TB8-29379

RAD File / Dossier de la SAR : TB8-29379 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision June 6, 2019 Date de la décision Panel N. Qadeer Tribunal Counsel for the person who is the subject of the appeal Micheal Crane Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Qi Liu Conseil du ministre REASONS FOR DECISION OVERVIEW [1] In this appeal the Appellant is the Minister of Immigration, Refugees, and Citizenship Canada (IRCC) and the Respondent is XXXX XXXX XXXX, a citizen of Djibouti. The Appellant argues that the Refugee Protection Division (RPD) erred in accepting the Respondent as a Convention Refugee on October 5, 2018. [2] The Appellant argues that the RPD erred in law in its analysis of the Respondent's refugee claim by failing to make clear credibility findings. The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and either find that the Respondent is not a Convention Refugee nor a person in need of protection, or, in the alternative, refer the matter back to the RPD for redetermination. DETERMINATION [3] Pursuant to paragraph 111(l)(a) of the Immigration and Refugee Protection Act,1 the RAD confirms the determination of the RPD and dismisses the appeal. Role of the RAD [4] When reviewing the RPD decision, I am required to independently assess all the evidence and determine whether the RPD erred in relation to each alleged error of law, fact or mixed fact and law. For this assessment, I have applied the standard of correctness as per the Federal Court of Appeal decision in Huruglica.2 If I find that the RPD had a meaningful advantage in a particular circumstance I may defer to the RPD's credibility assessment of oral testimony. Background [5] The Respondent alleges that she fears being forced to marry her late sister's husband, XXXX XXXX, against her will. She alleges that she is a member of the minority Madhiban clan. After her sister died in XXXX 2013 the Respondent was told by her uncle that she must marry her late sister's husband, following the Madhiban custom. The Respondent refused and ran away to Ethiopia for XXXX days. She then relocated to Somaliland in late 2013, where she was abducted and sexually assaulted by men sent by XXXX XXXX, and forced to return to Djibouti. [6] The Respondent alleges that XXXX XXXX ordered to have her killed due to the shame of being a rape victim. The Respondent attempted suicide. Her family decided she should leave the country and she travelled to the United States of America (US) where she made a claim for asylum in 2015. [7] Prior to any determination of her US asylum claim, the Respondent travelled to Canada on August 24, 2016 and made a claim for refugee protection shortly thereafter, signing her Basis of Claim (BOC) form on September 7, 2016. [8] The RPD hearing was held on October 5, 2018 and the Respondent was accepted as a Convention refugee based on an oral decision delivered the same day. Appellant's Arguments [9] The Appellant submits that the RPD erred in law when it made a number of findings related to the credibility of the Respondent and yet determined her to be a Convention refugee. [10] The Appellant submits that the RPD erred by failing to conclude whether the alleged persecution of the Respondent by XXXX XXXX was objectively and subjectively well-founded. [11] Despite making numerous findings related to credibility, including lack of corroboration, the RPD concluded that the adverse inferences were not fatal. The Appellant argues that the RPD decision is lacking in a sound legal analysis. Respondent's Arguments [12] The Respondent provides a detailed analysis and argument of every aspect of the Appellant's Memorandum. I will not enumerate each detail here but essentially, based upon my reading of the Memorandum, the Respondent argues that the Appellant is being microscopic in its arguments; when examining the lack of corroboration and when examining the Respondent's explanations on questions of speculation regarding the motivations of her persecutors. [13] The Respondent also argues that the Appellant did not address the Huruglica decision of the Court of Appeal which sets out where the RAD should defer to the RPD on issues of credibility or where the RPD had an advantage in reaching its conclusion. The Respondent argues that in this case the RPD had a meaningful advantage and the RAD should defer to the RPD on findings related to credibility. [14] The Respondent submits that she was consistent in her RPD hearing when considering her Basis of Claim (BOC) form and her US asylum documents and this was not challenged by the Appellant. The RPD considered the Respondent's psychological evidence in making its findings and this is relevant to her claim. RAD Analysis of the Appeal [15] I have listened to the entire RPD hearing and reviewed the RPD record. While I agree with the Appellant that the RPD decision is illogical, and the conclusions made by the RPD do not support its final determination, I find that the RPD erred in making its credibility findings. In my view, the Respondent was credible, consistent, and the RPD found inconsistencies and contradictions where there are none. [16] I also find that the RPD erred in making credibility findings without applying Guideline 4, the Gender Guidelines.3 The RPD refers to the Guideline in its decision but fails to explain its application in relation to the evidence. This is not raised nor considered by the Appellant and this is an error in my view. Had the RPD and the Appellant applied the Gender Guidelines in assessing the Respondent's testimony and evidence, I find that the credibility of the Respondent would not have been negatively impugned. No meaningful advantage [17] I do not agree with the submissions made by the Respondent that the RPD had a meaningful advantage in hearing oral testimony. The Respondent did not indicate in what way the RPD had a meaningful advantage and I have listened to the hearing and find that there is none. I am required to conduct an independent assessment of the evidence and in this case I find the RPD erred in drawing negative credibility conclusions where there were none. No requirements for corroboration [18] The Appellant submits that the RPD had concerns, addressed in its bench decision, of the lack of corroboration regarding the Madhiban custom of a woman marrying her deceased sister's husband. It has been held that there is no requirement to provide corroboration unless there are valid reasons to question the claimant's credibility. In this case the Respondent was consistent when describing her situation in relation to her requirement to marry her late sister's husband. Furthermore, she testified credibly regarding her knowledge of her clan, the Madhiban. [19] The RPD referred to the National Documentation Package (NDP) in its decision and the scarcity of information on the Madhiban clan and the prevalence of forced marriages in Djibouti.4 My reading of the objective documentary evidence corroborates the Respondent's testimony. [20] With respect to the practice of forced marriages the NDP indicates that it is a traditional practice and "forced marriages ... are very prevalent especially in the rural areas". The sources who force a young woman to marry can be her parents but also, "aside from her parents, a young girl or a woman may be forced to marry 'by her tribe, her uncles [or] her brothers'."5 The Respondent comes from a minority clan referred to as a "subordinate non-pastoralist group". Somali minority Madhiban or Midgan caste can also be found in predominantly Somali areas of Ethiopia, Djibouti, and Kenya.... Sources noted that the Somali people also live in Djibouti.... [h]alf or more of the population of the adjacent Djibouti - the former French Somaliland - is ethnic Somali. In all of these areas of Somali population, as in Somalia, Puntland, and Somaliland, Midgan-Madhiban and other outcaste groups are the lowest rank of the society's stratification.... Similarly, the MRG report provides the following information regarding the treatment of Somali minority castes: the same majority/minority divisions and accompanying social attitudes [found in Somalia] are found in long-established Somali pastoralist communities in neighbouring countries - Ethiopia, Kenya and Djibouti....6 [21] Considering the treatment of the group in Djiboutian society, and the lack of economic power the clan wields, it is reasonable in this context that there is little information known or documented regarding the clan. The lack of corroboration of the specific practice described by the Respondent is reasonable in this context. [22] The evidence indicates that forced marriages are practiced and the clan is considered of low rank or status within the society and culture from which the Respondent originates. I do not agree with the RPD reasoning, nor do I agree with Appellant's submission, that a lack of corroboration somehow impugns the credibility of the Respondent's allegations. Given the context of gender, caste, and traditional practices I accept that the Respondent's description of what was expected of her is credible. [23] Similarly, the Respondent provided testimony regarding her lack of medical corroboration for the assault she endured. The RPD addressed this in its reasons, describing the Respondent's testimony as "vague" and that the Respondent "didn't provide spontaneous detailed information when discussing her assaults". This finding by the RPD is relied upon by the Appellant in submitting that the Respondent was lacking in credibility. [24] I have listened to the hearing. I do not agree with the RPD characterization of the Respondent's testimony. She provided an explanation that she did not seek medical attention because she was "scared" and "didn't want to talk about what happened to me."7 This, in my view, is a reasonable response. I do not find her testimony vague. [25] Had the RPD and the Appellant applied the Gender Guidelines 8 it could have concluded that the Respondent's explanation as reasonable given her context: Women from societies where the preservation of one's virginity or marital dignity is the cultural norm maybe reluctant to disclose their experiences of sexual violence in order to keep their "shame" to themselves and not dishonor their family or community.9 [26] I also have considered that the Respondent provided medical corroboration for her past trauma and medical complications related to female genital mutilation.10 She also provided a copy of a detailed affidavit she wrote in support of her claim for asylum in the US that details what she endured.11 In my view the Respondent provided credible testimony regarding the assaults she endured and provided corroboration where she could. No contradiction between the testimony and narrative [27] The RPD raised a question in its reasons regarding the motivations of the persecutors, wondering why XXXX XXXX would not simply abduct the Respondent for his own purposes rather than send henchmen to do so and then, after she is sexually and physically assaulted, wish to kill her. The Appellant relies on these RPD findings questioning the credibility of the allegations. Here I agree with the Respondent that the Respondent was being asked to speculate on the actions of her persecutors. Impugning the credibility of the Respondent based upon the actions of a third party is an error in my view. [28] The Appellant also relies on the RPD finding that the Respondent changed her testimony when she was asked about XXXX XXXX intention to harm her. According to the Respondent's BOC narrative, "XXXX XXXX ordered to have me killed" following her abduction and sexual assault.12 During oral testimony when asked by the RPD about XXXX XXXX intention, the Respondent said that, "he put pressure on me so I would be expelled from my work." [29] The RPD asked the Respondent about this apparent discrepancy; whether XXXX XXXX wished to kill her or to quit her job. The RPD, in its reasons, describes this as a contradiction. This finding is relied upon by the Appellant in demonstrating the lack of credibility of the Respondent.Having reviewed the hearing, I do not agree with RPD characterization that it is a contradiction. Respondent: This man was trying to pressure me RPD: What he was he trying to pressure you to do? Respondent: He was jealous about my life, he was not happy about my life. He wants to put pressure on me so that I am expelled from my work13. [30] The RPD asked the Respondent why she did not include that XXXX XXXX wished her to quit her employment in her BOC. Respondent: He wants my life, he was disappointed that I had my life. RPD: That's not in your Basis of claim form Respondent: He was forcing me to marry him. RPD: I'm hearing something different today and wondering why that's the case." Respondent: No different, same....14 [31] I do not see a contradiction in the Respondent's evidence. The Respondent stated that that XXXX XXXX wished for her to stop working, this in my view, is part of his wish to control and harm her. I do not see a contradiction and find both the threats of harm and the desire to control by insisting she quit her work are not mutually exclusive; both can exist at the same time. That she did not include this detail in her narrative is in my view microscopically examining the evidence. [32] I see no contradictions in the Respondent's evidence. Subjective and objective basis of the claim has been met [33] The Appellant submits that the Respondent failed to establish a subjective and objective basis for her claim and that the RPD erred in accepting her as a Convention refugee without finding that both elements exist. Having conducted an independent assessment of the evidence I find the Respondent was a credible witness. Her claim is based upon a fear for harm from her brother-in law XXXX XXXX. I find the Respondent established her subjective fear based upon her credible testimony and provided corroboration where she could. [34] The objective basis is established based upon my reading of the objective documentary evidence. The Respondent is a woman from a clan with very low social status in Djibouti. Her fears are related to gender-based persecution, which is well documented in Djibouti. The agent of persecution is her brother-in-law a violent man who was married to her sister. In my view there is a reasonable chance that she will be targeted; he is a member of her extended family and she has spurned him. There is no state protection as the objective documentary evidence clearly states, "cases of violence against women are handled by families and clans, rather than the courts, and that the police rarely intervene in domestic violence incidents."15 [35] I find that the Respondent has established both a subjective and objective basis to her claim. Summary [36] I agree with the Appellant that the RPD's reasoning in its decision contains errors in law, and its reasoning does not support its conclusions. Having conducted my own assessment of the evidence, as well as having listened to the hearing, I find that the Respondent was a credible witness and her claim is objectively well founded. I find that the Appellant and the RPD failed to apply the Gender Guidelines in assessing the claim and when I apply the principles of the Gender Guidelines and consider the Respondent's particular social context, I find that the fears she had alleged are credible. For these reasons the appeal is dismissed. CONCLUSION [37] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Respondent is a Convention refugee. The appeal is dismissed. (signed) "N. Qadeer" N. Qadeer June 6, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, pursuant to section 159(1)(h) of the Immigration and Refugee Protection Act. 4 Exhibit RPD-1, RPD Record, Reasons and Decision. 5 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for Djibouti 29 June 2018, item 5.3, Response to Information Request (RIR), DJI105797.FE. 6 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for Djibouti 29 June 2018, item 13.1, RIR, DJI104633.E. 7 Audio 1:09. 8 Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, pursuant to section 159(1)(h) of the Immigration and Refugee Protection Act. 9 Ibid. 10 Exhibit RPD-1, RPD record, Exhibit 5, at pp. 95-98. 11 Ibid., at pp. 85-88. 12 Exhibit RPD-1, RPD Record, Exhibit 2, BOC narrative, at p. 24, para 14. 13 Audio 1:20. 14 Audio 1:24. 15 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for Djibouti 29 June 2018, item 5.1, RIR, DJI105802.FE. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-29379 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français