VC1-01271

RAD File No. / No de dossier de la SAR : VC1-01271 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 Date of decision November 1, 2021 Date de la décision Panel Me Isabelle Parizeau Tribunal Counsel for the person who is the subject of the appeal René Vincent Tshibula 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] XXXX XXXX XXXX XXXX XXXX, a citizen of the Democratic Republic of the Congo (DRC), is appealing the decision of the Refugee Protection Division (RPD) rejecting her refugee protection claim. [2] The appellant states that she fears being arrested, raped and killed by the authorities by reason of her imputed political opinion, her membership in the particular social group of family, since her husband is a member of the Union Démocratique et le Progrès Social (UDPS) [Union for Democracy and Social Progress], and her membership in the particular social group of women. [3] The RPD concluded that the appellant did not establish that her husband was a member of the UDPS, that he was arrested and detained by the authorities, and that she would face a serious possibility of persecution by reason of her imputed political opinion or membership in the particular social group of family should she return to the DRC. The RPD concluded that the evidence did not establish that the appellant would face a serious possibility of gender-related persecution. [4] The appellant submits that the RPD's decision is contradictory, that it is difficult to verify the authenticity of the newspaper article reporting her husband's arrest and detention, that her husband explained his membership in the UDPS in detail at the RPD hearing, and that she did not insult President XXXX or accuse the authorities of kidnaping her husband. [5] The Minister of Immigration, Refugees and Citizenship intervened before the RPD.1 The Minister produced screenshots of the Facebook profiles of the appellant's children showing photographs of her and her husband in XXXX 2018. The Minister submitted that contrary to her allegations in her Basis of Claim Form (BOC Form) that her husband was detained and had disappeared in the DRC because of his alleged political activities, he appears to be in Canada. The Minister did not intervene on appeal. [6] The Refugee Appeal Division (RAD) considers the determinative issues to be credibility, prospective risk and fear of persecution by reason of membership in the particular social group of women. [7] The RAD confirms the RPD's determination and dismisses the appeal. BACKGROUND [8] According to the appellant's BOC Form,2 her husband has been an activist for the UDPS for a very long time. This party has opposed successive dictatorial regimes in the DRC, from the governments of XXXX to XXXX XXXX to XXXX XXXX. Her husband was arrested, beaten and tortured on several occasions. On XXXX XXXX, 2018, her husband was arrested because of his political activities. The next day, she went to various known detention facilities but did not find him. She shouted at one of the police officers she encountered that she would make a complaint to MONUSCO (United Nations Organization Stabilization Mission in the Democratic Republic of the Congo). Before leaving for Canada on XXXX XXXX, 2018, to see her family here, she entrusted a lawyer with the task of finding her husband. The appellant learned on XXXX XXXX, 2018, that police officers had gone to her home with the intention of arresting her for contempt against President XXXX. [9] In March 2018, the appellant claimed refugee protection in Canada. [10] In XXXX 2019, the appellant submitted a document dated XXXX XXXX, 2019,3 amending her BOC Form. In it she states that her husband was released on XXXX XXXX, 2018, in exchange for money being paid. He obtained a visa for Canada in XXXX 2018, after being invited by his son who lives here, and arrived in Canada on XXXX XXXX, 2018. Since then, he dreams of returning to the DRC to continue fighting for the good of his country. ANALYSIS [11] The RAD conducted an independent analysis of all the evidence, including the transcript of the RPD hearing. It considered the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (Guideline 4),4 and it applied the correctness standard.5. The appellant, her husband and their son who lives in Canada testified at the RPD hearing. CREDIBILITY [12] The RPD found there were a number of inconsistencies and contradictions, as well as a material omission, that rebutted the presumption of the truthfulness of the appellant's allegations and that there was reason to doubt the authenticity of the two primary documents submitted by the appellant, namely the newspaper article describing her husband's kidnapping and his UDPS membership card. [13] The RAD agrees with the RPD and does not find the appellant credible. Contradictions in the RPD decision [14] The appellant's memorandum is titled, [translation] "Contradictions in the decision-making." For the reasons explained below, the RAD is of the opinion that the arguments put forward by the appellant in her memorandum do not establish contradictions in the RPD's analysis or conclusions. [15] Under the title [translation] "Introduction paragraph [2]," the appellant writes the following: "The refugee protection claimant fears being persecuted by reason of her OPINION. [Underlined and in capital letters in the memorandum]. In relation to the arrest of her husband, an active supporter of the UDPS." The RAD notes that paragraph 2 of the RPD's reasons for decision is a statement that indicates it considered Guideline 4 and makes no reference to the reasons for the appellant's fear. On the other hand, paragraph 4 of the RPD's reasons states that [translation] "The appellant alleges a fear of persecution in the DRC by reason of her political opinion, ...". The RAD therefore does not understand the nature of the appellant's argument. [16] Then, referring to the Minister's intervention, the appellant states that her husband arrived in Canada on XXXX XXXX, 2018, and that she informed her counsel the next day so that he could tell the Immigration and Refugee Board of Canada. The RPD did not draw any negative inference from the fact that the appellant did not submit a document amending her BOC Form and indicating that her husband had been released in XXXX 2018 until XXXX 2019. The RAD therefore does not see any contradictions in the RPD's decision-making. [17] Without commenting on it, the appellant reproduced an excerpt of paragraph 5 of the RPD's reasons for decision and page 2 of her BOC Form: Paragraph 5 of the RPD's reasons [translation] She alleges that her husband was arrested and detained on XXXX XXXX XXXX 2018, because of his political involvement with the UDPS. She states that she went to the police station the next day, accusing them of kidnapping her husband and threatening to file a complaint against the state authorities.... [underling in the memorandum] Excerpt from the BOC Form, page 2, response to question 2(a) [translation] The next morning, we went to various prisons in XXXX without finding anything either. Exasperated, I shouted at one of the police officers, saying that since we cannot find my husband we are going to make a complaint to MONUSCO, like he had always told me.... [18] The RAD can only speculate about the contradictions since the appellant does not identify them. If they have to do with the underlined words in the RPD's reasons, the RAD notes that the appellant did not use the word kidnapping in her response to question 2(a), but rather the word [translation] "taken." The appellant also does not state that she threatened the police officers but that she [translation] "shouted" that she would make a complaint to MONUSCO. The appellant does not explain how the RPD's choice of words impacted its decision-making, and the RAD does not see that. [19] The appellant alleges that the RPD stated at point 3 of its reasons that she insulted former President XXXX by accusing the state authorities of kidnapping her husband, when she did not use the words [translation] "insulted former President XXXX" in her BOC Form.6 She reproduces excerpts of paragraphs 2 and 3 of the letter from her lawyer dated XXXX XXXX, 2018,7 referring to her visit to the police and her alleged contempt of the government. The RAD notes that the appellant is referring to item 3 of paragraph 13 of the RPD's reasons. It agrees that it would have been better for the RPD to have instead stated that the appellant was facing allegations of accusing the state authorities of kidnaping her husband, thereby insulting the president. That being said, the appellant does not allege how the RPD's statement makes its decision erroneous, and the RAD does not see that. Appellant's husband as a UDPS member [20] The RPD concluded that the appellant did not provide sufficient credible evidence to establish that her husband was a member of the UDPS. The RAD agrees. [21] The RPD analyzed the only document produced by the appellant8 in support of this allegation, that is, a photocopy of her husband's UDPS membership card. The RPD considered it fraudulent. In its view, it could not be established that this was an authentic document. It noted the following irregularities: an expiry date of XXXX XXXX, 2015, predating the date of issue XXXX XXXX XXXX XXXX/ 016," not 2016; a significant grammatical error in "L'U.D.P.S. [R]egroupe les citoyens des deux sexes qui adhèrent à son Projet de Société et [à ses] quelles que soient leurs origines ethniques et leurs convictions religieuses." [The U.D.P.S. [B]rings together citizens of both sexes who support its vision for society and [its] regardless of their ethnic backgrounds and religious beliefs]; and the words "signature du porteur" [bearer's signature] without any signature. The RPD asked the appellant's husband to explain these irregularities. It rejected his explanations that the UDPS secretary had been dismissed and that this card had been issued by the replacement. [22] The RPD also considered the appellant's husband evasive in answering its questions. He acknowledged that membership cards were renewed every year, but he was unable to explain why he had only one membership card. Even though he stated that he had been a UDPS member since 1987 and was still a member, he did not satisfactorily explain why he had been unable to obtain an affidavit or attestation letter from a UDPS colleague. [23] The appellant submitted photographs9 that show her husband handcuffed, seemingly being arrested by uniformed Congolese police. According to the RPD, he did not satisfactorily explain who took these photographs and when. He stated that it was either 2016 or 2018. The RPD pointed out that in 2018 he was allegedly in detention from XXXX to XXXX and in hiding afterwards before leaving for Canada in XXXX (actually XXXX) 2018. [24] In her memorandum, the appellant submits that her husband explained his membership in the UDPS in detail, naming the various secretary generals over the years and producing the photograph of him with their leader XXXX XXXX XXXX XXXX. She states that she enclosed other membership cards. [25] The RAD does not note any errors in the RPD's undisputed conclusion that the UDPS membership card produced by the appellant is fraudulent based on irregularities that were not satisfactorily explained, and it agrees. Contrary to the appellant's statement in her memorandum, the RAD sees only one membership card enclosed with the memorandum. [26] The RAD does not note any other errors in the RPD's undisputed conclusion regarding the photographs, and it agrees. [27] From reading the transcript of the hearing, the RAD notes that the appellant's husband testified that he did not ask for a letter of support or affidavit from a UDPS member, after he also testified that he still speaks to a few people, because his son had come quickly to get him and he had not had time.10 According to the document amending the appellant's BOC Form and the testimony from her husband and her son, the son went to get his father in the DRC in XXXX 2018. Like the RPD, the RAD does not consider the explanation that he had no time when his son went to get him to be satisfactory. In its opinion, he could have asked UDPS members by email or through social media after he arrived in Canada. [28] From reading the transcript of the hearing before the RPD, the RAD acknowledges, as alleged by the appellant in her memorandum, that her husband was able to name the successive secretary generals of the UDPS over the years. In its view, this knowledge does not establish, on a balance of probabilities, membership in the party. Contrary to the appellant's statement, the RAD does not see from reading the hearing transcript that her husband showed the RPD a photograph of him meeting with XXXX XXXX XXXX XXXX. It does note, however, that the appellant produced a photograph of people sitting at a table.11 Without further explanation, identification or information indicating where this photograph came from, the RAD cannot give it any weight or probative value in establishing that the appellant's husband was a member of the UDPS. [29] The RAD considers that the RPD was correct in concluding that it was not established on a balance of probabilities that the appellant's husband is a member of the UDPS. Detention of the appellant's husband [30] The RPD concluded, on a balance of probabilities, that the appellant's husband had not been arrested and detained by state authorities. The RAD agrees. Newspaper article [31] The appellant submitted an article that appeared in the newspaper "Tempête de Tropiques" on XXXX XXXX, 2018.12 Her son brought this article back when he returned to the DRC. Among other things, it states that the appellant's husband, one of the mobilizers of the UDPS Federation of XXXX XXXX and leader of parliamentarians, was arrested on XXXX XXXX, 2018, and that he had been repeatedly threatened and tailed by security services who considered him a problem because he oversaw the mobilization of fighters. It reports the concerns of his family and the appellant's threat to go to MONUSCO, which led to reprisals against her by plainclothes individuals who ransacked her house and forced her to live in hiding. It states that the latest information was that a complaint had been filed by her lawyer with the prosecutor's office of the Court of Appel in XXXX for attempted kidnapping. [32] The RPD concluded that the authenticity of this article had not been established on a balance of probabilities and that it was a fraudulent article. The RPD pointed out that according to many sources cited in the National Documentation Package,13 the name of the newspaper is "La Tempête des Tropiques"; it is a very reputable newspaper, and it is reasonable to expect that its name would therefore be written correctly on the cover of its articles. The RPD also noted a spelling mistake in the word "abonement," written with only one "n," and the phrase "business name" in English in the article. The RPD noted that the appellant had testified that she could not comment on the errors because of her limited education and that the article had been published once she was in Canada. The RPD considered these explanations reasonable and explained the irregularities to the appellant's son. He responded that he did not know why it contained errors. He testified that he had obtained a copy of the article when he returned to the DRC on XXXX XXXX, 2018, to get his father. He pointed out that the administration system in the DRC is not rigorous and has many deficiencies. The RPD did not consider these explanations reasonable. [33] In her memorandum, the appellant submits that given the difficult social and security situation throughout the DRC, it is very complicated to be able to check and verify the authenticity of an article. The article was given to the appellant's son, who brought it to Canada, and it was difficult to verify where it came from. [34] In the RAD's opinion, the appellant is in a way confirming the RPD's finding that the authenticity of the article is not established. It agrees with the RPD's undisputed conclusion that one would expect the newspaper to ensure that its name is written correctly in its publications and that the error calls into question the article's authenticity. [35] Moreover, the RAD notes a contradiction between the statement in the newspaper article that the appellant's husband is the leader of parliamentarians and her testimony at the hearing14 that the 13 individuals who created the UDPS in 1982 were called parliamentarians or members of parliament or deputies. The RAD also notes that the complaint filed in evidence15 by the appellant, which she allegedly made through her lawyer, is dated XXXX XXXX, 2018, when the newspaper article reporting on it is dated earlier, on XXXX XXXX, 2018. Passport [36] The RAD does not note any errors in the RPD's undisputed conclusion that a passport being issued in the name of the appellant's husband on XXXX XXXX, 2018, when he was supposedly detained by state authorities between XXXX XXXX, 2018, and XXXX XXXX XXXX 2018, is a material contradiction at the heart of the appellant's refugee protection claim, and it agrees. [37] The RAD considers that the RPD was correct in concluding, on a balance of probabilities, that the appellant's husband was not arrested or detained by state authorities from XXXX XXXX, 2018, to XXXX XXXX XXXX 2018. [38] The RAD is of the opinion that the RPD's credibility finding is correct. PROSPECTIVE RISK [39] The RPD concluded that the appellant did not establish that she faces a serious possibility of persecution by reason of her imputed political opinion or her membership in the particular social group of family, as the spouse of a UDPS member. The RPD stated that it had not been established that the appellant's husband was a UDPS member or that he had been arrested and detained for that reason and that a passport being issued in his name during his detention period raised significant concerns as to the appellant's credibility. [40] For the reasons explained above in its credibility analysis, the RAD considers the RPD's conclusion regarding prospective risk to be correct. APPELLANT'S FEAR OF GENDER-RELATED PERSECUTION [41] The RAD does not note any errors in the RPD's undisputed conclusion that the appellant did not establish that she is so vulnerable that the mere fact that she is a woman puts her at risk of a serious possibility of gender-related persecution if she returns to the DRC, and it agrees. [42] Guideline 4 and the case law16 establish that women may be considered a particular social group within the meaning of the Convention. However, mere membership in the particular social group of women does not support a finding of a serious possibility of persecution on this ground.17 [43] Guideline 4 states the following:18 When an assessment of a woman's claim of gender-related fear of persecution is made, the evidence must show that what the claimant genuinely fears is persecution for a Convention reason as distinguished from random violence or random criminal activity perpetrated against her as an individual. [44] The appellant had to establish that she genuinely fears being persecuted on a Convention ground within the meaning of Guideline 4, not that she faces random violence. She did not do this. [45] The RAD considers that the RPD was correct in concluding that the appellant failed to establish a serious possibility of persecution within the meaning of section 96 of the Immigration and Refugee Protection Act (IRPA) or a risk of harm within the meaning of subsection 97(1) of the IRPA, should she return to the DRC. [46] The RAD concludes that the RPD's decision is correct. CONCLUSION [47] The RAD dismisses the appeal and confirms the RPD's determination that the appellant is not a Convention refugee or a person in need of protection. (signed) Isabelle Parizeau Me Isabelle Parizeau November 1, 2021 Date IRB translation Original language: French 1 SPR-1, Refugee Protection Division (RPD) record, pp. 164 to 177. 2 Ibid., pp. 13 to 22. 3 Ibid., pp. 182 and 183. 4 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Immigration and Refugee Board of Canada (IRB), Ottawa, November 13, 1996. 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 6 SPR-1, RPD record, p. 14. 7 Ibid., p. 159. 8 Ibid., p. 156. 9 Ibid., p. 158. 10 SAR-1, Transcript of RPD hearing, pp. 22 and 23. 11 SPR-1, RPD record, p. 157. 12 Ibid., pp. 199 and 200. 13 SPR-1, National Documentation Pckage, Democratic Repubic of the Congo, May 11, 2020, and April 30, 2021, Tab 1.2: Congo-Kinshasa (République démocratique du Congo). L'aménagement linguistique dans le monde. L'aménagement linguistique dans le monde. Jacques Leclerc. November 28, 2016; Tab 4.1: République Démocratique du Cong. Situation politique. Belgium. Office of the Commissioner General for Refugees and Stateless Persons. December 17, 2019; Tab 4.2: The Union for Democracy and Social Progress (Union pour la démocratie et le progrès social, UDPS), including its political agenda, structure and leaders; documents issued to members; relations with the government and treatment of members by the authorities (2016-July 2018). IRB. July 24, 2018. COD106124.FE; Tab 4.21: The coalition of opposition political parties, including political parties that are members of the coalition; the treatment of coalition members by the authorities (2016-July 2017). IRB. July 5, 2017. COD105815.FE. 14 SAR-1, Transcript of RPD hearing, p. 26. 15 SPR-1, RPD record, p. 159. 16 Dezameau v. Canada (Citizenship and Immigration), 2010 FC 559, paras. 34-36. 17 Supra, endnote 16, para. 29. 18 Supra endnote 4, p. 10, section C. --------------- ------------------------------------------------------------ --------------- RAD File No. / No de dossier de la SAR : VC1-01271 RAD.25.02 (August 20,2021) 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 (August 20, 2021) Disponible en français