TC0-05492

RAD File / Dossier de la SAR : TC0-05492 TC0-05493 / TC0-05494 / TC0-05495 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 XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision Date de la décision Panel Joel Bousfield Tribunal Counsel for the persons who are the subject of the appeal Raphael Vagliano Conseil de la|des personne|s en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This is the decision in the appeals of XXXX XXXX XXXX XXXX (the principal appellant), XXXX XXXX XXXX XXXX (the male minor appellant), and XXXX XXXX XXXX XXXXand XXXX XXXX XXXX XXXX (the female minor appellants). The appellants are citizens of Jordan. They appeal a Refugee Protection Division (RPD) decision dated February 3, 2020, rejecting their claims for refugee protection. They are requesting that the Refugee Appeal Division (RAD) set aside the RPD's negative determination and find that they are Convention refugees or persons in need of protection. In the alternative, they request that the RAD refer the matter back to the RPD for redetermination by a differently constituted panel. They have requested to submit new evidence and to hold an oral hearing. DETERMINATION [2] The RAD allows the appeal and sets aside the decision of the RPD as it concerns the female minor appellants. The RAD substitutes the determination that, in its opinion, should have been made, namely that the female minor appellants are Convention refugees, pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA).1 The RAD dismisses the appeal as it concerns the principal and male minor appellants and confirms the decision of the RPD that they are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the IRPA. BACKGROUND Basis of Claim [3] The appellants fear female genital mutilation (FGM) of the female minor appellants at the hands of the principal appellant's mother in-law and her tribal agents, and political persecution of the principal appellant by the Jordanian state based on her relationship to her politically active husband. He is a member of an opposition party and has been arrested and detained by Jordanian officials because of his political activity twice since he became active in 2013. The rest of the central allegations are set out in paragraphs [3]-[5] of the RPD decision. RPD Decision [4] The RPD rejected the appellants' claims because it found the central allegations not credible and because it found the principal and male minor appellants' claims are not objectively well-founded. REQUEST FOR ADMISSION OF NEW EVIDENCE DECLINED [5] The appellants requested that the RAD admit several new items2 as new evidence: an affidavit of the principal appellant, medical records concerning the principal appellant's sister-in-law, a letter from the principal appellant's family doctor, a birth certificate of the principal appellant's mother-in-law, a letter from the principal appellant's husband and a copy of his passport, a letter from a hospital, detention certificates of the principal appellant's husband, the Jordanian identity card of the principal appellant's mother-in-law, a letter from the principal appellant's sister-in-law, letters from the principal appellant's husband, and a XXXX report concerning the principal appellant. In light of the RAD's substituted decision based on the evidence that was before the RPD, the RAD does not need to deal with this new evidence. The new items were therefore not admitted and were not considered in deciding the appeal. ANALYSIS Determinative Issue [6] The determinative issue in this appeal is whether the RPD made critical errors in assessing the appellants' credibility and/or in assessing the objective basis of their claims. For the following reasons, the RAD finds that the RPD made errors in assessing the credibility of the female minor appellants' claims but that it did not make errors concerning the objective basis of the principal and male minor appellants' claims. [7] In rendering this decision, the RAD has considered Chairperson's Guideline 4.3 The RAD has done an independent assessment of the record. The RAD is reviewing the RPD decision on a standard of correctness. FGM testimony [8] The RPD drew negative credibility inferences regarding the appellants' FGM fear allegations because it found the principal appellant gave inconsistent oral testimony about the chronology of her mother-in-law's threats to perform FGM on the female minor appellants and because the principal appellant omitted to specifically mention her mother-in-law's final FGM threat in her Basis of Claim (BOC) form as it had been amended - see RPD decision paragraphs [20]-[22]. [9] The appellants argue that the RPD should not have drawn these inferences. The RAD agrees. As the appellants argue, the RAD finds, having examined a transcript of the hearing, that the RPD erred by exaggerating the importance of the principal appellant's mother-in-law's alleged final FGM threat in assessing the credibility of the principal appellant regarding the FGM aspect of the claims. As the appellants argue, the RAD finds that it is consistently clear from the rest of her testimony and her BOC that her mother-in-law's FGM threats were a constant feature of their relationship. Moreover, as the appellants also point out, the principal appellant did not, in fact, omit her mother-in-law's FGM pressure from her BOC: it is clearly mentioned in the principal appellant's answer to question 2(a).4 The RAD therefore declines to draw the negative inferences drawn by the RPD. Medical report [10] The RPD discounted a medical report5 confirming that the principal appellant's sister-in-law had been subjected to FGM because the RPD found the report to be of limited probative value and because it was not accompanied by an explanatory letter from her sister-in-law - see RPD decision paragraph [26]. [11] The appellants argue that the RPD should not have made this finding. The RAD agrees that the RPD made another mistake here. The medical report is highly probative because its contents confirm that the principal appellant's sister-in-law was FGMed as a child, which clearly indicates that the principal appellant's in-laws have FGMed a female child before. Moreover, as the report confirms that the sister-in-law was FGMed as a child, there is no need for the principal appellant to ask her sister-in-law to submit a letter explaining who FGMed her and why. In its independent analysis, the RAD therefore disagrees with the RPD and places substantial positive weight on the medical report as corroboration of the FGM aspect of the appellants' case. XXXX XXXX [12] The RPD drew another negative credibility inference regarding the appellants' FGM fear allegations because they did not produce any identity documents of the principal appellant's mother-in-law indicating that she is from XXXX XXXX, where the appellants allege that FGM is still practiced in Jordan - see RPD decision paragraph [25]. [13] The appellants do not specifically challenge this negative inference by the RPD. However, the RAD still disagrees with it in its independent analysis. The RPD was wrong to place the appellants under an onus to produce the identity documents of an agent of persecution. Moreover, their success in producing identity documents concerning their father-in-law makes no difference because the appellants testified that he was not a principal agent of persecution like the mother-in-law, and because he is from Palestine and not from XXXX XXXX. Moreover, appellants do not need to corroborate every inch of their allegations and the RAD finds, having examined the transcript of the hearing, that the principal appellant consistently testified that her mother-in-law is from XXXX XXXX. The RAD therefore declines to draw the negative inference drawn by the RPD. Re-availments [14] The RPD drew a negative subjective fear and credibility inference regarding the appellants' FGM fear allegations because they returned to Jordan from Saudi Arabia several times and because they visited the mother-in-law in XXXX XXXX on the return visits - see RPD decision paragraph [29]. The RPD found this behaviour inconsistent with a subjective fear of FGM. [15] The appellants argue that the RPD should not have drawn this inference. The RAD agrees. As the appellants argue, the principal appellant testified that she had her own mother with her whenever the appellants were in Jordan to minimize the risk of her mother-in-law doing anything to the female minor appellants. Moreover, as the appellants also argue, the principal appellant was visiting her own family whenever the appellants returned to Jordan. Furthermore, the RPD has overlooked Chairperson's Guideline 4 which indicates women have a subordinate status in patriarchal societies and therefore the principal appellant may have had little choice but to visit her mother-in-law whenever she was in Jordan. In its independent analysis, the RAD therefore does not find this behaviour clearly inconsistent with a fear of FGM befalling the female minor appellants if the appellants return to Jordan to live permanently. The RAD therefore declines to draw the negative inference drawn by the RPD. Failure to claim [16] The RPD drew a negative subjective fear and credibility inference regarding the appellants' FGM fear allegations because they failed to make a refugee protection claim when they were previously in Canada on a visit in the summer of 2018 - see RPD decision paragraph [30]. [17] The appellants do not specifically challenge this negative inference by the RPD. However, the RAD still disagrees with it in its independent analysis. The appellants only returned to Jordan for a short period of time and had no fear of persecution in Saudi Arabia after they were in Canada during the summer of 2018. Moreover, the appellants still had temporary resident status in Saudi Arabia at that time. They therefore did not have an immediate need to make refugee protection claims when they were visiting Canada in the summer of 2018. The RAD therefore declines to draw the negative inference drawn by the RPD. Credibility of the FGM aspect of the claims [18] The affirmed testimony of refugee claimants is presumed to be true unless it is internally inconsistent, inherently implausible, or inconsistent with the documentary evidence on country conditions.6 In its independent analysis of the record, the RAD see no such issues with the appellants' evidence concerning the FGM aspects of their case. The RAD has found all the RPD's adverse subjective fear and credibility inferences concerning that aspect of the case to be incorrect. Furthermore, the RAD finds that the principal appellant's sister-in-law's medical report7 is reliable and that it provides substantial positive corroboration of the principal appellant's fear that the female minor appellants face a serious risk of FGM by her mother-in-law and her tribal agents if they return to Jordan. The RAD therefore finds, contrary to the RPD, that the central allegations of their case as it relates to FGM of the female minor appellants are true, on a balance of probabilities. Well-foundedness of the female minor appellants' fear of FGM [19] According to credible central allegations, the principal appellant's mother-in-law is determined to perform FGM on the female minor appellants. Moreover, the documentary evidence8 on country conditions indicates that FGM is still practiced in XXXX XXXX where the principal appellant's mother-in-law lives and that Jordanian laws do not prohibit it. The RAD is therefore satisfied, based on the credible central allegations concerning the FGM aspect of the claims and the country documentary evidence, that the female minor appellants' fear that they could be abducted for FGM by the principal appellant's mother-in-law and her tribal agents is well-founded, and that adequate state protection is not available to them. The RAD is also satisfied that viable internal flight alternatives are not available to them either. The living areas of Jordan are too geographically limited considering its desert regions, and it is unlikely that the appellants could find anywhere in Jordan to live safely from the principal appellant's mother-in-law and her agents without having to live in hiding. Well-foundedness of the principal and male minor appellants' claims [20] Even if all of the central allegations in the appellants' case are true, including also with respect to their allegation that the principal appellant's husband has been politically persecuted by the Jordanian government, the RPD found that the principal and male minor appellants' claims are not objectively well-founded because they have not been personally targeted or threatened by anyone in Jordan for any reason. [21] The appellants do not challenge the RPD's conclusion concerning the male minor appellant, but they do argue that the RPD should have found the principal appellant to be at risk of political persecution based on her relationship to her husband. The RAD disagrees with the appellants here. There is nothing in the record, nor for that matter in the proposed new evidence that was not admitted, to indicate that the Jordanian state or the principal appellant's mother-in-law have any intention of harming the principal appellant personally or the male minor appellant. The RAD therefore concurs with the RPD and finds that principal and male minor appellants' claims are not objectively well-founded. CONCLUSION [22] The RPD made several credibility assessment errors which are fatal to the RPD's determination of the female minor appellants' FGM claims. [23] After an independent assessment of the evidence in the case, the RAD has arrived at a positive conclusion about the credibility of their claims. The RAD also finds that their claims are objectively well-founded, that adequate state protection is not available to them, and that they do not have a viable IFA anywhere in Jordan. [24] The RAD therefore finds that the female minor appellants have a well-founded fear of persecution in Jordan by reason of their gender. [25] The RAD therefore allows the appeal and sets aside the decision of the RPD as it concerns their claims. The RAD therefore substitutes the determination that, in its opinion, should have been made, namely that the female minor appellants are Convention refugees, pursuant to section 111(1)(b) of the IRPA. [26] However, based on the foregoing, the RAD finds that the principal and male minor appellants would not face a serious possibility of persecution on a Convention ground and, on a balance of probabilities, would not be personally subjected to a danger of torture or to a risk to their lives or to a risk of cruel and unusual treatment or punishment if they returned to Jordan. The RAD therefore dismisses the appeal as it concerns their claims and confirms the decision of the RPD, that the appellants are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) JOEL BOUSFIELD Joel Bousfield January 13, 2021 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Exhibit P-2, Appeal Record, pp. 3-26, and Exhibit P-3, Rule 29 Application, at pp. 3-7. 3 Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993; Update: November 1996, as continued in effect by the Chairperson on June 28, 2002, pursuant section 159(1)(h) of the Immigration and Refugee Protection Act. 4 Exhibit RPD-1, RPD Record, Exhibit 2, Principal appellant's BOC, answer to question 2(a), at p. 20. 5 Exhibit RPD-1, RPD Record, Exhibit 9, Medical Report, at p. 38. 6Maldonado v. Canada (M.E.I.), [1980] 2 F.C. 302 (C.A.). 7 Ibid., note 5. 8 Exhibit RPD-1, RPD Record, Exhibit 6, National Documentation Package (NDP) for Jordan (August 30, 2019), p. 209, items 5.5 and 5.6. See also Exhibit 9, Personal documents and Country Conditions, all country conditions items, at pp. 325-334. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-05492 TC0-05493 / TC0-05494 / TC0-05495 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