MB7-08740

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 : MB7-08740 Private Proceeding / Huis clos 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 February 26, 2019 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Jeanne LaRochelle Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre Reasons and Decision ? Motifs et décision REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX, the appellant, a citizen of Djibouti, presented evidence before the Refugee Protection Division1 (RPD) and stated the following: - In 2011, she married a soldier who was a member of the tribe that holds all the power in Djibouti, despite the fact she was from a tribe rejected by the others; her husband drank and was violent and aggressive with her. - In 2015, she asked for and obtained a divorce from him, and he resented her for it; after her father died on XXXX XXXX, 2016, her ex-husband threatened her, demanding that she go back to him. - She fled to Somalia, then returned to Djibouti, managed to get her passport, and despite her ex-husband's threats, she managed to travel to the United States of America, where she arrived on XXXX XXXX, 2017, then made her way to Canada to join a lover.2 [2] The RPD rejected the refugee protection claim. Given the many inconsistencies, omissions and contradictions, it found that the appellant was not credible with regard to her fear of being persecuted by her ex-husband or by reason of her membership in a minority clan.3 [3] The principal appellant argues that there was no valid reason to doubt her credibility.4 The Refugee Appeal Division dismisses the appeal. ANALYSIS OF THE APPEAL [4] The Refugee Appeal Division (RAD) reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to that rule is where the RPD enjoys a meaningful advantage in assessing credibility.5 That being said, the RAD's role is not to carry out a de novo consideration of refugee protection claims, but rather, to determine whether, as the appellants claim, the RPD did indeed err.6 [5] Having conducted my own analysis of the record, notably by listening to the recording of the hearing before the RPD7 and by taking into account the Chairperson's Guideline 4,8 I am of the opinion that the standard of correctness must be applied, given that my own decision requires an analysis of several elements with respect to which the RPD did not enjoy a meaningful advantage based on a first-hand observation of the appellant's demeanour.9 [6] Having applied that standard of review, I find that the appellant's arguments are unfounded and that the correct decision in this case was to reject the refugee protection claim. Here is why. [7] In this case, the crux of the issue is whether the appellant has a well-founded fear of being persecuted by her ex-husband, if she had to return to live in her country. [8] The case law establishes that Guideline 4 ought to be considered by RPD or RAD members in appropriate cases. It is incumbent on RPD and RAD members to exhibit the knowledge required and to apply it in a comprehensive and sensitive manner when deciding issues of violence against women.10 Although the RPD, like the RAD, must be particularly sensitive to the difficulty that certain women who are victims of or who fear becoming victims of violence have when testifying, Guideline 4 is not intended to serve as a cure for all deficiencies in the refugee protection claim or in the documents submitted in evidence.11 A. Credibility undermined by contradictions and omissions [9] During the hearing, the RPD member asked several questions and often pointed out to the appellant that the purpose of the questions was to give her the opportunity to explain her contradictions, inconsistencies or omissions.12 Upon reserving decision, the RPD noted inconsistencies, omissions and contradictions that undermined the credibility of the appellant's allegations regarding her relationship with her ex-husband.13 The RPD also analyzed the documentary evidence on both women living alone and members of minority castes, and ultimately found that the appellant's profile did not correspond to that of women who would have a reasonable fear of being persecuted in Djibouti.14 Consequently, I am of the opinion that the appellant's arguments that the RPD failed to take into account the presumption in law that sworn testimony should be considered truthful unless there are valid reasons to doubt its veracity, are unfounded. I also find her argument that the RPD rendered a cursory decision with respect to her credibility, to be without merit. [10] In her memorandum, the appellant criticizes the RPD for having failed to take into account the context in which the port-of-entry notes were taken.15 Although it is true that care must be exercised with respect to those notes, the RPD did not limit itself to that issue alone. According to my own analysis of the record, the RPD took into account all the contradictions, omissions and inconsistencies and that the RPD found that the appellant's credibility regarding her fear of her ex-husband was undermined. B. The appellant failed to provide reasonable explanations [11] One of the major issues in this case concerns the fact that the appellant's ex-husband allegedly ended up returning her passport to her, after he had gone to her home to take it in order to keep her from leaving him and from fleeing the country. When confronted with the fact that her ex-husband reportedly ended up returning her passport to her in exchange for money, the appellant initially responded that her ex-husband had demanded a lot of money, perhaps thinking that she would not be able to get her hands on that much. She then stated that she had asked her family members to intervene on her behalf and that, after they did, he then demanded a lot of money, telling her that if he ever saw her again, he would kill her.16 I listened to the hearing recording. On this issue, as on many others, the appellant changed her testimony as she went along. Furthermore, the information she provided in her testimony is not included in her Basis of Claim Form (BOC Form). Having conducted my independent analysis, I am of the opinion that the RPD in no way erred in finding that the appellant's explanations for the contradictions, inconsistencies and omissions noted during the hearing are not reasonable.17 C. Being a woman who is a member of a minority clan or who lives alone [12] With respect to her fear as a woman who is a member of a minority clan who would be living alone if she had to return to live in Djibouti, I am of the opinion that the RPD in no way erred in finding that the appellant failed to establish that she would face a reasonable chance of persecution. Furthermore, at the hearing, the appellant acknowledged that she married her ex-husband out of love, even though he was a member of the majority clan, and she a member of a minority clan.18 She also acknowledged that she had gone to school, but never completed high school, and that she had worked, but was never promoted.19 As the RPD noted, those situations amount to discrimination, not persecution. CONCLUSION [13] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX is neither a refugee under section 96 nor a person in need of protection under section 97 of the IRPA. [14] The appeal is dismissed. Alain Bissonnette Alain Bissonnette February 26, 2019 Date IRB translation Original language: French 1 The documents are reproduced on pages 142 to 203, 269 and 270 of the Refugee Protection Division (RPD) record. 2 Basis of Claim Form (BOC Form), May 9, 2017, pages 17 to 27 of the RPD record. 3 RPD's Reasons and Decision, July 13, 2017, pages 3 to 16 of the RPD record. 4 Appellant's memorandum, August 17, 2017, pages 23 to 31 of the appeal record. 5 Canada (Citizenship and Immigration) v. Huruglica, A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. Rozas del Solar v. Canada (Minister of Citizenship and Immigration), No. IMM-2645-17, Diner, November 14, 2018; 2018 FC 1145. 6 Canada (Minister of Public Safety and Emergency Preparedness) v. Gebrewold, No. IMM-4058-17, LeBlanc, April 6, 2018; 2018 FC 374, paragraph 25. Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. 7 Recording of the hearing held before the RPD on June 23, 2017, 00:01 to 02:29:34. 8 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, effective November 13, 1996. This Guideline is accessible on the Immigration and Refugee Board's site. 9 Canada (Minister of Citizenship and Immigration) v. Abdul Salam, No. IMM-5358-17, Grammond, July 3, 2018; 2018 FC 676, paragraph 16. 10 Aziza Mahamat Nour v. Canada (Minister of Citizenship and Immigration), No. IMM-8278-11, Scott, June 25, 2012; 2012 FC 805, at paragraph 37; Higbogun v. Canada (Minister of Citizenship and Immigration), No. IMM-2921-09, Russell, April 23, 2010; 2010 FC 445, at paragraphs 55 to58. 11 Manege v. Canada (Minister of Citizenship and Immigration), No. IMM-4966-13, Kane, April 17, 2014; 2014 FC 374, at paragraphs 29 to 32. 12 Hearing recording, 01:04:30 to 01:06:30 regarding when the appellant left her job; 01:18:30 to 01:19:45 regarding whether or not the appellant had gone to see a doctor after being struck and injured by her ex-husband; 01:42:15 to 01:48:15 regarding contradictions between the appellant's testimony and the contents of the divorce certificate; 01:52:45 to 01:54:00 regarding the fact that the appellant's husband did not want her to leave the country, but that he ended up returning her passport to her in exchange for a sum of money; 01:56:30 to 02:00:30 regarding the date on which the appellant was allegedly struck by her ex-husband; 02:07:40 to 02:09:20 regarding the attempted sexual assault by her ex-husband that was not mentioned in the BOC Form. 13 RPD's Reasons and Decision, paragraphs 20 to 57, pages 7 to 14 of the RPD record. 14 Ibid., paragraphs 58 to 67, pages 14, 15 and 16 of the RPD record. 15 Appellant's memorandum, paragraphs 13 to 20, pages 27 and 28 of the appeal record. 16 Hearing recording, 01:52:45 to 01:55:30. 17 RPD's Reasons and Decision, paragraphs 26, 27, 32, 33, 40, 41, 43 44, 47, 48, 52, 53 and 54, pages 8 to 13 of the RPD record. 18 Hearing recording, 02:12:15 to 02:14:30. 19 Ibid., 30:40 to 50:00. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB7-08740 6 RAD.25.02 (2014.09.11) Disponible en français