MB6-04726

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 : MB6-04726 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision November 8, 2017 Date de la décision Panel Me Julie Corry Tribunal Counsel for the person(s) who is(are) the subject of the appeal N/A Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of Cameroon, is appealing against the decision of the Refugee Protection Division (RPD). [2] The appellant is asking that the RPD's determination be set aside and that his refugee protection claim be referred to the RPD for a new analysis, or that the Refugee Appeal Division (RAD) to render any other direction considered appropriate. [3] The appellant is presenting new evidence within the meaning of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), but is not asking that a hearing be held under subsection 110(6) of the IRPA. [4] The Minister of Public Safety did not intervene in this refugee protection claim before the RPD or in the appeal before the RAD. DETERMINATION OF THE APPEAL [5] Under subsection 111(1) of the IRPA, 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.1 [6] The RPD did not err and its decision is correct. [7] The appeal is dismissed. BACKGROUND Summary of alleged facts [8] The alleged facts are essentially set out in the appellant's Basis of Claim Form2 (BOC Form), as well as in the oral testimony at the RPD hearing. [9] The appellant lived in the city of Douala, Cameroon. He is of Bamileke ethnicity and is a Catholic. He was born on XXXX XXXX XXXX XXXX XXXX [10] The appellant came to Canada to study on XXXX XXXX XXXX XXXX XXXX and his most recent visa was valid from January 5 to August 31, 2016. [11] He states that he fears persecution in his country because, following the death of his father on March 25, 2014, he was chosen to succeed him as traditional chief. In particular, he fears the family of his deceased father, losing his Catholic faith, and having to perform religious rites and marry his father's widows. [12] He claimed refugee protection in Canada on or around May 2, 2016. RPD decision [13] The hearing before the RPD was held on June 30, 2016, and the decision to reject the refugee protection claim was rendered on July 27, 2016.3 The RPD determined that the appellant is not a refugee or a person in need of protection. [14] The RPD rejected the refugee protection claim due to a lack of credibility and subjective fear. Moreover, the RPD was of the opinion that the appellant's behaviour was inconsistent with that of a person who fears for their life in their country of citizenship. [15] The RPD found that the appellant's testimony was not credible for the following reasons: * Subjective fear - delay in claiming refugee protection in Canada; * Absence of a request to return to the country; * Knowledge of the succession; * Evidence submitted. [16] The RPD ultimately concluded that the appellant did not discharge his burden of establishing a serious possibility of persecution under one of the Convention grounds, and that he failed to demonstrate that, if he returned to his country, it is more likely than not that he would be personally subjected to a risk to his life or to a risk of cruel and unusual treatment or punishment. Appellant's claims [17] The appellant is asking for the RPD's determination to be set aside and for his refugee protection claim to be referred to the RPD for a new analysis. [18] He submits that the RPD erred in analyzing his credibility, including his credibility relating to the delay in claiming refugee protection. The appellant adds that the RPD erred in assessing his subjective fear and in assessing the documentary evidence submitted. [19] The appellant finally submits that it is established in the case law that the sworn testimony of a claimant is presumed to be true unless there is a valid reason to doubt its truthfulness.4 PRELIMINARY ISSUES New evidence [20] The appellant is asking the RAD to admit new evidence under subsection 110(4) of the IRPA, that is: * P-1 Confidential psychological assessment report - August 29, 2016; * P-2 Immigration and Refugee Board (IRB) Response to Information Request CMR105020.FE - Cameroon: The practice of levirate marriage, including the regions of Cameroon where this tradition is widespread and the ethnic groups that practise it; the consequences if a widow refuses to take part in this practice, recourse and protection available, including police intervention in the cities of Douala and Yaoundé (June 2013-December 2014) - December 23, 2014. [21] The admissibility of new evidence before the RAD is subject to the application of subsection 110(4) of the IRPA and jurisprudential tests. [22] Subsection 110(4) of the IRPA 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 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. [23] In Singh,5 the Federal Court of Appeal emphasizes the need to narrowly interpret subsection 110(4) of the IRPA. It states that the explicit conditions set out in it must be met and that they leave no room for discretion on the part of the RAD, whose role is not to provide the opportunity to complete a deficient record, but to allow for errors of fact, errors of law or mixed errors of fact and law to be corrected. However, the Court adds that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case.6 [24] The Federal Court of Appeal notes that the implicit conditions for admissibility in Raza are also applicable, subject to certain adaptations, namely, credibility, relevance and newness.7 [25] It is clearly established that the onus is on the appellant to present full and detailed submissions regarding how the new evidence meets the requirements of subsection 110(4) of the IRPA and how it relates to the appellant.8 Exhibit P-1 [26] Exhibit P-1 is dated after the rejection of the refugee protection claim, that is, July 27, 2016. It is the report of a psychologist dated August 29, 2016, that describes the result of two assessment meetings that were held on October 23, 2014 and December 8, 2015. [27] In paragraph 30 of his appeal memorandum, the appellant refers to those two meetings and explains that he had [translation] "ordered a report that was not available when he submitted his refugee protection claim or at the time of his hearing before the RPD." I do not have the specific date for when the appellant allegedly ordered his report, but I am of the opinion that it does not comply with the requirements of subsection 110(4) of the IRPA. Given that the last meeting with the psychologist was on December 8, 2015, the report would have been reasonably available well before the rejection of the refugee protection claim, that is, on July 27, 2016. The report cannot be considered new. For that reason, I do not accept Exhibit A-1 as new evidence. Exhibit P-2 [28] Exhibit P-2 is a Response to Information Request that is included in the IRB's National Documentation Package on Cameroon, specifically at Tab 5.13. It is already in evidence on the RPD's record and for that reason, I do not accept Exhibit P-2 as new evidence. Affidavit signed on September 1, 2016 [29] The appellant attached an affidavit9 to his appeal record and mentions it in paragraph 3 of his memorandum.10 He did not explain why he attached that affidavit or whether it provided new evidence. He did not formally request that it be admitted as new evidence. First, it does not comply with subparagraph 3(3)(g)(iii) of the Refugee Appeal Division Rules (the Rules)11 because he does not explain how it complies with the criteria of subsection 110(4) of the IRPA.12 [30] The affidavit is dated after the rejection of the claim and, clearly, was not part of the record before the RPD. The text of the affidavit is actually almost identical (word for word) to the text of the appellant's memorandum. [31] Therefore, that affidavit is not new evidence within the meaning of subsection 110(4) of the IRPA. SCOPE OF THE APPEAL [32] The RAD intervenes when it finds that the RPD made an error in fact, law or mixed fact and law.13 Accordingly, it must establish whether the decision of the RPD is correct.14 [33] With regard to the credibility of the oral testimony, the RAD shows deference to the analysis of the RPD when it enjoys a meaningful advantage in making a particular finding.15 In this case, the RAD will assess each of the findings using the standard of reasonableness as set out in the X(Re).16 It will then make a finding as to overall credibility, deciding whether the RPD's assessment contains any errors. In other words, it will determine whether the RPD's decision is correct. [34] Thus, after conducting an exhaustive analysis of the RPD's decision, the RAD carries out its own analysis, considering all the evidence on the record17 in light of what the appellant indicates in his memorandum.18 [35] In this case, I will attribute deference to the RPD's findings if I am of the opinion that it enjoyed a meaningful advantage in assessing the appellant's testimony. Nevertheless, I will review the overall credibility finding on a standard of correctness. [36] I conducted an independent analysis of all the evidence on the record in order to form my own opinion regarding this refugee protection claim and decide whether the RPD's decision is correct. DETERMINATIVE ISSUES [37] The determinative issues in this case are credibility and subjective fear: * Did the RPD err in assessing the appellant's credibility? More specifically, did the appellant submit objective and credible evidence that, if he returned to Cameroon, there is a serious possibility that he would be persecuted by his father's family if he refused the succession? * Did the RPD err in assessing the appellant's subjective fear? More specifically, did the appellant provide a satisfactory explanation for his delay in claiming refugee protection? ANALYSIS Credibility assessment Subjective fear - Delay in claiming refugee protection in Canada [38] The appellant arrived in Canada in November 2011 to study. His father died on March 25, 2014, and the RPD used that event as the catalyst for the appellant's claim. The RPD also considered that the appellant had a student visa valid until August 2016 when he made his claim in May 2016. [39] At the hearing, the appellant testified that he learned that he had to replace his father in his duties as chief one or two weeks after his burial, and that it was his half-sister XXXX who informed him that he had been appointed the successor. He also testified that he was not present for the burial because his mother told him not to come as she did not want anything to happen to him. [40] At the hearing before the RPD, the member asked the appellant why he waited to claim refugee protection, and he responded that, in 2014, he had just renewed his student visa, he was not under strong pressure and he was unaware of what was happening in Cameroon, although inheritance was an issue. He added that he was unaware of the possibility of claiming refugee protection in Canada and that, in 2014, a lot of things were going on in his life and it was a sombre time for him. He testified that he learned that he could make a refugee claim in 2015, and that he took some time to gather information and inquire about options before initiating procedures. [41] The appellant also testified that he was well integrated into Canada, where he had a social life, and that he could not return to Cameroon knowing everything that he might encounter there in relation to the succession. [42] The RPD rejected those explanations, considering them unreasonable for the following reasons: * The absence of a reliable psychological report on the record; * The appellant studied accounting and management at CEGEP; * He speaks French fluently; * He has been in Canada since 2011 as a foreign student; * He learned that he could claim refugee protection in 2015, but only did so in May 2016. [43] The RPD also found that the appellant's credibility was undermined. [44] In his appeal memorandum, the appellant argues that the RPD improperly reviewed his explanations. He submits that the depths of his psychological distress and emotional instability after his father's death must not be underestimated. [45] The appellant also submits that it was actually the expiration of his status as a foreign student that led him to claim refugee protection in May 2016 and that, before that time, he was not in any way subjected to an immediate threat of being returned to Cameroon. [46] He cites the case law in support of his argument, that is, that a late claim is not sufficient to justify the rejection of a refugee protection claim, and that a claimant does not have to claim refugee protection as long as he or she has legal status in Canada. [47] In this specific case, with regard to the delay in claiming refugee protection, I am of the opinion that the RPD did not have a meaningful advantage in assessing the appellant's testimony and I do not have to show deference. I listened to the recording of the hearing and reviewed the record and I do not agree with the RPD that the appellant's explanations are insufficient and that they undermine his credibility. I found his testimony satisfactory. It was not unreasonable, but rather, required an explanation that the appellant was able to provide. I believe that it is logical and reasonable for him to wait for the expiration of student status before looking for another alternative so that he would not have to return to Cameroon. [48] In this context, contrary to the RPD, I find that the appellant's credibility is not undermined in that regard and, in my opinion, the RPD's conclusion is incorrect. Absence of a request to return to the country [49] The appellant testified that he did not receive threats to return to the country because he did not have any succession issues at that time. The RPD asked him if someone had contacted him, and the appellant explained that he had changed his telephone number in the event that someone searched his father's telephone, and that only his mother and his very close family could reach him. [50] The RPD concluded that the appellant's explanations were unreasonable with regard to the fact that, reportedly, he was not asked to return to the country in the two years that passed since his father's death, and found that the appellant's credibility relating to his fear of returning was undermined by the absence of a request to return to the country. [51] In his appeal memorandum, the appellant submits that, at the hearing, he testified that his father introduced him to his entourage as his right-hand man, and that his half-sister officially told him that he had been appointed to replace their father as chief.19 [52] He submits that the fact that he was not threatened to return to Cameroon after the death of his father does not mean that he would not be humiliated or persecuted if he returned to Cameroon, given that he had been appointed the successor of the deceased. [53] The appellant also argues that it was his mother who told him not to come because misfortune awaits him, and that believes that the years that have gone by have merely delayed the commencement of his persecution or mistreatment. [54] I am of the opinion that this is a situation in which the RPD might enjoy a meaningful advantage in assessing the appellant's oral testimony, having seen, heard and questioned the witness, and I must show deference. I am of the opinion that it did not err and that it is reasonable for it to conclude that the absence of a request to return to the country is problematic for the refugee protection claim. [55] In this case, even if the appellant sincerely and subjectively believes that he is at risk of persecution or mistreatment by his father's family if he returns to Cameroon, there is no evidence of the objective basis of his fear. He did not receive any threats or even any requests to return to the country over more than three years, that is, since late March 2014. His family did not attempt to locate him in Canada or contact him. In my opinion, that demonstrates that there is no serious possibility of persecution and that it is not more likely than not that the appellant would be personally subjected to a risk to his life or to a risk of cruel and unusual treatment or punishment. Knowledge of the succession [56] At the hearing, the RPD asked the appellant questions to find out whether he had any brothers or sisters, or whether his father had any children who could become successors. The appellant responded that the successor cannot be a woman. He testified that there were other children in his father's village but he could not name them all. According to the appellant, the only half-brother who is older and whom the appellant is aware of is not a good candidate because he does not have the same education as the appellant and he does manual labour. [57] The appellant also testified that when he was in contact with his father, his father never told him that he was thinking of appointing him as his successor. However, he introduced him to his friends as his right-hand man. [58] The RPD questioned the appellant about what he fears if he returned and he responded that he fears losing his Catholic faith, having to accept his ancestral heritage and conducting widowhood rites to which heirs are subject. He added that it had not been clearly explained to him and he was unaware of what was really involved, but tradition would require him to go to the village to be sworn-in as chief, participate in dances and chants, invoke the gods, and change many of his values. [59] The appellant testified that he did not necessarily grow up with those values because, as an adolescent, he lived with his mother during the school year as part of shared custody, and that once the school year was over, he went to his father's home. He stated that he was aware of the traditions, but that he had not been as directly affected as he is now. [60] When asked who lived in his father's house, he responded that there was his father's wife, namely, the mother of his half-brother and half-sisters, other children, and another woman, but that he had not met her. [61] The RPD rejected the appellant's explanations regarding his weak knowledge of the chieftaincy system and found that his credibility was undermined by that weak knowledge, including his being unaware of his appointment as successor prior to the death of his father. The RPD also criticized the appellant for a lack of evidence identifying his father as chief. [62] In his appeal memorandum, the appellant simply submits that the lack of specific knowledge of practices and rituals should not undermine, as a whole, the seriousness and well-foundedness of his claim for protection. [63] He continues, stating that he heeded his mother's recommendation not to return given the danger that awaits him, and that his sworn testimony is presumed true unless there is a valid reason to doubt it. [64] In this specific case, regarding the appellant's testimony about his knowledge of the succession, I am of the opinion that the RPD had a meaningful advantage in assessing the appellant's oral testimony, having seen, heard and questioned the witness, and I must show deference.20 That said, I also listened to the recording of the hearing and reviewed the documentary evidence, including the articles submitted by the appellant on the RPD's record,21 and I agree with the RPD that the appellant is not credible. [65] I am of the opinion that the appellant's lack of knowledge regarding his father's succession and regarding what has been going on since his death and the traditions that chieftaincy might involve prove that there is a very weak link between the appellant and his father's family and, consequently, very little risk that he would be forced to take on the role of head of the family. I find that the appellant's credibility is undermined in that regard and that the RPD's conclusion is correct. Evidence submitted [66] The appellant submitted as personal evidence his birth certificate and a copy of his father's death certificate.22 [67] The RPD did not give any weight to those documents, which do not corroborate in any way the appellant's allegations regarding his risk of returning to succeed his father as chief. [68] In his appeal memorandum, the appellant states that he submitted documents establishing his biological relationship with his father, as well as evidence of his father's death, thereby making him an heir, and that that evidence is related to the fact that he must succeed his father as chief. [69] I listened to the recording of the hearing and studied the record, and I agree with the RPD that the documents do not contribute anything in terms of demonstrating that the appellant is facing a risk of persecution or mistreatment. The only thing that can be concluded is that the appellant is his father's son and that his father died. Consequently, in my opinion, the RPD's finding is correct. [70] The appellant concludes in his appeal memorandum that he believes that the RPD never believed him because he did not submit his claim for protection as soon as he knew that he could do so, namely, in 2015, and that the fact that he did not submit it within that time frame was interpreted as a lack of a need for protection, affecting both the seriousness of his claim for protection as well as its well-foundedness. [71] I agree with the appellant that the delay in filing a claim does not justify the rejection of his claim. However, I agree with the RPD's overall analysis of the appellant's credibility, and I find that its decision is correct. [72] By analyzing all the evidence, including the appellant's oral evidence regarding the absence of a request to return to the country, his knowledge of the succession and the evidence he submitted, I am of the opinion that his responses and explanations are insufficient. He has not received any threats or even any requests to return to the country since late March 2014. I am of the opinion that that is the fatal flaw in the appellant's refugee protection claim. Furthermore, he is not aware of what has been going on in Cameroon and with the family since his father's death. The only personalized documents submitted as evidence do not establish any risk, only a biological relationship and the death of his father. [73] I do not agree with the appellant that the RPD erred by finding that he is not credible. Consequently, I find that it was not established that the RPD's findings are erroneous with regard to his credibility as the evidence does not make it possible to find otherwise. [74] Finally, after reading the documentary evidence and hearing the testimony, I am of the opinion that it was not objectively established that there is a serious possibility of persecution if the appellant returned to Cameroon, because of the death of his father. The objective basis of the risk of persecution must be assessed prospectively at the time of the decision. While the appellant might demonstrate a subjective fear, there is no true objective basis. [75] While the RPD did not address the issue of state protection, the appellant mentioned it in his final submissions at the hearing and referred to the National Documentation Package. Neither the appellant nor the RPD addressed the internal flight alternative. CONCLUSION [76] For these reasons, and having read the RPD's reasons for decision, considered the records of the RPD and the appellant, listened to the recording of the hearing, and conducted an independent assessment of the record, I agree with the RPD. The RPD did not err and its decision is correct. [77] Under subsection 111(1) of the IRPA, 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" under section 97 of the IRPA.23 [78] The RPD did not err and its decision is correct. [79] The appeal is dismissed. Julie Corry Me Julie Corry November 8, 2017 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, ss. 96 and 97, and subs. 111(1). 2 Appellant's Basis of Claim Form (BOC Form) signed on April 11, 2016, and amended on June 17, 2016. 3 RPD's reasons and decision, pages 3 to 9 of the RPD record. 4 Maldonado v. MEI, [1980] 2 FC 302 (CA). 5 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. 6 Idem, para. 64. 7 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 8 Subpara. 3(3)(g)(iii) of the Refugee Appeal Division Rules (RAD Rules). 9 Affidavit signed on September 1, 2016, by the appellantXXXXX XXXXXXX XXXXXX XXXXXX 10 Appellant's memorandum, dated September 1, 2016, para. 3. 11 RAD Rules, SOR/2012-257, subpara. 3(3)(g)(iii). 12 IRPA, para. 110(4). 13 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, para. 103. 14 Idem. At paras. 59, 64, 78 and 103, the Honourable Justice Gauthier explains what she understands by the "correctness" standard. 15 X(Re), 2017 CanLII 33034 (CA IRB). The panel of three members analyzes the deference that the RAD should give to the RPD regarding the findings as to the credibility of oral testimony. See, among others, paras. 72 and 116. 16 Idem. 17 Idem, para. 103. 18 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, para. 103. 19 Appellant's memorandum, dated September 1, 2016, para. 33. 20 X (Re), 2017 CanLII 33034 (CA IRB), paras. 50 and 72. 21 Exhibits D-8 to D-12. 22 Exhibits D-4 and D-5. 23 IRPA, ss. 96 and 97, and subs. 111(1). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB6-04726 15 RAD.25.02 (September 11, 2016) Disponible en français