant explained that he had not thought to renew his card and did not return to school after XXXX 2015 because the problems had begun.9 [24] The appellant alleges that he led the demonstration and raised student awareness. He even claims to have read a statement in front of students criticizing the arrest of their president. In these circumstances, his explanation is unreasonable and inconsistent. According to the appellant, the demonstration took place on XXXX XXXX XXXX 2015; however, according to his testimony, he was neither a student nor a member or delegate of UNET at that time. In such circumstances, it is illogical to claim that he led the demonstration and read a statement in front of students if he was neither a student of the university nor a member of UNET. I am of the opinion that the RPD was correct in not giving any probative value to the delegate card with regard to the appellant's allegations. [25] The appellant also provided a letter of support10 signed by the president of UNET, XXXX XXXX, stating that the appellant was involved in the demonstration. However, not only does the letter contain multiple French language mistakes, but the signature also falsely states that the appellant is a UNET delegate, even though the appellant testified to the contrary, as established in the previous paragraph. I am of the opinion that this letter has no probative value. [26] The appellant provided a certificate attesting to his involvement with UNET in 2014.11 However, the RPD identified inconsistencies between the issue date of the document and the appellant's testimony. The appellant explained that UNET had not issued him a certificate for 2014. However, following his request, after he had arrived Canada, he received a document dated XXXX XXXX XXXX 2014, one month after the academic year had begun, referring to his contribution for the 2014-2015 academic year. Considering the appellant's testimony that he was neither a student nor a delegate that year, I am of the opinion that the RPD was correct in not giving it any probative value. [27] The RPD was of the opinion that the letters from his uncle and mother repeated facts that it had not found credible; therefore, the RPD did not give them any probative value. [28] Probative value has to do with the capacity of the evidence to establish the fact of which it is offered in proof.12 According to case law, a decision-maker can reach a conclusion regarding the weight to give to a document after having assessed its credibility or probative value or both.13 Evidence is not assessed in isolation from the overall claim for refugee protection. Where the refugee protection claimant's personal testimony is not credible, it is reasonable for the RPD to have credibility concerns about the supporting documentary evidence, and the RPD may accord it minimal weight.14 [29] Based on my analysis of the record, the RPD considered all of the evidence and took the time to explain why it would not give any probative value to the documents filed in evidence before it. Based on my analysis of the record, it could not give them any probative value; therefore, I am of the opinion that it did not err. [30] When the RPD asked the appellant why he had not claimed asylum in the United States, he testified that he did not know anyone, nor did he know the process or where to file his claim, and also does not speak English.15 I do not find this explanation reasonable, given that he had planned his flight from Chad for two months and had even gone to the United States embassy in N'Djamena on two occasions to obtain a visa. [31] The failure to claim refugee protection at the first opportunity has been consistently held to indicate a lack of subjective fear.16 His behaviour is inconsistent with that of someone fearing for their life. [32] Following my independent analysis of the evidence and after listening to the recording of the hearing, I cannot conclude that the RPD erred in its assessment of the appellant's credibility. There are numerous major contradictions. [33] When considered cumulatively, they lead me to conclude that the appellant did not establish that there is a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, the appellant would be personally subjected to a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment if he had to return to his country. CONCLUSION [34] For these reasons, I confirm the RPD's determination that XXXX XXXX XXXX XXXX is neither a Convention refugee under section 96, nor a person in need of protection under section 97 of the IRPA. [35] The appeal is dismissed. (signed) Nicole Ladouceur Nicole Ladouceur October 24, 2020 Date IRB translation Original language: French 1 SPR-1, Refugee Protection Division (RPD) record, appellant's Basis of Claim Form, pages 26 to 27. 2 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Minister of Citizenship and Immigration), 2018 FC 1145. 3 Recording of the hearing on April 24, 2018, at approximately 00:06:41. 4 SPR-1, RPD record, Exhibit P-5: letter of support, p. 134. 5 Ibid., RPD decision rendered June 9, 2016, paras. 19 and 23. 6 Recording of the hearing on April 24, 2018, at approximately 00:59:55. 7 Ibid., at approximately 01:21:00. 8 Exhibit A-4: RPD reasons for decision rendered June 9, 2016, p. 128, para. 25. Exhibit A-5: Refugee Appeal Division reasons for decision, p. 153, para. 56. 9 SPR-1, RPD record, RPD reasons of April 27, 2018, para. 45. 10 Supra, endnote 3. 11 SPR-1, RPD record, Exhibit P-3: Certificate of acknowledgement, p. 131. 12 Magonza v. Canada (Minister of Citizenship and Immigration), 2019 FC 14, para. 21. 13 Ibid., paras. 27-31. 14 Ogaulu v. Canada (Minister of Citizenship and Immigration), 2019 FC 547, para. 26. 15 Recording of the hearing on April 24, 2018, at approximately 02:01:00. 16 Chelaru v. Canada (Minister of Citizenship and Immigration), 2012 FC 1535, para. 30. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-11505 RAD.25.02 (January 2020) Disponible en français 2 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