MB6-02848

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 No. / N° de dossier de la SAR : MB6-02848 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX Appelant(e)(s) XXXXXXXX Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision July 19, 2017 Date de la décision Panel Me Marie-Louise Coté Tribunal Counsel for the appellant(s) Me Claudette Menghile Conseil(s) du (de la/des) appelant(e)(s) Designated representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS AND DECISION INTRODUCTION [1] This is an appeal filed by XXXX XXXX against a decision rendered on May 16, 2016, by the Refugee Protection Division (RPD), which rejected her refugee protection claim by determining that she was not a "Convention refugee" under section 96 of the Immigration and Refugee Protection Act (IRPA) or a "person in need of protection" within the meaning of subsection 97(1) of the IRPA. [2] The appellant is asking the Refugee Appeal Division (RAD) to set aside the determination of the RPD, refer the matter to the RPD for re-determination and give any other directions that it considers appropriate. [3] The appellant did not present any new evidence under subsection 110(4) of the IRPA and is not requesting a hearing under subsection 110(6) of the IRPA. [4] The Minister did not intervene in the appeal. DETERMINATION OF THE APPEAL [5] Under subsection 111(1) of the IRPA, the RAD allows the appeal, sets aside the determination of the RPD and refers the matter of XXXX XXXX to a differently constituted panel for re-determination of this refugee protection claim. [6] The appeal is allowed. FACTUAL BACKGROUND [7] The appellant is a XXXX-year-old woman from Cameroon. She alleges that when she was 17, she was forced to become the second wife of a polygamous man (hereafter XXXX) in exchange for a dowry paid to her father. She was subjected to violence by her co-wife, her co-wife's brothers and her in-laws. Her husband was verbally abusive toward her and never intervened to protect her. The appellant filed a complaint with the police on two occasions, but they refused to help her. She could not seek a divorce because her family would not have been able to repay the dowry. [8] The appellant alleges that when she returned to Cameroon in XXXX 2015 after a two-month trip to Canada with her husband, she was chased from the family home by her co-wife. She subsequently learned of the tragic death of her two children, whom she had entrusted to her co-wife before her trip to Canada. She was beaten and threatened several times by her co-wife's family when she tried to get answers about what had happened to her children, who had died under suspicious circumstances. [9] The appellant left her country on XXXX 28, 2016, to come to Canada. She claimed refugee protection the day after she arrived. The Minister intervened before the RPD. IMPUGNED DECISION [10] The RPD rejected the appellant's refugee protection claim, finding that she was not credible. The RPD was of the opinion that the appellant failed to establish that she was married to XXXX, that it was a polygamous marriage, that she had children and that she had been subjected to domestic abuse. APPELLANT'S ARGUMENTS [11] The appellant argues that the RPD made several errors when interpreting the evidence and assessing her credibility. She claims that the inaccuracies concerning her children in her applications for a visa to travel to Canada and the United States of America were the fault of her husband, to whom she was subservient. She states that the RPD did not really consider Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. She submits that it is not surprising that Cameroonian authorities made an error on the birth certificate and the death certificate of one of her children, indicating that he was female rather than male. She argues that the evidence relating to the marriage certificate is not contradictory. She submits that the RPD's finding that she failed to establish that she was a victim of domestic abuse is ambiguous. SCOPE OF THE APPEAL [12] The RAD's role in an appeal was defined by the Federal Court of Appeal in Minister of Citizenship and Immigration v. Huruglica1 and by the three-member RAD panel in X(Re), 2007 CanLII 33034 (CA IRB).2 [13] As established in Huruglica, supra, the RAD must conduct a reasoned, thorough, comprehensive and independent review of the evidence presented. The RAD must normally apply the standard of correctness to all RPD findings. [14] However, with regard to RPD findings based on the credibility of oral evidence, the RAD must determine, in each case, whether it owes deference to the RPD by determining whether the RPD truly benefited from an advantageous position. Where the RAD finds that deference is warranted, it is obligated to explain how the RPD enjoyed a meaningful advantage with respect to the credibility finding. In certain cases, the RAD may assess that finding using a standard of reasonableness, modified to apply to the RAD context, as per the decision in X(Re), 2007 CanLII 33034 (CA IRB). [15] In this case, I will give deference to the RPD's findings if I determine that it enjoyed a meaningful advantage in assessing the appellant's testimony. Nevertheless, I will examine the overall credibility finding using the correctness standard. ANALYSIS [16] The issue is whether the RPD erred when assessing the appellant's credibility. [17] Having listened to the electronic recording of the hearing, read the entire file, considered the appellant's memorandum and conducted an independent assessment of the evidence, I conclude that the RPD's decision is wrong for the following reasons. [18] I must specify that I analyzed the RPD's findings and assessed the evidence on the record in consideration of Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. This guideline applies in this case because the appellant alleges that she was trapped in a forced marriage to a polygamous man, forced to follow her husband's orders, subjected to abuse within the family home and traumatized by the tragic and suspicious death of two of her three children. [19] I also considered the appellant's troubling allegations in light of the documentary evidence in the NDP regarding conditions in Cameroon. [20] In my opinion, the issue of the appellant's polygamous marriage to XXXX is determinative because the refugee protection claim is based on her fear of being persecuted by her co-wife, her co-wife's family and her husband's brother. RPD findings [25] The RPD was of the opinion that the appellant did not establish that she was married to XXXX or that it was a polygamous marriage because of the numerous contradictions in the evidence presented. [26] The RPD considered the two visa applications for the United States filed in 2010 and 2015, in which the appellant states that her husband is XXXX, whereas she claims to be married to XXXX. The RPD was not satisfied with her explanation for this contradiction, that is, that it was her husband, XXXX, who had completed the steps for these two visa applications and that he had lied about certain facts, including her husband's name and the number of children she had, and she did not know why. [27] The RPD did not believe that the appellant was in a polygamous marriage with XXXX because of contradictions that arose on reading the marriage certificate filed in evidence. [28] First, the RPD notes in its decision that the appellant's deceased father is named as a witness on the marriage certificate issued on XXXX XXXX, 2009, and that the evidence relating to his date of death is contradictory. The RPD was not satisfied with the appellant's answers. According to the appellant's testimony, her father died in 2006, and her answer in the IMM5669 form, that he died on XXXX XXXX, 2010, was an error made by the person who had helped her complete her forms. The appellant explained that it was an uncle who has the same name as her father who had acted as a witness at her wedding. [29] Second, the RPD notes that the marriage certificate indicates that it is a monogamous marriage, which contradicts the appellant's statements that it is a polygamous marriage. The appellant was asked how her husband could be in a monogamous marriage in 2009 if he was already married to another woman and that marriage had taken place in 1998. She answered that it was a forced marriage and she did not know why monogamy is given as the basis of the marriage when her marriage was polygamous. The RPD found that the appellant was unable to explain this serious contradiction. Appellant's arguments [21] Regarding the name of her husband, which is different in the two visa applications for the United States, the appellant submits that she did not fill out the documents for these visa applications and that she merely followed her husband's orders. She argues that that might be unbelievable to the RPD but that it would have reached a different conclusion if it really had considered Guideline 4. [22] The appellant submits that she was cast aside and did not take part in decisions that concerned her, as she was given little information and was subservient to her husband, like women in many African societies, including Cameroon. She was no exception: she did what she was told, whether or not she understood the reasons. [25] The appellant argues that the RPD focused on the issue of the visa being inconsistent with all of her explanations and ignored cultural aspects and the issue of membership in the particular social group of women. [26] As for the marriage certificate, the appellant submits that it is very likely that the person who helped her fill out her IMM5669 form made an error, since, in French, 2006 and 2010 sound similar. Moreover, contrary to what is reported by the RPD, the appellant did not testify that the witness was her uncle, but rather her uncle's cousin. [27] The appellant further submits that the RPD does not seem to distinguish between the civil marriage and the traditional polygamous marriage. Furthermore, she argues that she was married in a traditional wedding in 1998, when her husband was already married, and that she was married in a civil wedding in 2009. She argues that the evidence does not show whether her husband's first marriage to his other wife remained traditional or whether there was a civil wedding with the first wife, as well. If that is the case, the evidence also does not demonstrate which civil marriage happened first. Therefore, there is no contradiction because she could indeed have been in a monogamous civil marriage but in a polygamous situation. RAD's findings a. Marriage to XXXX [28] I am of the opinion that the RPD erred in finding that the appellant was unable to establish that she was married to XXXX. This finding by the RPD concerning the appellant's marital status is wrong because it does not take all of the evidence into account. [29] The appellant's testimony about her marriage to XXXX, delivered over more than two hours, was consistent, spontaneous, exhaustive and detailed. Her testimony contained no intrinsic contradictions. It is consistent with the account in the BOC Form. [30] The file for the Canadian visa application presented in 2014 contains a certificate for a civil marriage between the appellant and XXXX, celebrated on XXXX XXXX, 2009. I find that this official document corroborates the appellant's testimony for the following reasons. [31] The marriage certificate is a document issued by a government authority and is presumed to be authentic unless there is a valid reason to doubt its authenticity.3 I note that the visa officer considered this marriage certificate to be authentic because he approved the appellant's application in which she indicates that the purpose of her trip to Canada was a honeymoon with her husband, XXXX.4 [32] Although the fact that the appellant's father (XXXX) is named as a witness on the marriage certificate may raise questions about date of his death, it is not a valid reason to doubt the authenticity of the certificate itself. Moreover, the appellant has nothing to gain from stating under oath that her father died in 2006 (before the marriage) rather than in 2010, according to her answer in the IMM5669 form, which is apparently an error made by the person who helped her fill out the form. That explanation seems reasonable to me, to the extent that the appellant's testimony is consistent with the information provided in the Canadian visa application, according to which her father died in 2006.5 Moreover, it is plausible that the person who acted as a witness to her marriage in 2009 is a family member with the same name as her father. The electronic recording of the hearing reveals that the appellant stated that XXXX is her father's cousin and that she calls him uncle.6 Consequently, I find that the mention of the name XXXX on the marriage certificate is not a reason to doubt the appellant's credibility or the authenticity of this document. [33] I also considered the fact that the appellant accompanied XXXX to Canada as his wife, from XXXX 2015 to XXXX 2015. [34] Moreover, I note that the birth certificates for the children XXXX and XXXX, which are included in the file that was examined by the visa officer, show that their parents are the appellant and XXXX. First, I have no reason to set aside the presumption that XXXX birth certificate is authentic. Second, regarding XXXX birth certificate, I find that the erroneous mention of the child's gender is not a valid reason to doubt the authenticity of that document, given that the appellant testified that she had tried to correct the error by going to the office of a government employee but that she had been told that it was not necessary. [35] In my opinion, the RPD erred by placing too much emphasis on the appellant's statements in her two visa applications for the United States, filed in XXXX 2010 and XXXX 2015, in which she states that she was married to XXXX, to the detriment of the other evidence which I have just mentioned. [36] The appellant testified that her husband put together her file for the visa applications for the United States and told her to state that XXXX was her husband. She allegedly did whatever her husband told her to do because he had authority over her. She cannot explain why XXXX wanted her to pretend that she was married to XXXX. [37] I note that the RPD was not satisfied with the appellant's explanation that she did not know why her husband, XXXX, wilfully lied in both visa applications for the United States. I am of the opinion that the RPD should have considered the appellant's entire testimony before rejecting her allegation that she was under the control of her husband, XXXX XXXX when she made misrepresentations in her two visa applications in 2010 and 2015. [38] In this regard, it appears that the RPD did not pay attention to the appellant's testimony about her aborted attempt to flee the alleged abusive situation at home by filing a humanitarian visa application for the United States in 2007 and 2009, without the knowledge of her husband, XXXX. This fact is not mentioned in the RPD's reasons for decision, but it appears to me that it is relevant to assessing the credibility of the appellant's explanation when she claims that she had to follow her husband's orders concerning the applications she filed in 2010 and 2015 because she was under his control, even though she did not know why he wanted her to claim in her visa applications that she was the wife of XXXX. [39] Similarly, I find that the RPD did not consider the letter from the doctor at the Clinique des demandeurs d'asile et des réfugiés [clinic for refugees and refugee protection claimants] dated XXXX XXXX, 2016, when assessing the credibility of the appellant's testimony about the alleged abuse and her husband's control over her. [40] Moreover, I note that the US visa officer who refused the application after meeting with the appellant and this XXXX in an interview in 2010 concluded that they were not a genuine couple.7 This supports the appellant's testimony that she was not married to XXXX. [41] I find that the appellant's misrepresentations concerning the name of her husband in her US visa applications filed in 2010 and 2015 are mostly offset by all the other credible evidence mentioned above. [42] For all these reasons, I find that the RPD erred in concluding that the appellant did not establish that she was married to XXXX. b. Polygamous marriage [43] I find that the RPD erred in concluding that the appellant did not establish that her marriage to XXXX was polygamous by reason of her inability to explain why the marriage certificate indicates that it is a monogamous marriage. [44] In my opinion, the RPD drew a negative inference without considering all the evidence. The appellant's inability to explain why the marriage certificate indicates that the matrimonial regime is that of monogamy must be assessed in the context described in her testimony and in the evidence in the National Documentation Package (NDP) on Cameroon concerning forced marriages, dowries, matrimonial regimes and the subordination of women in a marriage. [45] I note the following information that appears in Response to Information Request CMR105000.FE, at Tab 5.11 of the NDP.8 It appears that Cameroonian family law is pluralistic in that there are three types of marriage: civil, traditional/customary and religious. The practice of giving dowries is customary. To marry validly under customary law, the man must pay some token (bride price) to the family of the bride. According to traditional practices, a woman becomes the "property" of her husband and her in-laws once the dowry is paid. According to this document, "the state does not play a role in the payment of dowries because they are customary and are not required in civil marriages." The dowry payment is a private contract, for which no legal document is provided. Lists of goods and money that constitute the dowry are kept by family heads of the couple and are not given any legal status by the notary public. The document states that "customary marriage has a lot of weight and importan[c]e, almost more than the civil ceremony. The strength of witnesses and the dowry payment is mostly stronger than the strength of a document signed with the state." [46] I understand from this that customary marriages escape the rules that govern civil marriages and that they are two completely separate and parallel regimes. [47] The appellant's BOC Form and testimony reveal that she was forced to marry XXXX in XXXX, when she was 17 years old. There is no doubt that it was a customary marriage, since a dowry was paid to her father. At that time, her husband was already living with his first wife. Having become the "property" of her husband and her in-laws, the appellant stated that she was left out of all decisions concerning her and was kept in the dark. For example, she does not know whether XXXX marriage to his first wife remained a traditional marriage or whether it became a civil marriage. Similarly, the appellant knows very little about her own civil marriage in XXXX 2009, aside from the fact that it was her uncle who had forced her to sign the marriage certificate. It is in this specific context that she is unable to explain why the marriage certificate indicates monogamy as the basis of the marriage, when it is actually a polygamous marriage. [48] I found nothing in the objective evidence suggesting that the matrimonial regime indicated on the civil marriage certificate is a relevant indicator to conclude that there was a parallel customary marriage, as the case may be. There is nothing in the objective evidence that contradicts the appellant's allegation that she could indeed have had a monogamous civil marriage but in a polygamous customary situation. [49] Moreover, I note that XXXX visa application for the United States filed in 2015 mentions that his wife is a woman other than the appellant, a woman named XXXX.9 Moreover, the file for a Canadian visa application presented in 2014 contains birth certificates for two children born in 2008 and 2011, whose father is XXXX and mother is XXXX. This evidence supports the appellant's allegation that her husband, XXXX, is a polygamist, since XXXX is apparently his other wife. [50] In closing, I find that the letter of support from the appellant's friend, which was filed in evidence before the RPD, refers to her polygamous marriage to XXXX. [51] For all these reasons, I conclude that the RPD's decision concerning the appellant's polygamous marriage to XXXX is incorrect because it does not take all of the evidence into account. It appears to me that the errors tainted the RPD's assessment of all the evidence, including the evidence regarding the existence of the appellant's children and the alleged domestic abuse. [52] Since this conclusion is determinative to the appeal, there is no analysis of the issue of the children's existence. [53] Although the RPD's determination must be set aside for the reasons that I just mentioned, I nevertheless find that I cannot make my own determination as to whether the appellant is a refugee or a person in need of protection. [54] In my opinion, the matter must be referred to the RPD for re-determination by a differently constituted panel for the purpose of hearing the appellant's testimony in order to assess her credibility regarding the alleged abuse and her husband's control over her, in light of all the relevant evidence, including the letter from the doctor at the Clinique des demandeurs d'asile et des réfugiés and the medical certificate.10 Furthermore, I find that the events that transpired after the appellant returned to Cameroon in XXXX 2015 warrant a thorough examination. CONCLUSION [55] For these reasons, the RAD sets aside the determination of the RPD and refers the matter of XXXX XXXX to a differently constituted panel of the RPD for re-determination of this refugee protection claim. [56] The appeal is allowed. Marie-Louise Côté Marie-Louise Côté July 19, 2017 Date IRB translation Original language: French 1 Minister of Citizenship and Immigration v. Huruglica, March 29, 2016; 2016 FCA 93. 2 RAD decision rendered on May 17, 2017, and amended on May 23, 2017, in file TB6-03419. 3 Elhassan v. Canada (Minister of Citizenship and Immigration), 2013 FC 1247, paragraph 21. 4 RPD record, page 141. 5 Ibidem, page 93. 6 Electronic recording of the hearing on May 2, 2016, from 00:48:00 to 00:54:50. 7 RPD record, page 200. 8 National Documentation Package on Cameroon, July 17, 2015, Tab 5.11, RIR CMR105000.FE of November 24, 2014: Cameroon: Dowries in forced and arranged marriages, including whether they may be refunded; the role of the state in the payment of dowries, in particular, that of the Ministry of Finance. 9 RPD record, page 198. 10 RPD record, pages 116 and 120. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB6-02848 13 RAD.25.02 (April 9, 2013) Disponible en français