MB9-29398

RAD File No. / No de dossier de la SAR : MB9-29398 Private Proceeding / Huis clos Reasons and decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision December 1, 2020 Date de la décision Panel Me Toni Jedid Tribunal Counsel for the person who is the subject of the appeal Markenston Brice 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 XXXX (the appellant) is a citizen of the Democratic Republic of the Congo (DRC). He is appealing the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim for lack of credibility. [2] The appellant alleges that he was persecuted by reason of his political opinion. He alleges that he left the DRC for South Africa in 2002, where he applied for asylum and was granted permanent resident status. [3] In his appeal memorandum, the appellant argues that he no longer holds Congolese citizenship and that any attempt to regain it would be unreasonable. He claims that the RPD does not have the jurisdiction to interfere with his application for asylum in South Africa. He argues that the RPD committed a breach of natural justice by not confronting him regarding a credibility issue, that it failed to comment on an important written statement, and that it failed to analyze his refugee protection claim under subsection 97(1) of the Immigration and Refugee Protection Act (IRPA). He submits that the RPD was overzealous in its examination of his refugee protection claim. The RPD found that the appellant is not excluded under Article 1E of the Convention and that the basis of his refugee protection claim is not credible. [4] The determinative issue for the Refugee Appeal Division (RAD) is whether the RPD erred when it assessed the appellant's credibility. [5] I find that the appellant is not credible and that the RPD's decision is correct. DETERMINATION [6] I dismiss the appeal. The RPD correctly determined that the appellant is not a Convention refugee or a person in need of protection. BACKGROUND [7] In his Basis of Claim Form (BOC Form), the appellant states that he was persecuted by reason of his political opinion. He reports being tortured by the authorities. He left the DRC for South Africa in XXXX 2002. Some of his family members were also targeted by the authorities. Due to the xenophobic attacks, he left South Africa in 2015 and returned to the DRC, believing the situation there had improved since the elections. Upon his return, he took part in a number of political activities and was targeted by the authorities. He returned to South Africa in 2017 before moving to the United States. He arrived in Canada in XXXX 2017 and filed a refugee protection claim. ANALYSIS [8] My role is to consider all the evidence and establish whether the RPD's decision is correct.1 In light of Huruglica and Rozas del Solar and after conducting my own analysis of the record, in particular by listening to the audio recording of the hearing and considering the entirety of the evidence, I am of the opinion that the correctness standard of review must be applied. Loss of Congolese nationality [9] At the hearing, the appellant stated that he did not hold citizenship because he renounced his Congolese citizenship in 2014 to acquire South African citizenship. He also stated that his application for South African citizenship was rejected2 and that, since then, he has not regained his Congolese nationality. [10] The RPD noted that the appellant presented no evidence and made no effort since his arrival in Canada to substantiate his statements regarding the renunciation of his Congolese nationality and the refusal of South African citizenship. Notwithstanding the appellant's statements regarding the loss of his Congolese citizenship, the RPD examined the evidence on record and considered that he did have Congolese citizenship. When examining the appellant's statement regarding the renunciation of his Congolese citizenship, the RPD examined the issue of the loss of that citizenship and considered that the appellant does have the possibility of regaining it by complying with certain formalities. The RPD considered that the appellant could regain his Congolese citizenship and, in light of his statements, it is satisfied with his identity as a citizen of the DRC. [11] In his appeal memorandum, the appellant argues that the RPD erred when it failed to consider that the acts of persecution in the DRC originated from the authorities, who could easily track him if he applied to regain his Congolese nationality. He argues that requiring evidence that he made efforts to regain his Congolese nationality is unreasonable under the circumstances. The appellant claims that he cannot avail himself of the DRC's protection since he no longer holds citizenship in that country. He argues that the RPD's decision exposes Canada to a breach of its international obligations. [12] I note that the appellant did not explain why he states that he is a citizen of the DRC in his BOC Form,3 signed on XXXX XXXX, 2018, even though he apparently renounced his Congolese citizenship. I note that the South African travel document, issued on XXXX XXXX, 2017, after this renunciation, shows that the appellant is a citizen of the DRC.4 I note that the appellant made no effort to demonstrate the loss of his Congolese nationality. [13] I am of the opinion that the appellant has not demonstrated, on a balance of probabilities, that he lost his Congolese nationality. Despite this, I have considered his submission regarding the difficulty involved in regaining his nationality. Even if I were to accept that the appellant has lost his nationality, there is no evidence demonstrating that it is impossible for him to regain it. Like the RPD, I examined the National Documentation Package (NDP) on the DRC, particularly Loi n° 04/024 du 12 novembre 2004 relative à la nationalité congolaise [Law No. 04/024 of 12 November 2004, on Congolese nationality] which, in articles 30 et seq., states that a person may apply to regain their Congolese nationality provided certain requirements are met, including family ties.5 At the hearing, the appellant stated that he is still in contact with his family and I note that his most recent departure from the DRC was in 2017. [14] With respect to the difficulty involved in regaining his citizenship, there is no evidence that demonstrates, on a balance of probabilities, that the Congolese authorities would take an interest in the appellant if he were to file an application to regain his Congolese nationality. Indeed, the appellant's allegations of fear were not found to be credible by the RPD and I agree. [15] With respect to the appellant's submission regarding Canada's international obligations, I note that the evidence on the record does not demonstrate, on a balance of probabilities, that the Canadian authorities are preparing to return the appellant to his country in the near or foreseeable future, nor that it will fail to comply with its international obligations. [16] Overall, I am of the opinion that the RPD's conclusion is correct in this regard. Contradiction - Identification of agents of persecution [17] In his appeal memorandum, the appellant argues that the RPD erred when it interfered with his application for asylum in South Africa. He argues that the issue of evidence to support his application for asylum in South Africa is not, nor can it be, submitted for RPD examination in the context of the present refugee protection claim. He argues that his claim for asylum in South Africa was successful and that the RPD has no authority to reconsider a decision rendered by a sovereign state, that is, South Africa. He argues that the RPD is not an international court of appeal. He argues that the contradiction raised by the RPD does not involve information necessary for the examination of his refugee protection claim. He argues that the RPD was overzealous in its examination. He argues that a number of events occurred between his application for asylum in South Africa and the present claim for refugee protection, which helped him clarify the origin of his persecution. [18] With all due respect, I do not agree with the appellant in this regard. First, I would like to point out that the appellant's BOC Form contains statements against South Africa and the RPD is entitled to consider and assess these statements in light of all the evidence, including the appellant's testimony and the evidence presented in support of his application for asylum in South Africa. At the hearing, the RPD confronted the appellant with his conflicting statements regarding the identification of his agents of persecution and the appellant had the opportunity to provide explanations. The RPD reviewed the appellant's explanations and rightly considered them unsatisfactory to justify the contradiction raised. [19] At the hearing, the appellant stated that he had not identified any particular person as an agent of persecution in his application for asylum in South Africa. He stated that when he left the DRC in 2002, he was aware of his persecution by members of the rebel movement (RCD) and the people's defence militias. [20] At the hearing, he stated that he feared a man named XXXX because he tortured him in 2002 and verbally abused him in 1999 in an attempt to force him to join their movement (RCD). He stated that XXXX named him in a radio statement and, after making the connection with the two incidents mentioned above, he knew that XXXX was responsible for his arrest and the torture in question. When confronted as to why he did not identify XXXX in his application for asylum in South Africa in 2002, knowing that XXXX was his agent of persecution at the time, the appellant replied that several black hands were attacking people in the DRC. Failing to provide a specific answer, the RPD rephrased the question but the appellant did not answer it.6 [21] I am of the opinion that the contradiction raised by the RPD lies at the heart of the appellant's refugee protection claim. Indeed, he did not provide a satisfactory explanation to justify the contradiction that was pointed out, nor did his behaviour in remaining silent to the rephrased question justify the contradiction that was brought to his attention. The appellant sought to attribute the contradiction to an accumulation of events that took place between the time of his application for asylum in South Africa and the day of his hearing before the RPD. However, this submission does not corroborate the appellant's testimony that he knew that XXXX was his agent of persecution when he left the DRC in 2002. [22] Overall, I am of the opinion that the RPD was correct when it found that the appellant's credibility was undermined by this. Contradiction - Police identification of the appellant at a demonstration [23] At the hearing, the appellant stated that his problems began in XXXX 2015 when he took part in a march organized by a civil organization called "Consortium des Organisations de la Société Civile du Sud-Kivu" [consortium of South Kivu civil society organizations] en route for the CENI. He stated that the police intervened by dispersing the participants, including himself, and fired shots. He stated that a police officer told him to be careful as he left the scene because he had not forgotten the Chebeya affair, and that the two then separated. [24] The RPD noted a contradiction between the appellant's testimony and his written account, which states that he was arrested by the police during the XXXX 2015 demonstration and was later released thanks to the intervention of MONUSCO and that, in the meantime, a police officer reminded him of the Chebeya affair. The RPD considered itself aware that the appellant had not been confronted with this discrepancy between the versions in his testimony and written account. The RPD found that the appellant's credibility had been undermined. [25] In his appeal memorandum, the appellant argues that the RPD erred when it held against him a contradiction that undermines his credibility without giving him the opportunity to explain himself. He argues that, in doing so, the RPD violated a basic, general principle of Canadian law: Audi Alteram Partem (the right to be heard). [26] First, I wish to point out that the RPD's finding that the appellant's credibility was undermined by this contradiction, was not disputed and I see no error on the part of the RPD in this regard. I agree with the RPD's finding, which I consider correct. [27] I note that the contradiction raised by the RPD is at the heart of the appellant's refugee protection claim. The contradiction pertains to a key element that would have forced the appellant to leave the DRC (among other things), namely, the fact that the police identified him among other demonstrators in relation to the Chebeya affair. Moreover, the appellant's statement at the hearing diametrically opposes the statements in his written account on this matter. Thus, I am of the opinion that the RPD was under no obligation to confront the appellant with such an obvious contradiction. Moreover, the RPD's finding that the appellant's credibility was undermined was not based solely on this contradiction. As a result, I am of the opinion that the RPD member complied with procedural fairness. Omission - Chronology of events [28] The appellant was asked to identify the event that occurred after the XXXX 2015 demonstration and the appellant replied that, in XXXX or XXXX 2015, he took part in a citizens' march organized in Goma by the Lutte pour le Changement (LUCHA) [struggle for change] movement. He stated that he took part in this march, despite his lack of affiliation with LUCHA. He stated that the Congolese police intervened during this demonstration and he, like other participants, was arrested and released thanks to the intervention of MONUSCO. However, the RPD confronted the appellant with his written account, which states that, in XXXX 2015, at a political debate that he had organized through the UNC, a political party of which he is a member, he was arrested by the police and then released by MONUSCO. The appellant replied that there was no reason, but that he recalled a UNC-related incident for which he could not remember the year. [29] The RPD considered the appellant's explanations unreasonable. The RPD considered the omission to be significant, as it was the only event that arose from the appellant's own actions, that is, his organizing the political debate. The RPD noted that the appellant pointed to this oversight to justify the omission in question. The RPD noted that the appellant was able to answer questions regarding events in 1998 and provide details. The RPD noted that the appellant did not present any psychological report or medical note to corroborate his statement. The RPD noted that the appellant's dithering failed to address its concern and found that his credibility was substantially undermined. [30] In his appeal memorandum, the appellant argues that the RPD failed to consider his explanation for the oversight. He argues that drawing such a far-reaching inference is unreasonable under the circumstances, especially if one considers his profile as an extremely active political activist with a hectic life, along with the number of events that have occurred in his life, as reported in his BOC Form. He argues that the RPD overreached by expecting him to provide a psychological report or medical note to attest to the oversight in question. [31] I agree with the appellant on this point. Indeed, the appellant's BOC Form includes the XXXX 2015 political debate as well as his participation in the XXXX 2016 LUCHA march. I am aware of the difficulty involved when testifying before a panel, along with the hearing room's stressful atmosphere, and I consider that these factors can influence a refugee protection claimant's testimony. While the appellant submitted no psychological report or medical note, I am of the opinion that his testimony regarding the omission is satisfactory under these circumstances. I note that the appellant's written account contains several events and it is therefore likely that he was confused by these events when the RPD raised the omission. However, I am of the opinion that this error will have no impact on the appeal because there are other reasons to find the appellant's credibility undermined with respect to his political activities, including the above-mentioned political debate. Immigration form - Schedule A [32] The RPD noted that the appellant's immigration form, Schedule A,7 does not contain any information regarding his political party affiliation, including the "UNC." The appellant replied that he had no reason for this and that he had completed the form during the night.8 [33] The RPD noted that the appellant is an educated person who studied XXXX and understands French. The RPD noted that the appellant did not retain the services of an interpreter during the hearing. The RPD noted its awareness of the fact that conditions are not always ideal when completing immigration forms. It noted that the appellant was able to answer the other questions on this form correctly. The RPD noted that the appellant fails to include his party membership, which allegedly led to his arrest by Congolese authorities in XXXX 2015 as well as serious charges of XXXX to XXXX and XXXX XXXX XXXX. The RPD found that the appellant's credibility was undermined by this omission. [34] I note that the appellant is not challenging this finding and I do not regard it as flawed. I agree with the RPD's finding and consider it correct. Amnesty International report and letter of support presented after the hearing [35] In support of his refugee protection claim, the appellant presented a report by Amnesty International describing the atrocious torture of Congolese citizens by Congolese authorities. The appellant's name can be found in it.9 The RPD consulted the electronic version of this report and noted that the appellant's name is not included. When confronted with this discrepancy, the appellant stated having received it in 2004 through his friend. The appellant stated that he is no longer in contact with his friend and no longer had access to the media containing the report. The RPD considered the report's disappearance as an extraordinary coincidence. The RPD found that the appellant's credibility was severely undermined by what it found to be a false document. [36] The RPD examined Mr. XXXX written attestation10 and noted that it refers to one of the appellant's agents of persecution, namely, XXXX XXXX. The RPD noted that the appellant's testimony and written account are silent with regard to this person. The RPD noted that this letter of support was unlikely to rectify the appellant's credibility issues. The RPD did not accept that the appellant was arrested and tortured in 2002 by reason of his political opinion. The RPD did not grant any probative value to the letter of support. [37] In his appeal memorandum, the appellant submits that he cannot explain why his friend sent him a report that is different from the one held by the RPD. He argues that the RPD did not give weight to Mr. XXXX letter of support without commenting on its content. He argues that the RPD should have considered the profile of the author of the letter of support, a former president of the XXXX XXXX; the spontaneity of the request for authorization made to the RPD to submit the letter of support in question; and the details provided. [38] I agree with the RPD's conclusion that the appellant did not provide a satisfactory explanation for the discrepancies between the two Amnesty International reports. The appellant presented evidence that contains false information and blamed his friend for providing him with the report in question. The information in this report is considered to be true and reliable and, had it not been for the RPD's observation that some of the information had been falsified, including the fact that the appellant's name is included, the content as a whole would have been assessed in a positive light. [39] Despite the false information, the RPD authorized the appellant to present a letter of support at his own request. I note that the reasons for the rejection of the refugee protection claim clearly show that the RPD considered and assessed the content of the letter of support. The RPD rightly pointed out inconsistencies in the letter of support regarding the agent of persecution, XXXX. Indeed, the appellant's written account and testimony make no reference to this person. I also note that the appellant's written account states: [Translation] "...In 2002, I was taken from my office (diverted) by XXXX XXXX XXXX XXXX the RCD (Rassemblement Congolais pour la Démocratie) - [Congolese rally for democracy] in Bukavu on XXXX XXXX, 2002..."11 [Emphasis added] [40] The letter of support states: [Translation] "...Jean worked with me and was never absent without reason...On XXXX XXXX, 2002, XXXX did not come to work, which was unusual..."12 [emphasis added] [41] I note that the letter of support does not mention that the appellant was removed from his office on XXXX XXXX, 2002. Rather, it states that the appellant did not go to work on XXXX XXXX, 2002. While the letter of support was written in detail, it does not corroborate the allegations in the appellant's BOC Form or testimony. The RPD's conclusion is correct in this respect. Appellant's behaviour - Return to the Democratic Republic of the Congo in XXXX 2015 [42] The RPD noted the appellant's return to the DRC, where he stated that he had been persecuted. The RPD noted that the appellant's behaviour was difficult to reconcile with claims that his life was in danger in the DRC. The RPD noted that the appellant resided in Bukavu while living in the DRC in 2002, and that he moved back to Bukavu upon returning to the DRC in 2015. When confronted about this, the appellant replied that anyone can settle anywhere they want, and that he is familiar with that place and has a residence there.13 The RPD noted that the appellant remained in the DRC for approximately two years (2015-2017) and continued to participate in public activities that made him visible. The RPD found that the appellant's inconsistent behaviour undermined his credibility. [43] In his appeal memorandum, the appellant argues that the RPD erred when it failed to consider the overall situation and persecution to which he was subjected in South Africa before returning to the DRC. He argues that asking him to risk his life by staying in South Africa is unreasonable under the circumstance. By returning to the DRC, he hoped that things would improve. [44] I do not agree with the appellant in this regard and I consider that the RPD correctly concluded that the appellant's behaviour was not consistent with that of a person who alleges that they fear for their life. Indeed, the RPD's conclusion focused on the appellant's behaviour in the DRC. The RPD considered the appellant's return to the DRC in 2015, including his hope that things would improve. The RPD examined the appellant's behaviour in relation to his various public activities following his return to the DRC in 2015, even though he alleges a fear of being targeted by the authorities. The RPD also noted the appellant's behaviour in relation to his departure from the DRC some two years after his arrival in 2015. The RPD also noted that, despite the appellant's fear in South Africa, he decided to return there in 2017. Overall, I consider the RPD's conclusion regarding the appellant's behaviour to be correct. Refugee protection claim examination under section 97 of the Immigration and Refugee Protection Act [45] In his appeal memorandum, the appellant argues that the RPD completely failed to consider the criteria in section 97 of the IRPA, including personalized risk. [46] With all due respect, I do not agree with the appellant. In its conclusion, the RPD states that it considered all of the evidence and determined that the appellant had failed to demonstrate, on a balance of probabilities, that if he were to return to the DRC, he would be personally subjected to a danger of torture, a risk to his life, or a risk of cruel and unusual treatment or punishment. The RPD's conclusion shows that the statements in the appellant's BOC Form were considered under section 97 of the IRPA. [47] I have conducted an independent review of the appellant's submissions in this regard and I am of the opinion that a separate analysis under section 97 of the IRPA is not required, as the appellant failed to establish the essential basis of his refugee protection claim, namely, fear due to his political opinion, and did not raise any other grounds to fear persecution or risks to his life or a risk of mistreatment in the DRC. [48] Lastly, I wish to point out that the appellant is not challenging the RPD's conclusions pertaining to the negative inferences drawn from the lack of evidence and effort regarding the memorandum that he prepared in South Africa with respect to XXXX XXXX, along with those drawn from the statements that were omitted from his BOC Form in relation to the event of XXXX XXXX, 2017, at which he states he was tortured by agents of the ANR. I agree with the RPD's conclusions and consider them correct. [49] Overall, I am of the opinion that the RPD's negative finding regarding the appellant's credibility is correct. CONCLUSION [50] I dismiss the appeal and confirm the RPD's determination that the appellant is not a Convention refugee or a person in need of protection. (signed) Toni Jedid Me Toni Jedid December 1, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Audio recording of the hearing on October 24, 2019, 03.32.54. 3 SPR-1, Refugee Protection Division (RPD) record, appellant's Basis of Claim Form (BOC Form), Q. 1 (e), at page 86. 4 Ibid., South African travel document, at page 171. 5 SPR-1, RPD record, consolidated list of documents, Doc. No. 3 - National Documentation Package (NDP) on the Democratic Republic of the Congo (DRC), July 31, 2019, Tab 3.1: Loi no 04/024 du 12 novembre 2004 relative à la nationalité congolaise [Law No. 04/024 of 12 November 2004, on Congolese nationality]. DRC. 2004. NDP on the DRC, May 11, 2020, Tab 3.1: Loi n° 04/024 du 12 novembre 2004 relative à la nationalité congolaise. DRC. 2004, at pages 9 and 10. 6 Supra, endnote 2, 02.50.03 and 02.54.01. 7 SPR-1, RPD record, immigration form IMM5669 (Schedule A), Q. 9, at page 161. 8 Supra, endnote 2, 02.05.18. 9 SPR-1, RPD record, Exhibit P-7, Amnesty International report, at page 196. 10 Ibid., Exhibit P-16, written attestation, at page 217. 11 Ibid., Appellant's BOC Form, written account, at page 95. 12 Supra, endnote 10, Exhibit P-16. 13 Supra, endnote 2, 01.31.44. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-29398 RAD.25.02 (January 2020) Disponible en français 6 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