MB5-01299

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 : MB5-01299 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 at Montréal, Québec Appel instruit à Date of decision September 30th, 2015 Date de la décision Panel Anna Brychcy Tribunal Counsel for the person who is the subject of the appeal Me Jeffrey Platt 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 is XXXX XXXX XXXX. She is a citizen of the Democratic Republic of Congo (DRC). She is appealing a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. She is not presenting any new evidence. She asks that the Refugee Appeal Division (RAD) set aside the RPD's decision and replace it with a positive determination or that there be a new hearing with a differently constituted panel. DETERMINATION OF THE APPEAL [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that the appellant is neither a "Convention Refugee" according to section 96 of IRPA, nor is she a "person in need of protection" under section 97(1) of IRPA. [3] The appeal is dismissed. BACKGROUND [4] The appellant fears XXXX XXXX, a man whom she was forced to marry in a customary marriage ceremony in XXXX 2013. He was violent towards her and in XXXX 2014 he beat her requiring her hospitalisation. The authorities did not intervene. [5] The appellant obtained a visa to come to Canada and left on XXXX XXXX, 2014 and claimed refugee protection. The appellant's claim for refugee protection was heard by the RPD on January 19, 2015 and January 28, 2015. In a decision, dated February 11, 2015, her claim was refused. The determinative issue for the RPD was credibility. The RPD did not find her testimony to be credible and noted numerous contradictions, omissions and inconsistencies and found that the appellant had adjusted her testimony. SUBMISSIONS OF THE APPELLANT [6] Counsel for the appellant submits that the RPD did not properly understand and appreciate the evidence that had been presented. The appellant did not contradict herself and her responses were the result of how she had interpreted and understood the questions asked of her by the RPD member. The appellant did not obtain a divorce although she left her husband on XXXX XXXX XXXX 2014. [7] The RPD expressed doubt that the appellant had married in a customary ceremony since the dowry document states that the marriage was to take place in XXXX 2014. While there may have been an error in the document as to the date of the marriage, this does not signify that the document is not valid or genuine. [8] With respect to the marital authorisation, dated XXXX XXXX, 2014, signed by XXXX XXXX authorising the appellant to travel to Canada, counsel argues that there is no clear, solid proof that XXXX actually signed the authorisation. The signature may have been a forgery to facilitate obtaining a visa considering that XXXX, who had been violent with the appellant, would likely not have let the appellant leave the country. [9] The RPD questioned the appellant's hospitalisation for several days after having been attacked by XXXX and did not properly appreciate the evidence since nowhere in the medical certificate does it state that the doctor had said that nothing was wrong with her. Furthermore the 3-day hospitalisation was a medical decision and the RPD had no basis on which to question such a decision. [10] Counsel also argues that the RPD did not provide clear reasons for not finding the appellant's hospitalisation to be credible and the member did not explain why she found the appellant's testimony to be vague and fuzzy about her period of hospitalisation. The RPD has the obligation to provide clear, sound and valid reasons for its findings. [11] While the visa application may have contained false information, the appellant had explained that it was the agent who had completed it for her. The appellant had been compelled to leave her country and she had relied on the agent to fill out her visa application. [12] With respect to the appellant's failure to mention in her Basis of Claim Form the repeated visits by XXXX to the family residence after her departure to Canada, many other important facts had been set out in that form but the RPD chose instead to focus on this omission. An adverse credibility finding should not have been drawn by this omission since the appellant was already safely in Canada when this occurred. ROLE OF THE RAD [13] Although the RAD is a relatively new body, it now has the benefit of some Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. The panel finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate review the RAD should conduct of an RPD decision. [14] While the Court had endorsed the standard of reasonableness in Iyamuremye,2 and accepted it in Malhotra,3 more recently, the Court, in Huruglica,4 found the RAD had erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of IRPA. In simply reviewing a decision for reasonableness, the RAD would merely be duplicating what occurs on judicial review at the Federal Court and this would be inconsistent with the creation of the RAD and the extensive legislative framework. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.5 It is to review all aspects of the RPD's decision and come to an independent assessment of the appellant's refugee claim. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [15] It appears that the RAD, as a tribunal specialized in refugee protection matters, must examine all the evidence to determine whether the decision is well founded in light of the evidence filed before the RPD and contained in the RAD record. Considering that the RPD views the evidence first-hand, deference may be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. The RPD has the advantage of seeing and hearing the appellant and is therefore in a better position to make findings regarding credibility. Nevertheless, when it is a matter of interpreting the documentary evidence on country conditions there is no reason for the RAD to defer to the RPD on this type of assessment.6 [16] This panel member of the RAD will be following the case of Huruglica in dealing with this appeal. Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the appellant is a "Convention refugee" or a "person in need of protection". ANALYSIS OF THE MERITS OF THE APPEAL [17] The appellant alleges that she separated from her husband on XXXX XXXX XXXX 2014. Yet a letter had been included in her visa application, signed by her husband on XXXX XXXX, 2014, authorising her to come to Canada. The appellant at the hearing had explained that it was an agent who had completed her visa application and that this and other irregularities noted in the form with respect to her education and the names of her family members had been errors on the part of the agent. Counsel argues that the husband's letter may have been a forgery. This however was not the only discrepancy and there are just too many inconsistencies in the appellant's story, for which there were no satisfactory explanations provided, for the RAD to find her story credible. The RAD will outline these briefly. [18] First there is the issue, that the appellant, as an educated woman who is also a XXXX XXXX and speaks French, had signed her visa application despite knowing that it contained false information about her. This is an attempt to deceive the Canadian authorities. While counsel argues that the husband's document authorising her to come to Canada may be fraudulent, the RAD notes that in her testimony the appellant did not deny that her husband had signed the XXXX XXXX, 2014 document authorising her visit to Canada. Had he been violent and controlling towards her as she alleges, it is unlikely that he would have let her come to Canada in the first place, especially after allegedly having beaten her to the point that she needed to be hospitalized in XXXX 2014, just one month prior to signing the letter. Furthermore in her testimony the appellant had stated that she left her husband on XXXX XXXX, 2014, after that attack on her. Also, had XXXX signed this document, it is unlikely that he would repeatedly come to her home looking for her once he had known she had left for Canada. The appellant had furthermore failed to mention these visits in her BOC. The RAD finds this to be an important omission and concludes that the visits are an embellishment on her claim. [19] Counsel argues that the RPD did not properly appreciate the evidence in questioning why her injuries required a 3 day stay in hospital. It is argued that the RPD erred in stating that the medical certificate had said that there was nothing wrong with her when in fact the medical certificate for the XXXX XXXX, 2014 incident does not state that but rather indicates the reasons for her hospitalisation. The RAD finds that the RPD did not err on this point and it was not the RPD who had stated that the doctor's note said there was nothing wrong with her. In its decision, at paragraph 25, the RPD member clearly states that it was the appellant who had stated that it was the doctor who had diagnosed that there was nothing wrong with her. The RAD also does not agree that the RPD failed to give clear reasons as to why it found the appellant's explanations for her 3 day hospital stay to be lacking. The testimony of the appellant was vague and the RPD was justified in expecting that the appellant, as a medical doctor, would have been able to be more precise and should have been able to give more details regarding her injuries and the treatment she had undergone while in hospital. [20] With respect to the medical document regarding her alleged rape in XXXX 2013, the RPD had noted certain irregularities in the name of the doctor and in the stamps on the letter. In addition, the RAD finds that the doctor who signed this letter is the father of the appellant's son and a man with whom the appellant was in a relationship from 2007 until as late as 2013. The RAD questions the neutrality of this letter by a man who may possibly have an interest in the outcome of the case. [21] With respect to the document attesting to the payment of a dowry and the consent for the marriage by both parties, this document states that the marriage was to take place on XXXX XXXX XXXX 2014. Counsel argues that this had been an error which does not undermine the document's validity. Counsel also mentions that no expertise had been conducted to conclude that it was not valid. The RAD notes the documentary evidence in the National Documentation Package on the subject of the challenges related to verifying the authenticity of documents in the DRC.7 This documentary evidence states that the authenticity of an official document is difficult to verify because there are "thousands" of offices, such as communal offices, that issue documents, each in their own way, and as a result, it is difficult to distinguish falsified versions from authentic versions. The RPD had noted that the document contained a discrepancy as to the year of the marriage since the appellant had testified that her marriage had taken place in XXXX 2013. This document however had been signed by six individuals and bore a certificate of validation by the commune and yet another certificate of validation and yet the alleged error in the date had not been noted. The RAD finds that the discrepancy as to the date of the marriage undermined the appellant's credibility regarding her marriage to XXXX XXXX as did the discrepancy between her oral testimony and her IMM 008 form as to when the marriage had ended. While she alleges that her marriage had lasted until XXXX XXXX, 2014, the immigration form had indicated XXXX XXXX, 2014 and she explained this discrepancy by the fact that the immigration official had filled in this date without consulting her. The RAD agrees with the conclusion of the RPD that an immigration official who has no interest in the outcome of this case would not put down a date that had not been given to him by the appellant. Once again, the appellant had signed the immigration form indicating that the information contained therein was accurate. It was completed in the French language in which the appellant is fluent. Furthermore, on the subject of her divorce, the appellant had stated first in her oral testimony that she was divorced from her husband but when not able to explain the procedure of divorce she had gone through, she stated that she was not divorced but considered herself to be since she had left her husband and come to Canada. [22] The RAD has engaged in an independent review of all the evidence presented and after such a review the RAD agrees with the RPD's conclusions that the appellant in general lacks credibility with respect to her fears of XXXX XXXX. The RAD finds that she does not have a well-founded fear of persecution or that, on a balance of probabilities, she would face torture and a risk of harm or cruel and unusual treatment or punishment should she return to her country. CONCLUSION [23] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD, namely, that the appellant is neither a "Convention refugee" according to section 96 of IRPA, nor is she a "person in need of protection" under section 97(1) of IRPA. [24] The appeal is dismissed. Anna Brychcy Anna Brychcy September 30, 2015 Date /kp 1 Huruglica v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Iyamuremye v. M.C.I. (F.C., no. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494. 3 Malhotra v. M.C.I. (F.C., no. IMM-6899-13), Bédard, August 1, 2014; 2014 FC 768. 4 Huruglica v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 5 Huruglica, para. 45. 6 Huruglica, para. 38. 7 National Documentation Package on DRC, April 30, 2014. Tab. 3.18. Prevalence and availability of fraudulent identity, administrative and legal documents (2011-February 2014). Immigration and Refugee Board of Canada. COD104763.FE. 10 April 2014. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB5-01299 8 RAD.25.02 (2014.09.11) Disponible en français