MB7-06344

RAD File No. / No de dossier de la SAR : MB7-06344 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 Ottawa, Ontario Appel instruit à Date of decision July 17, 2019 Date de la décision Panel Me Philippe Rabot Tribunal Counsel for the person who is the subject of the appeal Me Patrick Fernandez 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] The appellant, XXXX XXXX XXXX, a citizen of the Democratic Republic of the Congo (DRC), is appealing against the decision of the Refugee Protection Division (RPD) to reject her refugee protection claim. According to the appellant, her uncle wanted to force her to marry one of his friends, even though she was opposed. The RPD found that the evidence failed to establish that the appellant's uncle had taken concrete steps to carry out the marriage plans. Also, the appellant's testimony was not credible because it was laborious and gave the impression that the story had been learned by heart. The appellant is challenging the RPD's description of her testimony, explaining that her lack of spontaneity was because she has a XXXX problem. However, I do not consider that the appellant's disability sufficiently explains the gaps in her testimony or the inconsistencies in the evidence regarding the events that allegedly occurred. The RPD had reason to find that the evidence failed to establish that the appellant's uncle still wanted to go ahead with the plans for a forced marriage. Therefore, the appeal is dismissed. BACKGROUND [2] Beginning in XXXX 2014, when the appellant's father died, her uncle allegedly informed her that she was going to have to marry one of his friends. The appellant tried to oppose this, but her uncle allegedly told her that she had no choice. [3] Therefore, it was apparently to escape this forced marriage that the appellant left the DRC in May 2016 and came to Canada on a study visa. She took courses at Université XXXX XXXX XXXX [XXXX XXXX XXXX university] in the XXXX of 2016 but had to abandon her studies for financial reasons. It was then that she claimed refugee protection. [4] In its written decision,1 the RPD found that the appellant's uncle had taken no steps to bring about the marriage between his friend and the appellant. For example, the appellant's testimony showed that there had been no payment of a dowry and that no wedding date had been set. The RPD also found that the appellant's testimony [translation] "was not trustworthy with regard to the key elements of her refugee protection claim because of significant contradictions and vague, evasive and shifting answers," describing this testimony as "laborious, in that she did not directly answer the question asked" and giving the impression "of a story learned by heart." While acknowledging that the panel was aware that the appellant had a XXXX problem, the RPD stated that it had been able to [translation] "easily differentiate between the moments when she had to take the time to get the words out and formulate her answer and the moments when she seemed to be searching for an answer to give by looking at her counsel, by looking to the right and left, or by playing with her bracelets." [5] In her appeal memorandum,2 the appellant accuses the RPD of being unfair in its assessment of her testimony by underestimating the impact that her XXXX problem could have on her ability to testify spontaneously. Also, she accuses the RPD member of taking a hostile attitude towards her during the hearing, which greatly increased her stress level. Lastly, the appellant argues that it was an error on the part of the RPD to rely on the documentary evidence regarding the marital rites of her tribe, the Luba, because it refers to arranged marriages, not a forced marriage like the one that her uncle wanted to impose on her. DETERMINATIVE ISSUES [6] I consider that there are two issues I need to decide. The first is whether the RPD member's behaviour towards the appellant during the hearing gave rise to a denial of natural justice. The second issue has to do with the correctness of the RPD's finding regarding the evidence to demonstrate that the appellant's uncle intended to go ahead with the plans for a forced marriage to one of his friends. SCOPE OF THE APPEAL [7] The Refugee Appeal Division reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule concerns the RPD's findings in assessing the credibility or weight to be given to the oral evidence it hears, in situations in which it enjoyed a meaningful advantage. [8] In this case, I am of the opinion that there are no findings for which the RPD enjoyed a meaningful advantage. Therefore, I have applied only the correctness standard. MERITS OF THE APPEAL The behaviour of the Refugee Protection Division member [9] I am concerned by the tone of some of the comments in the RPD decision and the way in which the RPD member approached the examination of the appellant at the hearing. I think that she could have demonstrated more finesse. In the circumstances, I fully understand that the appellant would have found the member's behaviour intimidating. [10] Nevertheless, I listened to the recording of the RPD hearing in its entirety, and I must acknowledge that the appellant's testimony left much to be desired. Specifically, I find that the RPD was correct in pointing out that the appellant often gave answers that had nothing to do with the questions she had been asked. Indeed, there is an overall impression of a lack of sincerity that arises from the appellant's testimony, which has nothing to do with a lack of spontaneity in her answers or the difficulties attributable to her XXXX problem. [11] I note that the RPD member gave the appellant many opportunities to try to clarify key elements of her claim, including with regard to the wedding preparations. It seems to me that the appellant had no useful information to submit in this regard, which is surprising given the fact that she remained in the DRC for more than a year and a half after her uncle had shared his intentions with her. There was no denial of natural justice, since the appellant had ample opportunity to be heard with regard to the key elements of her claim. Evidence that the planned marriage was going to take place [12] I recognize that the appellant's testimony initially benefits from the presumption of truthfulness.3 The fact remains, however, that this is a rebuttable presumption, particularly if there are inconsistencies or contradictions in the evidence with regard to basic elements of the record. In this case, the appellant's testimony merely established that in 2014 her uncle had informed her of the planned marriage with a friend, that she had allegedly expressed her disagreement, but that her uncle had still apparently insisted that the marriage take place. All of that allegedly occurred in 2014, well before the appellant left the DRC. [13] An important question that remains unanswered, despite being put to the appellant several times, is what allegedly happened after that to make her believe, when she left for Canada in May 2016, that the planned marriage was still going ahead. The fact that the appellant remained in the DRC for more than a year after her uncle had allegedly told her about the planned marriage is in itself very surprising. Clearly, the appellant saw no pressing need to leave her country. [14] The appellant apparently had the opportunity to leave the DRC much sooner than she did, since she had in her possession in XXXX 2015 a letter of acceptance from a Canadian university. Yet, she then waited one year before submitting her visa application. Why did the appellant not apply for her visa sooner? The appellant did not want to say. What events allegedly occurred in the intervening period that finally convinced her to act? Once again, the appellant had no explanation to offer, even though she was asked the question. [15] In short, I am of the opinion that the RPD had reason to find that the appellant was not credible in claiming that her visa application for Canada was related to her uncle's attempts to impose a forced marriage on her. CONCLUSION [16] I conclude that, if the appellant were to return to the DRC, she would not be subjected to a serious possibility of being forced to marry the individual to whom she was once promised by her uncle. Therefore, she cannot be recognized as a refugee. [17] The appeal is therefore dismissed. (signed) Philippe Rabot Philippe Rabot July 17, 2019 Date IRB translation Original language: French 1 RPD-1, Refugee Protection Division record, pages 3 to 11. 2 P-2, Appeal record, pages 3 to 7. 3 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB7-06344 RAD.25.02 (April 4, 2019) 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 (April 4, 2019) Disponible en français