MC0-00639

RAD File No. / No de dossier de la SAR : MC0-00639 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 Montréal, QC Appel instruit / entendu à Date of decision March 17, 2021 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Sami Louzi 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 INTRODUCTION [1] XXXX XXXX XXXX, you are a citizen of the Republic of Congo and you declare that you fear your jealous and violent husband.1 [2] The Refugee Protection Division (RPD) rejected your refugee protection claim after finding you not credible.2 [3] On appeal, you submit that the RPD did not observe the principles of natural justice and procedural fairness and that it did not conduct a neutral assessment of the facts by considering the context. You also submit that it erred in not analyzing the fundamental issue, that is, gender-based persecution.3 [4] After analyzing your record, I conclude that the RPD did not err as you allege. Given this conclusion, your appeal is dismissed. ANALYSIS OF THE APPEAL [5] The role of the Refugee Appeal Division (RAD) is not to carry out a de novo consideration of refugee protection claims, but to determine whether the RPD erred as alleged.4 [6] I conducted my own analysis of your record, namely by reading the RPD hearing transcript,5 reading the documentary evidence and considering Chairperson's Guideline 46 and Chairperson's Guideline 7.7 I concluded that the correctness standard of review should be applied.8 A. The errors that, in your opinion, the Refugee Protection Division committed [7] Subparagraph 3(3)(g)(ii) of the Refugee Appeal Division Rules stipulates that the appellant's memorandum must include (i) the errors that are the grounds of the appeal, and (ii) where the errors are located in the RPD's decision or in the transcript of any audio or other electronic recording of the hearing.9 [8] In your memorandum, you submit that the RPD: - breached the principle of natural justice and procedural fairness concerning legitimate expectation, that is, that it should accept a refugee protection claim where testimony is consistent and plausible, even if there are contradictions that are unimportant or were explained;10 - did not consider or truly account for Guideline 4, even though you fear gender-based persecution;11 - conducted a narrow analysis of the testimonial and documentary evidence, which led to its biased conclusion;12 - chose to conduct a selective analysis of the evidence, instead of keeping the open mind required to make a reasonable decision, which prevented it from being able to objectively and efficiently assess your fear.13 B. The Refugee Protection Division did not err as you allege [9] With all due respect, according to my own analysis of your record, the RPD did not err as you allege. This is why. The principles of procedural fairness [10] When procedural fairness is an issue, the specific circumstances of the case must be considered.14 In a refugee protection claim context, procedural fairness aims to ensure that refugee protection claimants understand the proceedings, have a reasonable opportunity to tender any evidence that supports their claim and are given a chance to persuade the RPD that their claims are well-founded.15 The issues related to a refugee protection claim are very important. It is therefore necessary to ensure that the procedure provides refugee protection claimants with an opportunity to put forward their views and the evidence that must be considered by the decision-maker.16 [11] Referring to these principles, I am of the view that the RPD observed the principles of procedural fairness. As set out in Chairperson's Guideline 7, the member read the documents submitted and was well prepared when she arrived in the hearing room. She asked you relevant questions about your various statements, including those made when you arrived in Canada. She carefully listened to your answers and your counsel's submissions. And she based her decision on all of the evidence, including your testimony and the documentary evidence. [12] In my opinion, the legitimate expectation you refer to in your arguments does not constitute a principle of natural justice and procedural fairness. In any event, in your case, considering your credibility issues, you have no claim to such an expectation. Chairperson's Guideline 4 [13] It is important for the RPD, as it is for the RAD, to listen with sensitivity and compassion to claims for refugee protection where it is alleged that a woman is a victim of violence.17 Guideline 4 indicates that women who have suffered sexual violence may exhibit a pattern of symptoms referred to as Rape Trauma Syndrome, and may require extremely sensitive handling.18 The RPD, like the RAD, must avoid relying on stereotypes when it renders decisions in such refugee protection claims.19 That being said, Chairperson's Guideline 4 cannot be used to rebut findings that are reasonable and based upon the evidence.20 [14] I have carefully read the hearing transcript. According to my analysis, the RPD asked its questions, allowed your counsel to ask you questions, and listened to your answers (especially with regard to the violence you allegedly suffered at the hands of the person you claim is the father of your children)21 as well as your counsel's submissions. It considered everything and then wrote its decision, while remaining sensitive to your allegations of having suffered spousal abuse. [15] When a person alleges that they suffered family violence or were tortured, their testimony can raise credibility issues. In such cases, the RPD must remain diligent, as doubts may arise regarding what is alleged and what actually happened. On the other hand, some people do falsely claim to be victims of such situations. The RPD must therefore strike the right balance, and conduct an in-depth analysis of the refugee protection claim that does not re-traumatize the refugee protection claimant. In my opinion, the RPD managed to strike that balance. I am of the view that the RPD did not err with regard to considering and applying Chairperson's Guideline 4. Your credibility [16] When they swear to the truth of certain allegations, refugee protection claimants are presumed to tell the truth. However, this presumption is rebuttable where the evidence is inconsistent with the applicant's sworn testimony.22 The RPD may make credibility findings based on implausibility, inconsistencies, or omissions. It is the entirety of the evidence available that must be assessed.23 [17] In its decision, the RPD explains its reasons for finding you not credible with regard to your relationship with your agent of persecution or the events that led you to claim refugee protection: - the contradiction between your testimony and what your ex-husband wrote about where you would meet, and the fact that your explanation on this matter was not satisfactory;24 - the contradiction between the address in your visa record and in the IMM 0008 form and the address where you allegedly lived with your agent of persecution from 2008 to 2018, and the fact that your explanation on this matter was not satisfactory;25 - the identical signature on all four statements you filed in evidence and the fact that your explanation on this matter was not satisfactory.26 [18] In your memorandum, you submit that the RPD erred in choosing to conduct a selective analysis of the evidence instead of keeping the open mind required to make a reasonable decision. This prevented it from being able to objectively and efficiently assess your fear. In my opinion, and with all due respect, your argument is without merit. [19] The statements you made in your visa application and in your immigration forms are not trivial, meaning that they have no importance. [20] I understand that you declared that the information in your visa application was false.27 However, when you completed that application, you clearly declared that you provided complete and correct answers to all of the questions. In those answers, you declared that you had been married to XXXX XXXX XXXX since XXXX XXXX XXXX 2016, and that, at the time you applied, your mailing address was XXXX XXXX XXXX XXXX in Brazzaville.28 The documents that accompanied that visa application include a marriage certificate issued by the commune of XXXX XXXX XXXX indicating that you married XXXX XXXX XXXXon XXXX XXXX XXXX 2016.29 There is also a record of civil status issued by the commune of XXXX XXXX XXXX on XXXX XXXX XXXX 2018, indicating that you lived with your husband and three children.30 [21] Furthermore, in the IMM 5669 form you completed on April 8, 2019, you declared that you resided at XXXX XXXX XXXX in Brazzaville from XXXX 2011 until XXXX 2019.31 [22] At the hearing, the member asked you about the address where you lived with XXXX XXXX XXXX, who, according to your Basis of Claim Form (BOC Form), is a XXXX who was frustrated about not getting a promotion and became violent toward you in XXXX 2017.32 You answered that the address was XXXX XXXX XXXX in the XXXX XXXX XXXX XXXX XXXX XXXX neighbourhood. When confronted with the fact that you did not mention this address in your IMM 5669 form, you answered that your mind was all over the place when you filled out that form.33 However, in signing the form, you declared that the information in it was complete, true and correct, and that you knew that the declaration had the same force and effect as if made under oath. [23] Information in forms completed at Canadian ports of entry must be handled carefully. It is an error to impugn a refugee protection claimant's credibility on the sole ground that the information they provided lacks details.34 However, nothing precludes analyzing this information and concluding whether it undermines the truthfulness of their allegations.35 According to my analysis of your record, your credibility was not only undermined because the information you provided in your IMM 5669 form contained major omissions regarding the allegations in your BOC Form. In my opinion, the RPD did not err in any way by taking these omissions into account. [24] But the omissions regarding the address where you allegedly lived with XXXX XXXX XXXX are not the only factors that seriously undermined your credibility. You filed in evidence statements bearing a signature that is entirely identical to the one supposedly belonging to the XXXX of the XXXX borough, XXXX XXXX XXXX XXXX.36 When confronted with this by the member during the RPD hearing, you answered that you did not understand.37 [25] Documentary evidence is not assessed in isolation from the overall claim. Since the RPD found that you were not credible, it was entitled to doubt the credibility of the documentary evidence presented to support your refugee protection claim.38 The weight of evidence is the persuasiveness of some evidence in comparison with other evidence.39 Given the various problems the RPD identified, it could not give these statements any weight or probative value. [26] According to my analysis of the record, considering the various issues the RPD identified, the RPD could not give them any weight or probative value, and it did not err in this respect. CONCLUSION [27] For these reasons, I confirm the RPD's determination that you are not a Convention refugee under section 96 of the Immigration and Refugee Protection Act (IRPA) or a person in need of protection under subsection 97(1) of the IRPA. [28] Your appeal is dismissed. (signed) Alain Bissonnette Me Alain Bissonnette March 17, 2021 Date IRB translation Original language: French 1 Your Basis of Claim Form (BOC Form) is reproduced at pages 11 to 46 and the documents you filed in evidence are reproduced at pages 87 to 111 of the scanned version of the Refugee Protection Division (RPD) record. 2 RPD Reasons and Decision, December 12, 2019, pages 5 to 10 of the scanned version of the RPD record. 3 Your memorandum, January 26, 2020, pages 15 to 26 of the scanned version of your appeal record. 4 Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. Kanawati v. Canada (Minister of Citizenship and Immigration), No. IMM-6486-18, Norris, January 3, 2020; 2020 FC 12, paragraphs 23 and 24. 5 Transcript of the RPD hearing on November 25, 2019, 45 pages. 6 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, effective November 13, 1996. This Guideline is available on the IRB website. 7 IRB, Chairperson's Guideline 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, effective December 1, 2003, amended December 15, 2012. This Guideline is available on the IRB website. 8 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 9 Refugee Appeal Division Rules, SOR/2012-257. 10 Your memorandum, supra endnote 3, paragraphs 7 to 11. 11 Ibid., paragraphs 12 to 16. 12 Ibid., paragraphs 17 to 30. 13 Ibid., paragraphs 31 to 34. 14 Wai Kheong Ching v. Canada (Minister of Citizenship and Immigration), No. IMM-1272-14, Kane, June 9, 2015; 2015 FC 725, paragraph 75. 15 Nemeth v. Canada (Minister of Citizenship and Immigration), No. IMM-2522-02, O'Reilly, May 14, 2003; 2003 FC 590, paragraph 10. 16 Dalirandi v. Canada (Minister of Citizenship and Immigration), No. IMM-3269-19, Roy, February 17, 2020; 2020 FC 725, paragraph 30, citing inter alia the Supreme Court of Canada decision in Baker [1999] 2 SCR 817. 17 Odia v. Canada (Minister of Citizenship and Immigration), No. IMM-1180-13, Gagné, July 8, 2014; 2014 FC 663, paragraph 9. Arachchilage v. Canada (Minister of Citizenship and Immigration), No. IMM-1179-18, Gleeson, October 4, 2018; 2018 FC 994, paragraph 29. 18 Chairperson's Guideline 4, supra note 6, point 3, section D. Special Problems at Determination Hearings. 19 Velasco Chavarro v. Canada (Minister of Citizenship and Immigration), No. IMM-3453-19, Brown, February 26, 2020; 2020 FC 310, paragraphs 18 to 26. 20 Liang v. Canada (Minister of Citizenship and Immigration), No. IMM-3335-19, Russell, January 23, 2020; 2020 FC 116, paragraph 33. 21 Hearing recording, supra endnote 5, pages 16 to 19. 22 Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, paragraph 21. 23 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, paragraphs 22 and 27. 24 RPD Reasons and decision, supra endnote 2, paragraphs 9 and 10. 25 Ibid., paragraph 11. 26 Ibid., paragraph 12. 27 Hearing transcript, supra endnote 5, pages 26, 27 and 28. 28 This application is reproduced at pages 71 to 75 of the scanned version of the RPD record. 29 This marriage certificate is reproduced at page 108 of the scanned version of the RPD record. 30 This record of civil status is reproduced at pages 109 and 110 of the scanned version of the RPD record. 31 This form is reproduced at pages 59 to 62 of the scanned version of the RPD record. 32 Your BOC Form, pages 21 to 46 of the scanned version of the RPD record. 33 Hearing transcript, supra endnote 5, pages 30 to 33. 34 Cetinkaya v. Canada (Minister of Citizenship and Immigration), No. IMM-3362-11, Russell, January 4, 2012; 2012 FC 8, paragraph 51. 35 Muhendanganyi v. Canada (Minister of Citizenship and Immigration), No. IMM-1436-14, Harrington, March 4, 2015; 2015 FC 269, paragraph 13. 36 These statements (P-1) are reproduced at pages 87 to 95 of the scanned version of the RPD record. 37 Hearing transcript, supra endnote 5, pages 33 and 34. 38 Ogaulu v. Canada (Minister of Citizenship and Immigration), No. IMM-3862-18, McDonald, April 30, 2019; 2019 FC 547, paragraph 26. Jean v. Canada (Minister of Citizenship and Immigration), No. IMM-836-19, Mosley, September 3, 2019 ; 2019 FC 1127, paragraph 23. 39 Magonza v. Canada (Minister of Citizenship and Immigration), No. IMM-1506-18, Grammond, January 7, 2019; 2019 FC 14, paragraphs 27 to 31. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-00639 RAD.25.02 (January 2020) Disponible en français 9 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