MB5-06105

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 : MB5-06105 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision November 3, 2016 Date de la décision Panel Roxane Cyr Tribunal Counsel for the person who is the subject of the appeal Me Aristide Koudiatou 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 INTRODUCTION [1] XXXX XXXX XXXX XXXX XXXX, a citizen of the Republic of the Congo, is appealing against the Refugee Protection Division (RPD) rejecting his refugee protection claim. He is not presenting any new evidence, nor is he requesting a hearing before the RAD. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(2) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the RPD's negative decision concerning XXXX XXXX XXXX XXXX XXXX and refers the matter to a differently constituted panel for re-determination. [3] The appeal is allowed. BACKGROUND [4] Since XXXX, the appellant has allegedly been a member of the Mouvement Congolais pour la Démocratie et le Développement Intégral (MCDDI) [Congolese Movement for Democracy and Integral Development]. In XXXX, he was supposedly elected as a member of his XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [5] His party purportedly opposed President Sassou-Nguesso's intention to amend the Constitution so he could run for a third term. State officers allegedly intimidated party members while they participated in meetings. [6] On XXXX XXXX, 2015, during a party meeting which the appellant was allegedly attending, soldiers apparently broke in and supposedly beat the participants on the stage, including the appellant, by kicking them and hitting them with the butts of their guns. [7] He apparently woke up at the hospital. During his hospitalization, he allegedly learned that the police were looking for the meeting organizers. [8] On XXXX XXXX, 2015, the police allegedly broke into his home, searching for him, and when they did not find the appellant, they apparently ransacked the house. The appellant supposedly fled the hospital and went to his uncle's home in Makaba Dilou, three hours away. He purportedly learned from his wife, who was still at home, that they had received summonses in his name, requiring him to report to the police station. [9] The appellant allegedly left on XXXX XXXX, 2015, using a false passport obtained by the party president. He reportedly arrived in Canada the same day. He apparently claimed refugee protection on August 19, 2015. RPD DECISION [10] The RPD concluded that the appellant had established his identity using his passport and national identity card. [11] The RPD found that the appellant was not credible with respect to his participation in the meeting on XXXX XXXX, 2015, the injuries he purportedly sustained and the resulting hospital stay. [12] The RPD was of the opinion that, considering the appellant's activities with the MCDDI and the fact that he had never had problems with the government because of his political activities, he failed to establish that he had the profile (according to the documentary evidence) corresponding to that of individuals targeted by the government and authorities. He did not establish that he has a well-founded fear of persecution. [13] The appellant also failed to establish that he would be subjected to a danger of torture or to a risk of cruel and unusual treatment or punishment. APPELLANT'S MEMORANDUM [14] The appellant submits that the RPD erred by not observing the principles of natural justice, by hastily concluding that it did not believe that a meeting had taken place on XXXX XXXX XXXX 2015, or that it had ended with the participants, including the appellant, being beaten. The RPD erred by rejecting that part of the testimony and by relying solely on its negative credibility findings, which were based on what happened afterwards, when the appellant was hospitalized. [15] According to the appellant, the RPD erred by failing to assess all of the evidence pertaining to the event, including the fact that the appellant had submitted photographs of the meeting and had also testified as to how it had unfolded. [16] The RPD based its negative credibility findings with respect to the events surrounding XXXX XXXX, 2015, on the contradictions between the photograph of the appellant in his hospital bed and his testimony. The appellant argues that the RPD erred by not taking into consideration the appellant's explanations to the effect that he remembers little about the treatment he allegedly received at the hospital. He also submits that the RPD erred in concluding that since he does not have injuries to his face in the photograph that he did not receive blows to his face on XXXX XXXX, 2015, as the appellant stated. [17] The appellant argues that the RPD erred by failing to consider all of the documentary evidence when it concluded that the appellant does not have the profile of a well-known politician and that the evidence indicates that they are the ones targeted by the government. [18] The appellant submits that the evidence indicates that regular members are being arrested by the government in power simply for protesting or for advising their families to vote against the change to the Constitution. [19] The RPD failed to assess all of the evidence pertaining to the prospective fear pursuant to sections 96 and 97 of the IRPA. [20] The appellant is asking the RAD to allow the appeal, set aside the RPD determination and substitute the determination that should have been made or refer the matter to the RPD for re-determination. ROLE OF THE RAD [21] The RAD is the appeal tribunal for RPD decisions. [22] Federal Court decisions have established that the RAD is "a specialized (if not overspecialized) tribunal," see Alvarez,1 and a hybrid appeal according to recent case law. The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have". The Federal Court of Appeal recently determined in Huruglica (2016 FCA 93, paragraph 70) that the RPD may have an advantage as regards credibility, having heard the testimony. [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. [23] It is up to the RAD to determine in its analysis whether the RPD enjoyed an advantage owing to the fact that it heard the testimony, and having done so, to see determine what degree of deference the RPD should be granted in this matter. [24] Paragraph 103 of Huruglica (2016 FCA 93) specifies the standard of review to be adopted 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. [25] Accordingly, the standard of review that the RAD should apply is that of correctness except when the conclusion under review involves an issue of credibility of the testimony in which the RAD is of the opinion it should show deference. [26] The RAD will consider all the evidence in its analysis, including the testimony. It will determine whether the RPD decision contains errors of fact, of law, or of mixed fact and law, and whether these are determinative with respect to the outcome of the case such that the decision cannot be upheld using the correctness standard of review. [27] The RAD will intervene by applying the correctness standard of review in accordance with subsections 111(1) and 111(2) of the IRPA. The RAD will also intervene if these issues are not supported by the evidence on aspects that are central to the refugee protection claim. ANALYSIS [28] In its analysis, the RAD considered all of the evidence. [29] It appears to the RAD that, with respect to credibility, it must show deference to the RPD, which saw and heard the appellant. [30] In addition to the appellant's membership in the MCDDI, the main reason for his fear is an incident that allegedly occurred on XXXX XXXX, 2015. On that day, an MCDDI meeting supposedly took place, which the appellant attended. The on-stage participants, including the appellant, were allegedly beaten by men who burst into the room in military uniform. The appellant alleges that he lost consciousness and woke up in a hospital bed, at the hospital where he was treated. [31] The RPD based its conclusion on the fact that the appellant contradicted himself as to where in his body the blood perfusion needle was placed: the photograph (see RPD record, pages 106 and 107) show his left hand whereas the appellant stated that it was the inside of his right elbow. The RPD also based its conclusion on the fact that the photographs do not demonstrate that the appellant's face was swollen, even though he stated that he had been hit in the face with the butt of a gun before he lost consciousness. The RPD also based its conclusion on the fact that the appellant stated that his treatment at the hospital included a blood perfusion and ointment between his shoulders, but the medical report (see RPD record, page 104) indicates that there was also considerable work done on his mouth, namely [translation] "reduction of incisors with steel wire immobilizing the dental arch" (see RPD record, page 104). [32] The appellant submits three arguments. First, the RPD attached little importance to the appellant's explanations to the effect that he remembers little about his time in the hospital because he was in poor condition. Second, the RPD cannot rely on the photographs to conclude that he did not receive blows to the face. It is possible that the blows left few or no marks. Third, the medical certificate is not a certificate of the treatment that took place but, rather, an evaluation of the care that was to be given because it states [translation] "initial medical certificate" as opposed to simply "medical certificate." [33] The RPD heard and saw the appellant. The RAD must show deference to it with respect to credibility. [34] In the RAD's opinion, the RPD adequately stated and explained why it did not believe the appellant about the events surrounding XXXX XXXX, 2015. The hospitalization was a direct consequence of the beating that the appellant alleges to have received. In the circumstances, it is logical to think that if the appellant alleges that he had to go to the hospital because of the blows and injuries he sustained, and if he is not credible on that point, it undermines the credibility of the element underlying that hospitalization. [35] No expert report was submitted in support of the appellant's submissions to the effect that he has memory loss resulting from the events of XXXX XXXX, 2015. It would be one thing if the appellant had stated that he could not remember his time at the hospital and, as a result, could not remember the treatment he received. However, the appellant stated more than once that he had a blood perfusion on the inside of his right elbow and ointment between his shoulders, and that was all. [36] For the RAD, the fact that the appellant contradicted the photograph of himself, where he is lying on a bed with an IV in his left hand, is a contradiction. The same can be said of the medical certificate, which indicates that the appellant received treatment on his mouth, when the appellant testified that he did not. [37] Logically, it is more likely than not that someone who spent five days in a hospital, conscious (the appellant testified that he was awake at the hospital, which can be seen from the photographs), would be able to describe the treatment received. The RAD does not accept the appellant's explanation to the effect that he does not remember. If that were the case, he would not remember the treatments he described in his testimony. [38] The appellant argues that the medical certificate indicates [translation] "Initial," which means that the certificate is an evaluation of the care that was to be given, and it does not mean that the oral procedure took place. [39] The RAD does not accept that explanation. The certificate was signed after five days in the hospital. The appellant arrived at the hospital on XXXX XXXX, 2015. It states [translation] "examinations requested" and then "treatment." In light of the entire document, the RAD is of the opinion that it is more likely than not that the examinations requested were the actions to be taken, which were completed. The treatment did take place because the doctor then put him on temporary disability for XXXX days. [40] The RAD does not accept the appellant's explanations. His credibility is undermined. [41] With respect to the photographs and the fact that the RPD drew a negative inference from the fact that there are no apparent injuries to the appellant's face in the photographs submitted, despite the fact that the appellant testified that he was hit with the butt of a gun, the RAD is of the same opinion as the RPD: if that truly had happened, it would be evident in the photographs because there would be obvious injuries. [42] Logically, if a person were hit in the face with an object such as the butt of a gun, it is more likely than not that the injuries would be obvious in the days immediately following. The RPD did not err. [43] The RPD had the opportunity to assess the evidence before it, including the photographs from the hospital. The RPD rightly found that the appellant was not credible with respect to the incident on XXXX XXXX, 2015. The RPD did not err. [44] That being said, the RPD also concluded that as a member of the MCDDI, the appellant does not have a high enough profile in terms of political involvement to establish that he would be targeted by the government. The RPD concluded, based on the documentary evidence, that there are numerous opposition parties that are weak and fragmented, and that President Sassou-Nguesso primarily targets high-level politicians in order to fulfill his plan to amend the Constitution. In the RPD's opinion, the appellant had never had problems with the government (according to his own testimony). The RPD therefore concluded that he did not demonstrate his prospective fear pursuant to sections 96 and 97 of the IRPA. [45] The RPD was of the opinion that the appellant was credible with respect to his membership in the MCDDI, the activities and his role in the organization. [46] Therefore, the RAD assessed the documentary evidence, including the most recent National Documentation Package on the Republic of the Congo, Brazzaville, from May 31, 2016. It includes a Response to Information Request (RIR) from the Immigration and Refugee Board of Canada (IRB) dated November 25, 2015 (see National Documentation Package, IRB, from May 2016, Tab 4.6). This response deals specifically with the MCDDI party and the treatment of its members by authorities. [47] This RIR (COG105351.FE) is not included in the evidence on the RPD record. [48] Under the heading "Treatment of MCDDI Members by the Authorities," it states: ... the government of President Sassou Nguesso "targets" MCDDI leaders and party members who express their political opinions and that "the MCDDI has always been among the historical opponents of the Sassou regime"(Postdoctoral researcher 24 Nov. 2015). He noted that the government targets "community organizers" in order to prevent protests from emerging (ibid.). The same source also stated that "there have been documented cases of assassination and arbitrary arrest" and that MCDDI members have been arrested because of their party membership (ibid.). He added that there have been instances of "gang rapes" of MCDDI journalists and activists affiliated with the MCDDI and the Patriotic Union for National Renewal (Union patriotique pour le renouveau national, UPRN) [another opposition party (RFI 11 Sept. 2013)] (Postdoctoral researcher 24 Nov. 2015). He further stated that it is not only MCDDI members who are treated this way, as members of other opposition parties are treated similarly (ibid.). [49] The postdoctoral researcher stated that MCDDI members, from card-carrying members to activists and even leaders, have been targeted by the Sassou Nguesso government (ibid.). He added, however, that in many cases, lower-level MCDDI members "confront more serious dangers" than senior party leaders, who often have extensive professional and social contacts in the government, which can help to "insulate" them from the worst human rights violations, such as "brutal assault and torture and potentially assassination" (ibid.). He further stated that senior MCDDI leaders also benefit from greater visibility and "international attention," whereas the treatment of lowerlevel members is rarely reported on by the media (ibid.). [50] According to the Postdoctoral researcher, because "the regime has longstanding relationships" with opposition party leaders, it often treats party leaders differently than common members, who can face "harassment and assault, in addition to other abuses," even if the party leader is appointed to a ministerial position in the government (ibid.). The government would not assume that the members of these parties have suddenly become "regime supporters"; they are still considered opponents (ibid.). [51] The postdoctoral researcher provided the following example of an MCDDI member in Pointe-Noire who was targeted by the authorities: [A]n MCDDI member there ... would distribute online party writings or criticisms of the government. ...He would make copies of documents attesting to the government's corrupt practices ... and distribute these materials. Because of these activities, this person was incarcerated without due process by the police, tortured, and narrowly escaped the country. (ibid.). [52] In the circumstances, the RAD is of the opinion that the RPD decision is incomplete because it does not take into consideration the documentary evidence cited above. That evidence demonstrates, contrary to the RPD's conclusions, that lower-level members of the MCCDI face more serious risks than the senior party leaders because they have connections that can help shield them from human rights violations. [53] For these reasons, the RAD sets aside the RPD's determination. [54] There are insufficient elements on record for the RAD to substitute its own determination. REMEDY [55] Pursuant to subsection 111(2) of the IRPA, the RAD refers the case of XXXX XXXX XXXX XXXX XXXX to a differently constituted RPD panel for re-determination. [56] The appeal is allowed. Roxane Cyr Roxane Cyr November 3, 2016 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; para. 28. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-06105 10 RAD.25.02 (2014.09.11) Disponible en français