MB9-19271

RAD File No. / No de dossier de la SAR : MB9-19271 MB9-19272 / MB9-19273 / MB9-19274 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered at Ottawa, Ontario Appel instruit à Date of decision January 14, 2020 Date de la décision Panel Me Philippe Rabot Tribunal Counsel for the persons who are the subject of the appeal Me Fedora Mathieu Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentante désignée Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] These are four appeals of members of the same family, two adults, XXXX XXXX XXXX (the female appellant) and XXXX XXXX (the male appellant), and their two minor children, XXXX XXXX XXXX and XXXX XXXX XXXX. They are all citizens of the Democratic Republic of the Congo (DRC). The female appellant alleges that she and her children could be persecuted upon their return to the DRC because her mother and brother were politically involved against the government previously led by Joseph Kabila. The male appellant claims to be sought after by the DRC's secret police, the Agence nationale de renseignements (ANR) [national intelligence agency], which could have negative repercussions for the female appellant and the children. The Refugee Protection Division (RPD) found that the male appellant was excluded from the protection provided by the Immigration and Refugee Protection Act (the Act) because he was a permanent resident of South Africa. The RPD did not believe that the male appellant and the female appellant would be in danger in the DRC, noting that they had returned there several times. The appellants challenge the validity of those findings. They criticize the RPD for failing to consider their explanations for why they returned to the DRC and the circumstances in which they did so. In addition, they state that the RPD erred in giving no probative value to notices to appear that the male appellant received from the ANR. [2] In support of their appeals, the appellants presented new documentary evidence. Most of these documents are intended to fill gaps in the evidence presented to the RPD. The appellants failed to establish that they could not reasonably have been expected to present this evidence before the RPD. However, two medical documents on the appellant's current health are admissible because they could not have been presented before the RPD; they are credible and they are relevant. [3] Based on my own analysis of the evidence, including the new evidence, I recognize that the RPD's credibility assessment of the appellants is problematic in several regards. However, the evidence on the record does not establish a serious possibility that the female appellant and her children would be persecuted upon their return to the DRC. The evidence also does not establish, on a balance of probabilities, that they would be personally subjected to a risk to their lives or to a danger of cruel and unusual treatment or punishment. With respect to the male appellant, I confirm the RPD's decision that he is excluded from protection under the Act since his permanent resident status in South Africa gives him the rights and obligations of nationality in that country. The appeals are therefore dismissed. BACKGROUND [4] About 20 years ago, the female appellant's mother and brother were involved in a protest against the national government of the DRC by getting involved with a political party, the Union pour la démocratie et le progrès social (UDPS) [union for democracy and social progress]. As a result, several other family members were harassed by government authorities. In 2002, to protect the female appellant, her mother decided to send her to live with her sister in South Africa. It was there that the female appellant met the male appellant. They were married in 2006. Their two children were born in South Africa in 2007 and 2011. They did not obtain citizenship in that country because neither of their parents had South African nationality. However, the male appellant became a permanent resident. [5] In XXXX 2012, the appellants decided to move back to the DRC to run a XXXX belonging to the male appellant's family. In XXXX 2013, the business was ransacked, only a few days after a merchants' meeting during which the male appellant allegedly complained about unfair competition from government-affiliated XXXX. The male appellant suspected that the ransacking was in response to his statements. He was also attacked by pro-government militants while in his car with his six-year old daughter. Then, armed individuals went to the appellants' residence and seized several valuables. They also warned the male appellant that he had better stop taking a stand against the Kabila government. [6] After that, the appellants decided to return to South Africa. They left the DRC in XXXX 2013. In 2018, they wanted to leave South Africa because their living conditions had become unbearable. They complained in particular about being subjected to xenophobia and acts of violent criminality. The appellants obtained visitor visas for the United States. The female appellant and her children went there first. From there, they entered Canada. The male appellant joined them a few months later. [7] In its written decision,1 the RPD concluded that the male appellant was excluded from protection from the Act because he was a permanent resident of South Africa, which guaranteed him the rights and obligations of nationality, within the meaning of Article 1E of the United Nations Convention Relating to the Status of Refugees. While recognizing that the male appellant may have been a victim of xenophobia in South Africa, the RPD found that the evidence did not establish that there was no serious possibility that he would be persecuted if he had to return there. Furthermore, the RPD did not find credible the male appellant's testimony that he had been in trouble with the ANR secret police in the DRC, when he returned to the country in 2017 and 2018, and that the ANR had threatened his mother in XXXX 2019 because he could not be found. The RPD did not give any probative value to notices to appear that the male appellant and his parents allegedly received from the ANR,2 stating that this type of document is frequently fraudulent. [8] With respect to the female appellant and the two children, the RPD was of the opinion that the fact that the female appellant returned to the DRC twice, in 2012 and 2015, indicates that she did not fear that she might get into trouble for the political activities of her mother and brother. The RPD also pointed out that the female appellant did not mention in her testimony the ransacking of the family XXXX in XXXX 2013, and therefore found that this allegation was not credible. [9] In the appeal memorandum,3 the male appellant understands that he is excluded from protection from the Act because he is a permanent resident of South Africa. However, he submits that the RPD erred in finding that his returns to the DRC in 2016 and 2017 undermined his credibility. In addition, he criticizes it of erring by invoking the frequency of fraudulent documents in the DRC as a reason for not granting any probative value to the ANR's notices to appear sent to him and to his parents. [10] The female appellant's credibility assessment was also questioned. The RPD failed to take into account the explanations she gave regarding the precautions taken upon her returns to the DRC to avoid drawing the authorities' attention. Furthermore, the RPD was mistaken in identifying as a significant omission the female appellant's failure to testify before the RPD about the ransacking of the family business in 2013. It was indicated that the female appellant had serious problems affecting her memory at the time. [11] In support of their appeals, the appellants are requesting to submit the following several new pieces of evidence: * Letter from XXXX XXXX, female appellant's brother, on XXXX XXXX, 20194 * Letter from XXXX XXXX, the female appellant's other brother, on XXXX XXXX, 20195 * Letter from Dr. XXXX XXXX, the female appellant's doctor, on XXXX XXXX, 20196 * Psychological assessment of the female appellant by XXXX XXXX XXXX on XXXX XXXX, 20197 * Letter from XXXX XXXX, the female appellant's friend, on XXXX XXXX XXXX 20198 * Documents establishing the profile of the male appellant's former employer in South Africa and of the son of President Kabila, Zoe Kabila9 * Letter from XXXX XXXX, the male appellant's friend, dated XXXX XXXX, 201910 * Medical and travel documents concerning the male appellant's father11 * Letter from XXXX XXXX, dated XXXX XXXX, 2019, corroborating the male appellant's testimony concerning events involving the male appellant that occurred in the DRC in December 201712 SCOPE OF THE APPEALS [12] The Refugee Appeal Division (RAD) reviews RPD decisions applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule concerns the RPD's findings in assessing the credibility or weight to be given to the oral evidence it hears, in situations where it enjoyed a meaningful advantage. [13] In this case, I am of the opinion that there are no findings for which the RPD enjoyed a meaningful advantage. Therefore, I have applied only the correctness standard DETERMINATIVE ISSUES [14] Given that these appeals concern only the RPD conclusions regarding the female appellant and her children, the following questions must be addressed. * Would the female appellant and her children be subjected to a serious possibility of persecution upon their return to the DRC because their family members have already campaigned within the UDPS? * Are they subjected to a serious possibility of persecution owing to their family tie to the male appellant? * Regardless of why this would be the case, does the evidence establish, on a balance of probabilities, that the female appellant and her children are personally subjected to a risk to their lives or to a danger of cruel and unusual treatment or punishment? ADMISSIBILITY OF NEW EVIDENCE [15] I am of the opinion that most of the new evidence submitted in support of the appeals could have been presented before the RPD, namely, before it issued its written decision on July 30, 2019. Although some letters were prepared after this date, they all concern incidents that occurred before the RPD made a decision. According to subsection 110(4) of the Act, the only evidence that the appellants may present on appeal are those pieces that are new or that could not reasonably have been expected to be presented before the RPD. It is the appellants' responsibility to explain in their memorandum of appeal, under subparagraph 3(3)(g)(iii) of the Refugee Appeal Division Rules,13 why the new evidence could not reasonably have been expected to have been presented before the RPD. I do not believe that they met this obligation. Their only explanation, which is in paragraph 114 of their memorandum of appeal, is that the new evidence is in line with the RPD's conclusions. Moreover, it is not the criterion set out in the Act to decide the admissibility of new evidence. The legislator's intent is clear: an appeal before the RAD is not an opportunity for the appellant to fill the gaps in the evidence presented before the RPD. In other words, it is not an appeal de novo. [16] The appellants criticize their former lawyer, who represented them during the hearing before the RPD, of being poorly prepared. However, there is no indication on the record that the appellant complied with the Board's Practice Notice - Allegations Against Former Counsel,14 especially the obligation to inform their former counsel of the allegation they were making against him, which would have enabled him to prepare a response. Since they did not comply with this requirement, I will not comment on the issue of whether the quality of the representation they had before the RPD was so deficient that it would justify allowing them to resubmit their evidence on appeal. [17] The only documents submitted as new evidence on appeal that meet the requirements of subsection 110(4) of the Act are those that concern the female appellant's health, namely, the report by Dr. XXXX and the psychological assessment by XXXX XXXX XXXX. I am of the opinion that this evidence also satisfies the admissibility criteria set out by the jurisprudence,15 because the evidence is both credible and relevant. The two documents at issue are therefore admitted as evidence. MERIT OF THE APPEALS The political activities of the female appellant's family members do not give rise to a serious possibility of persecuton for her and her children [18] The political party to which the female appellant's mother and brother belonged, the UDPS, is led by the new DRC president, Felix Tshisekedi, who has been in office since January 2019. The political activities in question date back several years to when the DRC was led by an authoritarian regime under President Joseph Kabila. It might be premature to conclude that the latter's decision to pass his seat on to a leader of the opposition party eliminated any risk for the UDPS activists and their family members. [19] However, I agree with the RPD that the appellant's decision to move back to the DRC in 2012, and the fact that his family's political activities did not cause him trouble on that occasion, are significant pieces of evidence to assess the risk that she and her children would be subjected to upon their return to the DRC eight years later. I understand that the female appellant took certain precautions when she returned to the DRC so as not to attract the attention of the authorities, such as not going to live in the same location as her family and her choice to use her husband's name instead of her maiden name. Still, this would have enabled her to live in peace, at least until there were other incidents involving her husband that forced her to leave the country. [20] Furthermore, her family's political activities date back several years and decades. There is no indication in the evidence that this still causes trouble for other family members of the female appellant living in the DRC. [21] Therefore, the risk that the female appellant and her children would be roughed up upon their return to the DRC owing to the political activities of their family appears to be minimal. I do not consider that there is any reason to conclude that there is a serious possibility of this happening. The male appellant's activities do not give rise to a serious possibility of persecution for the female appellant and her children [22] I agree with the female appellant that the RPD erred in identifying as a significant omission in her testimony the fact that she failed to mention the ransacking of the family business in XXXX 2013. Her testimony described several significant incidents that stemmed from the male appellant's complaint about the unfair competition by other XXXX, including threats uttered at the male appellant in the presence of their six-year old son. This omission is not, in itself, a valid reason for questioning the appellants' credibility. Finally, I disagree with the RPD's statement that the male appellant's return to the DRC on two occasions, in 2016 and 2017, for business meetings, undermined his credibility regarding the 2013 incidents. It only establishes that the risk associated with the 2013 incidents had dissipated at that time. [23] I am of the opinion that the RPD raised a valid concern at paragraph 68 of its decision by stating that it is surprising that the male appellant did not take more precautions in leaving the DRC in 2017 given his fears for his safety. Still, however, this is only one of several other factors to be considered in assessing his credibility regarding the allegation that he was sought by the ANR. [24] In the end, none of this is relevant to the male appellant because he has the possibility of returning to live in South Africa and therefore does not need Canada's protection. With respect to whether this has consequences for the female appellant and her children, I am unable to conclude that the fact that the ANR would still be looking for the male appellant raises a serious possibility of persecution for them should they return to the DRC. Although the male appellant alleges that his parents were harrassed by the ANR, this does not establish a serious possibility that the female appellant and her children would themselves be persecuted by the ANR should they return to the DRC. The evidence does not establish, on a balance of probabilities, that the female appellant and her children would be personally subjected to a risk to their lives or a danger of cruel and unusual treatment or punishment should they return to the DRC [25] The appellants criticize the RPD of not carrying out separate assessments for each of their refugee protection claims as set out in section 97 of the Act to determine whether they may be recognized as persons in need of protection. I agree that such as assessment was necessary and that the RPD did not need to carry out an analysis under section 96. [26] The appellants allege that they are each personally at risk. However, it must be understood that the burden of proof in this regard is on the balance of probabilities. A mere possibility is not enough. Furthermore, the risk must endanger their lives or result in cruel and unusual treatment or punishment. [27] Having conducted my own analysis of the evidence on the record, I find that the appellants failed to satisfy their burden of evidence. The only evidence of a personal threat against the female appellant and her children in the DRC dates back to 2013, owing to her husband's activities. Seven years later, there is no valid reason to conclude that it is likely that this threat would be carried out upon their return to the DRC. CONCLUSION [28] In the male appellant's case, he is excluded from the protection of the Act, in compliance with section 98, because he is a permanent resident of South Africa and has not established that there is a serious possibility of persecution in that country owing to his race or nationality or that he would be personally subjected, on a balance of probabilities, to a risk to his life or to a danger of cruel and unusual treatment or punishment. [29] With respect to the female appellant and her children, it was not established that they face a serious possibility of persecution owing to their social status as family members of perceived political opponents or persons wanted by the ANR. The same is true of whether, on a balance of probabilities, they are personally subjected to a risk to their lives or to a danger of cruel and unusual treatment or punishment upon their return to the DRC. [30] The four appeals are therefore dismissed. (signed) Philippe Rabot Philippe Rabot January 14, 2020 Date 1 RPD-1, Refugee Protection Division record, pages 3 to 16. 2 Ibid, exhibits C-13 to C-15, pages 380 to 383. 3 P-2, Appeal record, appellant's memorandum, pages 120 to 148. 4 Ibid., pages 15 and 16. 5 Ibid., pages 20 and 21. 6 Ibid., pages 24 and 25. 7 Ibid., pages 28 to 37. 8 Ibid., page 40. 9 Ibid., pages 51 to 82. 10 Ibid., page 84. 11 Ibid, pages 89 to 101. 12 Ibid, page 103. 13 Refugee Appeal Division Rules, (SOR 2012/257) 14 Practice Notice - Allegations Against Former Counsel, August 27, 2018, https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/allegations-former-counsel.aspx. 15 Raza v. Minister of Citizenship and Immigration. 2007 FCA 385; Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-19271 MB9-19272 / MB9-19273 / MB9-19274 RAD.25.02 (April 4, 2019) Disponible en français 11 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