MB7-09317

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 : MB7-09317 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision October 10, 2018 Date de la décision Panel Me Sonia Boisclair Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Juan Cabrillana 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 INTRODUCTION [1] XXXX XXXX XXXX is a citizen of the Democratic Republic of the Congo (DRC). She is appealing against the decision of the Refugee Protection Division (RPD) dated July 14, 2017. [2] She is not presenting any new evidence in support of her appeal and is not asking that a hearing be held before the Refugee Appeal Division (RAD).1 DETERMINATION OF THE APPEAL [3] I allow the appeal. Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), I set aside the determination of the RPD and substitute the determination that, in my opinion, should have been made, namely, that the appellant is a Convention refugee. OVERVIEW AND FACTUAL BACKGROUND OF THE APPEAL [4] The appellant alleges that she worked as a XXXX and XXXX XXXX at an XXXX XXXX company. She was labelled an opponent of President Kabila's regime and accused of working for XXXX XXXX, the XXXX XXXX of the province of Katanga. She was arrested several times, mistreated, hit and injured, as well as raped by XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Her persecutors told her that they had given her the HIV-AIDS virus. [5] She is wanted by the authorities. Her family is being pressured and threatened. She fears being killed by the XXXX XXXX of her country. [6] The appellant claimed asylum in the United States in XXXX 2016. Subsequently, on XXXX XXXX XXXX 2017, because of Donald Trump's anti-immigration/refugee attitude, she came to claim refugee protection in Canada without awaiting the outcome of the claim she had filed in the United States. RPD decision [7] The RPD determined that the appellant had not credibly established the essential elements in support of her refugee protection claim. It did not believe the appellant's written account: it did not believe that she had experienced the events alleged or that she had been threatened by the Congolese authorities or by anyone else for any reason whatsoever. Rather, it concluded that she had completely made up the story to support a refugee protection claim in Canada. The RPD found that the appellant generally lacked credibility. Errors according to the appellant [8] The appellant alleges that the RPD's findings regarding her credibility are patently unreasonable, perverse, capricious and based on erroneous findings of fact. [9] She criticizes it for doubting her testimony as a result of several alleged omissions on her part, when she had always maintained that she had summarized the facts in her Basis of Claim Form (BOC Form) and fully explained them in detail in her written account, submitting them to the RPD within the prescribed time limits. [10] In her opinion, the RPD erred in making negative findings on the following: * Her departure from the DRC, despite the ANR's wanted notice; * Her departure from the United States and the abandonment of her asylum claim; * Her entry into Canada; and * The medical report issued in the DRC. [11] Furthermore, she criticizes it for not having given any probative value to the documentary evidence she produced. RAD standard of review [12] The IRPA does not provide for a standard of intervention that the RAD must apply when reviewing RPD decisions. That standard is defined by the case law. [13] In Huruglica,2 the Federal Court of Appeal ruled that the RAD must carry out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. The RAD is to review RPD decisions by applying the correctness standard with respect to findings of fact (and findings of mixed fact and law) which raised no issue of credibility of oral evidence.3 This is the standard that I will generally apply, unless there is an exception. [14] In the case of findings of fact that raise an issue of credibility of oral evidence, the three-member RAD panel4 determined that where the RPD enjoyed a meaningful advantage, the RAD is obligated to explain how the RPD enjoyed such an advantage and then apply the standard of reasonableness, modified to apply to the RAD context. ANALYSIS [15] In conducting my independent analysis, I reviewed the entire record, listened to the recording of the hearing held on June 23, 2017, and took into consideration the arguments submitted by the appellant in her memorandum. [16] Before rendering my decision, I also took into account the IRB Chairperson's Guideline on Women Refugee Claimants Fearing Gender-Related Persecution.5 Omissions in the BOC Form [17] The RPD noted several times that the appellant failed to mention important facts in her BOC Form. At the outset of its decision, it found that the appellant's credibility was irreparably undermined. [18] Multiple times during her testimony, when the RPD confronted her with omissions, the appellant explained and maintained until the end that she had perceived the BOC Form as a summary and that she recounted, in detail, the story at the basis of her refugee protection claim in her written account. [19] I find that the appellant's explanation is reasonable and that the RPD should have taken it into account when assessing the appellant's true omissions. Had it considered the fact that the written account complements the BOC Form and that it was produced by the prescribed deadline, it would have noted that the appellant's testimony was consistent with her written statements. Her oral testimony added nothing: she only explained again what she had already stated in writing. [20] Furthermore, the appellant completed her BOC Form without the assistance of counsel. She took care to chronologically detail her written account over five (5) pages. It includes all of the important facts. [21] I agree with the appellant's opinion that the error at the basis of the RPD's analysis created a bias, whereby the assessment of her credibility is incorrect and not fair to her. Departure from the DRC, despite the ANR's wanted notice [22] The RPD did not believe the appellant when she explained that she had managed to travel and leave her country using her passport, despite the fact that a wanted notice had been issued against her. [23] The appellant explained that system capacity issues and disorganization in the DRC could account for that. She also proposed that the warrant had not been forwarded to the immigration department. [24] The appellant left the DRC three (3) times after the permanent wanted notice was issued against her on XXXX XXXX, 2015. She travelled to the United States in XXXX 2016 and to Belgium in XXXX 2016. She left her country in a mad rush on XXXX XXXX, 2016, while she was still detained in hospital. [25] The appellant testified that, on XXXX XXXX, 2015, the ANR went to her workplace to arrest her. She specified that, on that occasion, they had not gone to summon her, but to arrest her.6 [26] I understand that the wanted notice was then executed. I believe that the RPD erred in fact by finding that the wanted notice remained in effect after the appellant had been released on the same day. [27] I am of the view that the stamps in the passport clearly demonstrate that the appellant was subsequently able to leave her country to travel. Furthermore, the fact that she chose to return to the DRC also demonstrates that she did not feel that she was in such danger so as to take advantage of a trip to claim asylum. This is also consistent with her testimony that things had calmed down between XXXX 2015 and XXXX 2016.7 [28] I therefore believe that the RPD drew a negative inference based on that error in the interpretation of the facts. Departure from the United States and abandonment of her asylum claim [29] The RPD found that the fact that the appellant had left the United States when she was safe there and her asylum claim was pending indicates behaviour that is inconsistent with her alleged fear. [30] The appellant argues that her choosing to leave the United States is justifiable given that US citizens and green card holders are also choosing to leave in response to President Trump's statements. It was therefore logical for her to leave without waiting for the outcome of her pending asylum claim because she was aware of that administration's anti-refugee discourse and the openness expressed publicly by the Canadian prime minister. [31] With respect to the RPD, in the particular circumstances of this case, I rather find that the appellant's behaviour is very consistent with her alleged fear. [32] She left the DRC at the first opportunity by escaping while she was still detained in hospital. She boarded the first flight to the United States and went to join her brother, who lives in Texas. She decided to claim asylum in XXXX 2016, when she learned that her mother and sister had been arrested and that she was still being sought. She began to worry about the outcome of her asylum claim after hearing statements made by President Donald Trump. She thought about coming to claim refugee protection in Canada after hearing Prime Minister Trudeau invite refugees, publicly stating that they were welcome.8 [33] I consider that it is justifiable for a person who fears for their life to choose to claim asylum there where they think they will have the greatest chance of being granted asylum, be it objectively well-founded or not. [34] Consequently, I find that the RPD misinterpreted the appellant's behaviour. Entry into Canada [35] The RPD found that the appellant had entered Canada illegally.9 [36] The appellant argues that she entered legally because she had had a valid visa. [37] I find that this changes nothing in this case. What is relevant and what must be considered are the merits of her claim. [38] However, in the interest of accuracy, her visa was valid when she entered Canada (March 27, 2017). This is corroborated by both the documentary evidence and the appellant's testimony. [39] Her visa was cancelled on XXXX XXXX, 2017,10 because of the filing of her refugee protection claim (April 28, 2017). [40] Therefore, that RPD finding is not based on the evidence. Medical report issued in the DRC [41] The RPD gave no weight to the medical report issued in the DRC11 because it indicated no hospitalization period, there were spelling mistakes and an incomprehensible passage (in French, "attouchement des écorchures à la bétadine") in it, and the seal was irregular.12 [42] The appellant argues that even a doctor can make spelling mistakes and that the circumstances of her detention and her escape did not make it possible to ensure that the document included all of the relevant information. [43] I find that, although not perfect, this piece of evidence should be given undeniable probative value. The RPD also mistakenly noted the hospitalization period because it found that the appellant testified that she was hospitalized from the XXXX to the XXXX XXXX XXXX, 2016, which is false.13 [44] The appellant testified that she was detained for three (3) weeks beginning XXXX XXXX, 2016. She was already XXXX weeks pregnant. During that period, she was tortured, humiliated, beaten and raped by four (4) people who told her that they had given her HIV. Seeing that her condition was deteriorating, the ANR agents allegedly quickly charged and condemned her for threatening national security, destabilizing the regime, and so on. On XXXX XXXX, 2016, a judge reportedly ordered that she receive medical care, and so she was detained in hospital as of that date. She also testified that she managed to escape on XXXX XXXX, 2016,14 and that she boarded a flight the next day. [45] The report confirms that a doctor objectively assessed the injuries suffered the date on which the patient was seen, that is, XXXX XXXX, 2016. He confirms that she was pregnant and that she lost the baby. [46] The treatment given is not incomprehensible. In French, "attouchements des écorchures à la bétadine" merely means that the scratches were gently wiped with an antiseptic (betadine). [47] Because the report was produced on XXXX XXXX, it could obviously not state that the appellant would be hospitalized until XXXX XXXX, the date that she escaped. [48] There are not so many spelling mistakes that the form outweighs the content. The same is true with regard to the quality of the seal. Those details seem secondary to me given the rest of the evidence. [49] The RPD did not acknowledge the medical document from the United States. In my opinion, the latter could have confirmed the genuineness of the previous one, however imperfect it may be. In fact, upon her arrival in the United States, the appellant had to go to emergency because she was still in pain. She filed into evidence a document certifying the consultation. This corresponds to a sequence of consistent events. [50] In the circumstances, I find that the RPD erred in assessing the probative value to be given to the medical report and that it failed to consider the one from the US medical clinic. [51] For all these reasons, I find that the appellant has demonstrated that the RPD erred. [52] In conducting my independent analysis, I have no doubt that the appellant has demonstrated that she is indeed a person in need of protection within the meaning of the Act and that she is a Convention refugee. CONCLUSION [53] The appeal is allowed. Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes the determination that, in its opinion, should have been made, namely, that the appellant is a Convention refugee. Sonia Boisclair Me Sonia Boisclair October 10, 2018 Date IRB translation Original language: French 1 Appellant's memorandum, page 15. 2 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93. 3 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93, paragraph 103. 4 X(Re), 2017 CanLII 33034 (CA IRB). This decision is under judicial review before the Federal Court, and a decision has yet to be rendered. 5 Guideline on Women Claimants Fearing Gender-Related Persecution: Guideline issued by the Chairperson pursuant to subsection 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993, updated: November 1996 and maintained in effect by the Chairperson on June 28, 2002, pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. 6 At 0:55:00 to 1:03:00. 7 At 0:11:00. 8 Appellant's statement, page 138 of the RPD record. 9 Para. 51, page 12 of the RPD record. Yet, the RPD clearly put the question to the appellant and she answered no. At 1:35:00. 10 Page 65 of the RPD record. 11 Page 151 of the RPD record. 12 Paras. 40 to 42 of the RPD decision, page 10 of the RPD record. 13 At 1:42:00, para. 38 of the RPD decision, page 9 of the RPD record, and again at para. 40, page 10. 14 At 1:39:00. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB7-09317 RAD.25.02 (August 8, 2018) Disponible en français 9 RAD.25.02 (August 8, 2018) Disponible en français