MB6-02283

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 : MB6-02283 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, Quebec Appel instruit à Date of decision June 7, 2017 Date de la décision Panel Me Marie-Louise Côté Tribunal Counsel for the person who is the subject of the appeal Me Hervé Edgard Chrysostome Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister Natacha Jankovics Conseil du ministre REASONS FOR DECISION [1] This is an appeal filed by XXXX XXXX XXXX against a decision rendered on April 11, 2016, by the Refugee Protection Division (RPD), rejecting her refugee protection claim by determining that she is neither a Convention refugee nor a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant is asking the Refugee Appeal Division (RAD) to allow the appeal, grant her the status of Convention refugee or person in need of protection, and/or refer the matter to the RPD for re-determination. The appellant did not submit new evidence pursuant to subsection 110(4) of the IRPA and is not asking the RAD to hold a hearing under subsection 110(6) of the IRPA. [3] The Minister intervened and asked that the RAD dismiss the appeal and confirm the RPD's determination. He did not submit new evidence or request that a hearing be held. DETERMINATION OF THE APPEAL [4] Pursuant to subsection 111(1) of the IRPA, the RAD allows the appeal, sets aside the determination of the RPD and substitutes it with the determination that, in its opinion, should have been made, namely, that XXXX XXXX XXXX is a Convention refugee under section 96 of the IRPA. [5] The appeal is allowed. FACTUAL BACKGROUND [6] The appellant is a citizen of Mali who is claiming refugee protection by reason of her gender. As a woman of Soninke ethnicity who underwent Type 1 excision1 when she was a child, the appellant fears undergoing Type 2 excision2 should she return to Mali. She also fears that her daughter, who was born in Canada in September 2014 and would return to Mali with her, will have to undergo excision against her will. [7] The appellant states that she fears persecution because of the consequences of her opposition to the excision of her daughter, her inability to protect her, the fact that she would have to witness her daughter's suffering, and the fact of having to live through a second trauma in relation to her own excision. IMPUGNED DECISION [8] The RPD found the appellant credible. [9] The RPD noted that the documentary evidence corroborates her allegations of fear for her daughter. However, it could not take the allegations of fear that her daughter would be excised in Mali into account because she already benefits from Canada's protection given that she is a Canadian citizen by birth. [10] The RPD concluded that the appellant did not establish an objective basis for her own fear of undergoing Type 2 excision should she return to Mali because the documentary evidence indicates that women over the age of 15 are very rarely victims of genital mutilation as adults and it does not address a second excision for married women. [11] The RPD found that the appellant did not establish a fear of persecution for opposing the excision of her daughter because the consequences of opposing her family would not constitute persecution. APPELLANT'S ARGUMENTS [12] The appellant submits that the RPD erred in finding that the consequences of her opposition to the excision of her daughter in Mali would not constitute persecution and that she did not establish an objective basis for her fear of being excised a second time. [13] The appellant argues that the Chairperson's Guideline 4: Women Claimants Fearing Gender-Related Persecution was not considered and that the RPD erred in assessing the fear of returning in disregard of the laws and norms in effect in this case. THE MINISTER'S ARGUMENTS [14] The Minister submits that the RPD properly analyzed the appellant's fears for her daughter, a Canadian citizen, despite the fact that she already benefits from Canada's protection as a citizen of this country. [15] The Minister argues that the RPD considered the evidence in the National Documentation Package on Mali concerning the excision of older women, especially the fact that it would be a second excision. [16] The Minister submits that the RPD properly assessed the risks of persecution concerning parents who oppose the excision of their young daughter, as the evidence in the National Documentation Package on Mali mentions that parents are not subjected to physical violence, and that the information gathered does not suggest that family rejection amounts to persecution. SCOPE OF THE APPEAL [17] The RAD's role in an appeal is defined by the Federal Court of Appeal in Minister of Citizenship and Immigration v. Huruglica3 and by the three-member RAD panel in X(Re), 2007 CanLII 33034 (CA IRB),4 whose decision has precedential value for this panel under paragraph 171(c) of the IRPA. [18] As established in Huruglica, above, the RAD must conduct an extensive, thorough, comprehensive and independent review of the evidence presented. The RAD must normally apply the standard of correctness to all RPD findings. [19] However, with respect to RPD findings that rely on the credibility of oral evidence, the RAD must determine, in each case, whether it owes deference by determining whether the RPD truly benefited from an advantageous position. Where it finds that deference is warranted, the RAD must explain how the RPD enjoyed a meaningful advantage with respect to the credibility finding in question. Where appropriate, the RAD may assess the finding using a standard of reasonableness, modified to apply to the RAD context, as set out in X(Re), 2007 CanLII 33034 (CA IRB). [20] In this case, I will show deference to the RPD's findings if I find that it enjoyed a meaningful advantage in assessing the appellant's testimony. Nevertheless, I will review the overall credibility finding using the standard of correctness. ANALYSIS [21] After listening to the audio recording of the RPD hearing and reviewing the entire RPD record as well as the appellant's record, I share the RPD's finding concerning her overall credibility. I adopt the RPD's findings because I am of the opinion that there is no reason to doubt the truthfulness of the appellant's sworn testimony or that of her husband. The appellant's credibility is established. [22] The appeal raises two questions: I. Did the RPD err in concluding that the consequences of the appellant's opposition to her daughter's excision in Mali would not constitute persecution? II. Did the RPD err in concluding that the appellant did not establish an objective basis for her fear of being excised a second time? [23] A clarification must be made before these two questions are examined. The appellant submits that the only issue at the time of the hearing was her credibility. Having listened to the audio recording of the hearing on March 29, 2016, I note that the RPD indicated at the start of the hearing that the issue was the appellant's credibility.5 After completing its questioning of the appellant and in response to the clarification question asked by her counsel, the member confirmed that credibility was an issue.6 She added that the Minister had argued in his written submissions that the appellant had claimed refugee protection in Canada not because she needed to, but for economic reasons. [24] It must be noted that the RPD did not express concern about applying the concept of persecution to the treatment feared by the appellant because of her opposition to her daughter's excision in Mali but that this issue was a determinative factor in its decision. The same is true of the issue of the objective basis for the appellant's fear of being excised a second time. This approach is problematic because the appellant did not have an opportunity to learn about the RPD's concerns and to address them. However, it does not appear necessary to me to review this issue further because I will allow the appeal for other reasons. I. Did the RPD err in concluding that the consequences of the appellant's opposition to her daughter's excision in Mali would not constitute persecution? [25] Like the RPD, I find that the appellant's minor daughter enjoys all the rights of Canadian citizenship, including the right to live in Canada. I accept the appellant's argument that if her refugee protection claim is rejected and she is removed from Canada, her two-year-old daughter will have to follow her to Mali, given that it is in her best interest to be with her mother. [26] The appellant fears for her daughter, who would have to return to Mali with her, because she would be unable to protect her all day long, since she will have to go to school or daycare. She fears her aunts who excised her, and she cannot guarantee the safety and protection of her daughter because, in Mali, many people support excision. [27] Like the RPD, I note that the documentary evidence corroborates the appellant's allegations of fear for her two-year-old daughter. The statistics are chilling: nearly all women of Soninke ethnicity (96.9%) have undergone genital mutilation.7 The appellant's daughter faces an especially high risk because genital mutilation is commonly performed between the ages of six months and nine years. [28] The appellant argues that the RPD erred in finding that the treatment she fears in Mali as a result of her opposition to her daughter's excision does not constitute persecution. She invokes the definition of persecution in the Living Webster Encyclopedia Dictionary, which refers to the fact of being harassed, afflicted or punished with repeated acts of cruelty or annoyance. She refers to the Federal Court decision in Annan v. Canada,8 which describes excision as a cruel and barbaric practice, a horrific torture and atrocious mutilation. She recalls that the Federal Court decided that psychological violence and harassment with threats can be elements in persecution. She argues that the international instruments such as the Declaration on the Elimination of Violence Against Women must be considered when determining whether the conduct of an agent of persecution toward a woman is permissible. [29] The RPD's conclusion is given in paragraph 12 of its reasons for decision. The RPD states the following before citing an excerpt from the Rapport de mission : les mutilations génitales féminines au Mali, 2008 [mission report: female genital mutilation in Mali], published by the Office français de protection des réfugiés et apatrides [French office for the protection of refugees and stateless persons] (hereafter the OFPRA report):9 [translation] As for the claimant's allegations concerning her fears for her daughter, the panel cannot consider them because her daughter is a Canadian citizen by birth. Therefore, she already enjoys Canada's protection. Moreover, the claimant did not establish that she would have a fear of persecution by opposing her daughter's excision. The claimant's allegation concerns the fact that she would be unable to protect her daughter from excision. In the specific circumstances of this case, even if the claimant returned to Mali with her daughter, the panel concludes that the consequences of opposing her family with respect to her daughter's excision would not constitute persecution. The evidence in the National Documentation Package on Mali reads as follows: .... [30] First, I find that the RPD's reasons are not sufficiently detailed to understand the basis of its decision. In fact, the RPD does not mention which consequences of the appellant's opposition to her daughter's excision it considered or why these consequences do not constitute persecution. [31] Second, it appears to me that the RPD did not consider all of the evidence when it concluded that the appellant had not established a reasonable fear of persecution. [32] The Supreme Court of Canada in Ward10 held that the concept of persecution means the serious denial of a core human right. The Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution states that international instruments such as the Declaration on the Elimination of Violence Against Women ought to be considered when determining whether the conduct of an agent of persecution toward a woman is permissible. [33] There is no doubt that female genital mutilation constitutes persecution, as it is an extreme form of violence against women. The Federal Court in Annan v. Canada11 describes excision as a cruel and barbaric practice and a horrific torture. The Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution indicates that the concept of persecution includes certain experiences typically experienced by women, including genital mutilation. [34] Moreover, I accept the appellant's argument that there may be persecution even without physical mistreatment.12 It has been established that psychological violence and harassment with threats may be elements in persecution.13 Article 2 of the Declaration on the Elimination of Violence Against Women states that violence against women shall be understood to encompass physical, sexual and psychological violence occurring in the family and within the general community. [35] In this case, the appellant testified that she would be unable to protect her daughter at all times because she would have to go to daycare or school. She fears not only her aunts who excised her, but also every community member who believes they would be doing her a favour by excising her daughter, even without her consent. She therefore could not guarantee the safety and protection of her daughter because many people in Mali support excision. She explained that she could not trust anyone and that it would only be a matter of time before she was trapped. Moreover, she stated that people continue to ask her parents when she is returning to the country so that they can carry on traditions by excising her daughter. [36] There is no doubt that the appellant is strongly opposed to the excision of her daughter and that she will oppose it. [37] The Minister argues that the RPD properly assessed the risks of persecution concerning parents who oppose the excision of their young daughter, as the evidence in the National Documentation Package on Mali mentions that parents are not subjected to physical violence, and that the information gathered does not suggest that family rejection amounts to persecution. [38] With respect, I do not accept the Minister's arguments, for the following reasons. [39] First, if the appellant returned to Mali, she would be harassed by family members and the Soninke community and rejected by them if she opposed her daughter's excision. According to the above-mentioned OFPRA report, parents who express their opposition to excision may face considerable rejection by their family, as well as [translation] "resistance and a violent response," even if there is no physical violence. It states that rejection by a person's family is a serious act in Mali, where [translation] "a person is no one without their family."14 [40] In this particular context, there is a serious possibility that the appellant would be especially vulnerable to systemic discrimination or even acts of violence resulting from her non-conformity to accepted social norms. The psychological violence and harassment with threats awaiting her are elements in persecution, even in the absence of physical violence. I conclude that her opposition to her daughter's excision will potentially place the appellant in a situation of serious harm. [41] Second, the appellant's testimony and the documentary evidence preponderantly establish that the appellant faces a real risk of her daughter being excised without her knowledge. The OFPRA report reads as follows: [translation] ... The main risk faced by parents is having their daughter excised without their knowledge.15 [42] This means that the appellant will have to live with the constant and crippling fear of being unable to protect her daughter from this act of torture. It is horrible to think that the appellant would have to live under the constant threat and pressure of fearing that her daughter would be mutilated by force. In my opinion, this objectively despicable situation could cause her repeated and persistent harm that could endanger her safety. [43] Third, given the high risk of being unable to avoid having her daughter excised against her will, the appellant faces a serious possibility of persecution by having to witness her daughter's suffering and the ravages of excision. [44] In this regard, I rely on Modeste,16 in which the Federal Court stated that a minor refugee protection claimant had a well-founded fear of persecution by having to witness the extreme violence inflicted on her mother by her father, even though she herself was not a victim of that violence. The Court indicates in paragraph 30 that a child who witnesses horrendous acts of violence against her mother is herself a victim of mistreatment. [45] I also refer to Mohamoud,17 in which the Federal Court cites the Guidance Note on Refugee Claims Relating to Female Genital Mutilation, published by the United Nations High Commissioner for Refugees in May 2009. Paragraph 11 of the Note specifically addresses the issue of a parent who claims refugee protection in his or her own right based on a fear of being forced to witness the mutilation and the pain and suffering of the child. [46] Fourth, the appellant states that she was traumatized by her own excision and fears that her daughter's excision would be a second trauma for her. The medical certificate that she filed indicates that she underwent a clitoral excision as a child.18 [47] The appellant describes the lasting trauma of the excision in her BOC Form, as follows: [translation] Believe me, the consequences of excision are real, and I live with them every day of my life. I hid it for a long time, and sometimes I even deny it. This practice has made me a slave in my own body. The psychological consequences are very harmful because they last an entire lifetime. Sometimes, I feel depressed when I think about my life without a clitoris. In the past, I often thought of taking my life, but my faith in GOD has helped me be strong and accept my situation. I am now condemned to living with a disability. My sex life is very complicated, and I have no sexual feeling. I have only been with one man in my life, and that man is my husband. I live not only with a physical scar on my vagina, but also a mental scar. I want to avoid this trauma for my daughter, who has constantly fought for her life since she was born: my daughter was born prematurely, with a heart defect and a skeletal disorder. I absolutely have to prevent her from undergoing excision. I am claiming refugee protection and protection in Canada. I cannot return to my country with my daughter. It would mean sending my daughter directly for excision. I could not go through this trauma a second time. [translated as it appears in the French version]19 [48] I have no reason to doubt the appellant's credible account when she describes her own trauma and the physical and mental health problems caused by her own excision. Her statements about the permanent and ongoing nature of the harm caused are corroborated by the documentary evidence on the record.20 [49] In my opinion, the combined effect of all the above-mentioned factors leads me to conclude that the appellant demonstrated that she faces a serious possibility of being subjected to psychological violence of such magnitude that it reaches the threshold of persecution within the meaning of the Convention, considering her particular situation as an excised woman. The appellant's return to Mali would subject her to a fundamental violation of her human dignity. [50] For all these reasons, I find that the RPD's decision is incorrect. It appears that the RPD erred by concluding that the consequences of her opposition to her daughter's excision in Mali would not constitute persecution. [51] This error is determinative of the appeal. II. II. Did the RPD err in concluding that the appellant did not establish an objective basis for her fear of being excised a second time? [52] In my opinion, it is not necessary to answer the question raised by the appellant concerning her fear of being excised a second time given that my conclusion regarding the first question is determinative. SUBSTITUTION OF THE DETERMINATION [53] In this case, I am able to substitute the determination that, in my opinion, should have been made by the RPD for the following reasons. Having reviewed the entire record and listened to the testimony of the appellant and her husband on the audio recording of the RPD hearing, I find that the appellant's credibility has been established. Like the RPD, I find that her sworn testimony and her written account in the BOC Form are credible and are corroborated by the documents that she submitted. [54] The appellant demonstrated, on a balance of probabilities, that she faces a serious possibility of persecution by reason of her membership in a particular social group, in application of the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. [55] The appellant rebutted the presumption of state protection in that there is no law prohibiting the practice of genital mutilation in Mali, a country where 85.2% to 91.6% of women undergo excision. These figures demonstrate that the government does not protect its female citizens from the very widespread practice of excision. The state tolerates this customary practice, as it does not impose legal sanctions on perpetrators or prosecute them. In this context, it is clear that the appellant could not rely on the state for adequate protection to prevent her daughter from being excised by a family member or to avoid being subjected to harassment, threats, intimidation and rejection herself. [56] As for the issue of an internal flight alternative (IFA), the appellant testified that there is no safe place in Mali where she could settle with her daughter and be entirely safe. Her family members have many connections and could find them wherever they are. She stated that people have asked her parents when she is returning to the country so that they can carry on the tradition. In this context, there is reason to believe that there is a serious possibility that the agents of persecution will pursue them everywhere in Mali. [57] Furthermore, the documentary evidence indicates that the practice of excision is widespread across Mali and is deeply rooted in sociocultural norms, and that the appellant faces a form of ostracism that very few women can overcome on their own.21 [58] Consequently, I conclude that there is no IFA in Mali. [59] For all these reasons, I determine that the appellant has established that she is a Convention refugee. DETERMINATION [60] For these reasons, I set aside the RPD's determination and substitute the determination that, in my opinion, should have been made, namely, that XXXX XXXX XXXX is a Convention refugee under section 96 of the IRPA. [61] The appeal is allowed. Marie-Louise Côté Me Marie-Louise Côté June 7, 2017 Date IRB translation Original language: French 1 Type 1 excision: removal of the clitoris. 2 Type 2 excision: removal of the labia majora. 3 Minister of Citizenship and Immigration v. Huruglica, March 29, 2016; 2016 FCA 93. 4 RAD decision rendered on May 17, 2017, and amended on May 23, 2017, in TB6-03419. 5 Electronic recording of the hearing on March 29, 2016, from 00:09:30 to 00:09:45. 6 Electronic recording of the hearing on March 29, 2016, from 01:09:50 to 01:12 :02. 7 National Documentation Package Mali, July 31, 2015, Tab 2.1: United States. Department of State, Mali. Country Reports on Human Rights Practices for 2014, June 25, 2015; Tab 5.1: Organisation for Economic Cooperation and Development, Mali. Social Institutions (etc); Tab 5.4: France. Office français de protection des réfugiés et apatrides [French office for the protection of refugees and stateless persons], Rapport de mission: les mutilations génitales féminines au Mali, 2008 [mission report: female genital mutilation in Mali, 2008]. 8 Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25. 9 National Documentation Package on Mali, July 31, 2015, Tab 5.4: France. Office français de protection des réfugiés et apatrides, Rapport de mission : les mutilations génitales féminines au Mali, 2008. 10 Ward v. Canada (Attorney General), [2002] 1 S.C.R. 569. 11 Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25. 12 Ammery, Poone v. S.S.C., [1994] F.C.J. No. 676. Herczeg v. Minister of Citizenship and Immigration, 2007 FC 2000. 13 Bragagnini-Ore v. S.S.C. (F.C.T.D., No. IMM-2243-93), Pinard, February 4, 1994. 14 RPD record, page 148. 15 National Documentation Package on Mali, July 31, 2015, Tab 5.4: France. Office français de protection des réfugiés et apatrides, Rapport de mission : les mutilations génitales féminines au Mali, 2008, page 83. 16 Modeste v. Minister of Citizenship and Immigration, 2013 FC 1262. 17 Mohamoud v. Minister of Citizenship and Immigration, 2015 FC 1408, paragraph 30. 18 RPD record, page 299. 19 RPD record, page 15. 20 The long-term physical and mental health problems associated with genital mutilation are described in the letter from the appellant's sister dated March 17, 2016, at page 301 of the RPD record, and in the UNICEF document titled L'excision - une pratique lourde de conséquences [excision - a practice with serious consequences], at pages 303 to 305 of the RPD record. 21 National Documentation Package on Mali, July 31, 2015, Tab 5.4: France. Office français de protection des réfugiés et apatrides, Rapport de mission : les mutilations génitales féminines au Mali, 2008, page 31. --------------- --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB6-02283 14 RAD.25.02 (2014.09.11) Disponible en français