VB9-07811

RAD File No. / No de dossier de la SAR : VB9-07811 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 Montréal, QC Appel instruit / entendu à Date of decision December 8, 2020 Date de la décision Panel Me Tammy Tremblay Tribunal Counsel for the person who is the subject of the appeal Dorin Cosescu 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 appeal is allowed. [2] The appellant, XXXX XXXX XXXX, is a citizen of Djibouti. [3] The appellant states that she fears for her life if she should return to Djibouti because she is a member of the Midgan minority clan and she is persecuted by a person in the majority clan. She states that she was rejected by her family because in 1995 she married a non-Muslim Ethiopian instead of a high-ranking police officer with close ties to those in power (XXXX XXXX), with whom her family had planned an arranged marriage. Her husband was threatened and chose to return to Ethiopia to protect her. She states that in 2002, she was abducted, raped and beaten by XXXX XXXX XXXX who still wanted to marry her. She claims that she lived in hiding from XXXX XXXX from 2015 until she left her country in 2017. [4] The Refugee Protection Division (RPD) rejected the appellant's claim for the first time on March 6, 2017, but this decision was set aside by the Refugee Appeal Division (RAD), which referred the matter to the RPD for re-determination. On September 17, 2019, the RPD rejected the appellant's refugee protection claim a second time, namely because it found that her credibility was undermined by omissions, contradictions and inconsistencies in her testimony. [5] In her memorandum, in addition to the previously mentioned fears, the appellant states that she fears persecution in Djibouti because of her membership in the particular social group of [translation] "women facing gender-related persecution" and the treatment of refugee protection claimants who return to Djibouti. The appellant submits that the RPD erred as follows in its analysis of her refugee protection claim: - The RPD only focused on the evidence that weighed against her and ignored the evidence that weighed in her favour. - The RPD failed to observe the principle of natural justice because it did not comment on certain pieces of evidence submitted by the appellant (P3 to P-6). - The RPD did not demonstrate the sensitivity and understanding required by Guideline 4. - The RPD erred in not conducting a [translation] "gender-based [analysis] based on evidence of violence against women in Djibouti." [6] The determinative issue for the RAD is the prospective risk. ANALYSIS [7] My role is to examine all of the evidence and determine whether the RPD's decision is correct.1 Credibility [8] The RPD found that the appellant's testimony was credible for the period from 1994 to 2002. After that, the RPD found that the appellant's testimony was vague and sometimes contradictory, and that it did not establish that appellant faces persecution in Djibouti. On appeal, the appellant argues, in particular, that the RPD should have applied the presumption of truthfulness and considered her explanations. Furthermore, in her opinion, the omissions and contradictions the RPD noted in her testimony are not related to the basis of her refugee protection claim. [9] In analyzing the appellant's refugee protection claim, I considered the Guideline on Women Refugee Claimants Fearing Gender-Related Persecution (Guideline 4), especially section D, which mentions that women from societies where the preservation of one's dignity or marital dignity is the cultural norm may be reluctant to disclose their experiences of violence in order to keep their feeling of "shame" to themselves. Such violence against a woman may cause difficulty in concentration, an attitude of self-blame, memory loss or distortion and a reluctance to testify. [10] Like the RPD, I am of the view that the appellant did not present any evidence to corroborate her statements, but unlike the RPD, I think one must be careful before drawing a negative inference based on a lack of corroborative evidence.2 [11] As the RPD hearing recording is not on the appeal record, I am unable to confirm the omissions or contradictions raised by the RPD in the appellant's testimony. And even if I could, the RPD's findings that doubt the appellant's credibility do not seem sufficient to me to rebut the presumption of truthfulness, all the more so because it found the appellant's testimony to be credible up to 2002, when she was abducted, raped and beaten by XXXX XXXX. Yes, the appellant ideally should have provided more details in her testimony, or reported the help received from a friend to leave Djibouti in her written account, but this information is not central to her refugee protection claim. The same holds true for the discrepancies the RPD identified between the appellant's testimony and the documents filled out at the border when she arrived in Canada. With regard to the behaviour considered to be inconsistent with the appellant's fear, namely that she did not consider the fact that XXXX XXXX could have been working at the airport the day she left, this was speculation proposed by the RPD. [12] There are aspects of the appellant's story that leave me perplexed. For example, why did she decide to live in hiding only from 2015? Similarly, I have some doubts, particularly with regard to what actual threats the appellant received from XXXX XXXX after 2002. Despite everything, I conclude that there are not sufficient reasons to doubt the credibility of the appellant's oral and written testimony with regard to her fear of persecution in Djibouti from XXXX XXXX or as a single woman who is part of a minority clan. [13] In a legal textbook, Professor Hilary Evans Cameron relies on relevant case law in stating the opinion that the notion of the benefit of the doubt is fundamental to refugee law and that it should guide decision-makers facing a degree of doubt after analyzing all of the evidence: "When the Court uses this wording, it highlights the fact that when all is said and done, the member may be left in doubt. Since the presumption of truthfulness decrees that this doubt may not harm the claimant unless the member can find valid reasons to support it, if she cannot quantify her suspicions, she will simply have to accept the evidence that she distrusts-she may even have to accept evidence that she strongly believes is untrue."3 [14] In this context, I conclude that the appellant established that there was more than a mere possibility that she would be persecuted by XXXX XXXX, should she return to Djibouti. Gender-based persecution [15] In addition to fearing XXXX XXXX, the appellant fears persecution because she is a woman in Djibouti. The appellant states that, as a woman, she would be vulnerable if she had to return to Djibouti, where, according to the documentary evidence, violence is widespread. She claims that the RPD erred in not considering her weak economic situation and the absence of male protection. She argues that the authorities do not have the will or the resources to protect single women from minority clans. Lastly, the appellant submits that it is not possible for her to find refuge elsewhere in Djibouti. [16] The Chairperson's guideline indicates that when the violence feared by a person is a serious violation of a fundamental right for a Convention ground and there is a failure of state protection, it can be concluded that that person is a refugee. [17] In this case, the appellant suffered serious physical abuse, including female genital mutilation as a child and sexual assault, acts that are certainly serious violations of fundamental rights. [18] I have read the objective evidence about the current situation in Djibouti, especially that which concerns the situation of women. [19] According to the documentary evidence, women in Djibouti experience serious human rights' violations, including discrimination and violence. The reports indicate that women suffer legal and social discrimination, including, but not limited to, discrimination affecting freedom of movement, employment, housing, inheritance and property. Although there is a law against rape, it does not address spousal rape, and the law is not enforced effectively. Furthermore, domestic violence is a widespread problem. Women rarely report such assaults to the authorities; police rarely intervene in domestic violence incidents and often, these problems are handled by families and clans. There is no law against sexual harassment, which is a widespread problem.4 [20] Considering all of the evidence, I note that the appellant's fears are consistent with the objective evidence and the situation in Djibouti. Given all of the information on the record and the appellant's profile as a single woman from a minority clan, I conclude that she has established that she faces a serious possibility of persecution on a Convention ground, namely that of being a member of the particular social group of women fearing gender-based violence and persecution. State protection [21] The appellant must provide clear and convincing evidence that the Djiboutian state would be unwilling or unable to provide adequate protection with regard to the alleged risks. [22] As explained above, the panel considered the objective evidence on the current situation in Djibouti and the appellant's profile. According to the evidence, discrimination and violence against women is a serious and widespread problem. However, the authorities are trying to counter this violence and discrimination; for example, Djibouti has adopted a law to protect women's rights against discrimination. However, the laws are not applied effectively at all times. According to the same evidence, there are serious corruption and impunity problems among authorities. The risks faced by women and girls are not limited to one particular region, they are widespread. [23] Given all of this information and for all of the reasons explained above, I conclude that state protection would not be adequate for the appellant at this time, considering the particular facts of this case. [24] Djibouti is a small country with a population of less than one million. Considering all of the evidence on the record and for all of the reasons explained above, it is objectively unreasonable, at present and in the circumstances, including those particular to the appellant, to seek refuge elsewhere in Djibouti. There is currently a serious possibility of persecution for the appellant everywhere in Djibouti and, because of this, there is no viable internal flight alternative for her right now. CONCLUSION [25] The appeal is allowed. I set aside the determination of the RPD and substitute my own determination that the appellant is a Convention refugee. (signed) Tammy Tremblay Me Tammy Tremblay December 8, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Senadheerage v. Canada (Minister of Citizenship and Immigration), No. IMM-4471-19, Grammond, October 15, 2020; 2020 FC 968, at paras. 23-26. 3 Hilary Evans Cameron, Refugee Law's Fact-Finding Crisis. Truth, Risk, and the Wrong Mistake, New York, Cambridge University Press, 2018, at pages 95-96. 4 SPR-1, Refugee Protection Division record, National Documentation Package on Djibouti, (March 29, 2019), Tab 2.1. Djibouti. Country Reports on Human Rights Practices for 2018, United States, Department of State, March 13, 2019; Tab 2.3. Djibouti. Freedom in the World 2019, Freedom House, 2019; Tab 5.1: Domestic violence, including prevalence and legislation; protection provided to victims by the state and civil society (2013-May 2017), DJI105802.FE, June 1, 2017; Tab 5.1: 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, June 6, 2017; Tab 5.3: Forced marriage, including the frequency; the consequences of refusing such a marriage, including for the parents of minors whom their grandparents want to marry by force; recourse available to parents; state protection available (2015-April 2017), DJI105797.FE, May 18, 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : VB9-07811 RAD.25.02 (January 2020) Disponible en français 7 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