MB7-00637

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 / Dossier de la SAR : MB7-00637 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision July 17, 2018 Date de la décision Panel Susan Brown Tribunal Counsel for the person(s) who is(are) the subject of the appeal Richard Wazana Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX (Appellant), citizen of Cameroon, appeals a decision of the Refugee Protection Division (RPD), dated October 31, 2016, rejecting her claim for refugee protection. . The Appellant is submitting new evidence in support of her appeal, which I accept. Having found that the RPD erred in its evaluation of the Appellant's credibility, I am allowing the appeal and substituting the RPD decision with my own determination, namely, that the Appellant is a Convention refugee. BACKGROUND [2] According to her amended Basis of Claim (BOC) Form1 the Appellant was born in 1946 in the village of Ebeba. In 1967, following an arranged marriage, she went to live in her husband's village, Nkolguet. Her husband worked as a XXXX XXXX XXXX and, against his wishes, she worked in his family XXXX XXXX XXXX and XXXX XXXX in order to buy food for her ten children. Her abundant harvests attracted the jealousy of her in-laws who accused her of taking their produce through witchcraft. Throughout the marriage the Appellant was abused by her husband including physical and sexual violence. When she went back to her parents in Ebeba her brothers beat her and returned her to her husband. This situation continued for years. [3] In 2006, the Appellant was accused "de l'avoir mangé à la sorcellerie" when her mother-in-law died. She was ostracized by the village and feared for her life. The Appellant fled to Yaoundé to live with her daughter XXXX but when her granddaughter died, XXXX suspected her mother "d'avoir mangé sa fille à la sorcellerie" and abandoned her. The Appellant had no choice but to return to her husband's village where she was ostracized, and her in-laws continued to accuse her of witchcraft. In 2014 at the funeral of her father in law the Appellant was dragged, hit and kicked by the village youth and her brother-in-law XXXX and his friends. In late XXXX 2016, the village blamed her for the death of her neighbour's son and attacked her. Afraid for her life, in XXXX 2016 the Appellant went to stay with her friend XXXX. The Appellant contacted her daughter XXXX who made arrangements for her to come to Canada on May 3, 2016. While in Canada the Appellant was informed of the death of XXXX wife and that XXXX had threatened to cut the Appellant into pieces if she returned to Cameroon. [4] The Appellant's claim for refugee protection was received on August 17, 2016. The RPD hearing was held on October 11, 2016 and decision rendered on October 31, 2016. The RPD found that the Appellant was not credible, did not seek state protection and did not demonstrate subjective fear. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [5] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of their 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. If the new evidence meets the statutory requirements, I must then assess whether it is credible, relevant and new.2 [6] The Appellant requests the Refugee Appeal Division (RAD) allow the following document as new evidence: a letter dated November 10, 2016 from XXXX XXXX MD, CCFP reporting on a medical assessment of the Appellant by the Canadian Centre for Victims of Torture (CCVT).3 [7] I find that the Appellant's new evidence meets the requirements of section 110(4). The RPD decision was rendered on October 31, 2016. The new evidence arose after the RPD decision. The new evidence also meets criteria of newness, credibilty and relevance. SCOPE OF THE RAD REVIEW [8] The determinative issue on this appeal is whether or not the RPD erred in its assessment of the Appellant's credibility. [9] When reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law.4 I may defer to the RPD's assessment of the credibility of oral testimony if I determine that the RPD had a meaningful advantage in the circumstances.5 Unless specifically stated below, I have applied the correctness standard. ANALYSIS [10] The Appellant identifies the following issues6 in its appeal: A. Did the RPD misconstrue the findings of the psychological reports? B. Did the RPD err by refusing to assess the Appellant's corroborative evidence? C. Did the RPD ignore objective evidence? D. Did the Board make and unreasonable credibility finding? E. Should the RAD substitute its own decision? [11] I have reviewed all the evidence and considered the arguments of the Appellant. I find that the RPD made several errors and that, on a balance of probabilities, that the Appellant is credible. I find that that Cameroon does not provide state protection for an elderly woman accused of witchcraft and that the Appellant does not have an internal flight alternative in Cameroon. A. Did the RPD misconstrue the findings of the psychological reports? [12] The Appellant argues that the RPD erred by misconstruing the findings of the psychological reports when assessing her credibility.7 Specifically the RPD repeatedly made negative credibility finding despite the fact that much of the Appellant's difficulty in testifying was predicted in the psychological reports.8 The crux of the Appellant's argument is that RPD "is not open to the possibility that it is not that the evidence is not credible, but rather that the claimant is unable to testify coherently."9 The RPD erred by "concluding that only a lack of credibility could explain the Appellant's poor performance at the hearing, despite the psychological reports which explain otherwise."10 [13] In paragraph 14 the RPD stated that it was aware that the psychological report11 indicates that the Appellant may have memory problems and that the anxiety of the RPD hearing could cause communication difficulties. The RPD noted in its reasons that throughout the hearing, the Appellant was able to directly answer most questions and at no point indicated that she was at a loss for words or needed a break to recover from her anxiety although invited to do so by the RPD.12 [14] In paragraph 16 the RPD accepts Dr. XXXX diagnosis that the Appellant manifested symptoms that lead to the conclusion that she is suffering from Post-Traumatic Stress Disorder (PTSD). The RPD goes on to observe that a psychological report cannot identify the cause of the PTSD or confirm the events recounted by the Appellant. The RPD concludes that "[u]n rapport psychologique ne peut à lui seul réparer les insuffisances dans le témoignage du demandeur." A psychological report alone cannot remedy the inadequacies in the Appellant's testimony [translation]. [15] The RPD does not mention in its reasons that at the outset of the hearing its questioning of the Appellant was proceeding so badly that it convened a conference with Appellant's counsel because the Appellant was "not understanding the questions" and suggested the hearing be adjourned to procure an interpreter. Counsel advised the RPD that the Appellant "understands French perfectly well" but she was nervous, confused and had problems with open-ended questions. The RPD agreed with counsel's suggestion that he question the Appellant.13 [16] I find that the RPD erred and I agree with the Appellant that the RPD made a negative credibility finding despite the fact that the much of the Appellant's difficulty in testifying was predicted in the psychological reports. The courts are clear that PTSD must be taken into account when assessing credibility. B. Did the RPD err by refusing to assess the Appellant's corroborative evidence? [17] The Appellant argues that the RPD erred in refusing to assess most of the corroborative evidence beyond its superficial analysis of the psychological report.14 The Appellant specifically identified the following documents: letter dated July 22, 2016 to the Appellant from her daughter XXXX(XXXX Letter); letter dated August 8, 2016 to the Appellant from her son XXXX XXXX (XXXX XXXX Letter); and, letter dated August 25, 2016 to the Appellant from her friend XXXX(XXXX Letter)(collectively the Letters). [18] I agree that the RPD erred when it did not consider the Letters so I will assess the probative value of the Letters as corroborative evidence. [19] The following observations can be made on the face of the Letters as corroborative evidence: * None of the Letters are sworn documents ; * None of the Letters are accompanied by copies of identification documents to verify the signatures; and * All of the Letters were sent in an envelope addressed by the same person. [20] The Letters all refer to death of the Appellant's sister in law, the reaction of the deceased's husband the Appellant's brother in law XXXX and XXXX threats to harm the Appellant. The Letters do not explicitly corroborate other elements of the Appellant's claim specifically the domestic violence she alleges to have suffered at the hands of her husband and the physical injuries she suffered at the hands of XXXX and the villagers, except for XXXX threat to pour hot water over her which is referenced in XXXX XXXX letter. In fact both the XXXX Letter and the XXXX XXXX Letter express concern about the safety of the Appellant's husband, their father. The XXXX Letter is the only one which mentions witchcraft. [21] The Appellant's testimony about the Letters is not coherent, she references letters from her brother and her child15 and she also says "j'ai eu les lettres de menaces," 16 I got threatening letters [translation], but the threatening letters were not submitted to the RPD. [22] I find that the probative value of the corroborative evidence is limited by the factors outlined above: the Letters are not sworn documents and the signatures of the writers cannot be verified; the scope of corroboration is limited; and the Appellant's testimony related to the Letters was not coherent. C. Did the RPD ignore objective evidence? [23] The Appellant argues that the RPD erred by relying solely on the National Documentation Package for Cameroon dated April 29, 2016 (NDP)17 to the exclusion of objective evidence submitted by the Appellant. Moreover, the Appellant argues that the RPD was selective in its reliance on the NDP.18 [24] The RPD makes a single reference to the NDP in its reasons19 where it says that there is no reference in the NDP which indicates that the police in Cameroon does not intervene to protect people accused of witchcraft. [25] I agree with the Appellant that there was objective evidence submitted to the RPD which reported (i) that witchcraft accusations are used to justify violence against older women in Cameroon;20 (ii) most individuals branded and victimized as witches are older women and accused witches in sub-Saharan Africa have no legal or human rights protections under most state constitutions;21 and (iii) recourse to justice is limited by local courts who do not want to oppose tribunal customs.22 The RPD did not reference this objective evidence in its reasons. [26] I agree with the Appellant that the RPD was selective in its reliance on the NDP when it failed to reference objective evidence reporting that the police in Cameroon remained ineffective, poorly trained and corrupt23 and that the police consider cases of domestic violence to be a "waste of time" and treat them with "bias and laxity."24 [27] The RPD erred when it ignored objective evidence on the record and in the NDP. D. Did the RPD make an unreasonable credibility finding? [28] The Appellant argues that the RPD made unreasonable credibility findings and identifies the following errors: * did not take account of the psychological report, the corroborative evidence and the objective evidence; * made a negative credibility finding without challenging key incidents of persecution described in the BOC and confirmed in testimony; * used the absence of a medical report to support a negative credibility finding; * did not address the Appellant's explanations for her delay in leaving Cameroon; and * gave weight to peripheral and immaterial evidence. [29] As outlined above I agree that the RPD did not take account of the psychological report, the corroborative evidence and the objective evidence. [30] The central issue in the Appellant's claim for refugee protection is that she has a well-founded fear of persecution by her village and by her in-laws, specifically her brother-in-law XXXX, who believe that she is a witch who has caused the death of her mother in law, father in law, neighbour's son and sister in law. The RPD reasons focus on the deaths, these are the key incidents and they are referenced in the RPD reasons at paragraphs 8 and 9. [31] I agree that the RPD erred when it used the absence of a medical report to support a negative credibility finding. It is clear from the record25 that the Appellant had an appointment on November 3, 2016 for a medical examination with the CCVT and Appellant's counsel made the point during submission at the RPD hearing.26 The RPD did not wait for the CCTV medical report and rendered its decision on October 31, 2016 before the appointment. [32] The RPD states in its reasons that the Appellant n'a avancé aucune raison pour ne pas avoir quitté le Cameroun avant 2016, did not give any reason for not leaving Cameroon before 2016 [translation]. I agree that the Appellant's response to the RPD's question as to why she did not leave before 2016 was not coherent.27 [33] I agree with the Appellant that her evidence about both the Rassemblement démocratique du peuple Camerounais (RDPC) and the absence of listing of her daughter's refugee claim in her amended BOC was not relevant. The Appellant's claim for refugee protection does not relate to her RDPC membership. In fact, the Appellant's daughter's refugee status was disclosed in the first version of her BOC.28 [34] The RPD made some important errors in its assessment of the Appellant's credibility. Specifically it made a negative credibility based on the absence of medical evidence which has now been accepted as new evidence. The medical evidence addresses a serious issue raised by the RPD that the Appellant had not provided any evidence of her alleged violent attacks from the villagers and her in-laws. [35] The CCVT medical reports concludes that the Appellant "has symptoms and a physical exam consistent with being repeatedly physically assaulted. This has resulted in scarring of her skin as well as daily pain and limited range of motion in her lower back."29 E. Should the RAD substitute its own decision? [36] For the reasons outlined above, I do not find that the RPD was correct when it found that the Appellant was not credible. I find that, on a balance of probabilities, taking into account the new evidence, the Appellant was assaulted in Cameroon because she was perceived to be a witch and that her in-laws, and specifically her brother-in-law XXXX, have threatened to kill her if she returns to Cameroon because they believe that she is a witch and that she caused numerous deaths. [37] In order to find that the Appellant is a Convention refugee I must confirm that she cannot benefit from state protection and that she does not have an internal flight alternative. [38] The objective evidence detailed above in paragraphs 21 and 22 suggests that state protection in Cameroon is not available to either victims of domestic violence or those accused of witchcraft. The Appellant's own evidence is that the police officers in her village are associated with her brother in law and would not protect her against him. [39] With respect to an internal flight alternative at the hearing the RPD canvassed the availability of refuge for the Appellant with each of her children and siblings and the Appellant explained why it was not available in each case.30 CONCLUSION [40] I find that there is a serious possibility that the Appellant will be persecuted if she returns to Cameroon and that, on a balance of probabilities, she is at risk to her life and of cruel and unusual treatment. [41] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee and a person in need of protection. (signed) Susan Brown Susan Brown July 17, 2018 Date 1 RPD Record, pages 22-39, Exhibit 4. 2 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385 and Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 3 Appellant's Record, pages 16-19. 4 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93 (CanLII). 5 Ibid., and X (Re), 2017 CanLII 33034 (CA IRB). 6 Appellant's Record, page 23, Appellant's Memorandum of Fact and Law, Part II 7 Appellant's Record, page 25, Appellant's Memorandum of Fact and Law, paragraph 14. 8 Ibid. 9 Appellants's Record, page 27, Appellant's Memorandum of Fact and Law, paragraph 24. 10 Appellants's Record, page 28, Appellant's Memorandum of Fact and Law, paragraph 26. 11 RPD Record, page 219, Exhibit 6. 12 RPD Hearing Transcript, page 8, lines 33, 34. 13 Ibid., pages 12-13. 14 Appellants's Record, page 31, Appellant's Memorandum of Fact and Law, paragraph 32. 15 RPD Hearing Transcript, page 25 16 Ibid., page 26. 17 RPD Record, pages 81-110, Exhibit 3, Cartable national de documentation-29 avril 2016, Liste de documents, Cameroun (NDP). 18 Appellant's Record, page 37, Appellant's Memorandum of Fact and Argument, paragraph 57. 19 RPD Reasons, paragraph 13. 20 RPD Record, page 204, Exhibit 5, UN News Centre, Feature : UN Findings flag violence, abuse of older women accused of witchcraft, June 15, 2014. 21 RPD Record, page 154, Exhibit 5, Maakor Quarmyne, Witchcraft : A Human Rights Conflict Between Customary/Traditional Law and the Legal Protection of Women in Contemporary Sub-Saharan Africa, 17 Wm. & Mary J. of Women & L. 475 (2011), http://scholoarship.law.wm.edu/wmjowl/vol17/iss2/7. 22 RPD Record, page 193, Exhibit 5, Sophie Grober CIPADH, Les accusations de sorcellerie vectrices de violences en Afrique, 13 avril 2016. 23 NDP, document 2.1, US Department of State, Cameroon. Country Reports on Human Rights Practices for 2015, April 13, 2016. 24 NDP, document 5.1, RIR CMR 105382.FE, Cameroon : Domestic violence, including legislation ; protection provided by the state and support services available to victims (2014-2016), April 21, 2016. 25 RPD Record, page 139, Exhibit 5, email from XXXXX XXXXX of CCVT to Appellant's counsel dated September 21, 2016. 26 RPD Hearing Transcript, page 59. 27 Ibid., pages 40-41. 28 RPD Record, page 19, Exhibit 1, Original BOC 29 Appellant's Record, pages 16-18, CCVT Medical Report of Dr. XXXXX XXXXX dated November 10, 2016. 30 RPD Hearing Transcript, pages 48-52. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB7-00637 11 RAD.25.02 (April 24, 2018) Disponible en français