MC0-03459

RAD File No. / No de dossier de la SAR : MC0-03459 MC0-03460 / MC0-03461 / MC0-03462 MC0-03463 / MC0-03464 / MC0-03465 MC0-03466 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 XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX 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 October 16, 2020 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the persons who are the subject of the appeal N/A 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] XXXX XXXX XXXX, you and the members of your family are French citizens. In your claims for refugee protection, you state that you fear the Congolese authorities, who criticize you for having transmitted sensitive information to a Nigerian journalist. You also state you are not safe in France.1 [2] The Refugee Protection Division (RPD) concluded that you all established that you are French citizens, and it therefore analyzed your refugee protection claims with respect to France. After analyzing your testimony, the RPD determined that you did not demonstrate why the Congolese authorities allegedly waited more than four years after the events that occurred in 2012 in Congo-Brazzaville to come after you in France. It also considered that you failed to rebut the presumption of state protection in France.2 [3] On appeal, you presented documents, requested that an oral hearing be held and submitted that the RPD erred in handling your case.3 [4] After analyzing your record, I conclude that the evidence presented in your appeal is not admissible (1) and that there is no cause to hold an oral hearing (II). I also conclude that the RPD did not err in finding that you did not rebut the presumption that the French authorities have the willingness and capacity to protect you, which is the determinative issue in your appeal (III). [5] In light of these conclusions, your appeal is dismissed. I. EVIDENCE PRESENTED ON APPEAL [6] On appeal, you presented a series of documents. A document dating back to 2005 [7] The first is a document dating back to July 2005 from the United Nations concerning inquests into disappearances in the Republic of the Congo.4 [8] In your memorandum, you submit that this document concerns the massacre of Congolese refugees in the matter of the missing persons of Beach, in Brazzaville. You also submit that the United Nations wanted to conduct inquests, but that General Sassou Nguesso's political regime had acknowledged the disappearance of only 80 refugees and never responded to the United Nations. Lastly, you submit that France protects General Sassou Nguesso's political regime.5 [9] The Refugee Appeal Division Rules (RAD Rules) provide that an appellant must submit a memorandum that includes full and detailed submissions regarding how the documentary evidence they want to rely on on appeal meets the requirements of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and how it relates to them or their situation.6 [10] In your memorandum, you do not provide full and detailed submissions to explain why this document was not reasonably available or why you could not reasonably have been expected in the circumstances to have presented it before the RPD, before it rejected your claims for refugee protection. Regarding your allegations concerning France, which reportedly protects the regime of General Sassou Nguessou, no information on this matter can be found in this document. [11] Relying on subsection 110(4) of the IRPA and the relevant case law,7 I am of the opinion that this evidence is not admissible on appeal. Congo-Brazzaville's Constitution of 2015 [12] The second is a copy of Congo-Brazzaville's Constitution of 2015.8 [13] In your memorandum, you submit that under this constitution, Congo-Brazzaville accepts dual nationality, whereas the RPD referred to an old law from 1961 and did not accept that you benefit from dual nationality.9 [14] In your memorandum, you do not provide full and detailed submissions to explain why this document was not reasonably available or why you could not reasonably have been expected in the circumstances to have presented it before the RPD before it rejected your claims for refugee protection. [15] Moreover, in its decision, the RPD did not conclude that you and your spouse do not benefit from dual Congolese and French nationality. It simply chose to analyze your claims for refugee protection with respect to France, of which you are citizens. As the determinative issue in this case is the protection with which the French authorities can provide you, this document is irrelevant since it neither proves nor disproves a fact concerning your appeal.10 It is therefore not admissible. Newspaper articles on the insecurity problems in France [16] Third are newspaper articles and statements on the insecurity and risks that certain Congolese exiles face in France.11 [17] In your memorandum, you submit that these documents prove the insecurity and the danger faced by certain Congolese exiles in France, particularly those who are targeted like you, as militiamen, informers, spies and mercenaries working for General Sassou Nguessou sometimes benefit from a lack of response by the French authorities and justice is never furthered in these types of cases.12 [18] In your memorandum, you do not provide full and detailed submissions to explain why the newspaper articles published before your hearing13 were not reasonably available or, why you could not reasonably have been expected in the circumstances to have presented them before the RPD, before it rejected your claims for refugee protection. [19] Regarding the article published by Congonews-Brazzaville on Saturday, February 29, 2020,14 reporting that France's Interior Minister collaborated with the Sassou regime by providing confidential information with a view to having agents of the Brazzaville regime kill Congolese individuals, it is not known which journalist authored it or following what kind of investigation. [20] Regarding the death threat alert,15 it mentions the same information as the article, but it is not known how the Association Union-Congo obtained it, or to whom it was distributed. For example, did this association contact the French legal authorities to inform them of a list of Congolese persons whose lives were allegedly threatened by killers from the Congo services, who were active within the Embassy of the Republic of the Congo in France under the guise of diplomatic status? [21] Lastly, regarding the document concerning the kidnapping attempt, which occurred in February 2020, by a Congolese militant living in Paris, it comes from a site associated with a group that defines itself as being the outraged of 242.16 In this document, the principal party concerned states that he assumes that the assault was ordered by a person known to police. [22] Having read each of these documents, I am of the opinion that they are not sufficiently credible or trustworthy under subsection 171(a.3) of the IRPA in order to be admitted as evidence in your appeal. I am also of the opinion that these documents are not relevant in that they do not prove or rebut a fact concerning the determinative issue in your appeal, which is whether the French authorities have the willingness and capacity to protect you. Evidence of your integration in Canada [23] The fourth is evidence that proves your integration in Canada.17 It is clear that these documents are not relevant for the purposes of your appeal. They are therefore not admissible based on the criteria set out in subsection 110(4) of the IRPA. II. HOLDING OF AN ORAL HEARING BEFORE THE REFUGEE APPEAL DIVISION [24] In your memorandum, you request an oral hearing before the Refugee Appeal Division (RAD), arguing that, with regard to the significant number of facts that were severely distorted, even truncated, sometimes due to issues of poor research of relevant information, sometimes due to communication issues, it is necessary for your appeal to be heard by the RAD so that you may benefit from Canada's humanitarian protection.18 [25] It is up to the RAD to determine whether or not the tests under subsection 110(6) of the IRPA have been met.19 One of the criteria set out in this subsection is that one of the pieces of evidence presented on appeal must be found to be admissible. However, I determined that the evidence that you presented was not admissible. Consequently, it is not possible to hold an oral hearing.20 III. ANALYSIS OF THE APPEAL [26] The RAD's role is not to carry out a de novo consideration of refugee protection claims, but rather, to determine whether the RPD erred as alleged.21 I conducted my own analysis of your record and I determined that the correctness standard of review had to be applied.22 The errors that you allege were made by the Refugee Protection Divisions [27] The RAD Rules provide that an appellant must indicate: i) the errors that are the grounds of the appeal, and ii) where the errors are located in the RPD's decision or in the transcript or any recording of the hearing.23 [28] In your memorandum, you submit that the RPD committed errors in paragraphs 4, 6, 7, 11 to 14 and 17 of its decision.24 [29] Regarding paragraph 4 of its decision, you submit that the facts are false, as France protects General Sassou Nguesso's political regime with regard to serious offences, such as the massacre of refugees. You also submit that in France, numerous Congolese exiles are subjected to severe persecution and that you were a victim of this. [30] Concerning paragraphs 6, 12, 13 and 14, you submit that the facts are false, as Congo-Brazzaville accepts dual nationality. [31] Concerning paragraph 7, you submit that the facts are severely distorted, as you are an opponent of General Sassou Nguesso's political regime, that political opponents were not the ones threatening you in France, but that life became dangerous because of the General's militiamen, spies, informers and mercenaries, who, in France, benefit from favours from Françafrique networks. [32] Concerning paragraph 11, you submit that a proper review of the record should have led the member to properly identify your case. [33] Lastly, concerning paragraph 17, you submit that many pieces of evidence on the record prove that certain Congolese exiles, like you, are subjected to dangerous circumstances in France.25 Refugee Protection Division's decision [34] The RPD determined that you did not rebut the presumption of adequate protection from the French authorities, as the evidence did not support a conclusion that you and the members of your family were persecuted for your political opinion, or that, if that were indeed the case, you could not seek and obtain adequate protection from the authorities.26 [35] The RPD explained that you presented two versions before it regarding the incident that occurred on XXXX XXXX XXXX 2016, and that you never reported the threatening calls received prior to that incident or those received in XXXX 2017. In its opinion, if someone had targeted you personally with threatening calls and had shot at you and your spouse on XXXX XXXX XXXX 2016, not only would you have informed the French police, but it is reasonable to think that these authorities would have immediately investigated the matter.27 Determinative issue [36] With all due respect, I would like to point out that, in my opinion, none of the errors that you raise in your memorandum concern the issue that I consider to be determinative in your appeal, namely, the presumption that the French authorities have the capacity and the willingness to protect their citizens. [37] It is well established that the person claiming refugee protection has both an evidentiary and legal burden to rebut the presumption of state protection. They must also demonstrate, through clear and convincing evidence, that state protection is inadequate. As the Federal Court recently wrote, this involves demonstrating either that the person claiming refugee protection sought state protection but it was not forthcoming, or that they did not try to obtain it because of a well-founded fear that it would not be provided.28 [38] According to the evidence on the record, you and the members of your family did not seek the various recourse options available to persons who, in France, believe that they are targeted and that their lives are threatened by agents working for a foreign government. With regard to the arguments presented in your appeal, I am of the opinion that they do not establish that the French authorities could not provide you with adequate protection. [39] After conducting my own analysis, I conclude that you did not present clear and convincing evidence of the inability of the French authorities to offer you adequate protection in the face of problems that you allege having encountered in that country, of which you are citizens. Consequently, you did not rebut the presumption in this regard and the RPD did not err on this issue, which, in itself, was sufficient for your claims for refugee protection to be rejected. [40] In addition, when you and your spouse failed to establish a fear of persecution within the meaning of section 96 or a risk within the meaning of section 97 of the IRPA with regard to one of your countries of citizenship, namely, France, your fear in relation to Congo-Brazzaville did not need to be analyzed.29 CONCLUSION [41] For these reasons, I confirm the RPD's determination that you and the members of your family are neither refugees under section 96 nor persons in need of protection under section 97 of the IRPA. [42] Your appeal is dismissed. (signed) Alain Bissonnette Me Alain Bissonnette October 16, 2020 Date IRB Translation Original Language: French 1 Your Basis of Claim Forms are reproduced at pages 12 to 241 and the documents you presented before the Refugee Protection Division (RPD) are reproduced at pages 384 to 412 of the scanned version of the RPD record. 2 RPD Reasons and Decision, January 29, 2020, pages 5 to 11 of the scanned version of the RPD record. 3 Your memorandum, February 28, 2020, pages 7 to 13 and 24, 25 and 26 of the scanned version of the appeal record. 4 Identified as Evidence A, this document is reproduced at pages 28, 29 and 30 of the scanned version of the appeal record. 5 Your memorandum, supra, endnote 3, pages 9, 11 and 25 of the scanned version of the appeal record. 6 Refugee Appeal Division Rules (RAD Rules), SOR/2012-257, subparagraph 3(3)(g)(iii). 7 Canada (Citizenship and Immigration) v. Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, paragraphs 38 to 51. Casilimas Murcia v. Canada (Minister of Citizenship and Immigration), No. IMM-775-19, Pamel, September 17, 2019; 2019 FC 1182, paragraphs 43, 49 and 50. Canada (Minister of Citizenship and Immigration) v. Davoodabadi, No. IMM-1047-18, Norris, March 21, 2019; 2019 FC 350, paragraph 21. Arana del Angel v. Canada (Minister of Citizenship and Immigration), No. IMM-2915-19, LeBlanc, February 14, 2020; 2020 FC 253, paragraph 35. 8 Identified as Evidence B, this document is reproduced at pages 32 and 33 of the scanned version of the appeal record. 9 Your memorandum, supra, endnote 3, pages 9, 11, 25 and 31 of the scanned version of the appeal record. 10 Singh, supra, endnote 7, at paragraphs 38 and 45. 11 Identified as Evidence C, these documents are reproduced at pages 35 to 43 of the scanned version of the appeal record. 12 Your memorandum, supra, endnote 3, pages 9, 11, 25, 26 and 34 of the scanned version of the appeal record. 13 The article published by Radio France Internationale on September 15, 2018, and the one published by the Agence France-Presse on October 3, 2018, which are reproduced at pages 37, 38 and 39 of the scanned version of the appeal record. 14 This article is reproduced at page 35 of the scanned version of the appeal record. 15 This alert is reproduced at page 36 of the scanned version of the appeal record. 16 This document is reproduced at pages 40 to 43 of the scanned version of the appeal record. 17 Identified as Evidence D, they are reproduced on pages 45 and 46 of the scanned version of the appeal record. 18 Your memorandum, supra, endnote 3, page 12. 19 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018; 2018 FC 147, paragraph 18. 20 Abdi v. Canada (Minister of Citizenship and Immigration), No. IMM-566-18, Boswell, January 16, 2019; 2019 FC 54, paragraph 29. 21 Canada (Minister of Public Safety and Emergency Preparedness) v. Gebrewold, No. IMM-4058-17, LeBlanc, April 6, 2018; 2018 FC 374, paragraph 25. 22 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 23 RAD Rules, supra, endnote 6 subparagraph 3(3)(g)(ii). 24 Your memorandum, supra, endnote 3, page 10. 25 Ibid., pages 9 and 24, 25 and 26. 26 RPD Reasons and Decision, supra, endnote 2, paragraphs 4 and 17. 27 Ibid., paragraphs 25, 26 and 27. 28 Pava v. Canada (Minister of Citizenship and Immigration), No. IMM-2115-18, Pentney, September 26, 2019; 2019 FC 1239, paragraph 37. 29 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at pages 694, 751 and 752. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-03459 MC0-03460 / MC0-03461 / MC0-03462 MC0-03463 / MC0-03464 / MC0-03465 MC0-03466 RAD.25.02 (January 2020) Disponible en français 9 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