MC0-09054

RAD File No. / No de dossier de la SAR : MC0-09054 MC0-09055 / MC0-09056 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision February 4, 2021 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the persons who are the subject of the appeal Me Luciano Mascaro Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX, you are acting as designated representative for your minor daughter.1 You, your wife and your daughter are citizens of Angola. You stated that you fear persecution in Angola because you were a XXXX at the Light of the World Evangelical Church and because your wife and daughter are members.2 [2] The Minister of Citizenship and Immigration (the Minister) intervened before the Refugee Protection Division (RPD) and was of the opinion that your refugee protection claims contained contradictions that undermined your credibility.3 [3] The RPD rejected your refugee protection claims upon finding that your credibility had been undermined by inconsistencies in your behaviour as people who fear for their lives and by contradictions in your testimony and the evidence on the record.4 [4] You argue that the RPD erred in rejecting your refugee protection claims.5 [5] After conducting my own analysis of your record, I concluded that the RPD erred and that its determination should be substituted with a determination allowing your refugee protection claims. [6] In light of this conclusion, your appeal is allowed. ANALYSIS OF THE APPEAL [7] The role of the Refugee Appeal Division (RAD) is not to conduct a de novo consideration of a claim for refugee protection, but rather to determine whether the RPD erred as alleged.6 I have conducted my own assessment of your record, particularly by reviewing the transcript of the RPD hearing7 and the documentary evidence. In my opinion, the correctness standard of review must be applied.8 A. The errors you allege the Refugee Protection Division made [8] Subparagraph 3(3)(g)(ii) of the Refugee Appeal Division Rules (RAD Rules) provides that the person who is the subject of the appeal must state: (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 in any recording of the hearing.9 [9] In your memorandum, you submit that the RPD erred in the following areas: - in concluding that your testimony, XXXX XXXX XXXX, was very general as concerns your duties and responsibilities within your church;10 - in concluding that one had to be a leader of your church to be targeted by the authorities when the repression of April 2015 resulted in over a thousand deaths and led to the arrest of many of its members, some of whom are still being detained by the police;11 - in finding that your behaviour, in particular using social media, returning to your home and being able to leave Angola, undermined your credibility;12 - in concluding that leaving Brazil while your asylum claims were in process demonstrated a lack of subjective fear of persecution, when you left the country because you feared a group of traffickers;13 and - in finding that crossing through several countries without claiming asylum undermined your credibility.14 B. Leaving Brazil and not claiming asylum in other countries [10] It has been well established that refugee protection claimants' behaviour after leaving their country, but before arriving in Canada, may also be taken into consideration when analyzing their refugee protection claims. Examples include the failure to ask for the protection of another country that is a signatory to the Refugee Convention15 or voluntarily leaving a country where the person could have lived safely. That said, the explanations provided must be considered before determining whether their behaviour indicates a lack of subjective fear.16 Furthermore, although it is open for a negative inference to be drawn from the failure to claim asylum in a safe third country, it cannot be a determinative factor.17 Lastly, a distinction must be made between a behaviour that is inconsistent with a well-founded fear of persecution (which may be presumed from a lengthy delay in making a claim) and whether the applicant's account of persecution is credible or not.18 [11] In its decision, the RPD concluded that by crossing the borders of different countries to get to Canada, your behaviour was inconsistent with that of people who fear a potential return to Angola. It could not understand why you did not wait for a response to your asylum claims in Brazil. It did not understand how you were able to enter and stay in the United States without the appropriate documents. As for the fact that you did not claim asylum in that country, it simply indicated that you had made reference to President Trump's rhetoric and to your fear of not having your claims allowed in that country. Finally, the RPD found that your behaviour reflected that of individuals who were seeking the country with the best living conditions and that your failure to claim protection in countries that are signatories to the Refugee Convention served to undermine your credibility.19 [12] With all due respect to the work it has done, based on my own analysis of your record, the RPD erred in finding that your credibility had been undermined by your behaviour. I am of the opinion that its language was excessive.20 With respect to the fact that your behaviour could have affected your subjective fear of persecution, I am of the view that your explanations before the RPD are reasonable,21 such that it could not conclude that you have no subjective fear of persecution if you were to return to Angola. In any case, even if it were accepted that your behaviour affected your subjective fear of persecution, this factor could not be determinative and the RPD should have continued its analysis in order to determine whether, in light of all of the evidence, you had established a well-founded fear of persecution in your country of citizenship. C. Analysis of your credibility regarding the situation in Angola [13] Although a person claiming refugee protection has to establish their case on a balance of probabilities, they do not, however, have to prove that they were persecuted in the past, or that it is more likely than not that they will be in the future. As your legal counsel argued in his submissions before the RPD,22 in order to conclude that there is a reasonable chance or serious possibility of persecution, there need not be more than a 50% chance (i.e. a probability), but there must be more than a minimal possibility, given that it is understood that there is no intermediate ground between the two limits.23 According to the case law, a well-founded fear of persecution can be inferred from the experiences of similarly-situated persons.24 [14] According to my analysis of your record, the RPD erred in examining your fear of being persecuted in Angola primarily in light of what you allegedly experienced in the past, in determining that your behaviour did not demonstrate that you were being sought by the Angolan authorities, and without focusing its analysis on what you might experience if you had to return to live in that country. [15] The Federal Court recently recalled that before analyzing issues such as objective fear, state protection, or the availability of an internal flight alternative, a claimant must establish a nexus between the risk of persecution and a Convention ground,25 which in my view you have done with respect to your freedom of religion. [16] The Federal Court also noted that, once having established that nexus between a Convention ground and a risk of persecution, a claimant must demonstrate a serious possibility that s/he would be persecuted on the basis of that Convention ground. That said, to establish a risk of persecution, a claimant need not show that they have been persecuted in the past, as persecution under section 96 of IRPA can be established by examining the treatment of similarly situated individuals. Therefore, to properly adjudicate a section 96 claim, consideration must be given to both a particular claimant's specific circumstances and evidence, as well as the general documentary evidence, to determine if the claimant faces a risk of persecution.26 [17] As for the documentary evidence, in your memorandum you submit that the RPD erred in concluding that it was necessary to be a leader of your church to be targeted while, according to the documentary evidence, the Angolan authorities have carried out repression that has led to over a thousand deaths and that individuals who were simply members were arrested and are still being held by the police.27 [18] In its decision, the RPD analyzed this situation and your own behaviour as follows: [translation] According to the documentary evidence, sources state that government figures suggest that a confrontation in April 2015 between government forces and members of the Light of the World [Luz do Mondo] Church in Huambo Province led to the death of 13 group members and 9 policemen (Human Rights Watch 2016; Germany 27 Apr. 2015; Freedom House 2016). The incident of April 15, 2015, and the church leader's arrest during the same period are also documented. Some sources, including the media, have indicated that legal proceedings against members of the church are ongoing, several months after the arrest (in April 2015) and conviction of the church's leader (in April 2016). The panel finds that the claimants' behaviour was inconsistent with respect to fear of persecution by the state, and it draws a negative inference on the claimants' credibility for the following reasons.28 [19] In the documentary evidence to which the RPD referred, the situation is analyzed in greater detail: According to sources, government figures suggest that a confrontation in April 2015 between government forces and members of the Light of the World [Luz do Mondo] Church in Huambo Province led to the death of 13 group members and 9 policemen (Human Rights Watch 2016; Germany 27 Apr. 2015; Freedom House 2016). However, Freedom House reports that, according to non-government sources, the death toll was "much higher" (ibid.). Sources indicate that the opposition party National Union for the Total Independence of Angola (UNITA) claimed that several hundred had been killed during the incident (Human Rights Watch 2016; Germany 27 Apr. 2015; AFP 30 Apr. 2015). According to sources, authorities denied the higher death toll (ibid.) or that a "massacre had taken place" (Human Rights Watch 2016). Sources further report that the government did not allow an independent investigation following the confrontation (ibid.; Freedom House 2016). ... Sources report that the confrontation between state authorities and Light of the World Church occurred when police were attempting to arrest Julino Kalupetca, the leader of the religious organization (AFP 30 Apr. 2015; Germany 27 Apr. 2015). Sources indicate that Kalupeteka was formally accused of crimes including murder, possession of arms and civil disobedience (US 10 Aug. 2016, 3; Human Rights Watch 2016). Some sources describe the Light of the World Church as a "sect" which split from the Seventh Day Adventist Church (ibid.; Freedom House 2016). According to sources, the Light of the World Church is considered illegal in Angola (Postdoctoral Fellow 23 Aug. 2016; Germany 27 Apr. 2015).29 [20] A subsequent Response to Information Request produced by the Immigration and Refugee Board of Canada Research Directorate indicates that the Light of the World evangelical church was designated as a sect and banned by the Angolan authorities in April 2015, and that former Angolan President José Eduardo dos Santos had described the church as a threat to national peace and unity. According to an October 2018 article, the Light of the World church no longer exists in Angola. The same response indicates that, according to Action by Christians for the Abolition of Torture (ACAT), a French human rights NGO, the number of deaths among church members was reportedly much higher than the official death toll, namely, 700 deaths instead of 22. It also indicates that, according to Human Rights Watch, no security force members were arrested or prosecuted for the killing of the church members as the authorities refused to have an independent investigation of the April 2015 events. ACAT also stated that it seemed that the Light of the World Church and its followers continued to be repressed, with survivors in hiding for fear of retaliation, while others managed to flee to other countries and seek asylum, particularly in France, the international community's impunity and silence encourage repeated violence against members of this church.30 [21] In a recent report, the Human Rights Committee revealed that the legislative framework governing law enforcement in Angola does not meet international standards. The Committee expressed concern that, according to credible information, law enforcement officials have often used excessive force, especially during demonstrations, which have resulted in deaths and injuries. It was also concerned that the officers responsible for protesters' deaths and injuries are rarely prosecuted for these acts, which has the effect of creating a climate of de facto impunity.31 [22] In light of all of the evidence, I am of the opinion that the RPD erred in determining that you did not establish a well-founded fear of persecution under section 96 of the IRPA if you were to return to live in Angola. While the RPD may have doubted some of your allegations concerning what happened to you when you were still in Angola, I am of the view that you have indeed established that, as members of the Light of the World religious group, the repression of the Angolan authorities constitutes persecution under section 96 of the IRPA. As to whether these same authorities continue this persecution, I am of the opinion that the documentary evidence confirms this, given that members of this church who were arrested are still being detained. I would add that the fact that this church has practically been dismantled in Angola also makes it possible to establish that, if you were to return to live in that country, you would have a well-founded fear of persecution since, in practice, you would no longer be able to practise your religion with members of this religious group, which is still considered illegal. [23] Due to major problems in this country, I am of the opinion that any presumption that the authorities can protect you is rebutted and that an internal flight alternative is not applicable in your case. CONCLUSION [24] For these reasons, I set aside the RPD's determination and substitute the determination that should have been made, namely that you, your wife and your minor daughter have a well-founded fear of persecution under section 96 if you were to return to live in Angola. [25] Your appeal is allowed. (signed) Alain Bissonnette Me Alain Bissonnette February 4, 2021 Date IRB translation Original language: French 1 Appointment of a designated representative, pages 3 and 4 of the scanned version of the administrative documents in your file. 2 Your Basis of Claim Forms are reproduced at pages 19 to 55, and the documents you submitted in evidence before the Refugee Protection Division (RPD) are reproduced at pages 131 to 154 of the scanned version of the RPD record. 3 Minister's intervention and the document he submitted in evidence are reproduced at pages 155 to 168 of the scanned version of the RPD record. 4 RPD Reasons and Decision, July 21, 2020, pages 5 to 18 of the scanned version of the RPD record. 5 Your memorandum, September 2, 2020, pages 19 to 28 of the scanned version of your appeal record. 6 Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. Kanawati v. Canada (Minister of Citizenship and Immigration), No. IMM-6486-18, Norris, January 3, 2020; 2020 FC 12, paragraphs 23 and 24. 7 Transcript of the hearing held before the RPD on March 5, 2020, 41 pages. 8 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 9 Refugee Appeal Division Rules, SOR/2012-257. 10 Your memorandum, supra, endnote 5, paragraph 20. 11 Ibid., paragraphs 21 and 22. 12 Ibid., paragraphs 23 to 32. 13 Ibid., paragraph 33. 14 Ibid., at paragraphs 34 to 36. 15 A definition thereof can be found in subsection 2(1) of the Immigration and Refugee Protection Act. 16 Enongene v. Canada (Minister of Citizenship and Immigration), No. IMM-106-18, Favel, September 24, 2018; 2018 FC 927, paragraph 16. 17 Andrade Ramos v. Canada (Minister of Citizenship and Immigration), No. IMM-1867-10, Russell, January 10, 2011; 2011 FC 15, paragraph 28. 18 Malaba v. Canada (Minister of Citizenship and Immigration), No. IMM-3814-12, Martineau, January 28, 2013; 2013 FC 84, paragraph 25. 19 RPD Reasons and Decision, supra, endnote 4, paragraph 30 to 34. 20 In French, the word miner [to undermine] evokes the idea of eroding, destroying or attacking the basis of a fact. Here I refer to the definition in the dictionary Le grand Robert de la langue française. 21 Transcript of the hearing, supra, endnote 7, pages 7 and 31 and 32 of the scanned version, including what you submitted in your memorandum on the matter, supra, endnote 5, paragraphs 31 to 36. 22 Transcript of the hearing, supra, endnote 7, page 39 of the scanned version. 23 LF and EL v. Canada (Minister of Citizenship and Immigration), No. IMM-5088-15, Kane, May 12, 2016; 2016 FC 534, paragraph 47. Paramsothy v. Canada (Minister of Citizenship and Immigration), No. IMM-421-12, Mandamin, August 16, 2012; 2012 FC 1000, paragraphs 24 and 25. 24 Hassan v. Canada (Minister of Citizenship and Immigration), No. IMM-4285-16, Elliott, May 17, 2017; 2017 FC 507, paragraph 5, citing Salibian and Josile. 25 Betancourt Arocha v. Canada (Minister of Citizenship and Immigration), No. IMM-4052-18, Diner, April 17, 2019; 2019 FC 468, paragraph 11, citations omitted. 26 Ibid., paragraphs 12 and 13, citations omitted. At paragraph 23 of his decision, Justice Diner also wrote: "While the past is certainly one key indicator, it is not the sole barometer of future persecution. One can meet the serious possibility standard by establishing that similarly situated individuals face the risks that the claimant fears." 27 Your memorandum, supra, endnote 5, paragraph 21 and 22. 28 RPD Reasons and Decision, supra, endnote 4, paragraphs 18 and 19, citations omitted. The reasons that led the RPD to find that you were not credible with respect to your fear of persecution in Angola are set out at paragraphs 20 to 28 of its decision. 29 Immigration and Refugee Board (IRB), National Documentation Package on Angola, July 31, 2020, Tab 12.2, Research Directorate, IRB, Angola: Information on the situation of members and leaders of Evangelical churches; treatment of members by authorities; whether members are forced to join the People's Movement for the Liberation of Angola (MPLA) by State authorities or members of the party (2014-September 2016), Response to Information Request AGO105609.E, September 15, 2016, 14 pages, pages 8 and 9 of the scanned version. 30 Ibid., Tab 12.4, Research Directorate, IRB, Angola: The Light of the World (Sétimo Dia a Luz do Mundo) Evangelical Church since its director, José Julino Kalupeteka, was sentenced in 2016, including treatment of members and leaders by authorities and society (2016-January 2019), Response to Information Request AGO106244.FE, February 1, 2019, 22 pages, pages 1 to 4 of the scanned version. 31 Ibid., Tab 2.5: United Nations, International Covenant on Civil and Political Rights, Human Rights Committee, Concluding observations on the second periodic report of Angola, CCPR/C/AGO/CO/2, May 8, 2019, 13 pages, paragraph 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-09054 MC0-09055 / MC0-09056 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français