MB9-17610

RAD File / Dossier de la SAR : MB9-17610 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 Ottawa, ON Appel instruit / entendu à Date of decision October 27, 2020 Date de la décision Panel Susan Brown Tribunal Counsel for the person who is the subject of the appeal Joseph W. Allen Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellant XXXX XXXX XXXX, a citizen of Djibouti, fears persecution by her family. The Refugee Protection Division (RPD) found that the Appellant's claim was not credible. [2] Following my own review, I find that there is more than a mere possibility that the Appellant will be persecuted by her family for opposing the female genital mutilation (FGM) of her daughters. DECISION [3] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. BACKGROUND [4] According to her Basis of Claim (BOC) form1 in XXXX 2008, the Appellant was studying in China when she met the Canadian father of her children, who was already married with children in Canada. When her family in Djibouti found out about the relationship, the Appellant's father told her to end it immediately because she was already given in marriage to a cousin. The Appellant lied to her parents and said the relationship was over. [5] In 2012, the Appellant returned to Djibouti to give birth to her son in secret with her mother's support. The Appellant returned to China with her son two months after his birth. When her father found out that the Appellant's mother had helped her, he sent the Appellant's mother away from the family home. After the Appellant finished her studies in 2013, her visa expired and she had to return to Djibouti. She soon found a job and returned to China. [6] In 2016, early in her pregnancy with her daughter, the Appellant returned to Djibouti. She was attacked by her family when they found out about her ongoing relationship and pregnancy. With the assistance of her sister, the Appellant returned to China. The Appellant delivered her daughter in XXXX and continued to live in peace with her two children and their father. [7] In 2018 the Appellant lost her job in China, found out she was pregnant with her third child, and her children's father left her for another woman. The Appellant took her children to the United States in XXXX 2018, arrived in Canada on XXXX XXXX, 2018, and gave birth to her second daughter in XXXX 2019. ANALYSIS [8] The RPD identified the determinative issues as credibility and subjective fear. Citing the Appellant's return to Djibouti in 2012 and in 2016, and contradictions in her point of entry interview, the RPD concluded that the Appellant did not demonstrate that she faced a serious possibility of persecution or risk of harm. [9] The Appellant argues that the RPD erred in finding that she was not credible and by not assessing her future fear of persecution. [10] Following my review, I find that the RPD erred as it did not have a sufficient basis for its finding that the Appellant is not credible and it did not consider her future fear of persecution for opposing the female genital mutilation (FGM) of her daughters. Returns to Djibouti in 2012 and in 2016 [11] The RPD found that the risks associated with the Appellant's returns to Djibouti in 2012 and in 2016 detracted from the credibility of her claim that she faced danger from her family due to her extra-marital relationship and children. [12] The RPD found that the Appellant risked being found in 2012, as Djibouti is such a small place where it would be difficult to hide and in 2016, she risked her continuing relationship and pregnancy being found out. [13] The Appellant argues that she went to Djibouti in 2012 with her mother and sister's support and encouragement, and that she was hidden by them while she was in Djibouti for XXXX XXXX. With respect to the second visit, the Appellant submits that the RPD ignored her testimony that her Chinese work visa had expired, and that she was obliged to return to Djibouti in 2016 to renew her status.2 [14] I do not find that the RPD's findings are determinative of the Appellant's fear of persecution for opposing the FGM of her daughters. Contradictions between point of entry interview and BOC [15] The RPD found a material contradiction based on the following excerpt from the Canada Border Services Agency (CBSA) agent's notes on the Appellant's interview at the point of entry:3 Je lui ai donc demandé si elle était persécutée ou en danger aux Etats-Unis, au Djibouti ou en Chine. Elle indique que non, le seul danger est de ne pas pouvoir travailler et pour élever sa famille. Elle indique ensuite qu'elle ne veut pas retourner au Djibouti car ses parents, qui y habitent, voudraient qu'elle retourne ses enfants à leur père et que [l'Appelante] reviennent habiter au Djibouti. Elle n'aimait pas cette option et non plus l'option d'habité au Djibouti avec ses enfants car elle ne veut pas que ses parents élève ses enfants, car ils sont traditionaliste et semble encouragé la circoncision féminine. [16] I agree with the RPD that the CBSA notes do not reference all of the Appellant's stated fears of persecution as detailed in her BOC. [17] The CBSA notes do, however, clearly reference the Appellant's fear that her daughters will be subjected to FGM by her parents if they return to Djibouti. The Appellant raised the same concern in her BOC: "je sais qu'au Canada je ne risquerais pas ma vie à cause d'un choix que j'aie fait, que ma fille ne subira pas le même sort que moi l'excision..".4 Forward-looking fear of persecution [18] The Appellant argues that the RPD failed to undertake a forward-looking assessment of her fear of persecution. I agree. [19] Following my own analysis of the evidence, including the objective evidence in the most recent National Documentation Package for Djibouti5 I find that there is more than a mere possibility that the Appellant will be persecuted by her family for opposing the FGM of her daughters. [20] In a 2015 decision6, also involving Djibouti, the Federal Court has found that a mother's opposition to FGM placed her at risk of persecution. The Federal Court cited the Guidance Note on Refugee Claims Relating to Female Genital Mutilation, published by the United Nations High Commissioner for Refugees in May 2009 which specifically addresses the issue of a parent who claims refugee protection in his or her own right based on a fear of being "forced to witness the pain and suffering of the child, or risk persecution for being opposed to the practice."7 [21] The Appellant's evidence is that she was subjected to FGM and her daughters would be as well. The Appellant raised both her fear of, and her opposition to, FGM in her point of entry interview and her BOC. [22] The objective evidence is that the prevalence of FGM in women aged 15-49 in Djibouti is 93.1%.8 In June 2020 the Central Intelligence Agency reported that "[t]he nearly universal practice of female genital cutting reflects Djibouti's lack of gender equality and is a major contributor to obstetrical complications and its high rates of maternal and infant mortality. A 1995 law prohibiting the practice has never been enforced."9 [23] The objective evidence also confirms the Appellant's testimony in her point of entry interview that if she were to return to Djibouti she would be required to live with her parents or family members. "[I]t is "a taboo" for women who have never been married to leave the family home and live alone."10 CONCLUSION [24] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) "Susan Brown" Susan Brown October 27, 2020 Date 1 RPD-1, RPD Record, pages 14 26, Exhibit 2, as amended, page 90, Exhibit 5. 2 Hearing of June 4, 2019, Audio Recording 1:03:281:04:45. 3 RPD-1, RPD Record, page 138, Exhibit 5. 4 RPD-1, RPD Record, page 24, Exhibit 2, BOC narrative. 5 RAD-1, National Documentation Package for Djibouti 30 June 2020. 6 Mohamoud v. Canada (Citizenship and Immigration), 2015 FC 1408, paras. 2131. 7 Mohamoud v. Canada (Citizenship and Immigration), 2015 FC 1408, at para. 30. 8 RAD-1, National Documentation Package for Djibouti 30 June 2020, tab 5.8: Djibouti: The Law and FGM, 28 Too Many, July 2018. 9 Ibid., tab 1.3: Djibouti. The World Factbook, United States. Central Intelligence Agency, 16 June 2020, page 3. 10 Ibid, tab 5.2: Djibouti: Treatment of women who are single, divorced or who live alone,including access to housing, employment and social services; support services provided by the government, including the possibility of financial assistance from the state (2014-May 2017), DJI105803.FE, Immigration and Refugee Board of Canada, 6 June 2017. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MB9-17610 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