MB8-04510

RAD File No. / No de dossier de la SAR : MB8-04510 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 October 8, 2019 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the person who is the subject of the appeal Me Richard Wazana 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] This is the appeal filed by XXXX XXXX XXXX, a citizen of Togo, against a decision of the Refugee Protection Division (RPD) rendered on December 1, 2017, rejecting her refugee protection claim. [2] The appellant claims that she fears returning to Togo. She states, [translation] "I don't know what these men want to do to me, and my parents don't protect me." This single file contains a Basis of Claim Form1 (BOC Form), which the Immigration and Refugee Board of Canada office received on January 21, 2016. The appellant subsequently filed an amended three-and-a-half page account on March 4, 2016.2 In her BOC Form, the appellant indicates at question 2a) that she was attacked twice at the age of 16 and 22. The first incident was an attempted kidnapping in the early evening on XXXX XXXX, 2009. The second incident was when two men entered the home and allegedly raped her. She adds that these people might have been crooks or police officers. [3] At question 2h) on the form, the first incident was on XXXX XXXX XXXX 2009, and she adds that she did not get into the car. For the second incident, she continues by writing that three men entered the home and that two of them sexually assaulted her. [4] At line 10 of the amended account, the appellant notes that she is correcting the first incident from 2009 to 2007. At line 18, she describes this: The second attack occurred in 2013, I believe in August [translated as it appears in the French version]. Then, at line 23 of the amended account, she notes that she wrote two men because she mentions that she saw only two while the third one was in the living room. [5] She continues her account by mentioning that a few days after the incident, she had some bleeding and went to the clinic alone. She allegedly returned there three or four times. Her physical condition deteriorated at the beginning of 2014, and she received treatment until November 2014. [6] She went to Accra, in the neighbouring country of Ghana, for a few days on three occasions for her safety and returned to her family home. Lastly, her father decided to send her to study in Canada and bore the costs. She arrived in Canada on XXXX XXXX XXXX 2015. However, in November 2015, her father stopped paying for the courses. She searched on the Internet and was advised to file a refugee protection claim. She went to an immigration office on December 14, 2015, and submitted her file on January 19, 2016. [7] The RPD rejected the appellant's refugee protection claim because it found that the appellant was not credible and that she was not personally targeted. [8] On appeal, the appellant submits the following arguments: 1. The RPD erred by concluding that the appellant is not persecuted. 2. The RPD erred by noting that the appellant does not face a risk of persecution based on her particular social group in Togo. 3. The RPD erred by concluding that the appellant was not persecuted, despite her suffering caused by a group of rapists. 4. The fact that she did not report the crime to the police is a combination of cultural shame and the belief that the authorities would not help her. 5. The psychological report indicates the problems after the rape and the fear of being mistreated again. [9] Other jurisprudential points are raised in the appellant's memorandum. [10] The appellant is asking the RAD to consider all the evidence submitted, to substitute the determination and to grant her refugee status. Also, with all the evidence submitted and the application of the legislation, to recognize the appellant as a refugee. Finally, that the matter be referred to the RPD for re-determination by a differently-constituted panel. [11] The appellant is not asking to present new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA)3 and does not want an oral hearing to be held pursuant to subsection 110(6) of the IRPA. [12] The Minister's representative did not intervene in this appeal. DETERMINATION [13] Under subsection 111(1) of the IRPA, the RAD sets aside the determination and refers the matter to the RPD for re-determination by a differently-constituted panel. [14] The appeal is allowed. SCOPE OF THE APPEAL [15] For questions of fact, of law, and of mixed fact and law, the RAD must apply the standard of correctness in accordance with Huruglica.4 [16] I conducted an independent analysis of all the evidence on the record, after listening carefully to the hearing, in order to form my own opinion about this refugee protection claim and to determine if the decision rendered by the RPD is correct. ANALYSIS [17] Having reviewed all the testimonial and documentary evidence on the record, the RAD concludes that no in-depth analysis was conducted and that basic questions concerning the alleged facts and issues concerning the appellant's past and future fear were missed. [18] The appellant is of the opinion that the RPD failed to adequately assess her fear of persecution, undermining the analysis of the record, and that the impact of this on the decision was such that she would not be persecuted in her country. [19] The very essence of this case lies in the appellant's credibility. Despite this, after a brief examination, the RPD member told the appellant that credibility was not an issue and added that he was satisfied with this. He turned it over to the appellant's counsel by stating that he wanted an analysis of the situation of abused women in the country. [20] The appellant's counsel then asked the appellant questions. She testified on different topics and added that she believed the three individuals who tried to abduct her came back to her home to rape her. She added that she was not certain about that. The member, noting an addition to the account, quickly questioned the appellant's credibility and reconsidered his previous decision to not refer to her credibility. [21] The RPD's decision is rather odd and terse on the topic of the two events alleged by the appellant. In paragraphs 15, 16 and 17, the decision maker confirms that the appellant suffered the abuse in her account. He appears to put a lot of faith in the submitted account, which was not questioned much at the hearing. The RAD understands that the arguments in the RPD's decision confirm that the appellant falls under the particular social group of women pursuant to section 96 of the IRPA. It is only at the end of paragraph 17 of the RPD's decision that the member writes, [translation] "Her behaviour in staying in the same house and continuing her studies does not show a subjective fear of persecution in Togo." [22] Afterwards, the RPD member assessed the persecution. In this case, he added that the persecution must be part of a systematic or continuing treatment. According to him, this was an isolated rape. He concluded that he was not satisfied that [translation] "the claimant's return to Togo would not subject her to a serious possibility of persecution or a probability of being killed, tortured or subjected to a cruel and unusual treatment." Ultimately, paragraph 21. The RAD cannot accept such conclusions without having questioned the person and analyzed and explained its reasoning. To render a complete decision, it must review the entirety of the record and not just provide general statements. It must also consider the Chairperson's Guideline 4. [23] During the one hour and 59 minute hearing, the RAD noted that the member's introduction lasted over 20 minutes. As he had not read the psychological report, a break was necessary. Then the discussion period began. The member went over the appellant's medical and psychological reports. She answered that she was alright, and that she was sometimes scared but all she wanted to do was study. She did not see a psychologist again, as she did not have the financial means. The member then listed the clinical examinations, the prescriptions and the receipts submitted5 without discussing their content. [24] He briefly asked about the period that followed the July 2013 incident and the medical appointments at the XXXX clinic in Togo, which started on February 21, 2014. She testified that she was ashamed and did not tell her parents. She added that she had to find money. The member asked what she did after the sexual assault. She did not go to the police or call the authorities because she could not decide for herself. She added that the police could not help her and would not do anything. These were the only questions the appellant was asked concerning the assault. Therein lies the problem: there should have been a deeper analysis of the allegation of sexual assault. [25] The appellant submitted an information form on January 21, 2016. Then, on March 4 of that year, a second account was submitted, reprising the previous wording and making major corrections. The only issue concerned the reason for the different dates for an event. The response offered was that the appellant had made a mistake. Nothing else. At this point, the member should have asked important questions. [26] No question was asked concerning the two alleged assaults. The member seemed to take for granted that they were true. He even stated that the report submitted6 confirms the past sexual assault without questioning it. Concerning this rape, the first account states that she was assaulted when she was 22 years old, nothing more. The second account states that the rape happened in 2013, she thinks in August. The appellant was asked no questions about the event, the circumstances, or the timing of the incident, which would have a life-long impact on anyone subjected to such an intimate assault. None. This is a glaring insufficiency, as the two accounts are inconsistent and this central topic should have been given special attention. [27] Moreover, the XXXX clinic documents that, according to the appellant, are consultations and treatments following the August 2013 rape, do not support the claims of sexual assault, far from it. There is no mention of rape in the documents. They are gynecological examinations conducted from February 21, 2014, until the fall of the same year, accompanied by prescriptions and samples to be taken. The RPD should have asked questions about these documents. [28] Also, considering the fact that the appellant claims that she was raped in August 2013, it would have been highly preferable that she see a doctor in the hours that followed to undergo a full gynecological exam. She waited six months before doing so. She claimed that her family had to build up a nest egg to see a doctor. This argument does not hold up. The family paid important tuition fees so that she could study English in Toronto. Considering the seriousness of rape, the family should have had their daughter treated promptly. The financial argument does not hold up in this case, unless the alleged event did not happen. The RAD also adds that the appellant, an educated woman, testified that there are government resources available, a human rights organization that protects women. [29] In addition, the psychological report did not receive all the attention that it deserved. The member seemed to take the content of this text for granted. We highlighted important elements that should have been questioned, analyzed and processed before agreeing with the content of a report that should have received consideration. [30] Finally, the last paragraph of the analysis (para. 21 cited above) is incomprehensible. The thorough analysis that every refugee protection claimant's record deserves was not conducted correctly according to standard practices. [31] In the circumstances, the RAD can only refer the matter to the RPD for an in-depth analysis by a differently constituted panel. The future panel must listen to the recording of this first hearing. It is vital that the questioning in this case be resumed from the beginning, while considering the questions and answers provided and the guidelines issued. However, the first hearing, conducted on November 24, 2017, and the complete record remain available for the next panel. REMEDY [32] The RAD refers the matter back to the RPD, giving the directions to the RPD that it considers appropriate, as it concludes that the decision appealed is wrong in law and in fact and that it cannot confirm, set aside or substitute the determination without hearing evidence that was presented to the RPD, pursuant to subsection 111(2) of the IRPA. [33] The RAD is therefore using its discretion under subsection 111(1) of the IRPA and refers the matter to the RPD in accordance with these reasons for decision and the directions stated above. [34] The appeal is allowed. (signed) Michel Jobin Me Michel Jobin October 8, 2019 Date IRB translation Original language: French 1 Exhibit 2, pages 11 et seq. of the court record. 2 Exhibit 5, pages 110 et seq. of the court record. 3 Immigration and Refugee Protection Act (S.C. 2001, c. 27). 4 Canada (Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., No. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 5 Exhibit 5, pages 119 et seq. of the court record. 6 Exhibit 6, pages 140 et seq. of the court record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-04510 RAD.25.02 (April 4, 2019) Disponible en français 8 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 (April 4, 2019) Disponible en français