MB5-01273

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. / No de dossier de la SAR : MB5-01273 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision September 23, 2015 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Jamal Addine Fraygui Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX(a.k.a. XXXX XXXX), a citizen of Morocco, is appealing against the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim and determining that he is not a "Convention refugee" or a "person in need of protection" within the meaning of section 97 of the Immigration and Refugee Protection Act (IRPA). [2] He is asking the Refugee Appeal Division (RAD) to allow the appeal and set aside the RPD's determination. [3] The appellant is not submitting any new evidence in support of his appeal under subsection 110(4) of the IRPA. [4] The appellant is not requesting that a hearing be held before the RAD. [5] The Minister did not intervene on appeal. DETERMINATION OF THE APPEAL [6] Under subsection 111(1) of the IRPA, the RAD confirms the determination of the RPD, namely, that XXXX XXXX(a.k.a. XXXX XXXX) is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. [7] The appeal is dismissed. BACKGROUND [8] In the Basis of Claim Form (BOC Form), the appellant states that he fears returning to Morocco because death or prison awaits him for having had sexual relations with a minor before marriage. [9] He states that, in 2011, he met a XXXX-year-old girl. After dating for XXXX months, they had sexual relations and the young girl lost her virginity. She pressured the claimant to marry her or she would inform her parents. He could not marry her because of financial reasons. [10] He states that he tried to flee his country on a number of occasions, but his attempts were in vain. It was only in XXXX 2013 that he managed to flee to Germany, where he applied for asylum. He states that he was informed that his application was rejected three months later. [11] The appellant arrived in Canada on September 1, 2014. He claimed refugee protection that same day. He states that he fears the family of the young woman and that [translation] "now that I've secretly left Morocco, I risk having another problem with the Moroccan authorities, who will certainly punish me for breaking the law."1 Impugned decision [12] On March 9, 2015, the RPD rejected the appellant's refugee protection claim. The RPD was of the opinion that because of the numerous inconsistencies in the evidence, the appellant did not establish that he was a credible witness. The RPD based its decision on the following factors. - The appellant testified at the hearing that he fears being killed by the family of the young woman with whom he had sexual relations outside of marriage. However, he did not clearly indicate in his BOC Form that he fears that the family of this young woman would kill him. - Canadian authorities questioned the appellant regarding the reasons he arrived in Canada. He reported economic problems without mentioning any fear in relation to the family of the young woman or the authorities. - The appellant stated that his application for asylum was rejected without the German authorities questioning him. The panel has difficulty believing that the German authorities rejected his application for asylum without questioning him about the reasons for his application. Moreover, the appellant did not help his case by not presenting any documents in relation to his request for protection in Germany. - The appellant stated that he has feared the family of the young woman since 2011. However, this date corresponds to when they began dating, rather than when they apparently had sexual relations. - According to the RPD, the claimant's behaviour is inconsistent with that of a person who states they fear for their safety, because he did not leave the country legally after a number of failed attempts to leave the country illegally. - The RPD also noted that the claimant stated at an interview with an immigration officer that he left his country in XXXX 2013 and arrived in Germany in XXXX 2013, even though at the hearing, he gave a different version. - Also, he told the immigration officer that he obtained his national identity card at approximately age XXXX XXXX or XXXX, while he was a student. However, a number of items from his record indicate that, at that age, he had not been a student for a number of years. - Alternatively, even if he were found credible, the RPD indicated that it would have rejected his refugee protection claim because it was of the opinion that it is unlikely that the young woman with whom he had sexual relations would inform her family of the situation. The RPD considered it more plausible that the young woman, who had not yet informed her family at the time of the hearing, would continue to keep silent because she had also [translation] "committed an illegal act for which she could be punished." According to the RPD, the prospective risk in this case is [translation] "much different from the reasonable chance that must be established for a claim based on one of the Convention grounds." GROUNDS OF APPEAL AND REMEDY SOUGHT Appellant's claims [13] The appellant's claims can be summarized as follows: - Sworn testimony is presumed credible unless there are serious reasons to doubt that it is genuine. The RPD based its analysis on peripheral, irrelevant issues. - By drawing a negative inference regarding the statements made to the immigration officer when he arrived in Canada, the RPD did not take into account his state of fatigue, his low level of education or his young age. Furthermore, it erred by requiring evidence corroborating his application for asylum in Germany. The RAD's role and functions [14] Relying on the decision rendered by Justice Shore in Alvarez, counsel points out that the RAD must review all the evidence to determine whether the RPD committed a "palpable and overriding" error. [15] Since an appeal before the RAD is a statutory remedy, its mandate and powers are defined in its home statute, the IRPA. [16] The statutory requirements precisely indicate the allowable grounds for appeal,2 as well as its "remedial powers." Parliament allows the RAD to confirm the determination, to set it aside and substitute a determination that, in its opinion, should have been made, or to refer the matter to the RPD, giving the directions to the RPD that it considers appropriate.3 [17] The Federal Court, in being called on to determine the appropriate type of review by the RAD of decisions rendered by the RPD, recognizes the RAD's "expertise" on refugee-related matters. The Court is of the opinion that broad powers are conferred by the IRPA, "thus allowing the RAD to dispose of the merits of appeals,"4 and states that "the idea that the RAD may substitute an original decision by a determination that should have been rendered without first assessing the evidence is completely inconsistent with the purpose of the IRPA."5 Despite these observations shared by a number of justices, the Federal Court is faced with two key lines of case law. [18] According to the proponents of the first line of case law put forward by Justice Shore: [27] ...the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts. ... 6 [19] Justices Roy and Leblanc agree that "[a]n error of fact must be palpable and overriding to succeed on appeal."7 Justice Roy points out that appeals before the RAD are intended to be generous, but he adds that "this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety."8 Justice Roy is of the opinion that "[i]t will be on the basis of the record of proceedings before the RPD that the appeal will be heard based on the questions identified and raised, subject to the documentary evidence (subsection 110(3)) or evidence that is consistent with subsection 110(4)."9 [20] A different approach is proposed by Justice Phelan in Huruglica.10 According to Justice Phelan, the "RAD is required to conduct a hybrid appeal." It must "review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision."11 [21] In discussing the deference that the RAD owes to the RPD's findings, Justice Phelan states that it may be justified to show "deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative". Nevertheless, when it comes to interpreting the documentary evidence on country conditions, Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment." [22] Considering the Federal Court's decisions to date, it appears to me that the RAD, as a tribunal specialized in refugee protection matters, must assess all the evidence to determine whether the decision is well founded based on the evidence before the RPD and any additional evidence accepted by the RAD as new evidence under subsection 110(4) of the IRPA. [23] In reviewing the evidence, the RAD may show a measure of deference when the credibility of the refugee protection claimant is at the heart of the decision, or when the RPD has an advantageous position over the RAD. Nevertheless, when findings of fact or of mixed law and fact are erroneous or are not supported by the evidence, the RAD must intervene by one of the means set out in subsections 111(1) and 111(2) of the IRPA. [24] Regarding errors of law, Justice Shore states that "the RAD must be able to correct any error of law".12 ANALYSIS Merits of the appeal [25] Essentially, it must be determined whether the RPD erred in the assessment of the appellant's credibility or in its alternative conclusions regarding the prospective risk analysis and the risk that he is likely to be subjected to if he returned. [26] Credibility is a complex question of fact for which the RPD is in an advantageous position because it has the opportunity to see and hear the refugee protection claimants and witnesses. The RAD, which generally proceeds on the basis of the record, has this advantage only in limited cases. Since no new evidence was presented, it does not have this opportunity because the requirements of subsection 110(6) of the IRPA have not been met. [27] I carefully reviewed all the evidence and considered all the appellant's arguments. I am of the opinion that the RPD rendered the appropriate decision even though I do not share its opinion when it criticizes the claimant because [translation] "it was not clearly indicated anywhere in his BOC Form that he feared being killed by members of the XXXX family,"13 the family of the young girl. According to the RPD, [translation] "this fear of being killed by the family of the young girl with whom he allegedly had sexual relations is a material fact and it should have been included in his BOC Form."14 [28] On this topic, the following is the text as it appears in the BOC Form: [translation] ... She asked me to marry her or she would inform her parents. At the time, I had work problems, and if she told her parents and I was unable to marry her for financial reasons, I would be dead or spending 15 years in prison for having full sexual relations with a minor before marriage.15 [29] In other words, I understand from these allegations that the appellant would be killed if the young woman informs her parents that they had sexual relations and that he is unable to marry her for financial reasons. Furthermore, he could be sentenced to 15 years in prison as the law prohibits sexual relationships outside of marriage. [30] Although this RPD conclusion seems baseless to me, it is not enough on its own to set aside the determination. In fact, in this case, it should be noted that a number of factors undermined the appellant's credibility, including the failure to indicate at the first opportunity that he fears returning to Morocco because of the alleged relationship. [31] Moreover, what seems to me to be decisive in this case is that the RPD concluded that [translation] "were the claimant credible, the panel would have come to the same conclusion, namely, the rejection of this refugee protection claim." The RPD's conclusion is, in my opinion, determinative in terms of deciding this appeal. [32] In addition to credibly establishing the alleged facts, the refugee protection claimant must establish, if his or her claim is analyzed under section 96 of the IRPA, a "serious possibility" that he or she would be subjected to the harm feared. Or, if his or her claim is analyzed under section 97 of the IRPA, the claimant must establish that it is likely that he or she would be subjected to one of the risks listed therein. [33] Having studied the claim under section 96 of the IRPA, the RPD concluded that the harm feared [translation] "is not, on the day of the hearing, more than a mere possibility and, thus, very far from the reasonable chance that must be established for a refugee protection claim based on one of the Convention grounds." [34] With regard to this alternative conclusion, the appellant states [translation] "that he is not speculating. Rather, that is how things go. According to tradition, XXXX will have to explain sooner or later to her parents. The appellant will have to be held accountable if he does not take responsibility for XXXX, who is still single. If a suitor comes asking for XXXX hand in marriage, she will inevitably have to inform him or the parents of what happened with the appellant to prevent bringing dishonour to the family."16 [35] For the following reasons, I am of the opinion that the RPD's analysis with regard to the prospective risk is based on the evidence on the record. Even if this is an alternative conclusion, it is, in my opinion, sufficient to conclude that the RPD rendered the appropriate decision and to dispose of this appeal. [36] The evidence shows that the appellant is not wanted by the Moroccan authorities. The RPD also took into account that the facts, if they occurred, date back to the spring of 2012. In January 2015, at the time of the hearing, the young woman, currently an adult, had still not informed her parents that she had had sexual relations with the appellant. There are no indications that would lead one to reasonably believe that the young woman would inform her parents or anyone else of what had occurred. Moreover, it is more likely than not that she will hide the facts to avoid exposing herself to legal sanctions. [37] Although every situation is different, it is important to take into account the documentary evidence regarding relations outside of marriage, which are punishable under section 490 of the Moroccan penal code. [38] In this regard, Tab 5.1 of the National Documentation Package on Morocco17 states that there are honour crimes in Morocco, according to certain sources. According to others, they are "fairly rare" and are "not socially accepted." Also, "a researcher in Middle Eastern cultures and advisor to the Dutch police explained that...the Rabat police had told him that murders committed in the name of family honour are unknown in Morocco (Researcher 27 Mar. 2013). According to the researcher, honour crimes in Morocco are considered to be [translation] 'offences'."18 [39] Likewise, with regard to sexual relations outside of marriage, Tab 5.2 of the package indicates that: ...extramarital sexual relation cases are "rarely" taken to court, because a conviction can be based on only eyewitness testimony or a confession by one of the accused. [RAD's emphasis] [40] Taking into account this objective evidence, as well as the appellant's testimony and the facts specific to this refugee protection claim, I share the RPD's opinion that the appellant did not discharge his burden of establishing a serious possibility of persecution on one of the five Convention grounds. CONCLUSION [41] For these reasons, the RAD confirms the determination of the RPD, namely, that XXXX XXXX (a.k.a. XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. [42] The appeal is dismissed. Maria De Andrade Me Maria De Andrade September 23, 2015 Date IRB translation Original language: French 1 Refugee Protection Division (RPD) record, page 19. 2 Subsection 110(1) of the Immigration and Refugee Protection Act (IRPA): "Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection." 3 Subsection 111(1) of the IRPA. 4 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 5 Idem. 6 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 7 Spasoja v. Canada (Minister of Citizenship and Immigration), Justice Roy, 2014 FC 913; Lamia Aloulou v. Canada (Minister of Citizenship and Immigration), Justice Leblanc, 2014 FC 1236. 8 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 9 Idem. 10 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 11 Idem. 12 Supra, footnote 6. 13 RPD record, page 3, at para. 13 of the decision. 14 RPD record, page 4, at para. 16 of the decision. 15 RPD record, page 18. 16 Appellant's memorandum, page 27. 17 Index of the National Documentation Package on Morocco, May 30, 2014, pages 26 to 46 of the RPD record. 18 Idem. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-01273 2 RAD.25.02 (2014.09.11) Disponible en français