MB9-19924

RAD File No. / No de dossier de la SAR : MB9-19924 MB9-19925 / MB9-19926 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision January 7, 2020 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the persons who are the subject of the appeal Me Tshiombo Achille Kabongo Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] Ms. XXXX, you and your minor children are citizens of the Republic of the Congo. You claimed refugee protection as a woman who experienced mistreatment, illegal confinement and acts of torture by reason of your political opinion, and you alleged that your children could be treated similarly.1 [2] The Minister of Immigration, Refugees and Citizenship (the Minister) intervened in your refugee protection claims. He argued that significant contradictions exist between the various statements you had made about your place of residence, which called into question the truthfulness of your allegations.2 [3] The Refugee Protection Division (RPD) rejected your refugee protection claims after concluding that: on a balance of probabilities, you were not in the Congo and you could not have participated in the march that occurred in that country on XXXX XXXX XXXX 2015, nor have been interrogated by the authorities because of your participation in that march; given your limited knowledge of the Congolese electoral context, you failed to establish that you were involved in the campaign of presidential candidate Jean-Marie Mokoko; given the fact that the documents you filed in evidence merely repeat your allegations, their probative value is limited; and you did not meet your burden of establishing that you would be at risk of gender-based persecution in the Congo.3 [4] In your appeal memorandum, you submit that the RPD erred as follows: it considered the wrong country, assessing your fear of persecution in the Democratic Republic of the Congo (DRC); it mixed up the principle of state protection: your sister and your cousin cannot protect you from the state, which is the agent of persecution; and it failed to consider all the evidence on the record, it adopted a microscopic and peripheral approach, it did not address the issue of the minor children, and it did not consider Guideline 4.4 [5] I conclude that the RPD did not commit the errors that you criticize it for committing. In the following paragraphs, I will explain to you why I reached this conclusion. Based on this conclusion, your appeal is dismissed. ANALYSIS OF THE APPEAL [6] The role of the Refugee Appeal Division (RAD) is not to carry out a de novo consideration of the refugee protection claim, but rather to determine whether the RPD made the errors alleged by the appellant.5 In conducting my own assessment of the record, in particular in listening to the recording of the RPD hearing,6 and in considering the Chairperson's Guideline 37 and the Chairperson's Guideline 4,8 I applied the standard of correctness.9 Significant contradictions [7] When they swear to the truth of certain allegations, refugee protection claimants are presumed to tell the truth. However, this presumption is rebuttable where the evidence is inconsistent or where the RPD is unsatisfied with the explanation for those inconsistencies.10 The RPD may make negative inferences based on implausibilities, inconsistencies or omissions. It is the entirety of the evidence that must be assessed.11 [8] During the hearing, the RPD asked you a number of questions to find out whether you were in fact in Benin in XXXX 2015. In this vein, the RPD asked you to explain your various statements indicating that: from 2009 to XXXX 2016 you were living in Benin; between 2008 and XXXX 2015 you were running a business in that country; in XXXX 2015 you wrote on your Facebook page that you were living in that country; and you indicated on the IMM 5669 form that you were living in that country until XXXX 2015. In response to these requests for an explanation, you stated that this information was written based on your husband's work; that, generally, your husband filed the visa applications; and that you were going to join your husband who was working in Benin but that you returned to the Congo.12 [9] In its decision, the RPD found that your explanations were not satisfactory and it concluded that, on a balance of probabilities, you were not in the Congo in XXXX 2015.13 In my opinion, the RPD made no errors in reaching this conclusion. [10] I would add that your explanation to the effect that it was your husband who completed the visa applications certainly cannot apply to the IMM 5669 form, which you signed in Ottawa on August 1, 2018, declaring that the information contained therein was truthful, complete and correct.14 At question 12 of that form, you were asked to list all addresses where you had lived in the past 10 years. You stated that between XXXX 2008 and XXXX 2015, you were living at XXXX XXXX XXXX XXXX, in Cotonou, Benin. [11] At the hearing, the RPD asked you to explain another contradiction in this regard, this time, the period during which you were detained in XXXX 2018. In your Basis of Claim Form15 and in your testimony, you stated that you had been detained from XXXX XXXX to XXXX. However, in your IMM 5669 form, you state that you were arrested and then tortured for several hours by the regime's military authorities in Brazzaville on XXXX XXXX, 2018.16 Your response was that the officer you met with that day did not explain the question to you well.17 In my opinion, this explanation is not acceptable given that you declared, in signing that form, that the information contained therein was truthful, complete and correct. As a result, this contradiction undermines your credibility. [12] I am of the opinion that I am entitled to make such findings in the presence of a credibility issue without giving you the opportunity to explain yourself on this subject; your credibility is not a new issue in this appeal.18 Your political involvement in the Congo [13] At the hearing, the RPD asked you several questions about your political involvement in the Congo.19 In its decision, and in light of your testimony, the RPD concluded that you were not involved in General Mokoko's campaign.20 In my opinion, the RPD made no errors given that your answers were very vague. Probative value given to the documents corroborating your allegations [14] In its decision, the RPD analyzed the documents you filed in evidence to corroborate your allegations, but it gave them limited probative value.21 In your memorandum, you argue that the RPD erred in failing to consider all the evidence and in rejecting the documents that were consistent with your claim. [15] Documentary evidence is not assessed in isolation from the overall claim. Since the RPD found that you were not credible, it was entitled to doubt the credibility of the documentary evidence presented to support your refugee protection claim.22 According to my own assessment of the record, the RPD made no errors in giving limited probative value to these documents and in explaining why it did so. Reference to the Democratic Republic of the Congo [16] You are correct in pointing out that, in its decision, at certain times, the RPD referred to the DRC rather than the Republic of the Congo or Congo-Brazzaville. This is clearly an error. However, after carefully listening to the recording of the RPD hearing, I am persuaded that the RPD's analysis was based on your country of citizenship. Consequently, I conclude that this is a clerical error and that it is not determinative. Analysis of your minor children's refugee protection claims [17] In your appeal memorandum, you submit that the RPD did not address the issue of your minor children. I am of the opinion that this argument is unfounded. [18] Before the RPD, you acted as the designated representative for your minor children, as you are currently doing before the RAD. At the hearing, you confirmed that you understand the responsibilities attached to this designation.23 These responsibilities specifically include assisting in gathering evidence to support your minor children's refugee protection claims and in providing evidence, being a witness at the hearing, protecting their interests, and putting forward the best possible case to the RPD.24 However, at the RPD hearing, you provided no evidence specifically concerning your minor children. Since their claims were based on your own refugee protection claim, the RPD made no errors in rejecting them in light of its finding that your refugee protection claim was not credible. Your fear as a woman living in Congo-Brazzaville [19] In its decision, the RPD concluded that you failed to establish that you would face a risk of persecution by reason of your gender in the Congo.25 [20] At the RPD hearing, you gave no testimony and provided no documentary evidence to establish a reasonable or serious fear of persecution simply because you are a woman living alone with her minor children in the Congo. In his submissions, your counsel raised no arguments to that effect, nor did he explain why the Chairperson's Guideline 4 should have been analyzed to your benefit.26 Consequently, I am of the opinion that the RPD committed no errors on this point. CONCLUSION [21] For these reasons, I confirm the determination of the RPD, that you, XXXX XXXX XXXX XXXX, and your minor children, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, are neither refugees under section 96 nor persons in need of protection under section 97 of the Immigration and Refugee Protection Act. [22] Your appeal is dismissed. (Signed) Alain Bissonnette Me Alain Bissonnette January 7, 2020 Date IRB translation Original language: French 1 Basis of Claim Form (BOC Form), pages 16 to 64 of the Refugee Protection Division's (RPD) electronic record. The documents you filed in evidence before the RPD are reproduced at pages 274 to 301 of the RPD's electronic record. 2 The Minister's intervention and the documents he filed in evidence before the RPD are reproduced at pages 302 to 322 of the RPD's electronic record. 3 RPD's reasons and decision, July 30, 2019, pages 5 to 15 of the RPD's electronic record. 4 Appellant's memorandum, September 19, 2019, pages 16 to 22 of the electronic appeal record. 5 Canada (Minister of Public Safety and Emergency Preparedness) v. Gebrewold, No. IMM-4058-17, LeBlanc, April 6, 2018 ; 2018 FC 374, paragraph 25. 6 Recording of the RPD hearing held on July 12, 2019, 00:01 to 03:33:41. 7 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 3: Child Refugee Claimants. This guideline is available on the IRB's website. 8 IRB, Chairperson's Guideline 4: Women Refguee Claimants Fearing Gender-Related Persecution. This guideline is available on the IRB's website. 9 Canada (Citizenship and Immigration) v. Huruglica, A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 10 Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018 ; 2018 FC 924, paragraph 21. 11 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, paragraphs 22 and 27. 12 Hearing recording, 44:00 to 53:30 and 01:00:30 to 01:17:30. 13 RPD's reasons and decision, supra, endnote 3, paragraphs 21 to 29. 14 This form is reproduced at pages 88 to 91 of the RPD's electronic record. 15 At paragraphs 6 to 15 of your written account, reproduced at pages 42 and 43 of the RPD's electronic record. 16 In response to question 6 of that form, page 88 of the RPD's electronic record. 17 Hearing recording, 02:34:00 to 02:38:20. 18 Corvil v. Canada (Minister of Citizenship and Immigration), No. IMM-4055-18, LeBlanc, March 12, 2019; 2019 FC 300, paragraphs 13, 14 and 15. Marin v. Canada (Minister of Citizenship and Immigration), No. IMM-3821-17, Mosley, March 2, 2018; 2018 FC 243, paragraphs 36, 37 and 38. Adoye v. Canada (Minister of Citizenship and Immigration), No. IMM-3058-17, Favel, March 5, 2018; 2018 FC 243, paragraphs 11 to 15. 19 Hearing recording, 01:22:00 to 02:10:00. 20 RPD's reasons and decision, supra, endnote 3, paragraphs 30 to 42. 21 Ibid., paragraphs 46 to 53. 22 Ogaulu v. Canada (Minister of Citizenship and Immigration), No. IMM-3862-18, McDonald, April 30, 2019; 2019 FC 547, paragraph 26. Jean v. Canada (Minister of Citizenship and Immigration), No. IMM-836-19, Mosley, September 3, 2019 ; 2019 FC 1127, paragraph 23. 23 Hearing recording, 06:30 to 07:30. 24 Refugee Protection Division Rules, SOR/2012-256, subrule 20(10). 25 RPD's reasons and decision, supra, endnote 3, paragraph 59. 26 Hearing recording, 03:12:00 to 03:32:00. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-19924 MB9-19925 / MB9-19926 RAD.25.02 (April 4, 2019) 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 (April 4, 2019) Disponible en français