MB7-13786

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 : MB7-13786 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision March 26, 2018 Date de la décision Panel Paule Robitaille Tribunal Counsel for the Appellant(s) Me Jeffrey Platt Conseil(s) du (de la/des) Appelant(e)(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS AND DECISION [1] The appellant, XXXX XXXX XXXX XXXX a citizen of Senegal, is appealing against the decision of the Refugee Protection Division (RPD), which rejected her claim for refugee protection by determining that she 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] The appellant is presenting no new evidence before the Refugee Appeal Division (RAD). She is, however, asking that a new hearing be held before it. DETERMINATION OF THE RAD [3] The RAD dismisses the appeal and confirms the determination of the RPD. BACKGROUND Allegations [4] The appellant, a young 26-year-old woman, is alleging a fear of returning to Senegal because her paternal family is forcing her to marry an individual chosen by her father and the paternal clan. RPD decision [5] The RPD rejected the appellant's claim, finding her allegations to be not credible. Appellant's arguments [6] The appellant submits that the RPD member and the Minister's representative misinterpreted her testimony at the hearing by noting inconsistencies and omissions in relation to the documents submitted. She also submits that, in any case, the reasons for the RPD decision address issues that are not determinative. SCOPE OF THE APPEAL [7] I note that the RAD intervenes when it finds that the RPD made an error of fact, of law, or of mixed fact and law.1 It must therefore establish whether the RPD decision is correct.2 [8] Thus, after an exhaustive review of the RPD decision, the RAD conducted its own analysis and considered all the evidence on the record,3 in light of what the appellant provided in her memorandum.4 [9] As for the credibility of the oral testimony, the RAD shows deference to the RPD's analysis where it enjoys a meaningful advantage in making a particular finding.5 In this case, the RAD assesses each of those findings by using the reasonableness standard that it adapted to the context of the appeal. It then makes an overall credibility finding determining whether the RPD assessment contains any errors. REQUEST FOR A NEW HEARING [10] The appellant is requesting for a new hearing in her statement to the RAD (page 12 of the record sent). That request cannot be granted. Indeed, subsection 110(6) of the IRPA clearly states that a new hearing can only be held when there is new admissible evidence. There is none in this case. No new hearing can therefore be held. ANALYSIS [11] First, I would say that, in fact, as noted by the appellant, there are a few elements of that decision that have no connection to her fear, and so they are in no way determinative. It does not matter, for example, what the real reasons were for the appellant's leaving Senegal in 2009 for the United States: To go to school? For vacation? To live there and improve her living conditions? In fact, she repeated during the hearing and in her BOC Form that her fear began in XXXX 2016, when her grandfather, her protector, had died. Why she wanted to visit the United States in January 2016, during her last trip to Canada, is also irrelevant. The delay in claiming refugee protection is not a determinative point in this case. It is clear from the appellant's testimony and narrative that she did not claim refugee protection between 2009 and 2016, during all those trips abroad because her grandfather was supporting her and protecting her from a father who adheres to traditional Islamic values. Thus, the forced marriage was not a concern so long as the grandfather was alive. His death apparently took the family by surprise. As for the copy of the death certificate that was submitted to the panel, nothing suggests that it might be false or that the grandfather did not die on the date indicated on it. [12] If this story is not credible, it is because other more relevant points were not established. [13] I agree with the appellant's allegations that the RPD erred by finding that the copy of the marriage certificate issued in the mosque has no probative value, or that the couple was never married. That document, issued by an imam and not by the city of Dakar, bears a spelling mistake (Celeberation instead of Célébration). As counsel for the appellant stated, it is a human error, and it is not the first time that an official or religious document contains an error or spelling mistake. That simple error is not an egregious error, and the allegation of marriage cannot be completely dismissed based on a spelling mistake in the marriage certificate. [14] The member also mentions, at paragraph 29 of her decision, that there is a dowry indicated on the certificate. The document indicates the payment of a dowry of 25,000 CFA at the wedding. When asked about the payment of that dowry, the appellant spontaneously stated [translation] "what dowry?" She explained that the dowry was given to her family, and then changed her testimony to state that XXXX himself had personally paid it via the imam who had married them. The appellant had no explanation to justify her testimony, which changed according to the questions asked. Because of that, the member found her to be not credible. [15] I am also of the opinion that the part of the testimony regarding the dowry is not credible. Moreover, the documents in the IRB's National Documentation Package on Senegal indicate that a dowry is normally negotiated by the couple's families and that such a transaction involves both families.6 If the families were not aware of the marriage, if they were against it (she writes at line 29 that the young man's family also opposed the marriage), it is unlikely that such a dowry was paid only by XXXX to the appellant personally. [16] The spelling mistake and the confused testimony led the member to conclude that the existence of the marriage had not been established. [17] My conclusions are different. I explained earlier why I give probative value to that marriage certificate. I am of the opinion that the appellant established the existence of the marriage. However, I find that the appellant, in light of all evidence, failed to establish that the dowry did not involve both families, and therefore that the marriage was a secret. The appellant failed to establish that no one knew about the marriage. [18] Since that story of a secret marriage, which is central to the refugee protection claim, is not credible, the refugee protection claim is, overall, not credible. [19] I give no probative value to the letters supposedly written by the appellant's father and uncle,7 since those unofficial documents could have been fabricated by anyone, and they describe facts that I do not believe for the reasons mentioned in this decision. [20] I could stop there, but I will repeat a few of the reasons for the RPD decision that are being challenged by the appellant. Major omissions and a lack of consistency in the appellant's testimony support the conclusion that the allegations of a secret marriage and of violence are unfounded. [21] The RPD notes a major omission in the appellant's narrative. At the hearing, she stated that in 2014, her father had her lover put in jail for a period of three weeks. It was the culmination of threats and assaults (he was beaten). Her lover had to live in hiding. However, in the BOC Form, nothing indicates that XXXX XXXX had been attacked, much less imprisoned for three weeks in 2014, after which the appellant was allegedly beaten, her hand was burned, and she was locked in her room. Rather, lines 26 and 27 state that: [translation] "Despite the criticism and discriminatory accusations against both of us, we were ready to face adversity." She also writes that [translation] "against all odds, we continued to see each other without the knowledge of our enemies." In that text, she completely fails to mention the violence against XXXX alleged at the hearing or his imprisonment of three weeks. When asked at the hearing why she made absolutely no mention of that 2014 incident in her BOC Form, the appellant had no explanation. The RPD concludes that that omission is major and that it seriously undermines the credibility of the narrative. [22] In her memorandum, the appellant submits that she was not obliged to mention the imprisonment in her narrative because it did not concern her personally, it happened to someone else. I reject this explanation. This directly concerns the appellant and the wording of question 2 in the BOC Form clearly specifies that all elements relevant to the allegations must be mentioned. Her lover's imprisonment by the appellant's father is not a trivial matter, and furthermore, that imprisonment was the culmination of the assaults, threats and violence endured by the appellant in 2014, but all those facts were omitted from the BOC Form. It is reasonable to believe that, if that were really the case, if XXXX had truly been imprisoned for three weeks, the appellant would have surely mentioned it in her narrative. She would not have stopped at stating only [translation] "criticism and discriminatory accusations." In light of all the evidence, there is, therefore, a major difference between what was stated at the hearing (that story of imprisonment and the fact that she was also allegedly beaten immediately afterward) and what is written in the narrative (criticisms and discriminatory accusations). The explanations given both at the hearing and in the memorandum are far from satisfactory. All this seriously undermines the credibility of the narrative. In fact, because of that omission, the appellant is unable to establish that XXXX was imprisoned and attacked in 2014, or that he was even the subject of criticism and [translation] "discriminatory accusations." The RPD's finding is correct on this point. [23] Moreover, one wonders why the appellant's grandfather, who had always protected her, could not have also protected the couple and helped them to live their love openly. That question was addressed at the hearing, and a contradiction was noted between the BOC Form and the testimony, yet that contradiction was not noted in the reasons. Line 27 states, [translation] "My family, except for my grandfather and my grandmother, were opposed to this relationship for the simple reason that he (XXXX) belonged to the Griot caste." However, at the hearing, the appellant clearly stated at first that her grandfather did not approve of the relationship with a boy from a lower caste and that he apparently never agreed to the marriage that she had hidden from him. Confronted with what she had written in her BOC Form, she adjusted her testimony and stated that her grandfather loved her so much that, even though the marriage had been against his principles, he would have accepted it anyway; he would have done everything to make the marriage happen. However, she did not dare to talk to her grandfather about the wedding plans. It is not known why. She stated that, if he had been alive when she returned to Canada in XXXX 2016, she would have spoken to him about it. Those explanations are vague and contradictory. In short, they are not credible. The appellant changed her testimony as the questions were being put to her. That contradiction further undermines the credibility of the allegation that her family was opposed to her union with XXXX XXXX, or that he was from a lower caste. [24] Again, the appellant was unable to establish that her family was opposed to the union. [25] Thus, having conducted an independent analysis, I have reached the same conclusions as the RPD. The appellant has failed to establish the credibility of the allegations that form the basis of her refugee protection claim, i.e., that she was persecuted by her family. The RPD's determination is correct. CONCLUSION [26] For these reasons, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [27] The appeal is therefore dismissed. Paule Robitaille Paule Robitaille March 26, 2018 Date IRB translation Original language: French 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraph 103. 2 Idem. At paragraphs 59, 64, 78 and 103 the Honourable Justice Gauthier explains what she understands by the "correctness" standard. 3 Idem, paragraph 103. 4 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraph 103. 5 X (Re) 2017 CanLII 53034 (CA IRB) A three-member panel analyzes the deference that the RAD must show to the RPD with regard to credibility findings based on the oral testimony. See, among others, paragraphs 72 and 116. 6 See the National Documentation Package on Senegal of May 13, 2016, Tab 5.3, SEN104587.FE. It is understood from this text that the dowry is a family matter. 7 See documents in a bundle under Exhibit P-5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB7-13786 7 RAD.25.02 (April 9, 2013) Disponible en français