VB9-09699

RAD File / Dossier de la SAR : VB9-09699 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 Vancouver, BC Appel instruit / entendu à Date of decision December 30, 2020 Date de la décision Panel Ron Liberman Tribunal Counsel for the person who is the subject of the appeal Dorab Colah 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] XXXX XXXX XXXX, a citizen of Uganda, appeals a decision of the Refugee Protection Division (RPD) dated November 18, 2019, rejecting her claim on the grounds of credibility. I have conducted an independent analysis of all the evidence concerned, including the entire Apellant Record and the oral testimony. In making my decision, I have taken into consideration the Chairperson's Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution1 (Gender Guidelines). I find the RPD erred in its assessment of the Appellant's credibility and the objective evidence, and that the Appellant is a Convention2 refugee. BACKGROUND [2] The Appellant alleges as follows. She was required to undergo female genital mutilation (FGM) as a member of the Sebei clan, to which her father belongs. Her mother is from the Bagisu clan. The Appellant does not know her father, who left two months of her mother becoming pregnant with her. If returned to Uganda, the Appellant fears that her paternal relatives and the Sebei elders will force her to undergo FGM, and to marry a man they have chosen. She also fears the elders will kill her if she continues to defy them. RPD FINDINGS [3] The RPD found the Appellant's testimony to be inconsistent, imprecise, shifting, and implausible. The RPD also identified several credibility issues, and it found the Appellant's testimony regarding FGM and forced marriage to be at odds with the objective evidence. The corroborating documentary evidence provided by the Appellant was found to be insufficient to allay the RPD's concerns. APPELLANT'S ARGUMENTS [4] The Appellant argues the RPD erred by mis-characterising evidence, erred in its credibility findings, ignored evidence in the country conditions' documents that contradicted its findings, and erred in making implausibility findings about her passport without giving the Appellant an opportunity to respond to its concerns. NEW EVIDENCE [5] The Appellant has requested I admit the items listed below as new evidence in this appeal: a) An online article about Ugandan surnames; b) A copy of information from the website of the Ugandan High Commission regarding requirements to obtain a new passport. [6] To decide whether to admit this new evidence, I must consider the requirements of section 110(4) of the Immigration and Refugee Protection Act3 (IRPA) to determine whether this is evidence that arose after the rejection of the claim, or was not reasonably available when the claim was rejected, or is evidence which the Appellant could not reasonably have been expected to present at the time of the rejection. If I find that the evidence meets the test in section110(4), I must also, in order to admit it, determine that the evidence meets the modified factors of credibility, relevance and newness as specified in Raza4 and Singh.5 The Appellant is required to explain how the new evidence that has been provided meets the requirements of section 110(4), as is clarified in Tiodunmo.6 Appellant's Counsel has provided explanations. [7] Item a) of the proposed new evidence is dated July 23, 2015 and pre-dates the RPD hearing. Nevertheless, I agree with Counsel that the Appellant could not reasonably have been expected to provide this evidence prior to the RPD rendering its decision, because it was not evident that the RPD would find the Appellant not credible when she was unable to provide a birth certificate with her father's name. I therefore find this item of proposed new evidence meets the requirements of section 110(4) of IRPA. I also agree with Counsel's submissions that it meets the modified Raza criteria of credibility, because it appears to be from an organization associated with Ugandan churches, is relevant because it is capable of proving facts related to Ugandan surnames which, the subject having been raised by the RPD, are relevant to the claim, and is new in the sense that it is capable of contradicting a credibility finding of the RPD. I admit this new evidence. [8] Item b) of the proposed new evidence is undated, but again I find the Appellant could not reasonably have been expected to know prior to the RPD rendering its decision that the documents with which she was able to obtain her passport would be a matter of concern, especially since the RPD did not confront her with its concerns in this regard at the hearing. I therefore find it meets the requirements of section 110(4). I also find it meets the modified Raza criteria of credibility, because it appears to be from the Ugandan High Commission, is relevant because it is capable of proving facts related to the acquisition of the Appellant's passport which the RPD raised, and is new in the sense that it is capable of contradicting a credibility finding of the RPD. I admit this new evidence. ORAL HEARING [9] Section 110(6) of IRPA states that the Refugee Appeal Division (RAD) may hold a hearing if there is new evidence that raises a new issue with respect to the credibility of the person who is the subject of the appeal; that is central to the decision with respect to the refugee protection claim and that, if accepted, would justify allowing or rejecting the refugee protection claim. I find that the new evidence is insufficient to address the findings of the RPD regarding threats of FGM and forced marriage, and given also that this appeal has been decided in favour of the Appellant, the RAD will not hold an oral hearing. ROLE OF THE RAD [10] In accordance with the decision in Huruglica,7 when reviewing the decision of the RPD, I have applied a standard for my review of correctness while conducting an independent assessment of the entirety of the evidence before me. ANALYSIS [11] I analyze below the credibility findings of the RPD. Was the Appellant's testimony about her father's names vague and evasive? [12] The RPD found the Appellant did not know her father's family name, despite having met her paternal relatives, and that initially she did not know her father's first name, but eventually testified that it was XXXX. [13] Counsel's Memorandum quotes sections of the transcript, and it submits based on those sections that the Appellant was neither evasive nor vague: she explained that she did not know her father's family name, and that his family referred to him as XXXX. [14] I find the transcript demonstrates that the Appellant was initially asked about her father's family name and stated she did not know. Subsequently, when asked if her mother knew her father's names, the Appellant asked for clarification as to which name the RPD was referring to, and she indicated that she only knew him by the name XXXX. [15] When the new evidence tendered by the Appellant regarding surnames in Uganda is taken into consideration, it is evident that the Appellant could not be expected to know her father's surname merely because she got to know her paternal relatives. The evidence is that surnames in Uganda, unlike those in Canada, are not shared by all family members in the same way: rather, the surname is a clan name, and two siblings from the same parents can have different surnames. Given this context, while I can understand why the RPD might have been concerned, I find the Appellant has reasonably explained why she was unable to tell the RPD her father's surname. [16] Furthermore, although the RPD apprehended that the Appellant did not provide her father's first name when she was initially asked for it, I find that conclusion does not necessarily follow from the testimony. The manner in which the RPD asked its initial question about names, namely "What are the names of your mother and father?"8 does not suggest to me that the RPD would be satisfied with the names of the mother and only the first name of the father in response; it suggests that the RPD was expecting that the first name and the family name of both parents would be provided. The Appellant's reply, after providing both her mother's first name and her surname, to the effect that she does not know her father and has never met him can therefore, to my mind, properly be regarded as indicating that she does not know all the information that the RPD is asking for in respect of her father. This is especially so because shortly thereafter the Appellant seeks to clarify whether it is only the last name of her father that the RPD is seeking. She explains that she only knows him as "XXXX"9 (phonetic spelling in the transcript)-which it appears to me refers to a phonetic rendering of the name "XXXX" spoken with an African accent. [17] I therefore find that the Appellant provided the information that she could reasonably have been expected to provide about her father's names in response to the RPD's questions, and that the RPD erred by drawing a negative credibility inference from what it incorrectly apprehended as her failure to do so. Appellant's testimony about her birth certificate and how she obtained her passport [18] The RPD also found the Appellant's testimony about her birth certificate was evasive, and this was important for the claim, because the birth certificate would corroborate her relationship with her father. The RPD in its Reasons does not accept the Appellant's explanation about how she obtained her passport without a birth certificate and her claim to have done so using a student identity (student ID) card. The RPD found in consequence that either the Appellant's passport was not genuinely obtained as she claimed it to be, or that she was not being truthful about her birth certificate and about the identity documents she possesses. [19] Having studied the transcript of the hearing, I agree with Counsel that it does not establish that the Appellant was being evasive in her responses about the birth certificate, and that she in fact explained that she had never seen her birth certificate, but that her mother must have it because it is a document that is routinely issued in Uganda after the birth of a child. [20] I also agree with Counsel that, despite finding that the Appellant was a citizen of Uganda, the RPD was unclear in its findings as to whether it believed the Appellant's passport was genuine or not. In this respect, the RPD failed to make a clear credibility finding. [21] Moreover, I agree with Counsel that, because the Appellant was not asked how she could obtain a passport without a birth certificate and with only a student ID card, the RPD was not entitled to make a negative credibility finding against the Appellant based on her claim to have obtained a passport without a birth certificate. [22] I note that the new evidence provided by the Appellant appears to indicate that a birth certificate is in fact not a requirement to obtain a passport. While this document indicates that a national identity card is a requirement to obtain a passport, and the Appellant indicated she did not provide any documentation other than her student ID card, the Appellant was not confronted with this issue by the RPD either. I note that the application form asks in point 7 for a copy of any other identification card, for instance a "School ID."10 [23] The RPD observes in its Reasons that the objective evidence confirms that to obtain a passport requires the applicant to provide their national identity number-yet again, the Appellant was not confronted with this requirement at the RPD hearing or asked whether she provided this information to the passport office. [24] I find, on a balance of probabilities, the Appellant's passport is genuine because it bears a Canadian visa which was used to enter Canada,11 and that the Canadian authorities have found no irregularities with the passport. Documents issued by foreign authorities carry a presumption that they are genuine. There could be a variety of explanations as to how the Appellant was able to obtain this passport without a national identity document or a national identity number, for instance that she was excused from this requirement because there is discretion not to require it in certain circumstances, or because she provided her student ID card, or even because the Appellant has simply forgotten that she provided other evidence of her identity document at the time-but in any event, as pointed out above, she was not questioned on these matters. I note the application form can be interpreted as meaning that a student ID card can be accepted in lieu of a national identity document. Furthermore, the RPD accepted the Appellant's identity as a citizen of Uganda, and the details in her passport are consistent with that finding. [25] In this context, the further implausibility finding of the RPD, namely that the Appellant could not have obtained her passport without providing a national identity card or number, is not made in the clearest of cases. It is also not central to the claim, because the RPD accepted the identity of the Appellant. The case law established by the Federal Court, as Counsel points out, warns that implausibility findings should only be made in the clearest of cases. [26] I therefore do not hold these matters against the credibility of the Appellant. Failure to explain why the relatives did not forcefully impose female genital mutilation earlier [27] The RPD found it was unlikely that the paternal relatives of the Appellant had an interest in forcing her to undergo FGM, because she had visited their village on numerous occasions between ages 6 and 16, and the Appellant was unable to explain why they had not forced FGM on her during this period. The RPD also found that, from age 16 until the Appellant left Libya, her father's family knew where she lived, but did not impose FGM. The RPD found the Appellant's testimony failed to explain the sudden increase in these relatives' interest in having FGM performed on her and that her testimony about the man she alleges her relatives arranged for her to marry was vague. The RPD drew a negative credibility inference owing to this and because the Appellant did not know any significant details about this man, other than that he was part of the Sebei culture, and because even though the Appellant alleges her paternal relatives know her whereabouts in Canada and that this marriage was the source of their increased interest in having FGM performed on her, the man in question has not contacted her. [28] Counsel submits, firstly, that the Appellant was clear in her testimony, and reasonably explained that her mother was always telling her paternal relatives that the Appellant was busy studying and working, but that the RPD ignored this evidence. Counsel also submits that the RPD is again making an unreasonable plausibility finding-essentially that the relatives would have forced the Appellant to be circumcised earlier if they had an interest in seeing FGM performed on her. [29] I agree with Counsel, having studied the transcript of the oral testimony, that the Appellant has provided a reasonable explanation as to why her paternal relatives held off on insisting that she be circumcised by force, because we cannot know what the relatives' thinking was with regard to this matter, and also because I find it is unreasonable to suppose that they would have entirely ignored the mother's wishes in this regard. Therefore, I agree with Counsel that this implausibility finding of the RPD is not made in the clearest of cases, and I do not count it against the credibility of the Appellant. Furthermore, because the possible reasons the man in question has not contacted the Appellant, or why she does not know many details about him, were not canvassed by the RPD in the hearing, I find the RPD erred by holding the fact that she was not contacted and her lack of extensive knowledge about the man concerned against her. Appellant's testimony regarding her forced marriage [30] The RPD found the Appellant's testimony about the threat of forced marriage to be unsatisfactory, because it was not credible that her paternal relatives had declared her an outcast and still insist that she enter into a pre-arranged marriage with a member of their tribe, and because the Appellant was unable to explain this apparent inconsistency. Moreover, the RPD found that the Appellant's claims regarding FGM and forced marriage are not supported by the objective country conditions' evidence as a cultural tradition that would fit her profile or individual circumstances. [31] The Appellant testified that persons with her profile are at risk of forced marriage and FGM. [32] Counsel submits that the RPD failed to consider a United Nations International Children's Fund (UNICEF) report in the National Documentation Package (NDP) which states that in the district of Kapchorwa the practice of FGM was associated with early marriage.12 I note that as per the Appellant's testimony, this is the village in which her paternal relatives live. [33] The RPD in fact accepted in its Reasons that FGM was more prevalent in the district of Kapchorwa but disagreed with the conclusion of Counsel at the RPD that it was "very prevalent"13 in Uganda. It is therefore not clear to me that the RPD ignored this evidence. Nevertheless, as explained below, the evidence suggests to me that FGM is practiced more frequently in Kapchorwa than would be indicated by the 2.6% prevalence of FGM in Bugisu, which the RPD found to refer to all ethnic groups in Uganda. [34] Counsel also refers to a report published by 28 Too Many stating that, among the Sebei, FGM is largely practiced as a rite of passage associated with an assurance of marriageability. I note this evidence states that the prevalence of FGM among the Sebei (a.k.a. the Sabiny) is 50 percent and is associated with marriageability.14 I therefore find the RPD erred by assuming that the overall prevalence of FGM within Uganda is accurately reflected by its average prevalence across the entire country, and that the Appellant has established there is more than a minimal possibility that relatives in that area would want to have FGM performed on her. [35] This objective evidence, while indicating that the usual age for FGM among the Sebei is between 10 and 15 years of age, does not negate the possibility that much older females such as the Appellant would not be expected to undergo FGM prior to marriage. [36] The RPD also found that the Appellant is not at risk because FGM has been outlawed in Uganda, but in this respect I accept the submissions of Counsel, based on the same document in the NDP, that this law is not effectively implemented at an operational level in Uganda, and that there is anecdotal evidence that the Sebei in particular defy this law.15 [37] The RPD also found that the practice of demanding a bride-price has been outlawed in Uganda, and that the Appellant had testified that a bride-price would be paid to her paternal relatives. In this regard however, I accept the explanation of the Appellant that in practice the bride-price is still paid, and that it is evident for instance in YouTube videos about Ugandan Introduction Ceremonies - which is evidence the RPD did not challenge or comment upon. [38] With respect to the RPD's finding that the Appellant was unable to explain why the elders would impose FGM on her return to Uganda if they had already declared her to be an outcast, I find there is no evidence as to how the elders might react in this situation, therefore it requires speculation as to how the elders might behave to determine the likelihood of them continuing to wish to impose FGM on the Appellant. In these circumstances, I do not hold the inability of the Appellant to explain this matter against her credibility. Overall conclusion on credibility [39] The sworn testimony of an Appellant is presumed to be true unless the presumption is rebutted,16 and in this instance I find that the presumption has not been rebutted because the RPD erred in its negative credibility findings and in its assessment of the objective country conditions' evidence. [40] In these circumstances, it is not essential that the Appellant provide corroborating evidence. While I agree with the RPD's reasons for assigning little weight to the corroborative evidence, I do give it some weight, and I note the Appellant's explanations that people would be reluctant to provide documents or evidence that corroborates her allegations, because they themselves fear the Sebei elders. I find that such a fear is reasonable, and furthermore that the question of what would happen to the Appellant should she be returned to Uganda, purely because she defied the elders, was not explored by the RPD (in fairness to the RPD, because the RPD found the Appellant was not credible). [41] For all the above reasons, I find that the Appellant faces more than a minimal possibility of persecution if returned to Uganda State Protection and Internal Flight Alternative (IFA) [42] I find there is no viable IFA for the Appellant in Uganda, because it is unreasonable to require her not to make contact with her family, and it is reasonable to suppose that this contact would result in her location becoming known to the agents of harm. [43] As regards the question of state protection, as noted above the country conditions' evidence indicates that the Sebei do not respect the legislation which outlaws FGM, and that this law is not effectively enforced at an operational level. I therefore find there is no state protection available to the Appellant in Uganda. [44] In these circumstances, I find the Appellant has met all the requirements under section 96 of IRPA17 to be a Convention refugee. DETERMINATION [45] Pursuant to section 111(1)(b) of the IRPA,18 the RAD substitutes the decision of the RPD with a determination that the Appellant is a Convention refugee. (signed) "Ron Liberman" Ron Liberman December 30, 2020 Date 1 Immigration and Refugee Board of Canada, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution, Effective date: 13 November 1996. 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 3 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 110(4). 4 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 5 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230. 6 Tiodunmo v. Canada (Citizenship and Immigration), 2019 FC 1489. 7 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, [2014] 4 RCF 811. 8 Exhibit P-2, Appellant's Record, Transcript of RPD Hearing on August 30, 2019, at p. 25, line 40. 9 Ibid., at p. 26, line 30. 10 Exhibit P-2, Appellant's Record, New Evidence, Uganda High Commission Passport Document, at p. 89. 11 Exhibit RPD-1, RPD Record, at p. 113. 12 National Documentation Package (NDP) for Uganda (June 28, 2019), item 5.4: End Child Marriage and Teenage Pregnancy in Uganda, December 2015. 13 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 13-14, para. 51. 14 Exhibit RPD-1, RPD Record, 28 Too Many Report "Country Profile: FGM in Uganda", at pp. 170, 177. 15 Ibid., at p. 175. 16 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (CA). 17 IRPA, section 96. 18 IRPA, section 111(1)(b). --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-09699 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