TB4-06270

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. / N° de dossier de la SAR : TB4-06270 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 6, 2015 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Michael F Loebach Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of the Democratic Republic of Congo (DRC), has appealed a negative decision of the Refugee Protection Division (RPD) dated June 27, 2014. DETERMINATION [2] The Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection as per s. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). Background [3] The Appellant alleged that he fears returning to the DRC for several reasons: anonymous telephone threats: threats of forced recruitment into the Army and armed groups; insecurity in North Kivu and in the country in general; the presence of armed groups; the inability to continue his studies; poverty; and a risk to his life due to armed groups. The Appellant also alleged a series of problems for him and his family in Goma including the destruction of his mother's business by rebel militias, the poisoning of his mother and his sister, and banking problems. [4] The Appellant alleged that while in Goma on XXXX XXXX, 2013, there was a confrontation between the DRC army and rebels. Soldiers came into the Appellant's home and asked his mother where he was as they were trying to recruit him for the Army. They also tried to extort money from his mother. [5] The Appellant left the DRC on XXXX XXXX, 2013 to attended studies at the University of XXXX. After being unable to pay for his studies, the Appellant made his claim for refugee protection on April 16, 2014. [6] The Appellant had a refugee determination hearing on June 11, 2014. Written reasons were issued on June 6, 2014. In its reasons, the RPD decided the claim based on credibility and internal flight alternative (IFA). The RPD made the following findings: a) The RPD drew a negative credibility inference related to the Appellant's allegations that he was being targeted for forced recruitment and experienced threats, given that the Appellant returned to Goma after receiving threats and after his sister was allegedly killed in 2013. b) The RPD drew a negative inference to the Appellant's subjective fear, given that he returned to Goma, an area where he alleged fearing for his safety. c) The RPD drew a negative inference related to the Appellant's subjective fear and allegations that he was threatened based on his failure to seek refugee protection in Tunisia, Uganda, or Rwanda. d) The RPD drew a negative credibility inference regarding the Appellant's allegations that he had fled to Kinshasa to flee the war, given that the Appellant's was living in Kinshasa from 1994 to 2000 to attend primary school. e) The RPD found that the Appellant's allegations that soldiers came looking for him on XXXX XXXX, 2013 was not credible as the RPD found it implausible based on two contradictions. Firstly, the Appellant testified that he stayed at home while in Goma; however, the Appellant was not at home on the evening when the men came looking for him. Secondly, the Appellant contradicted himself when he said in his Basis of Claim (BoC) narrative that the people came to recruit him; however, at the hearing the Appellant testified that soldiers did not say why they were looking for him. f) The RPD found that the Appellant had a viable IFA in Kinshasa as the Appellant's allegations that he had received threats of forced recruitment while he was in Kinshasa were not credible, given that the documentary evidence does not indicate that forced recruitment occurs in Kinshasa, and given that nothing happened to the Appellant during a lengthy time when he was living in Kinshasa. The RPD found that the agents of persecution that the Appellant allegedly fears are located in the Eastern region of the DRC and the Appellant has not provided persuasive evidence that would lead the RPD to believe that they would pursue him to the other side of the country. g) The RPD found that the IFA in Kinshasa was reasonable given the Appellant's graduate studies in international finance and his undergraduate degree in computers. The Appellant also speaks the major languages of the DRC including French, Lingala, and some English. The Appellant has a history of successful relocation outside of his home country for extended periods of time. h) The RPD noted that there is contradictory documentary evidence on the record as it relates to returnees to the DRC and the treatment of failed asylum-seekers, especially those who have been openly critical of the government or outspoken against the regime. The RPD found that returnees to the DRC do not face a risk of persecution or harm upon return. The RPD preferred the more recent evidence which indicated that returnees to the DRC do not face a risk of persecution or harm. The RPD also bore in mind the Appellant's particular profile and found that he would not face a serious possibility of persecution, or danger of torture, or risk to his life, or risk of cruel and unusual treatment or punishment as a failed asylum seeker. [7] Appeal pleadings were received on September 2, 2014 which was accompanied by an application for an extension of time to perfect the appeal. The application was allowed by the Assistant Deputy Chair on November 10, 2014. In the appeal, counsel argued that the RPD erred regarding its credibility, the treatment of the documents presented in support of the allegations, and the IFA findings. Specific errors included: a) The RPD erred in drawing a negative inference to the Appellant's return to Goma after his sister had been murdered in XXXX 2013, as this finding was based on assumptions regarding the reasonability of this action. It is consistent that the Appellant would want to visit his mother before he left the country. b) The RPD erred in drawing a negative credibility inference to the misunderstanding in the claim documents related to when he attended school. The discrepancy is not material and the RPD should not microscopically comb through the evidence searching for trivial errors and inconsistencies. c) The RPD failed to explain why other evidence, including statutory declarations from the Appellant's mother and a letter from the Appellant's mother's lawyer were ignored. This amounts to an error of ignoring the evidence that contradicted the RPD's findings. d) The RPD erred in finding that the IFA in Kinshasa was reasonable given that the Appellant testified that it would be easy for his persecutors to find him anywhere in the country, including Kinshasa. The Appellant fears forced recruitment from government sources and therefore, it is unreasonable to suggest the Appellant would avoid risk of persecution in an area which is controlled by the government. [8] The Appellant submitted several documents which it requests the RAD accept as new evidence. The Appellant asks that the RAD substitute the negative RPD determination with its own positive determination. [9] In the alternative, the Appellant asks the appeal be allowed and that the RAD refer the matter back to the RPD for redetermination. Admissibility of New Documents [10] The Appellant submitted the following 15 new documents, which it requested the RAD to consider: 1. Affidavit from XXXX XXXX1 2. Affidavit from XXXX XXXX2 3. Affidavit from XXXX XXXX3 4. 2 school certificates4 5. 9 articles5 6. INSO DRC Report6 [11] The RAD noted that s. 110(4) indicates that the subject of the appeal may present only evidence that arose after the rejection of the claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [12] The RAD noted that the 3 affidavits were produced after the rejection of the claim on June 27, 2014. The Appellant did not adequately explain why the 3 affidavits were not available before the rejection of the claim in written statement.7 The statement indicated: "I am also submitting two letters from people who bore witness to my struggle in the DRC." The RPD's Record demonstrates that the Appellant was aware of the requirement to provide evidence to the RPD to support his claim, and he did so. Given that the Appellant had provided evidence in support of his claim at the time of the hearing; given that the Appellant was represented by counsel at the time of the hearing; and given that the Appellant has failed to provide an explanation as to why the evidence was not available or why he would not have been reasonably expected to have presented the affidavits at the time of the rejection, the RAD finds that the 3 affidavits do not meet the requirements in s. 110(4) and therefore are inadmissible. [13] The RAD considered the remaining evidence presented in support of the appeal. The Appellant turns on the issue of the IFA in Kinshasa. As such, the RAD did not enter as new evidence any of the remaining evidence that dealt with the Appellant's schooling; and country conditions outside the IFA location. [14] The Appellant indicated that the evidence provided was not available at the time of the rejection and shows that there is no safe place in Kinshasa. Other than this blanket statement, the Appellant and his counsel do not provide any other rationale as to why the RAD should consider the articles in support of the Appellant's fear of forced recruitment in Kinshasa. The RAD considered and accepted into evidence the 6 articles8 which dealt with conditions in Kinshasa. The RAD found that these articles had little probative value and therefore it placed little weight on them as per the reasons cited below. Analytical Approach [15] In assessing the Appeal, the RAD is directed by the Huruglica9 Decision in which Justice Phelan directed the RAD to conduct a hybrid appeal based on a review of all aspects of the RPD's decision and to come to an independent assessment of whether the Respondent is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD's determination that, in its opinion, should have been made as per s. 111(b) of IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusion; however, the RAD has equal or greater expertise to the RPD in the interpretation of country condition evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. The RAD concurs with counsel on the approach to analysis and will assess the claim based on the guidance in the Huruglica decision. ANALYSIS [16] In analyzing the appeal, the RAD focused on whether the Appellant had an accessible and reasonable IFA in Kinshasa. [17] The RPD found that the Appellant had a viable IFA in Kinshasa as the Appellant's allegations that he had received threats of force recruitment while he was in Kinshasa were not credible, given that the documentary evidence does not indicate that forced recruitment occurs in Kinshasa; and given that nothing happened to the Appellant during a lengthy time when he was living in Kinshasa. The RPD also found that the agents of persecution that the Appellant allegedly feared are located in the Eastern region of the DRC and the Appellant has not provided persuasive evidence that would lead the RPD to believe that they would pursue him to the IFA location in the other side of the country. In the pleadings, counsel argued that the RPD erred in finding that the IFA in Kinshasa was reasonable, given that the Appellant testified that it would be easy for his persecutors to find him anywhere in the country, including Kinshasa. The Appellant fears forced recruitment from government sources and therefore it is unreasonable to suggest the Appellant would avoid risk of persecution in an area which is controlled by the government. [18] The RAD turned its mind to the counsel's argument that the IFA is not accessible, given that the Appellant fears forced recruitment by government including in government controlled areas such as the IFA. [19] The RAD considered the evidence related to the alleged telephone threats that the Appellant received in 2010. The Appellant's BoC narrative indicated that he received telephone threats from an unknown caller who threatened to find the Appellant and beat him up. A review of the transcript revealed that the Appellant was unable to provide details of the telephone threats that he received. The Appellant was unable to testify that the callers linked their threats to forced recruitment. The RAD noted that the evidence from the Appellant's mother's counsel10 indicates that the army searched for the Appellant for forced recruitment in 2010. This does not conform to the Appellant's oral testimony. The Appellant's mother's counsel was not present to answer questions related to the inconsistency, therefore the RAD assigned little weight to the evidence produced by the Appellant's mother's counsel (letter and affidavit) in support of the allegations. The RAD finds that there was no credible or trustworthy evidence before the RPD to attest to the fact that the callers had threatened the Appellant with forced recruitment in 2010 or that the caller represented government or rebel armies. The Appellant's assertion that the call was based on forced recruitment was pure conjecture. [20] The RAD noted that the evidence provided by the Appellant at the hearing in support of his allegations did not come from direct sources. The Appellant provided a report11 and an affidavit12 produced by the Appellant's mother's counsel and submitted to an NGO. The Appellant's mother's counsel did not have firsthand knowledge of the events and allegations included in the letter and affidavit. The letter and affidavit do not explain how the writer obtained the information included in them, and does not indicate that the lawyer took any efforts to verify the information included in the affidavit and letter. The lawyer was not a witness in the proceedings, and therefore could not provide evidence as to how she knew the facts in her communication. The RAD is cognizant that a negative inference cannot be drawn with regards to the Appellant's credibility based on concerns with evidence produced by a third party. The RAD, however, finds that it can place little probative weight on the communication by the Appellant's mother's counsel and the responses from the police13 and the NGO14 in support of the allegations, as the information included in them was second hand at best, and was untested by the RPD. [21] The RAD noted that the documentary evidence provided in support of the alleged XXXX of his mother and sister had little probative value given that the medical reports15 for his mother from India do not mention that she had been treated for XXXX, and the death certificate16 from the Appellant's sister does not mention that she had been murdered by XXXX. The Appellant alleged in his BoC narrative that his mother's business had been burned down by soldiers and rebel militias; however, this assertion was not supported in the police reports17 that indicate that the fire burned down the Appellant's mother's store as well as other businesses in the building. No particular person or rebel or political group was identified in the police reports as those who had burned down the business. The Appellant was not responsible for producing these documents and therefore he could not be expected to provide an explanation for the deficiencies in the documents. [22] Given the concerns with the evidence presented in support of the allegations of threats in 2010 and in 2013, the RAD placed more weight on the testimony of the Appellant. The RAD noted that the Appellant never had direct contact with those who threatened him: he received anonymous threats on the phone by people he could not identify. The allegations of the invasion of his home on XXXX XXXX, 2013 were not directly observed by the Appellant as he was not home at that time. When asked if he had any idea what the intruders wanted from him, the Appellant indicated: "I suspect it's always related to the forced recruitment and also they had come for money." The Appellant's fear of the XXXX XXXX, 2013 intruders was based on second-hand information, and his own conjecture that the intruders were soldiers who had come to forcibly recruit him. As such, the RAD finds that the Appellant did not provide sufficient credible or trustworthy evidence in support of his allegations of threats of forced recruitment in 2010 and 2013. [23] The RAD considered the risk of forced recruitment that the Appellant would face in the IFA location of Kinshasa. In the pleadings, counsel argued that the RPD erred by failing to consider the fact that it would be easy for his persecutors to find him anywhere in the country, including Kinshasa. Counsel also argued that the Appellant feared forced recruitment from government sources. [24] When asked how he knew that these people had the capacity to find him in Kinshasa when he did not know who they were, the Appellant responded: "I don't know." The Appellant was asked and testified that he did not know if the Congolese army participated in forced recruitment in Kinshasa. When confronted by his counsel in redirect with the fact that his BoC indicated that the Appellant received calls of forced recruitment in Kinshasa, the Appellant responded: "I don't know how to answer that." When asked if he knew if the calls were from the government or an official army of the country, the Appellant testified that he did not know. The Appellant's inability to answer basic questions about the agents of persecution undermined the credibility of his subjective fear. [25] The RAD reviewed the contents of the National Documentation Package 18(NDP) in reference to the issue of forced recruitment by the government and by rebel groups. The NDP has evidence of forced recruitment in the Eastern part of the DRC; however, there is no mention that the government or rebels have forced recruitment of individuals in Kinshasa. The RAD finds that, it would be reasonable for the various human rights organizations, including the United Nations which has a strong presence in the DRC, to make reference to forced recruitment in the capital, if such recruitment existed. The absence of any documentary evidence supporting forced recruitment in Kinshasa supported the RPD's finding that forced recruitment does not occur in Kinshasa. [26] The RAD also reflected on the evidence related to forced recruitment. The RAD noted that counsel in her submissions indicated: "the national document package says that any man from age 14 until 45 is at risk of forced recruitment. And there is [sic] many cases of abduction and disappearance of the people specifically of healthy men in the country."19 Counsel does not indicate a specific reference to support her claim that all men between 14 and 45 are at risk of forced recruitment. In fact, the evidence provided by counsel at the hearing indicates that the most of the civilians recruited by the M23 in July were young men aged 24 and under.20 She also does not provide evidence that the risk exists in Kinshasa. The RAD carefully reviewed the evidence on the record regarding forced recruitment and did not find evidence to support the statement that all men up until the age of 45 are at risk of forced recruitment. The preponderance of the evidence related to forced recruitment focuses on children in their teens. The RAD also noted that the documentary evidence is that the government is making efforts to deal with the issue of forced recruitment, especially in the Eastern part of the country.21 The objective evidence on the record does not support the Appellant's subjective fear of forced recruitment in Kinshasa. Furthermore, the Appellant is a twenty-seven-year-old man. The RAD finds that the Appellant and his counsel failed to provide sufficient credible or trustworthy evidence in support of the argument that the Appellant, as a man of 27 years, would be subject to forced recruitment in Kinshasa. [27] The Appellant testified that he feared being poisoned. When asked why he thought that this would happen to him in Kinshasa, the Appellant responded: "I don't have an answer for that." He then linked the poisoning to his mother's business and problems with her bank. Given the concerns with the documentary evidence provided in support of the poisoning allegations discussed above; given his inability to support his assertion that he would be poisoned in Kinshasa; and given the concerns with the Appellant's allegations of forced recruitment, the RAD finds that the Appellant did not provide sufficient credible or trustworthy evidence in support of his fear of being poisoned in Kinshasa. [28] The RAD considered the new evidence which the Appellant provided along with the pleadings. The RAD is cognizant that the test for the availability of an IFA is: "the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists."22 None of the articles presented as new evidence deals with the issue of the risk of persecution of the Appellant in Kinshasa. The evidence points to generalized crime and instability in Kinshasa; however, the RAD notes that the Appellant did not argue that he would be personally subject to a risk to his life or a risk of harm in Kinshasa other than being personally targeted for forced recruitment. In addition, the RAD notes that instability in an IFA alone is not the test of reasonableness.23 [29] The RAD noted that none of the articles dealt with the issues of forced recruitment by government forces or rebel groups in Kinshasa. The articles deal with the issue of generalized crime in the capital, and an attempt to steal munitions at a military base in Kinshasa. Besides indicating that the articles presented as new evidence post-date the decision, the Appellant and his counsel do not put forward an argument regarding the contents of the articles and how they relate to the IFA, other than the Appellant's statement that: "the documents show there is no safe place in Kinshasa."24 The Appellant and his counsel did not put forward an argument regarding the inability of authorities in Kinshasa to provide protection to the Appellant, especially as it relates to the issue of generalized crime. The RAD adopts the reasoning in Sandoval et al.25 in which Justice Gagné stated: However, the evidence relied upon by the applicant is essentially statistical in nature and lacks context. As a result, I am unable to conclude that this evidence should be considered "relevant, reliable and convincing evidence which satisfies the trier of fact on a balance of probabilities that the state protection is inadequate" in the applicant's specific circumstances (Carillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94 at para 30). [30] The onus is on the Applicant to rebut the presumption of state protection. To do so, the Applicant must adduce clear and convincing evidence of the state's inability to protect him.26 Given that the articles solely comment on the existence of crime in Kinshasa and are not linked to an argument or any analysis regarding the capacity of the state to provide protection to the Appellant in the IFA location, the RAD finds that the articles have little probative value in support of the Appellant's argument that an IFA in Kinshasa is not accessible or reasonable. As such, the RAD placed little weight on the 6 articles dealing with the situation in Kinshasa in support of the Appellant's argument that he would not be safe in Kinshasa. [31] By solely providing articles related to crimes in Kinshasa, without context, and without providing an argument of how the crime situation would affect the particular situation of the Appellant, the RAD finds that the Appellant has failed to rebut the presumption of state protection in the IFA location. [32] The RAD notes that the RPD's findings that the Appellant would not face persecution or harm upon his arrival in Kinshasa were not challenged in the appeal. The RAD concurs with the RPD that there is contradictory documentary evidence on the record as it relates to returnees to the DRC and the treatment of failed asylum-seekers, especially those who have been openly critical of the government or outspoken against the regime. The RAD noted that the Appellant did not testify that he was perceived as an opponent of the regime, or had spoken out against the regime. The Appellant has a long history of entering and exiting the DRC without incident. The Appellant left the country legally and had status in Canada as an international student. There is no evidence before the RAD that the Appellant would be identified and/or perceived as a failed asylum seeker upon his return to Kinshasa. [33] Finally, the RAD noted that the RPD's findings regarding the reasonableness of the IFA were not challenged in the appeal. The RAD concurs with the RPD that due to the Appellant's particular profile (well educated, linguistic skills, experience establishing in new locations, history of living in Kinshasa), that it would not be objectively unreasonable for the Appellant to relocate in Kinshasa. Summary [34] Based on a review of the totality of the evidence, the Appellant has not provided sufficient credible or trustworthy evidence in support of his appeal that he does not have an accessible and reasonable IFA in Kinshasa. The Appellant's allegations of a fear of forced recruitment by government and rebel groups were not credible. The Appellant's allegations of a fear of poisoning were not credible. The RAD therefore concurs with the RPD that the Appellant would not face a serious possibility of persecution, or that he would be subjected personally to a danger of torture or to a risk to his life, or to a risk of cruel and unusual treatment or punishment in the IFA location of Kinshasa. DISPOSITION [35] Based on the analysis above, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection as per s. 111 (1)(a) of IRPA. [36] The appeal is dismissed. (signed) "Daniel McSweeney" Daniel McSweeney February 6, 2015 Date 1 Appeal Pleadings, pp. 199 - 200. 2 Appeal Pleadings, p. 201. 3 Appeal Pleadings, pp. 202 - 203. 4 Appeal Pleadings, pp. 204 - 205. 5 Appeal Pleadings, pp. 206 - 221. 6 Appeal Pleadings, PP. 222 - 235. 7 Appeal Pleadings, Appellant's Written Statement, pp. 13- 19. 8 Appeal Pleadings, 6 articles dealing with situation in Kinshasa, pp. 206 - 221. 9 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 10 RPD's Record, Exhibit 5, Letter from XXXX XXXX XXXX XXXX, 2013, pp. 144 - 147. 11 Ibid. 12 RPD's Record, Exhibit 5, Affidavit from XXXX XXXX, pp. 148 - 150. 13 RPD's Record, Exhibit 5, Letter from XXXX XXXX XXXX, p. 153; letter from Brigade Judiciaire a XXXX, p. 154. Police Report from Chief Investigator XXXX, pp. 155 - 156. 14 RPD's Record, Exhibit 5, Letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, p. 152. 15 RPD's Record, Exhibit 5, Medical Reports, pp. 180 - 187. 16 RPD's Record, Exhibit 5, Death Certificate, p. 179. 17 RPD's Record, Exhibit 5, 2 police reports, pp. 188 - 192. 18 RPD's Record, Exhibit 3, National Documentation Package for the Democratic Republic of the Congo (NDP), 30 April 2014. 19 Appeal Pleadings, Transcript of Hearing, p. 259. 20 RPD's Record, Exhibit 6, DRC: Children, young men flee M23 recruitment, p. 226. 21 RPD's Record, NDP, Item 2.1, US DOS Report on Congo, 2013, Child Soldiers, section 1g. 22 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991; [1992] 1 F.C. 706 (C.A.), at 710. 23 Megag, Sahra Abdilahi v. M.E.I. (F.C.T.D., no. A-822-92), Rothstein, December 10, 1993. 24 Appeal Pleadings, Appellant's Statement, para. 23, p. 17. 25 Sandoval et. al. v Canada (Minister of Citizenship and Immigration), (IMM-2716-12), 2013 FC 297, March 25, 2013. 26 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, and Carrillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] F.C.J. No. 399 at paragraphs 17-19, 28, 30. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-06270